STATE OF NEW JERSEY v. JOSE AVILA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0721-07T40721-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE AVILA,

Defendant-Appellant.

____________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-06-1004.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Nicole M. Ghezzar, Assistant Prosecutor, on the brief).

PER CURIAM

A jury convicted defendant, Jose Avila, of first-degree robbery, N.J.S.A. 2C:15-1 (Count One); third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (Count Two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Four). The court imposed an aggregate eighteen-year custodial term with an eighty-five percent No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, period of parole ineligibility, along with appropriate fines and penalties.

On appeal defendant raises the following points for our consideration:

POINT I

THE COURT FAILED TO CHARGE THE JURY ON ATTEMPTED THEFT, WHICH, ON THE FACTS OF THIS CASE, WAS THE ONLY POSSIBLE THEFT SUPPORTING THE ROBBERY CHARGE, DENYING DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMEND. V, VI, XIV; N.J. CONST. [] ART. I, [ ] 1, 9, 10. (Not Raised Below).

A. THE COURT FAILED TO CHARGE ON AN ESSENTIAL ELEMENT OF ROBBERY.

B. THE PORTION OF THE ATTEMPT CHARGE GIVEN DURING THE AGGRAVATED ASSAULT INSTRUCTION DID NOT SERVE TO CURE ITS OMISSION WHEN CHARGING ROBBERY BECAUSE THE COURT NEGLECTED TO RELATE IT BACK TO ITS ROBBERY INSTRUCTION AND IT IS UNREASONABLE TO BELIEVE THAT THE JURY DID SO OF ITS OWN VOLITION.

POINT II

THE IMPOSITION OF AN [EIGHTEEN-]YEAR TERM WITH AN [EIGHTY-FIVE PERCENT] PERIOD OF PAROLE INELIGIBILITY ON A FIRST OFFENDER IS MANIFESTLY EXCESSIVE AND REQUIRES REDUCTION.

We reject defendant's arguments advanced in support of the reversal of his conviction. We agree, however, that defendant's sentence must be reversed and remanded for re-sentencing.

The operative facts the State presented to the jury relevant to our discussion disclose that defendant accosted his victim during the late evening of April 9, 2006, when the victim was returning home carrying a large slice of birthday cake given to her by a friend. As the victim ascended the nine stairs leading to her front door, she heard "somebody running behind [her]." She proceeded to turn around and ask the person, whom she later identified as a Hispanic male, what he wanted. The individual responded by demanding money. When the victim told the man that she did not have any money, he displayed a knife. The victim testified that at that point, the encounter became violent, with the perpetrator attempting to stab her in the stomach. She avoided the attack by ducking, screaming and throwing the cake at him. The man continued in his attempt to stab her by swinging the knife towards her face. She parried the attack by blocking her face with her hands while continuing to scream, at which time she was cut "through [the] fingers" of her right hand. Her assailant eventually fled on foot.

Defendant contends the court's failure to instruct the jury on attempted theft, an essential element of robbery, left the jury without direction, an error defendant argues was clearly capable of causing an unjust result. We disagree.

At the outset, because no objection was raised to the court's jury instructions, we consider the alleged error under the plain error standard of review, Rule 2:10-2; namely, whether the claimed error was "clearly capable of producing an unjust result." In doing so, we initially iterate the well-established principle that when reviewing jury instructions, we consider the entire charge. State v. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999); State v. Thompson, 59 N.J. 396, 412 (1971). Because jury instructions play a critical role in guiding deliberations in criminal trials, improper instructions on material issues are presumed to constitute reversible error. State v. Jordan, 147 N.J. 409, 421-22 (1997). Nonetheless, "[i]f the subject matter is adequately covered in the text and purport of the whole charge, no prejudicial error comes into existence." State v. Thompson, supra, 59 N.J. at 411.

Here, the court properly instructed the jury that the elements of robbery the State was required to prove beyond a reasonable doubt must include proof that

the defendant was in the course of committing a theft. In this connection you are advised that an act is considered to be in the course of committing a theft if it [occurs] in an attempt to commit the theft, during the commission of the theft itself, immediate flight after the attempt or commission. Theft is defined as the unlawful taking or exercising unlawful control over property of another with purposes to deprive her thereof.

We reject defendant's argument that since no property was taken from the victim, the court was required to fully instruct the jury on attempted theft as the material element of "in the course of committing a theft." Quoting the Model Penal Code & Commentaries, Part II 222.1 at 98-99, the Court noted in State v. Lopez that "'the core of the robbery offense is the combination of theft and the fact or threat of immediate injury,' and that robbery 'is committed if the required special circumstances [the threat of or actual injury] exist at any point from the beginning of an attempt to commit a theft through the end of the flight following its attempt or commission.'" 187 N.J. 91, 98-99 (2006). Thus, the court's failure to separately instruct the jury on attempted theft was not reversible error.

Turning to the sentence imposed, defendant received an eighteen-year aggregate period of incarceration. Before imposing sentence, a court is required to review the specifically-enumerated aggravating and mitigating factors identified in N.J.S.A. 2C:44-1(a) and (b), balance these competing factors, and then explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 359-60 (1987). If a sentencing court properly identifies and balances these factors, and their existence is supported by sufficient credible evidence in the record, on appeal we will affirm the sentence. See State v. Jabbour, 118 N.J. 1, 6 (1990). On the other hand, where a sentencing court fails to identify the relevant factors, does not engage in a balancing process, and provides no factual basis for its decision, "appellate review becomes difficult, if not futile." State v. Kruse, supra, 105 N.J. at 359-60.

Here the court identified three aggravating factors and one mitigating factor but failed to state why those factors were considered and how it balanced those factors in arriving at the sentence imposed. While an eighteen-year custodial sentence is within the permissible range of sentencing for first-degree robbery, given the deficient record, we are constrained to vacate the sentence and remand for re-sentencing.

Affirmed in part, reversed in part.

 

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A-0721-07T4

October 13, 2009