STATE OF NEW JERSEY v. STANLEY JACQUES

(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NOT FOR PUBLICATION WITHOUT THE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-1350--07T41350-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STANLEY JACQUES, a/k/a STANLEY J.

JACQUES, a/k/a STANLEY JAQUES, a/k/a

STANLEY JEAN, a/k/a STANLEY JEAN JACQUES,

a/k/a STANLEY JEANJACQUES,

Defendant-Appellant.

_______________________________

 

Submitted May 12, 2009 - Decided

Before Judges Wefing and Yannotti.

On appeal from Superior Court of New Jersey,

Law Division, Union County, No. I-06-03-00286.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Cecelia Urban, Assistant Deputy

Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Brent A. Bramnick,

Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

A jury convicted defendant of one count of second-degree robbery, N.J.S.A. 2C:15-1. The trial court sentenced defendant to eight years in prison, subject to the parole ineligibility of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence but remand the matter to the trial court to correct the judgment of conviction.

Defendant was indicted and tried with Elbio Donofrio for the robbery of Carlos Gabriel-Baez on the evening of December 21, 2005, in Elizabeth. Donofrio was convicted as well. He also appealed, and his appeal was calendared before us earlier this term. We affirmed Donofrio's conviction and sentence in an unpublished opinion. State v. Donofrio, No. A-4934-06, (App. Div. May 12, 2009).

Within that opinion we set forth the following factual background:

Carlos Gabriel-Baez testified that on December 21, 2005, at approximately 6:00 p.m., he was riding his bicycle in the area of Salem Avenue in Elizabeth. Three individuals approached him, hit him, emptied his pockets, ripped his earring from his ear, threw him to the ground, removed some of his clothing and kicked him in the ribs and head. The assault lasted "[a]bout five, ten minutes." Eventually, Baez was able to escape and ran home.

When Baez arrived at his residence, he encountered police officers who had one of the individuals in their patrol car. The officers "took [Baez] to see the other one that was arrested." Baez recognized these individuals as two of the three people who had assaulted him.

In court, Baez identified defendant and [Donofrio] as those two individuals. When asked if he had ever seen the defendants before, Baez answered, "I was working on that same street and I constantly have been going around there and I had seen them before." On cross examination, Baez stated that he "used to work in a tire place in that street and [he] used to see them coming up and down that street."

Baez testified that he was "scared" during the assault because he didn't know "what [was] going to happen." He further stated that he had pain in his ribs and permanent scarring, as well as pain in the earlobe that had been ripped when his earring was taken.

Elizabeth Police Officer Paul Camarinha testified that, as a result of information he received at approximately 6:00 p.m. on the date in question, he responded to an area in Elizabeth where he encountered and detained [Donofrio]. The officer transported [Donofrio] to Baez's residence.

Elizabeth Police Officer James Szpond testified that he and his partner, Officer Luis Garcia, responded to the report of an incident at approximately 6:06 p.m. He observed three males who "began walking away from the area . . . very quickly[,]" when "it appeared that they noticed the squad car[.]"

Szpond and his partner exited their vehicle and detained one of the individuals, [defendant] Jacques, who was holding a set of keys in his hand. Szpond testified that, at the place where the three individuals were first spotted, the officers found "a bicycle and a pile of clothing."

Baez arrived at the scene and identified [defendant] Jacques as one of the individuals who had assaulted him. He also identified the keys, bicycle and clothing as his property, which was then released to him.

[Donofrio] testified on his own behalf. He acknowledged that he was on Salem Avenue in Elizabeth at approximately 6:00 p.m. on December 21, 2005. [Donofrio] stated that he was "by [himself]" and that [defendant] Jacques was "[u]p the street." [Donofrio] stated that he was on the street at that time selling drugs. [Donofrio] then encountered Baez, whom he knew prior to that occasion.

When [Donofrio] was asked how he knew Baez, he responded, "Selling drugs . . . ." The prosecutor immediately objected. The judge excused the jury and conducted a voir dire. Defense counsel argued that [Donofrio] should be permitted to give this testimony to contradict Baez's testimony that he only knew [Donofrio] from seeing him around the neighborhood. Defense counsel argued: "This is what these guys do and this is how they all know each other and it . . . defuses the babe in the woods innocence the victim tends to portray, especially when you look at the confusing and conflicting testimony he's given in the inconsistent statements."

[Donofrio] testified further during the voir dire that Baez had approached him earlier in the day on December 21, 2005, and had purchased two "bottles" of crack cocaine for twenty dollars. [Donofrio] testified that "[Baez] . . . came back around 6 o'clock on a bike[,]" to purchase more crack cocaine. [Donofrio] "handed [the drugs] to him. [Baez] . . . grabbed [the drugs] out of [Donofrio's] hand and started taking [them] away on the bike." As Baez rode off, [Donofrio] "grabbed his hand, tried to get [the drugs] back. That is when [they] began tussling when [Baez] was on the bike."

At the conclusion of the voir dire, the trial judge ruled that [Donofrio] would be permitted to testify about his drug transaction with Baez. The judge was "satisfied that the prejudicial impact [did] not outweigh[] the probative value . . . ."

