STATE OF NEW JERSEY v. ALGENIS DEJESUS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4601-05T14601-05T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

ALGENIS A. DEJESUS,

Defendant-Appellant.

__________________________________

 

Submitted: April 9, 2008 - Decided:

Before Judges Cuff, Lisa and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-04-364.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Algenis DeJesus was convicted of second degree robbery, N.J.S.A. 2C:15-1; N.J.S.A. 2C:2-6, and acquitted of fourth degree aggravated assault, second degree possession of a weapon for an unlawful purpose, and third degree unlawful possession of a weapon. Two additional counts of fourth degree aggravated assault were dismissed by the State prior to the jury verdict. Defendant was sentenced to a six-year, three-month term of imprisonment subject to a No Early Release Act 85% parole ineligibility term. The appropriate penalties and assessments were also imposed.

Rafael Minaya lived with his family on the first floor of a two-family house at 77 Front Street in Paterson. Defendant and his family lived upstairs. Minaya operated a procurement business. He purchased candy and "Dominican products" from a supplier in North Bergen and delivered the merchandise to his customers. Minaya's customers funded purchases with checks and cash, which defendant stored in a first aid box in his truck. Generally, Minaya hired individuals to assist him in picking up and delivering merchandise. Defendant worked for Minaya for approximately nine months before being fired for refusing to complete a task requested by Minaya. Only defendant and another worker, Fernando Rojas, knew that Minaya stored his cash in the first aid box.

At 5:30 a.m. on July 26, 2002, Rojas and Alvin Alba were working for Minaya. Both were helping Minaya back his delivery truck out of the driveway by signaling that the street was clear of traffic. At that time, Minaya glanced in the right side-view mirror of the truck and noticed defendant approaching him. Defendant opened the passenger door of Minaya's truck, reached in and took the first aid box containing cash receipts, invoices and paperwork. Defendant then retreated to the rear of the truck, out of Minaya's sight.

Thereafter, Minaya glanced in the side-view mirror on the driver side and noticed another individual approaching with a shotgun. Minaya opened his door and kicked the individual in an unsuccessful attempt to seize the shotgun. The attacker ordered Minaya not to move or look at his face. He asked Minaya for the money from the first aid box. Minaya responded that somebody had already taken the box, after which the assailant pushed Minaya to the ground under the truck and held the barrel of the shotgun to Minaya's head. The assailant rifled through Minaya's pockets before entering the cab of the delivery truck.

After three to five minutes, the gunman exited the cab, turned towards the rear of the truck and exclaimed, "okay, let's go." At that time Minaya noticed another man at the rear of the truck, who was restraining Rojas and Alba by holding their hands. This person released his grip on Rojas and Alba and retreated from the scene with the gunman. Minaya arose from the ground, determined that Rojas and Alba were unharmed, and started after his assailants on foot.

Minaya lost sight of his assailants, returned to his residence, awakened his family, and notified them that he had been robbed. Minaya asked his cousin, Darwin Alba (Alvin's brother), to call police because Spanish was Minaya's native language and Alba was more proficient with the English language. Approximately one-half hour after Darwin Alba placed the call to police, a non-Spanish speaking officer arrived at Minaya's residence and questioned Minaya about the robbery. With Darwin Alba translating, Minaya told the officer that defendant had robbed him. Minaya stated that defendant was not wearing a mask, unlike the shotgun-wielding assailant. Minaya could not identify the third assailant. The officer also questioned Rojas and Alvin Alba.

Three days later, the Paterson Police Department contacted Minaya seeking a formal statement of the robbery. Minaya provided an interview to detectives at police headquarters on July 29, 2002. That same day, police arrested DeJesus. Minaya identified DeJesus as one of the perpetrators of the robbery through a photograph and in person at police headquarters.

On appeal, defendant raises the following arguments:

POINT I

THE CONVICTION OF DEFENDANT FOR SECOND DEGREE ROBBERY IS INCONSISTENT WITH HIS ACQUITTALS ON THE AGGRAVATED ASSAULT CHARGES AS ALL OF THESE CHARGES AROSE FROM THE SAME INCIDENT AND SET OF CIRCUMSTANCES.

POINT II

THE CHARGE TO THE JURY IN ITS ENTIRETY WAS CONFUSING, MISLEADING AND PREJUDICED THE DEFENDANT AND THIS IMPROPRIETY WAS COMPOUNDED BY THE MANNER IN WHICH THE COURT RESPONDED TO JURY REQUESTS FOR CLARIFICATION.

