STATE OF NEW JERSEY v. ISMAEL NIEVES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1061-07T41061-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISMAEL NIEVES,

Defendant-Appellant.

_______________________________________

 

Submitted February 4, 2009 - Decided

Before Judges Rodr guez and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-03-0299.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, 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

Defendant Ismael Nieves was convicted, following a jury trial, of second-degree robbery, N.J.S.A. 2C:15-1 and 2-6; fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10; and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a). The same jury acquitted defendant of armed robbery, kidnapping and the lesser-included offenses of criminal restraint and false imprisonment. Defendant moved for a new trial pursuant to Rule 3:20-1, arguing that there was insufficient evidence to sustain the conviction for robbery. The judge denied this motion. The State moved for imposition of an extended term. The judge granted this motion and imposed an extended twelve-year term for the robbery conviction with a NERA parole disqualifier, a concurrent one-and-one-half-year term for the unlawful taking of a means of conveyance conviction, and a consecutive one-and-one-half-year term on the aggravated assault conviction. We affirm.

These are the salient facts. According to Bernable Leon Nique, at or about midnight on October 7, 2004, he arrived at Herman's Bar in Paterson. While there, he saw Johani Rodriguez, someone Nique had known in middle school. They talked briefly. When Nique was leaving the bar, Rodriguez asked him for a ride. Nique agreed and drove his car to the bar. Rodriguez was waiting with defendant and an older man, who was defendant's uncle. When Nique got there, defendant began acting aggressively towards him, saying "that [Nique] disrespected him." Defendant told Nique to get into the car and that he had a gun and would shoot him if he did not. Defendant also "forced" his uncle into the car as well. Defendant began to drive Nique's car down the street, apparently looking for someone. While they were driving around, defendant continued to threaten Nique, hitting him in the face a number of times. Defendant's uncle was in the back and kept telling Nique to keep quiet.

When defendant was unable to find whomever he had been looking for, he drove to a liquor store and asked if Nique had any money. When Nique stated he did not have any money, Rodriguez went in to buy some alcohol. While Rodriguez was in the liquor store, defendant exited the car and began urinating on the car. Defendant also began "smacking [Nique] around." After Rodriguez returned with the beer, defendant then drove the car to the Alexander Hamilton Projects in Paterson. Defendant avoided going through the front entrance where there was a police booth. Instead, he drove over the sidewalk to get to a back parking lot. Defendant removed Nique from the car and told Rodriguez to check the car for money and for "stuff" that they could take. Defendant again hit Nique in the face about four times and threatened to shoot Nique at least two more times. Defendant searched Nique and took $11 from him.

Defendant looked in the trunk for anything to take. He then tried to place Nique in the trunk. Nique struggled at this point and managed to grab a bottle of bleach from the trunk. Nique threw the bottle in defendant's face. Nique managed to get away from defendant and ran to the police booth in the front of the projects. He told Officer Colondres what had happened. Colondres noted that Nique was bleeding from his nose and that he smelled of bleach. Colondres called for backup. Meanwhile, defendant, Rodriguez and defendant's uncle left the car and went into building four and up to the defendant's apartment on the seventh floor.

Several units responded to Colondres' call. Upon arriving, Officer Anthony Deprospo spoke with Nique and got a description of defendant, Rodriguez and defendant's uncle. Deprospo and other officers made their way to the parking lot area where they met a woman who gave them information that led to defendant's apartment. When Deprospo reached the seventh floor, he immediately noted the heavy smell of bleach in the hallway. He found bleach-soaked clothes at one end of the hallway. Deprospo saw defendant, Rodriguez and defendant's uncle in an apartment with an open door. Defendant was washing the bleach off his face. Deprospo identified himself. Defendant tried to run down the hallway, shoving Deprospo into the wall as he went. After a brief struggle, Deprospo and other officers managed to handcuff defendant. The officers also arrested Rodriguez and defendant's uncle.

Inside the apartment, the officers found $11, which also smelled of bleach. The officers escorted the three down to the parking lot where Nique positively identified them. After the identification, the officers went back up to the apartment. They conducted a thorough search for the gun but did not find any firearms.

Two years later, Nique was incarcerated in Passaic County along with the defendant. During that time, defendant tried to apologize to Nique and asked him to sign a statement saying the events of October 7, 2004 had not happened as Nique had told the police. Nique signed a statement repudiating his prior version. Instead, Nique stated that he and Rodriguez had been in an argument that turned into a fight. Defendant tried to break it up. Nique had splashed defendant with the bleach. Defendant hit Nique in response. After being hit, Nique ran away and went to the police booth.

At some point, this statement was stamped by a notary public.