[Donofrio] then resumed testifying before the jury, and stated that he had sold drugs to Baez on at least three or four prior occasions. He further testified, as he had on voir dire, that Baez approached him earlier in the day on December 21, 2005, and purchased crack cocaine for twenty dollars, and that Baez returned at 6:00 p.m. on his bike to purchase additional drugs. [Donofrio] described how Baez grabbed the drugs out of [Donofrio's] hand and tried to take off on his bicycle without paying, and how [he] and Baez then "began tussling while he was . . . still on the bike." [Donofrio] stated that Baez "tried to steal" the drugs from him, and "tried to take [them] out of [Donofrio's] hand and take off on his bike."

[Donofrio] testified that Baez "got off the bike and [they] began pushing and shoving. After that . . . is when the fight started." [Defendant] Jacques and a third individual "named Marcus that [Donofrio] knew from . . . around the neighborhood[,]" joined in the fight.

[Id. at 2-6.]

Defendant Jacques did not testify at the trial but his attorney urged in summation that the jury should find, based upon Donofrio's testimony, that what occurred did not constitute the crime of robbery. By its verdict, the jury rejected that contention.

On appeal, defendant raises the following contentions for our consideration:

POINT I

The trial court's omissions of key portions of the jury instructions on both accomplice liability and prior inconsistent statements by witnesses violated defendant's right to due process of law and a fair trial. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, 1, 9, 10. (Not raised below)

The defense: Assault by co-defendants

(Assault-Assault scenario)

The Initial Jury Charge on Accomplice Liability

(a) The Robbery-Assault scenario

(b) The Robbery-Theft scenario

(c) The Robbery-Robbery scenario

(d) The acquittal scenario

The Re-Charge on Accomplice Liability

(a) Robbery-Assault scenario

(b) Robbery-Theft scenario

(c) Assault-Robbery and Innocent-Robbery scenarios

A. The trial court's instructions on accomplice liability did not fairly reflect the defense version of the facts as well as the State's, thereby implicitly bolstering the State's case

B. The trial court's instruction on prior inconsistent statements also was not tailored to the facts of the case

POINT II

The eight-year prison term, 85% without parole, imposed in this case was excessive. (Not raised below)

Co-defendant Donofrio raised the same argument with respect to the charge on accomplice liability given by the trial court. We rejected that argument in the following manner:

Defendant's specific complaint regarding the accomplice liability charge is not addressed to the instructions on the elements of such liability. Rather, defendant challenges three "scenarios" that the judge gave the jury, which were intended to be examples of accomplice liability. The specific language at issue is as follows:

Let me now explain how accomplice liability may apply to the testimony in this case. And in recalling this testimony, remember, I'm just giving you -- I'm not saying that this is how you should find, but I'm giving you possibilities how you could apply this accomplice liability to the testimony in this case.

If you found, for example, the testimony of Carlos Baez to be credible and believable and you found the defendant Donofrio's testimony to be not credible in only he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting the defendant.

Under the same scenario you may find that Baez was not detailed enough as to what each defendant did, but if the testimony of the police officer, that Jacques was found with the keys, convinced you that it was only after the assault was long concluded that Jacques decided to take Baez' property. In short, there are a large variety of different findings you could make depending upon your findings as to the defendants in this case and as to the mental state you find of each defendant.

You m[a]y find the testimony of Baez to be credible and believable and find that they both agreed to commit the offense of robbery. These are all possibilities that you could find, depending upon your findings of fact and your findings as to the mental state of the defendants.

Early in its deliberations the jury requested re-instruction on accomplice liability. In re-charging the jury, after addressing the elements of accomplice liability, the trial judge reiterated his "scenarios" as follows:

For example, if you found the testimony of Carlos Baez to be credible and believable and you found Donofrio's testimony to be only credible in that he was the initial person to have contact with Baez, you may conclude that Donofrio intended to commit a robbery, but that Jacques joined in only in assaulting [Baez] or that Jacques did not join in the assault upon Baez, but decided only after the assault to take advantage of the situation and to deprive Baez of his property. You might also conclude that Donofrio engaged in a physical altercation with Baez, but only to regain his crack cocaine and, therefore, committed no offense or, at worst, a simple assault, but that Jacques seeing the altercation joined in it with the intent to deprive Baez of his property and he is, therefore, guilty of robbery by his own conduct.

Immediately after giving these examples, the trial judge further instructed the jury as follows:

Now, I'm not suggesting, in any way, that you make those findings. I'm just trying to give you examples of how the testimony -- how the verdicts could change depending upon your findings as to the mental state of each individual and whether or not there actually was a robbery or an altercation, as described by Carlos Baez.

Remember, you are the sole and exclusive judges of the facts and of the credibility of the witnesses, and based upon your findings you are entitled to believe all of a witness' testimony, part of it or none of it. In short, there are a variety of different verdicts that you could return, but they depend upon your findings not only as to each defendant's conduct, but also their mental state.

