STATE OF NEW JERSEY v. ANGEL LUIS ROBLES

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0170-07T40170-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANGEL LUIS ROBLES,

Defendant-Appellant.

________________________________

 

Submitted May 11, 2009 - Decided

Before Judges Reisner and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-08-1427.

Law Offices of Diaz-Cobo & Pedraza, attorneys for appellant (Maria A. Pedraza, on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Jordan S. Goldsmith, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Angel Luis Robles appeals from his conviction by a jury for two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b; three counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; and two counts of fourth-degree lewdness, N.J.S.A. 2C:14-4b(1). We affirm.

I

These are the most pertinent facts. Three girls friends aged eleven, twelve and thirteen testified that they were having a sleepover at the apartment of one girl's father. At about 1 a.m., the girls were standing in front of the father's apartment building, practicing their cheerleading routines. Defendant called out to them from the second-story window of an apartment across the street. When the girls looked up, they saw defendant standing at the window, naked and masturbating. They shouted to him in English and Spanish that if he did not stop this conduct, they would call the police, but he persisted. One of the girls then called the police from a cell phone.

When the police arrived, the girls identified the apartment from which defendant had exposed himself. Several officers attempted to gain access to that apartment, but defendant would not let them in. Finally, they entered through an unlocked window and arrested him. Both immediately after the crime and at trial, all three girls positively identified defendant as the perpetrator.

In a videotaped statement, defendant admitted appearing in the window with his pants pulled down, but told the police that he did not intend to expose himself to the girls. He contended that he only intended to "flash" his genitals at passing buses on the street, as a "prank." He denied masturbating. In his trial testimony, defendant repeated this explanation and claimed that if the girls saw him, it was an "accident." He also alleged that this incident was the "first time" he had engaged in such behavior.

After the trial judge ruled that defendant had thus "opened up the door" to questioning about his commission of a prior similar offense, defense counsel elicited from defendant on direct examination the fact that six weeks earlier, defendant had pled guilty to lewdness. The prosecutor questioned defendant further about this incident on cross-examination. Defendant explained that the lewdness conviction arose from a 2005 incident in which he and several other men were urinating behind a house and were observed by an eight-year-old child. The prosecutor did not mention this incident, or the prior conviction, in her summation.

During the charge conference, defense counsel argued that the court should not give the jury a charge on the proper use of N.J.R.E. 404(b) evidence, contending it would be prejudicial. The judge rejected this argument and charged the jury on the limited purpose for which they could properly consider defendant's prior lewdness conviction. He also gave the jury a general limiting instruction on the permissible use of prior criminal convictions to affect credibility.

II

On this appeal, defendant presents the following points for our consideration:

POINT I: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY ALLOWING THE STATE TO CROSS-EXAMINE THE DEFENDANT-APPELLANT ON HIS PRIOR CONVICTIONS AND WITHOUT FIRST HOLDING A HEARING PURSUANT TO N.J.R.E. 104(B).

POINT II: THE COURT ERRED IN GIVING THE JURY AN INSTRUCTION RELATING TO [N.J.R.E.] 404(B) EVIDENCE SINCE THE PRIOR CONVICTION WAS OFFERED AS IMPEACHMENT EVIDENCE AND NO PRIOR HEARING WAS HELD AS TO THE ADMISSIBILITY OF THE EVIDENCE FOR PURPOSES OF NEGATING ANY ALLEGED MISTAKE ON THE DEFENDANT'S PART.

POINT III: THE JUDGE ERRED BY DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON HIS INCOMPETENCE TO STAND TRIAL WITHOUT FIRST CONDUCTING AN INQUIRY INTO THE ALLEGATIONS IN ACCORDANCE WITH N.J.S.A. 2C:4-5B.

POINT IV: DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR A COMPETENCY EVALUATION PRIOR TO THE START OF TRIAL.

We decline to address Point Four, without prejudice to defendant's right to raise the issue in a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Having reviewed the entire record, we conclude that defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2). We add the following comments.

In Points One and Two, defendant argues that the trial court erred in allowing the State to cross-examine him about his prior lewdness conviction. Defendant contends that allowing the prosecutor to elicit the details of the crime was unduly prejudicial, N.J.R.E. 403, and in any event the court should have held a N.J.R.E. 104 hearing before admitting the evidence. Because the defense did not raise these issues at the trial, we consider the arguments under the plain error standard. See R. 2:10-2.

Pursuant to N.J.R.E. 404(b), evidence of prior bad acts, or the details of prior crimes, may not be admitted to show that a defendant has a predisposition to commit crimes. However, "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." Ibid.

There is no dispute that prior to the trial, the State had filed a motion to admit evidence of the prior lewdness offense under N.J.R.E. 404(b), but withdrew the motion when a witness became unavailable. Consequently, the State was not intending to introduce the details of the prior crime and the court was not then required to hold an in limine hearing to determine the admissibility of this evidence. See State v. Cofield, 127 N.J. 328, 336 (1992). However, when defendant himself raised the issue that the incident with the girls was the "first" time, the court held that he had "opened the door" on the issue. Defendant did not request a Rule 104 hearing at that point.

Contrary to defendant's contentions on this appeal, the prior lewdness conviction (for exposing himself to a young child) was relevant to the credibility of defendant's testimony that the incident for which he was then on trial was the "first" time he engaged in such behavior. See State v. Lykes, 192 N.J. 519, 535-37 (2007); State v. James, 144 N.J. 538, 554 (1996)(discussing the "opening the door" doctrine). Moreover, the details of the prior crime were highly relevant to defendant's claim that the current incident was a mistake or "accident" in which he had no intent or plan to expose himself to the girls. See State v. Cusick, 219 N.J. Super. 452, 464-67 (App. Div.), certif. denied, 109 N.J. 54 (1987). It was proper N.J.R.E. 404(b) evidence, which was recent, relevant, and more probative than prejudicial. See State v. Drew, 383 N.J. Super. 185, 194-95 (App. Div.), certif. denied, 187 N.J. 81 (2006); Cusick, supra, 219 N.J. Super. at 464-67. We find no abuse of discretion or other error in the trial court's admitting the evidence of defendant's prior lewdness conviction and giving the jury the required limiting instructions about its proper use. See Cofield, supra, 127 N.J. at 340-41. Finally, in light of the overwhelming evidence of defendant's guilt, any error would be harmless. State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2.

Defendant next contends that he was incompetent to stand trial and was entitled to a hearing on that issue. See N.J.S.A. 2C:4-4; N.J.S.A. 2C:4-5. We find no merit in this contention. Defendant raised the issue for the first time in a new trial motion, which the trial court denied. On this appeal, defendant cites no evidence whatsoever that he suffered from a mental illness or was otherwise unfit to stand trial. See N.J.S.A. 2C:4-5a (authorizing the court to have defendant examined by a psychiatrist "[w]henever there is reason to doubt the defendant's fitness to proceed"). We defer to the trial judge's first-hand observation of defendant during the trial, which revealed no indication that defendant "lack[ed] capacity to understand the proceedings against him or to assist in his own defense." N.J.S.A. 2C:4-4. See State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000).

Affirmed.

 

After merger, the trial court imposed an aggregate prison sentence of seven years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, to be served at the State facility for sex offenders in Avenel. Defendant has not appealed from the sentence.

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2

A-0170-07T4

RECORD IMPOUNDED

June 12, 2009