Following jury selection, defense counsel moved to sever the aggravated assault charge from the resisting arrest charge. The judge determined that the count was part of the same event and should not be severed.

In his opening statement, the prosecutor informed the jury that Rodriguez, one of the State's witnesses, had pled guilty to robbery by force for his role in assisting defendant. Rodriguez received a sentence recommendation as a result of his plea.

Nique testified that the statement he had signed in 2006 was untrue. He also testified that there was no notary public to stamp the statement present when he signed it. He did not prepare the statement, nor did he know who did. When asked why he had signed it, he indicated that he was afraid he would be hurt in jail by defendant or other prisoners at defendant's direction. On cross-examination, Nique stated that he never saw a gun.

Rodriguez testified for the State and admitted that he had entered a guilty plea to second-degree robbery and the State was going to recommend a five-year term with eighty-five percent served before parole. According to Rodriguez, part of the plea agreement was that he testify truthfully at defendant's trial.

According to Rodriguez's testimony, after Herman's Bar had closed and Nique had offered to give him a ride, defendant and his uncle got into the car as well, but there had been no threats made. Nique was driving at that point. The group had decided to go to the liquor store to get more alcohol. Rodriguez went in to get some beer, and when he came out he testified that Nique was in the back seat. Rodriguez thought Nique's presence in the backseat instead of driving was unusual and that Nique looked scared. According to Rodriguez, defendant then began "driving around, crazy, like he's drunk" and "punching [Nique] in his face." Rodriguez was surprised and told defendant to "chill." Defendant told Nique that he had a gun and would shoot him.

In instructing the jury, the judge said that "[e]vidence of Johani Rodriguez's plea of guilty may be used only in determining the credibility or believability of this witness' testimony." The judge also said that the jury should carefully scrutinize Rodriguez's testimony and make a determination as to whether he had an interest in the outcome of defendant's case.

The jury returned a verdict acquitting defendant of armed robbery, kidnapping, criminal restraint and false imprisonment, and finding defendant guilty of second-degree robbery, fourth-degree unlawful taking of a means of conveyance and fourth-degree aggravated assault.

On appeal, defendant contends:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO SEVER COUNT FOUR OF THE INDICTMENT CHARGING AGGRAVATED ASSAULT.

(a) The Distinguishing Nature Of The Crime Charged In Count Four And The Distinguishing Quality Of The Evidence Admitted Concerning Count Four Justified Severance.

(b) The Defendant Was Unfairly Prejudiced By Joinder.

We reject this contention.

Rule 3:7-6 governs the general joinder of multiple offenses into the same trial. Mandatory joinder exists for multiple offenses "based essentially on the same conduct or aris[ing] from the same criminal episode." State v. Williams, 172 N.J. 361, 367 (2002) (citing State v. Gregory, 66 N.J. 510, 522 (1975)). This principle is codified in N.J.S.A. 2C:1-8(b), which states:

Except as provided in subsection c. of this section, a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court.

[N.J.S.A. 2C:1-8(b); See also R. 3:15-1(b).]

Four factors must be shown to require the mandatory joinder of multiple offenses:

(1) the multiple offenses are criminal; (2) the offenses are based on the same conduct or arose out of the same episode; (3) the appropriate prosecuting officer knew of the offenses at the time the first trial commenced; and (4) the offenses were within the jurisdiction and venue of a single court.

[Williams, supra, 172 N.J. at 368 (quoting State v. Yoskowitz, 116 N.J. 679, 701 (1989)).]

There is no question the first, third and fourth factors are met here. With regard to analysis of whether multiple offenses arise out of the "same episode," our Supreme Court has indicated that a "flexible" approach has developed in the case law. Id. at 371. Important in this analysis is "the time and place of the offense, and whether one offense is part of a larger scheme." Ibid. (citing State v. Pillot, 115 N.J. 558, 567 (1989)). However, even when joinder of multiple offenses is mandatory, if joinder of an offense could cause prejudice to either a defendant or the State, N.J.S.A. 2C:1-8(c) and Rule 3:15-2(b) allow a court to order separate trials or other relief. The severance of an offense is at the discretion of the trial court. State v. Briely, 53 N.J. 498, 503 (1969). The Supreme Court has held that "[c]entral to the inquiry is 'whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under [N.J.R.E. 404(b)] in the trial of the remaining charges.'" State v. Chenique-Puey, 145 N.J. 334, 341 (1996) (quoting State v. Pitts, 116 N.J. 580, 601-02 (1989)).