Defendant argues that these "scenarios" are "problematic" because they (1) "do not support the defense theory that both defendants engaged in assault but not robbery"; (2) "they substantiate the credibility of the [S]tate's witnesses only, and not the [defendant]"; and (3) "they suggest that the option of acquittal was merely an afterthought that the court was obligated to provide, as opposed to a viable option worth considering."

We acknowledge that these "scenarios" were extraneous and unnecessary elements of an otherwise proper jury charge on accomplice liability. We conclude, however, that these "unchallenged" comments did not rise to "plain error clearly capable of producing an unjust result." State v. Afanador, 151 N.J. 41, 54 (1997).

In his initial charge, the judge instructed the jury that:

You, and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness. Regardless of what [c]ounsel says or what I may say or have said in recalling the evidence in this case, it is your recollection of the evidence that should guide you as judges of the facts.

Moreover, as noted earlier, the judge expressly prefaced his "scenarios" to the jury with the disclaimer that he was offering them "possibilities" as to how the jury "could apply . . . accomplice liability to the testimony in this case." The judge expressly told the jury that he was not "saying that this [was] how [the jury] should find . . . ."

When the judge re-charged the jury in response to their question, he reiterated that he was giving them "examples" only; and the judge repeated the instruction as to the exclusive role of the jury in weighing the evidence and assessing credibility.

Under these circumstances, we consider the comments challenged here to be mere surplusage that do not rise to the level of plain error. R. 2:10-2.

[Id. at 7-11.]

Both defendant and Donofrio challenged the credibility of Baez and argued to the jury that it should not accept Baez's recitation of what had occurred. They noted that in Baez's initial statement to the police, he said he had been on his way home when the incident occurred. At trial, he said that although he was married, he was on his way to see his girlfriend. They also stressed that the first time Baez made any mention of his earring having been ripped from his ear lobe was at trial. He said this left him with a scar, which he displayed to the jury. Earlier, Baez had made no such claim, either when the police initially responded or when he gave a formal statement.

The trial court charged the jury in the following manner on inconsistent statements:

Evidence, including a witness' statement or testimony prior to trial showing that at a prior time a witness has said something which is inconsistent with the witness' testimony at the trial may be considered by you for the purpose of judging the witness' credibility. It may also be considered by you as substantive evidence, that is proof of the truth of what is stated in the prior contradictory statement.

Evidence has been presented in this case showing that at a prior time Carlos Baez had said something or has failed to say something which is inconsistent with the witness' testimony at trial. This evidence may be considered by you as substantive evidence or proof of the truth of the prior contradictory statement or omitted statement. However, before deciding whether the prior inconsistent or omitted statement reflects the truth, in all fairness you will want to consider all of the circumstances under which the statement or failure to disclose occurred. You may consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his or her credibility. You may consider such factors as where and when the prior statement or omission occurred and the reasons, if any, therefor[].

Now, in regard to the testimony of Carlos Baez, on cross examination, inconsistencies were alleged between the prior statements and those he gave on the witness stand. The witness gave reasons for some of those inconsistencies saying that he didn't recall -- saying that he didn't recall being asked those questions. He didn't think that it was important to the consideration of what happened to him, and I think that may be the extent of what the reasons were that he gave for those inconsistencies.

Now, the extent to which such inconsistencies or omissions reflect the truth is for you to determine. You should consider their materiality and relationship to his entire testimony and all the evidence in the case, when, where and the circumstances under which they were said or omitted and whether the reasons he gave you, therefore, appear to be to you to be believable and logical. In short, consider all that I have told you before about prior inconsistent statements or omissions.

Now, you will, of course, consider other evidence and inferences from other evidence including the statements of other witnesses or acts of the witness and others disclosing other motives that the witness may have had to testify as he did. That is, reasons other than which he gave to us.

Defendant did not object when the trial court gave this charge but now contends it constitutes reversible error because it failed to identify for the jury the inconsistencies in Baez's testimony. While it may have been preferable for the court to craft its instruction in terms of the testimony that the jury had heard, we are unable to conclude that its failure to do so constituted plain error.

This trial was brief. Testimony commenced on September 19 and concluded on September 20. Counsel gave their summations, and the trial court charged the jury on September 20 as well. We have no basis to conclude that the jury did not have clearly in its mind the testimony it had heard the previous day.

Finally, we reject defendant's challenge to his sentence. We do not accept defendant's characterization of his prior record. Although this was defendant's first indictable conviction, he had had extensive juvenile involvement. As the prosecutor noted at sentencing, his offenses had escalated over the years. We see no abuse of the trial court's sentencing power. State v. Roth, 95 N.J. 334 (1984).

When the trial court imposed sentence, it properly made the sentence subject to the provisions of NERA, N.J.S.A. 2C:43-7.2. The judgment of conviction, however, omits any reference to the parole disqualification provisions of the statute, and it must be amended to reflect the correct sentence. We, therefore, remand this matter to the trial court for entry of a corrected judgment of conviction. In all other respects, the judgment is affirmed.

 

(continued)

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A-1350-07T4

June 15, 2009