STATE OF NEW JERSEY v. MIGUEL RIVERA-RAMOS

(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NOT FOR PUBLICATION WITHOUT THE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-4656-07T44656-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MIGUEL RIVERA-RAMOS,

Defendant-Appellant.

____________________________________

 

Submitted March 10, 2009 - Decided

Before Judges Winkelstein, Fuentes and Chambers.

On appeal from Superior Court of New Jersey,

Law Division, Cape May County, Indictment No.

06-03-0194.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Mark P. Stalford, Designated

Counsel, of counsel and on the brief).

Robert L. Taylor, Cape May County Prosecutor,

attorney for respondent (J. Vincent Molitor,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Miguel Rivera-Ramos was tried before a jury and convicted of third-degree absconding from parole, N.J.S.A. 2C:29-5(b). The court sentenced him to a term of five years, with two and half years of parole ineligibility.

After reviewing the record, and in light of prevailing legal standards, we affirm defendant's conviction, but vacate the sentence imposed by the court, and remand for re-sentencing. We gather the following facts from the evidence presented at trial.

The trial was completed in one day; defendant's parole officer Liz Colon was the only witness who testified for the State; defendant did not call any witnesses. We will not recite at length Colon's testimony concerning the various interactions she had with defendant throughout her period of supervision. Suffice it to say, through her testimony, the State established that from February to August 2005, defendant: (1) failed to report as directed; (2) changed his residence and moved out of the State of New Jersey without Colon's prior approval; (3) failed to provide at least one urine sample; (4) tested positive for cocaine based on one urine sample he provided; and (5) lost contact with Colon for several weeks. The State also introduced into evidence a statement signed by defendant admitting to his use of cocaine while on parole. Defense counsel did not object to the admission of this evidence.

Against this backdrop, on September 1, 2005, a warrant was issued for defendant's arrest after Colon confirmed that defendant was not residing at the latest addess he had given as his residence. Defendant was arrested in December 2005, in Rochester, New York, under the alias "Carlos Rivera." He listed his residence as 414 Remington Street.

Defendant now appeals raising the following arguments.

POINT I

THE ADMISSION OF UNDULY PREJUDICIAL N.J.R.E. 404(b) EVIDENCE DENIED THE DEFENDANT A FAIR TRIAL AS GUARANTEED BY U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, 10. (Not Raised Below).

POINT II

THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.

As to Point I, we are satisfied that the evidence presented to the jury concerning defendant's cocaine use should have been evaluated under N.J.R.E. 404(b), and thereafter, if deemed admissible, the jury should have been instructed on the proper use of this evidence. State v. Cofield, 127 N.J. 328, 334 (1992). Here, defense counsel did not object to the admission of this evidence, nor request that the jury receive the appropriate charge. We thus review defendant's argument on appeal under the plain error standard. R. 2:10-2. That is, the error must have been clearly capable of producing an unjust result.

Ordinarily, a defendant waives the right to contest a specific jury instruction on appeal if he did not object at trial. State v. Adams, 194 N.J. 186, 207 (2008); R. 1:7-2. However, when it comes to other crimes evidence under N.J.R.E. 404(b), even in the absence of a request, a judge should sua sponte give the required jury instruction in order to avoid an unjust result. Agha v. Feiner, 198 N.J. 50, 64 n.7 (2009).

That being said, we will not reverse a conviction tainted by the absence of a Cofield charge, when the record clearly shows that the State produced overwhelming evidence of defendant's guilt, and the error thus did not deprive defendant of his right to a fair trial. State v. Lair, 62 N.J. 388, 392 (1973).

Here, we are satisfied that the State met this burden. Colon, the only witness who testified, provided overwhelming proof that defendant failed to honor the conditions of his parole. From the start of his interactions with Colon, defendant was less than candid about his residency. Colon gave him a number of opportunities to correct his behavior before resorting to an outright violation warrant. His unauthorized presence and subsequent arrest in upstate New York speaks for itself.

Ironically, evidence of defendant's cocaine use while on parole would have been properly admissible if it had been accompanied by the appropriate limiting instructions to the jury. Cofield, supra, 127 N.J. at 334. Cofield established the following criteria for admissibility of evidence under N.J.R.E. 404(b):

(1) The evidence of the other crime must be admissible as relevant to a material issue;
 
(2) It must be similar in kind and reasonably close in time to the offense charged;
 
(3) The evidence of the other crime must be clear and convincing; and

 
(4) The probative value of the evidence must not be outweighed by its apparent prejudice.

[Id. at 338.]