Here, we are satisfied that the charges were properly joined. First, Rodriguez was in the apartment when the police arrived and defendant tried to flee, and testified that there was a "struggle" between defendant and some officers. Second, testimony would have been admitted in a separate trial for the aggravated assault charge regarding the reasons the officers had made their way to the defendant's apartment. The testimony regarding the incident with Nique could have been admitted under N.J.R.E. 404(b) as proof of a motive for defendant to try to flee and assault the officers in the attempt. Accordingly, these charges were properly joined at trial.

Defendant also contends:

THE ABSENCE FROM THE TRIAL COURT'S CHARGE OF ANY REFERENCE TO THE PRINCIPLES OF STATE V. KOCIOLEK CONSTITUTES PLAIN ERROR (Not Raised Below).

When a witness at trial testifies regarding statements made by a defendant, our Supreme Court has ruled that the trial judge should provide the jury with an instruction that it "should receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." State v. Kociolek, 23 N.J. 400, 421 (1957) (internal quotation marks omitted). As defendant indicates in his brief, when such testimony is present, this Kociolek charge should be given regardless of whether it is requested. State v. Jordan, 147 N.J. 409, 428 (1997). However, defendant fails to note that the Supreme Court went on in Jordan to find that failure to provide a Kociolek charge does not constitute a reversible error per se, but that the facts of each case will dictate on whether there has been an unjust result caused by the lack of the charge. Ibid.

Defendant lists several portions of Nique and Rodriguez's testimony that involve statements attributed to defendant. The majority of these concern defendant's statements during the incident. Most of these statements are verbal acts admitted not to prove the truth of the statements, but to prove that the statement was made. See Ringwood Assocs., Ltd. v. Jack's of Route 23, Inc., 166 N.J. Super. 36, 42-43 (App. Div. 1979). This also applies to statements defendant allegedly made to Nique while the two were incarcerated together in 2006. The statements were admitted to establish that they were made to Nique and the latter became afraid upon hearing them.

We agree with the State's argument that the complained of "statements" are not the sort of statement that would require a Kociolek charge, but were simply the "eyewitness accounts of the events which transpired."

Defendant failed to object to the judge's jury instructions. Therefore, Rule 2:10-2, the plain error rule, governs. State v. Adams, 194 N.J. 186, 206 (2008). "[A]n appellate court may reverse on the basis of unchallenged error if the court finds that the error was 'clearly capable of producing an unjust result.'" Id. at 207 (quoting R. 2:10-2).

Here, we conclude that the failure to give a Kociolek charge was not plain error, capable of producing an unjust result. The general charge on witness credibility was sufficient to apprise the jury of the need to scrutinize any statement attributed to defendant. We note that, in acquitting defendant of kidnapping and armed robbery, the jury showed that it scrutinized the statements and rejected their probative value in some instances.

Defendant also contends:

THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO SPECIFICALLY INSTRUCT THE JURY THAT THE FACT THAT CO-DEFENDANT RODRIGUEZ ENTERED A PLEA OF GUILTY CANNOT BE USED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT (Not Raised Below).

We reject this contention.

This issue is also reviewed under the plain error standard. R. 2:10-2; Adams, supra, 194 N.J. at 207.

In Adams, the Supreme Court held that a co-defendant's guilty plea could be used for credibility purposes, but not "as substantive evidence of the defendant's guilt." Id. at 208 (citing State v. Stefanelli, 78 N.J. 418, 430-33 (1979)). Thus, "the trial court should instruct the jury that it must carefully scrutinize the testimony of a co-defendant in light of the witness's special interest and that a co-defendant's guilty plea may be used only to assess credibility and may not be used as substantive evidence of a defendant's guilt." Ibid.

Defendant relies on State v. Murphy, 376 N.J. Super. 114 (App. Div. 2005), in support of his argument. However, Murphy is distinguishable. In Murphy, we were concerned with the fact that the judge had failed to provide this instruction as to the testimony of two co-defendants who had plea agreements, but did instruct the jury that a court would not accept a guilty plea unless the court was convinced of the individual's guilt. Id. at 121. We held that such comment by the judge, absent the limiting instruction, served to bolster the credibility of the two testifying co-defendants. Id. at 123. The judge in the present case made no such comment.

In Adams, the Supreme Court found that the lack of a limiting instruction regarding the uses of a co-defendant's guilty plea did not constitute an error that created an unjust result. Adams, supra, 194 N.J. at 208-09. The judge in Adams provided the standard instruction regarding evaluation of witness credibility. Ibid. The Supreme Court found this, combined with thorough cross-examination of the testifying co-defendant challenging his credibility, minimized the effect of the co-defendant's guilty plea on the trial. Ibid. We find the same situation here.

