STATE OF NEW JERSEY v. JERMAINE FERNANDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3468-06T43468-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERMAINE FERNANDEZ, a/k/a JAMIE

FERNANDEZ,

Defendant-Appellant.

_______________________________________

 
 

Submitted November 18, 2008 - Decided

Before Judges Fuentes, Gilroy and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-10-1323.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard W. Berg, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Lisa M. Dudzinski, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jermaine Fernandez appeals from his conviction for conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2. He was sentenced to an eight year term of imprisonment, with a mandatory eighty-five percent period of parole ineligibility and the mandatory monetary assessments. We affirm.

On February 4, 2004, Robert Sierra, a/k/a "B.G." or "Baby Gangster," was found dead in a parking lot by a high rise building on Cherry Street in Elizabeth. Defendant was charged with first degree murder, N.J.S.A. 2C:11-3(a)(1) and (2); third degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1(b)(1).

Three other individuals, Robert Leon, Mario L. Tello and Pedro Perez, pled guilty to conspiracy to commit aggravated assault pursuant to plea agreements and testified against defendant at his trial. Their testimony provides the following explanation of events.

Leon, an admitted seller of marijuana, employed defendant and Tello as drug runners. The victim Sierra had previously robbed defendant and Tello. In order to obtain retribution, Leon, Tello, Perez, and defendant decided to assault Sierra. Perez lured Sierra to the Cherry Street parking lot. Defendant, Leon, and Tello proceeded to that location where they attacked Sierra. The witnesses testified that shots were fired, and they fled. Leon, Perez, and Tello testified that Sierra was beaten and hit with a baseball bat. Perez did not identify the shooter, nor did he identify defendant, merely testifying that a third masked man had come with Leon. However, Tello and Leon identified defendant as the person who shot Sierra.

The medical examiner testified that Sierra was killed by a single gunshot wound to his head and that the gun had been jammed to his forehead when discharged. The medical examiner also found that Sierra had sustained a gunshot wound to his shoulder. Sierra also had abrasions to his left elbow and both knees, a crescent shaped mark on his left elbow, and bruising on his right wrist. Sierra had a black eye, but the medical examiner could not determine if it was caused by a blow to the eye or the gunshot to the head.

Defendant did not testify, but he presented the testimony of Angela Britt who testified that on the day of the killing, she was speaking to Sierra on the telephone when she heard a gunshot and the phone went dead. The jury found defendant guilty of conspiracy to commit aggravated assault, but acquitted him of the balance of the charges.

On appeal, defendant raises the following issues:

POINT I

THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF CONSPIRACY TO COMMIT AGGRAVATED ASSAULT.

POINT II

DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL WERE DENIED BY THE PROSECUTOR'S MISCONDUCT IN FAILING TO PROVIDE DISCOVERY, INTRODUCING HEARSAY TESTIMONY, AND IN MAKING IMPROPER OPENING AND SUMMATION COMMENTS (Partially Raised Below).

POINT III

THE TRIAL COURT ERRONEOUSLY EXCLUDED RELEVANT EVIDENCE CONCERNING WHETHER THE STATE'S WITNESSES AND THE VICTIM WERE MEMBERS OF RIVAL GANGS PROVIDING AN ALTERNATIVE MOTIVE FOR THE SHOOTING.

POINT IV

THE DISPARATE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Defendant maintains that the evidence is insufficient to support a conviction of conspiracy to commit aggravated assault. He contends that his motion for a judgment of acquittal at the end of the State's case should have been granted, and that his motion for a judgment of acquittal notwithstanding the verdict or, in the alternative, a new trial on the ground that the verdict was against the weight of the evidence should have been granted.

A motion for acquittal at the end of the State's case must be granted where "the evidence is insufficient to warrant a conviction." R. 3:18-1. When making this determination, the trial judge must view "the State's evidence in its entirety,

. . . giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom" and determine whether "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). A similar standard applies to the motion for a judgment of acquittal notwithstanding the verdict, except where, as here, the defendant was convicted of a lesser included offense, the entire record may be reviewed. State v. Sugar, 240 N.J. Super. 148, 153 (App. Div.), certif. denied, 122 N.J. 187 (1990); R. 3:18-2. We apply this same standard on appeal. State v. Quezada, 402 N.J. Super. 277, 285 (App. Div. 2008).

A trial judge must grant a motion for a new trial when "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. The trial judge's decision on this motion will not be overturned unless "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

Defendant notes that the jury did not believe the testimony of Leon, Tello, and Perez that defendant shot the victim. Indeed, this may be inferred from the fact that the jury acquitted defendant of the murder and weapons charges. These witnesses also testified that the victim had been beaten and hit with a baseball bat. However, their testimony on the beating and hitting was arguably contradicted by the medical examiner whose findings did not suggest a severe beating. Defendant argues that Leon, Tello, and Perez fabricated the story implicating defendant, and that based on the contradictions in their testimony, the jury's findings, and the testimony of the medical examiner, the evidence is insufficient to sustain a conviction of conspiracy to commit aggravated assault.

We reject this argument. The jury may believe part of a witness's testimony and not believe other parts of it. State v. Muhammad, 182 N.J. 551, 577 (2005). The jury presumably doubted the portion of Leon's and Tello's testimony in which they asserted that defendant shot Sierra. Given the testimony of the medical examiner, the jury may also have doubted the testimony of Tello, Leon, and Perez that Sierra had been beaten prior to the shooting. However, the jury still could have accepted their testimony that they and defendant planned to cause serious bodily harm to Sierra and that in the course of carrying out that plan Sierra was shot. The fact that the jury was not convinced beyond a reasonable doubt that defendant was the shooter does not mean that the evidence was insufficient to support a finding beyond a reasonable doubt that he was a participant in these events and conspired with the others to commit an aggravated assault upon Sierra.

Defendant also contends that the trial court erred when it precluded him from asking questions exploring whether Perez was a member of the Latin Kings gang. He maintains he should have been allowed to explore this line of questioning to show that Leon, Tello, and Perez were trying to protect their turf from a rival gang that included Sierra. However, he had no other evidence to further develop this position. This line of questioning was excluded under a N.J.R.E. 403 analysis, since there was "little factual nexus" between this proposed testimony and the issues in the case. We will not overturn a trial judge's determination under N.J.R.E. 403 "unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)). We find no abuse of discretion here, since no additional evidence ties Perez's possible gang affiliation to the attack on Sierra. Nor does defendant satisfactorily explain how such evidence would necessarily have helped the defense.

Defendant argues that his sentence is disparate and manifestly excessive when compared to that of his co-conspirators. As noted above, defendant was sentenced to a term of eight years imprisonment. Tello and Leon each received a sentence of five years with eighty-five percent parole disqualification and Perez received a sentence of seven years also with eighty-five percent parole disqualification. The differences in these sentences do not demonstrate the kind of excessive disparity that would warrant reversal or remand to determine if the disparity were justifiable. See State v. Roach, 146 N.J. 208, 232-33 (1996) (remanding case for determination of whether disparity in sentencing was justifiable where defendant received an additional thirty years more in prison than similarly situated codefendants).

Defendant's other arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-3468-06T4

 

January 22, 2009