Here, defendant's cocaine use is relevant because it violated one of the conditions of his parole status; defendant committed this wrong while on parole, thus per se satisfying the second criterion; the State presented clear and convincing evidence of defendant's cocaine use through a positive urine test and defendant's own admission; and the probative value of this evidence to establish defendant's guilt of parole violation clearly outweighs its prejudicial effect.

Regrettably, however, the jury received this evidence without judicial guidance as to how it should be used. The court should have charged the jury to consider this evidence only as it related to defendant's motive for leaving the jurisdiction of the State of New Jersey, N.J.R.E. 404b, not as an indication of defendant's bad character or of his propensity to violate the law. Given the overwhelming evidence of defendant's guilt, the absence of such instructions, although error, was harmless error because it did not irreparably damage the reliability of this verdict. Lair, supra, 62 N.J. at 392.

Finally, defendant attacks the sentence imposed by the court as manifestly excessive. The court found aggravating factors (3), the risk that defendant will commit another offense, (6), defendant's criminal history, and (9), the need to deter defendant and others from committing similar offenses, and mitigating factor (4), that there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense. N.J.S.A. 2C:44-1.

The record shows that defendant has only one prior indictable conviction. In 2003, defendant was convicted of third-degree distribution of heroin within 1,000 feet of school property. N.J.S.A. 2C:35-7. At the time of sentencing, defendant, then thirty years old, had a pending charge of third-degree aggravated assault. This parole violation was his second indictable conviction. Against this record, the judge imposed the maximum sentence permitted by law, finding that the aggravating factors substantially outweighed the one mitigating factor.

State v. Cassady, 198 N.J. 165 (2009), is the Supreme Court's most recent expression concerning the scope of appellate review of a trial court's sentence. In Cassady, the Court reaffirmed that the paramount goal of the Criminal Code is uniformity in sentencing. Id. at 179. This uniformity is achieved "through the careful application of statutory aggravating and mitigating factors." Id. at 179-80.

The Court thus admonished appellate judges not to second guess a trial judge's conscientious exercise of discretion in imposing a sentence that, although harsh, is made in accordance with the principles outlined in the Criminal Code. Ibid. We are bound to respect a sentence imposed by the trial court, unless such a sentence shocks our judicial conscience. Ibid.

There is no formula or judicially crafted test for determining what shocks a judge's conscience. A judge's conscience is an amalgam of professional training and commonsense understanding of morality and fairness, ultimately tempered and refined by years of experience. At the end, each judge is left to search deep down to find the line separating the uncomfortably acceptable, from the intolerably wrong.

Here, the maximum sentence imposed by the trial court shocks our collective judicial conscience because we find it to be intolerably wrong. Defendant was convicted for absconding from parole, a non-violent offense. The evidence presented at trial did not reveal that defendant's actions in committing this offense were dangerous, or otherwise exposed the public or law enforcement personnel to a particular risk. Defendant's only prior indictable conviction also involved a non-violent offense. There is also nothing in this record that indicates that defendant has engaged in a protracted pattern of anti-social behavior, such as a history of juvenile delinquency.

In weighing the factors in N.J.S.A. 2C:44-1, a sentencing judge must always focus on the severity of the crime. State v. v. Hodge, 95 N.J. 369, 377-79 (1984). Here, other than stating, in a conclusory fashion, that the aggravating factors outweighed the one mitigating factor, the trial court did not otherwise provide any reason for imposing the maximum sentence permitted by law.

The range of an ordinary sentence authorized by the Code for a third-degree offense starts at three years, with no parole restriction, and ends with the maximum five years, with two and one half years of parole ineligibility. N.J.S.A. 2C:43-6(a). Coupled with the sentencing factors outlined in N.J.S.A. 2C:44-1, the Code implicitly reserves the maximum sentence for an offender who has consistently displayed an utter contempt for the rules of civilized society.

Based on the evidence presented at trial, and the information revealed through the pre-sentence investigation report, defendant's actions here only showed an inability to comply consistently with the rules and conditions of parole. Although deserving of sufficient punishment to deter him and others from engaging in similar acts, such a crime does not merit the maximum length of incarceration authorized by the Code.

To condone such a sentence under these circumstances results in two wrongs. First, it unduly and excessively punishes defendant; and second, it denigrates the legal efficacy and moral force of a truly deserving maximum sentence. For these reasons, we vacate the sentence imposed by the court, and remand the matter for re-sentencing.

 
Defendant's conviction is affirmed. The case is remanded for re-sentencing.

Defendant also argued that the sentencing judge erred in not finding mitigating factors (1) and (2), N.J.S.A. 2C:44-1. State v. Dalziel, 182 N.J. 494, 505 (2005). In light of our decision, we need not decide this issue. Defendant is free to make this argument to the trial judge at the re-sentencing hearing.

(continued)

(continued)

9

A-4656-07T4

June 12, 2009