As in Adams, the judge provided the standard instruction on evaluating witness credibility. The judge here went even further, instructing the jury that: "[e]vidence of Johani Rodriguez's plea of guilty may be used only in determining the credibility or believability of this witness' testimony;" and the jury should carefully scrutinize Rodriguez's testimony based on his possible interest in the outcome of defendant's case.

The charge given by the judge does not constitute harmful error.

Defendant next contends:

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE GUILTY VERDICTS RETURNED BY THE JURY ON THE LESSER INCLUDED OFFENSES OF SECOND DEGREE ROBBERY ON COUNT TWO AND FOURTH DEGREE UNLAWFUL TAKING OF A MEANS OF A CONVEYANCE ON COUNT THREE WAS A MANIFEST DENIAL OF JUSTICE UNDER THE LAW.

We reject this contention.

A jury verdict acquitting a defendant on some charges and convicting on others based on the same evidence is deemed an inconsistent verdict which, according to our Supreme Court, is nevertheless "accepted in our criminal justice system." State v. Banko, 182 N.J. 44, 53 (2004) (citing State v. Grey, 147 N.J. 4, 11 (1996)). The jury verdict stands if there is evidence "sufficient to establish guilt on the substantive offense beyond a reasonable doubt." Id. at 55 (quoting State v. Petties, 139 N.J. 310, 319 (1995)).

Here, we find there is ample credible evidence supporting the convictions.

Finally, defendant contends that:

IMPOSITION OF AN AGGREGATE BASE CUSTODIAL SENTENCE OF 13 YEARS WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF JUDICIAL SENTENCING DISCRETION.

(a) The Trial Court Abused Its Discretion In Imposing An Extended Term Sentence On The Defendant's Conviction For Second Degree Robbery On Count Two.

(b) Imposition Of An Extended Base Term Of 12 Years On The Defendant's Conviction For Second Degree Robbery On Count Two Was Manifestly Excessive And An Abuse Of The Court's Sentencing Discretion.

(c) Imposition Of Consecutive Sentences On The Defendant's Convictions For Second Degree Robbery On Count Two and Fourth Degree Aggravated Assault On Count Four Was Manifestly Excessive And An Abuse Of The Court's Sentencing Discretion.

We disagree and affirm the sentences.

Defendant was thirty-six years old at the time of sentence. He has a history of two indictable and one disorderly persons convictions. In addition, he has a substantial number of probation violations and juvenile delinquency adjudications. He was sentenced to a juvenile correctional facility on one occasion.

The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1(a): (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from law. The judge found none of the mitigating factors listed under N.J.S.A. 2C:44-1(b).

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

Moreover, we find no abuse of discretion in the imposition of an extended term nor in imposing consecutive terms.

The State may seek an extended sentence pursuant to N.J.S.A. 2C:44-3. When reviewing such application,

[T]he trial judge must engage in a multi-step analysis . . . . First, the sentencing court must determine whether the minimum statutory predicates for subjecting the defendant to an extended term have been met. Second, the court must determine whether to impose an extended sentence. Third, it must weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence. Finally, it must determine whether to impose a period of parole ineligibility.

[State v. Cook, 330 N.J. Super. 395, 420-21 (App. Div.), certif. denied, 165 N.J. 486 (2000) (quoting State v. Dunbar, 108 N.J. 80, 89 (1987)).]

When viewed in light of this standard, we conclude that imposition of an extended term here was neither excessive nor contrary to the sentencing standards.

As for the consecutive sentence, when a court is imposing a sentence on a defendant, "there is no presumption in favor of concurrent sentences and therefore the maximum potential sentence authorized by the jury verdict is the aggregate of sentences for multiple convictions." State v. Abdullah, 184 N.J. 497, 513-14 (2005). In determining whether sentences for multiple offenses will run concurrently or consecutively, trial judges are guided by the criteria set forth by the Supreme Court in Yarbough:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors; [and]

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]

[State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).]

Here, although the offenses against Nique and the police officers were close to each other in both time and place, they were separate and distinct for several reasons. First, they involved different victims. Second, one was a property crime motivated by the acquisition of money, in which force was used, whereas the other was a crime of violence motivated by a desire to evade prosecution.

Affirmed.

 

The judgment of conviction erroneously indicates that defendant was convicted of first-degree carjacking. Instead, he was convicted of fourth-degree unlawful taking of a means of conveyance. The judgment is also incorrect in indicating that robbery is a crime of the first-degree.

23 N.J. 400 (1957).

The Yarbough standards originally included a maximum term for consecutive sentences, which was superseded by statute. State v. Carey, 168 N.J. 413, 423 n.1 (2001).

(continued)

(continued)

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A-1061-07T4

 

July 1, 2009