POINT III

THE TRIAL COURT ERRED BY NOT GRANTING, SUA SPONTE, A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT IV

THE CONDUCT OF THE PROSECUTOR, WHICH EXCEEDED THE BOUNDS OF PROPER ADVOCACY, DENIED THE DEFENDANT A FAIR TRIAL.

POINT V

THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.

Defendant contends that his acquittal of possession of a weapon for an unlawful purpose, unlawful possession of a weapon and aggravated assault is inconsistent with his conviction of second degree robbery and requires reversal of the judgment of conviction. We disagree.

Our criminal justice system acknowledges not only that inconsistent verdicts will occur but also that such verdicts are acceptable and non-reviewable. State v. Banko, 182 N.J. 44, 56 (2004); State v. Grey, 147 N.J. 4, 11 (1996). The superficial inconsistency of a jury verdict does not undermine the legitimacy of the verdict. Banko, supra, 182 N.J. at 53; Grey, supra, 147 N.J. at 11. Our only focus is whether there is sufficient evidence to support the charge for which defendant was convicted. Banko, supra, 182 N.J. at 56; Grey, supra, 147 N.J. at 10.

Here, the testimony elicited at trial provided a factual basis for the jury to convict defendant of second degree robbery either as a principal or as an accomplice. The testimony certainly established that defendant was the person who removed the money box from the truck, that one accomplice used force to detain Minaya and another accomplice used force to detain Minaya's helpers, and that defendant informed the other two participants of the availability of the money and Minaya's routine. Because the record contains a factual basis for the second degree robbery conviction, it is immaterial that the jury acquitted him of the other offenses.

We are also unpersuaded that the trial judge should have delivered a Clawans charge as requested when the State did not produce Detective Van Sickell and Rojas as trial witnesses. Van Sickell was the detective who took the victim's statement three days after the incident. Rojas was one of the workers present at the scene. Defendant insists that each witness would have testified that Minaya did not identify defendant as his assailant at the scene or within days of the incident, that his failure to contemporaneously identify defendant as the robber undermines Minaya's trial testimony, and that the State failed to call them because their evidence was not favorable to the State.

A reasonable fact-finder at trial would generally expect a party to produce an available witness who could give significant unbiased testimony unless that party feared that the witness's testimony would be unfavorable. Clawans, supra, 38 N.J. at 170. Nevertheless, that expectation is not reasonable in many circumstances:

[S]uch an inference cannot arise except upon certain conditions and the inference is always open to destruction by explanation of circumstances which make some other hypothesis a more natural one than the party's fear of exposure. . . .

 
For an inference to be drawn from the nonproduction of a witness it must appear that the person was within the power of the party to produce and that his testimony would have been superior to that already utilized in respect to the fact to be proved. . . .

 
For obvious reasons the inference is not proper if the witness is for some reason unavailable or is either a person who by his position would be likely to be so prejudiced against the party that the latter could not be expected to obtain the unbiased truth from him, or a person whose testimony would be cumulative, unimportant or inferior to what had been already utilized.

[Ibid.]

Thus, a trial judge may instruct a jury that it may draw an adverse inference against a party only when it is reasonable for that "trial tribunal" to expect that the party would call the witness and he feared that the witness's testimony would be unfavorable. See State v. McBride, 211 N.J. Super. 699, 703 (App. Div. 1986) (finding the trial judge must first find in the particular case that the inference may fairly be drawn).

This court and others have stressed the need for trial courts to exercise caution in authorizing the inference contained in this charge. State v. Velasquez, 391 N.J. Super. 291, 306-07 (App. Div. 2007) (citing Parentini v. S. Klein Dep't Stores, Inc., 94 N.J. Super. 452, 456 (App. Div.), certif. denied, 49 N.J. 371 (1967)). Caution is appropriate because of the variety of reasons, unrelated to fear of the content of the testimony, that may more reasonably explain a litigant's decision to refrain from producing a witness. Id. at 307-08 (citing United States v. Busic, 587 F.2d 577, 586 (3d Cir. 1978), rev'd on other grounds, 446 U.S. 398, 100 S. Ct. 1747, 64 L. Ed. 2d 381 (1980)).

