STATE OF NEW JERSEY v. LUIS GONZALEZ

(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NOT FOR PUBLICATION WITHOUT THE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-5382-06T45382-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS GONZALEZ,

Defendant-Appellant.

_____________________________________________

 

Argued March 25, 2009 - Decided

Before Judges Fisher and King.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-01-0184.

Lon Taylor, Assistant Deputy Public Defen-der, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Taylor, of counsel and on the brief).

Frank Muroski, Deputy Attorney General, argued the cause for respondent (Anne Milgram, Attorney General, attorney; Mr. Muroski, of counsel and on the brief).

PER CURIAM

In this appeal, defendant, who was charged with carjacking, argues, among other things, that he was prejudiced by the lack of a jury instruction on the lesser-included offense of theft. Because we agree there was no factual basis for a finding of guilt on the lesser-included offense, we affirm. However, we conclude that the sentence imposed was excessive and remand for resentencing.

I

Testimony heard by the jury over the course of a three-day trial reveals that defendant attended a program in Egg Harbor Township as a condition of his parole. On December 22, 2004, defendant fled the program because a warrant had been issued for his arrest.

Around that same time, Gregory Pieri arrived at a Wawa convenience store in Egg Harbor Township. He parked but left the engine running. When he returned to his minivan after making a purchase in the store, Pieri sat in the backseat and proceeded to wrap Christmas presents for his family while he ate lunch. Suddenly, according to Pieri, defendant opened the driver's door, sat in the driver's seat and put the car in gear. Pieri described for the jury how defendant told him to "be quiet, not to say anything and he wouldn't shoot me." According to Pieri, defendant "motioned with his right hand down towards his pocket." Pieri testified to being in "shock or disbelief" as defendant drove the vehicle out of the parking lot.

Pieri removed a cell phone from his pocket and threatened to dial 9-1-1. Defendant said if Pieri gave him the phone he would let him out of the vehicle. Pieri refused, but defendant soon pulled to side of the road and let Pieri exit the vehicle.

Pieri called the police and provided a description of defendant and what had occurred. With this information, police vehicles located and pursued Pieri's stolen minivan on the Atlantic City Expressway. Officers testified that the minivan was moving at a high rate of speed and was driven erratically in and out of traffic. For safety concerns, the pursuit was terminated. Later that day, the vehicle was located in Camden, where it was being driven by Luis Torres, who testified that defendant, with whom Torres was acquainted, "rented" the vehicle to him for twenty dollars. Defendant was arrested in Camden the next day.

Defendant was indicted and charged with a single count of first-degree carjacking, N.J.S.A. 2C:15-2a(2). Following a trial, he was convicted as charged.

The State's motion for an extended term was granted and defendant was sentenced to a forty-five-year prison term with a period of parole ineligibility of thirty-eight years and three months pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.1.

Defendant appealed, presenting the following arguments:

I. THE OMISSION OF AN INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF THEFT AFTER AN EXHAUSTIVE DISCUSSION OF THE ISSUE WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT, MANDATING A NEW TRIAL (Partially Raise[d] Below).

II. THE ADMISSION OF UNSANITIZED EVIDENCE THAT DEFENDANT HAD VIOLATED PAROLE AS MOTIVE AND TO "CORROBORATE THE IDENTIFICATION" THAT HE COMMITTED THE CARJACKING WAS ERRONEOUS AND MANDATES A NEW TRIAL, ESPECIALLY IN LIGHT OF DEFENDANT'S MISIDENTIFICATION DEFENSE.

III. EVEN ASSUMING THAT THE PAROLE-VIOLATION EVIDENCE WAS PROPERLY ADMITTED TO SHOW MOTIVE, THE COURT'S JURY INSTRUCTION THAT THE EVIDENCE COULD BE FURTHER CONSIDERED TO "CORROBORATE THE IDENTIFICATION" WAS ERRONEOUS, MANDATING A NEW TRIAL (Not Raised Below).

IV. THE PROSECUTOR'S STATEMENTS IN SUMMATION IMPLYING THAT FAIRNESS TO THE VICTIM REQUIRED A GUILTY VERDICT, THAT THE "OUT-OF-COURT ID IS BEYOND QUESTION," AND THAT THE TRAUMATIZED VICTIM HAD HEIGHTENED OBSER-VATION ABILITIES, WERE IMPROPER, MANDATING A NEW TRIAL (Not Raised Below).

V. THE IMPOSITION OF AN EXTENDED 45-YEAR TERM OF IMPRISONMENT ON THE CARJACKING CHARGE, SUBJECT TO THE 85% NERA PAROLE BAR, WAS EXCESSIVE, ESPECIALLY IN LIGHT OF THE MINIMAL NATURE OF THE CARJACKING.

We find insufficient merit in the arguments contained in Points II, III and IV to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also reject the argument contained in Point I for reasons to which we will shortly turn. In addition, in considering Point V, we agree that defendant should be resentenced.

II

Defendant was charged with violating N.J.S.A. 2C:15-2a(2), which defines a carjacker as a person who "in the course of committing an unlawful taking of a motor vehicle . . . or in an attempt to commit an unlawful taking of a motor vehicle . . . threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury."