A trial judge should not start with the assumption that an absent witness's testimony must be favorable to either one side or the other and an adverse inference must arise against either. Id. at 308. In many cases the only rational inference to be drawn is that the witness's testimony would not have been helpful to the trier of fact, which is quite different than an unfavorable or adverse inference. Ibid. (quoting United States v. Hines, 470 F.2d 225, 230 (3d Cir. 1972), cert. denied, 410 U.S. 968, 93 S. Ct. 1452, 35 L. Ed. 2d 703 (1973)); Parentini, supra, 94 N.J. Super. at 457. However, an incorrect assumption produces a potential for gamesmanship that rewards the winner by giving unwarranted weight to his or her evidence. Velasquez, supra, 391 N.J. Super. at 308 (citing State v. Callahan, 76 N.J.L. 426, 428 (Sup. Ct. 1908), aff'd, 77 N.J.L. 685 (E. & A. 1909)).

It is well-settled that a judge should evaluate a litigant's decision not to produce a witness by considering the "person," who is the witness, and the content of his or her expected "testimony." Ibid. (citing Parentini, supra, 94 N.J. Super. at 456). When the person is one who cannot testify, may assert a privilege, or is unlikely to give favorable testimony due to bias, the inference is unwarranted because non-production of a witness is reasonably explained by a party's inability to secure the testimony rather than its fear of the content. Ibid.; see also State v. McGraw, 129 N.J. 68, 77-79 (1992) (barring inference against witness who has invoked the privilege against self-incrimination); State v. Carter, 91 N.J. 86, 127 (1982) (discussing the inference and the defendant's right against self-incrimination); Clawans, supra, 38 N.J. at 171 (discussing bias); State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985) (discussing availability of inference), certif. denied, 103 N.J. 495 (1986).

In addition, where the inference is sought from a witness whose expected testimony is unimportant, cumulative, or inferior to testimony already presented on the issue, it is more reasonable to infer that non-production is explained by the fact that the testimony is unnecessary. Velasquez, supra, 391 N.J. Super. at 308-09 (citing Clawans, supra, 38 N.J. at 171).

Here, the record reveals that the detective and Rojas were available to defendant. Although the detective was no longer employed by the Paterson Police Department, the State would have made arrangements for his attendance, if defendant had requested it to do so. As to Rojas, the State and defense counsel had agreed that Rojas would not be called as a witness because he could not identify those involved in the robbery and his testimony would be cumulative. These circumstances did not warrant a Clawans charge.

We are also satisfied that the remaining issues raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Defendant did not object to the re-charge on robbery and accomplice liability provided by the trial judge in response to a request by the jury for clarification on both issues. We discern no error in that supplemental charge. Defendant's contention that the verdict is against the weight of the evidence is not cognizable on appeal because defendant did not file a motion for a new trial. R. 2:10-1. Nevertheless, as related in this opinion, the contention is meritless. We also discern no error in the prosecutor's summation.

We are also unpersuaded that the six-year term of imprisonment imposed by the trial judge is manifestly excessive. The sentence is within the range permitted by law, the judge identified the relevant sentencing factors, assigned appropriate weight to each factor and fashioned an appropriate sentence. State v. Roth, 95 N.J. 334, 364-66 (1984).

The judge gave considerable weight to the absence of prior criminal behavior. The weight accorded to this mitigating factor allowed the judge to impose a term below the mid-point permitted by law. See N.J.S.A. 2C:43-6a(2). We are not persuaded that the facts allowed the trial judge to sentence defendant as a third degree offender.

In State v. Megargel, 143 N.J. 484, 495 (1996), the Court announced a two-part test to guide the discretion of the trial judge when a defendant urges a judge to sentence a defendant in accordance with N.J.S.A. 2C:44-1f(2). The sentencing judge must be clearly convinced that "the mitigating factors substantially outweigh the aggravating factors" and the interests of justice require the downgrade. Ibid.; State v. Moore, 377 N.J. Super. 445, 450 (App. Div.), certif. denied, 185 N.J. 267 (2005).

 
Notably, the judge found that the actions of defendant and his colleagues fell easily within the second degree offense of robbery as contemplated by the Legislature. Therefore, the sentencing judge found that the interest of justice did not require the downgrade. We discern no basis to disagree with this assessment by the trial judge.

Affirmed.

N.J.S.A. 2C:43-7.2.

State v. Clawans, 38 N.J. 162 (1962).

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A-4601-05T1

April 24, 2008