Toward the end of the trial, defense counsel argued there was insufficient proof on the elements of N.J.S.A. 2C:15-2a(2):

the charge is just one count of car jacking [sic] . . . [and] the only person who could or who has given this jury any information with which to determine whether or not a car jacking as opposed to something else took place aside from the fact who did it . . . [and] the victim . . . even he refused actually to agree with the prosecutor when she tried to get him to say that he feared for his life or fear[ed] that he would be shot or words to that effect; . . . I respectfully do not believe there [is] a reasonable jury that could find that in fact Mr. Pieri . . . was actually in immanent [sic] fear of the type of injuries that is required in order to be a car jacking; . . . . If, in fact, there are some reasonable lesser includeds, and I'm not frankly sure whether I'm quite comfortable in discussing . . . that issue yet given the facts of the case.

The judge correctly viewed this argument as the equivalent of a motion to dismiss.

In ruling upon the motion, the judge briefly described the evidence and concluded that it supported the State's argument that defendant's words and gestures placed Pieri in fear. The judge also observed that defense counsel's theory of the case was that there was a "mistaken" identification, which was buttressed, at least in part, by testimony elicited by defense counsel that Pieri was "nervous," "upset," and "still shaken" shortly after the incident.

Later, during the charge conference, this discussion was renewed. In considering the scope and content of the jury charge, the parties and the judge discussed whether it was appropriate to instruct the jury on lesser-included offenses. The trial judge concluded there was no rational basis to instruct on any lesser-included offenses, again emphasizing that defendant's theory rested on misidentification. All agreed that no lesser-included offenses should be charged:

[PROSECUTOR]: And you're right, the case as it is now I would say it's pretty clear that the defense isn't entitled to [instruction on lesser-included offenses] . . . .

. . . .

THE COURT: I would agree with you. I'm almost always nervous about this, even though I think this is as clear as it can be, but you always have that threat of the one defense attorney arguing one thing, and as soon as it does go up on appeal . . . the appellate defense attorney arguing just the opposite; and then it's a question of plain error . . . .

Do you feel there's a rational basis for [lesser-included offenses] to be charged, [defense counsel]?

[DEFENSE COUNSEL]: I don't, Judge.

As a result, the judge held:

I don't think a reasonable human being hearing this evidence would have any rational basis whatsoever to conclude that whomever took the vehicle, they either took the vehicle just to take the vehicle without any threats and -- how else . . . did they get possession of it, you know, with the occupant in the car, with the person in the car, with the -- I just don't see how they could find the one without the other. It seems to me that would purely be a compromise . . . [that] is not based on the testimony and the proofs.

After the judge made these remarks, defense counsel again confirmed the lack of a rational basis for an instruction on any lesser-included offense.

In light of defense counsel's consent to a charge that did not include instructions on lesser-included offenses, we will not reverse absent a demonstration that the charge was erroneous and the error was "clearly capable of producing an unjust result such that a reasonable doubt is raised as to whether the error led the jury to a result it otherwise might not have reached." State v. Brims, 168 N.J. 297, 306 (2001) (internal quotation marks and citations omitted).

It is well-established that "[n]o defendant should be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense." State v. Muhammad, 182 N.J. 551, 577 (2005) (quoting State v. Garron, 177 N.J. 147, 180 (2003), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004)). As a result, trial judges are obligated to instruct on lesser-included offenses even if no objection is asserted or request made. State v. Jenkins, 178 N.J. 347, 361 (2004). In fulfilling this obligation, trial judges must compare the statutory elements of each charge, State v. Thomas, 187 N.J. 119, 129 (2006), to determine whether a reasonable jury could find the defendant guilty of the lesser offense while simultaneously acquitting the defendant of the greater offense, Jenkins, supra, 178 N.J. at 361. See also State v. Brent, 137 N.J. 107, 123 (1994); State v. Garretson, 313 N.J. Super. 348, 354 (App. Div.), certif. denied, 156 N.J. 428 (1998). This approach requires that (1) a requested charge actually be a lesser-included offense, and (2) "there is a rational basis for a verdict convicting the defendant of the included offense." State v. Cassady, 198 N.J. 165, 178 (2009) (citing Thomas, supra, 187 N.J. at 131); see also State v. O'Carroll, 385 N.J. Super. 211, 223-24 (App. Div.), certif. denied, 188 N.J. 489 (2006).

In Cassady, the Court upheld a trial judge's refusal to instruct the jury on theft charges as a lesser-included offense of robbery when the evidence demonstrated that the defendant entered a bank and presented a withdrawal slip to a teller with "nothing written on it . . . except only the amount of five thousand dollars." 198 N.J. at 170. After the teller asked defendant if he had an account with the bank, and the defendant said he did not, the teller responded that she could not give him money. Ibid. The teller testified that the defendant then asserted, "Please hurry up. I know how to get it." Ibid. (internal quotation marks omitted). The teller stated that she began shivering and felt something was wrong; then the man repeated loudly, "[h]urry up. I know how to get it." Ibid. (internal quotation marks omitted). The defendant then jumped over the bulletproof glass window between the two and dropped onto the counter top. Ibid. The teller testified she "was so scared [she] thought he would kill [her]", and ran and locked herself in an adjacent room. Ibid. Although concededly no direct physical threat of harm was made, the teller testified she was "scared -- to death." Ibid.

Although in Cassady, the defendant's theory centered on misidentification, he also argued that if the jury found him to have been the person in the bank who demanded money from the teller, he was guilty only of theft and not robbery because he did not physically threaten the teller. Id. at 171. He argued that "'in the course of committing a theft,' the defendant must 'threaten[] another with or purposely put[] him in fear of immediate bodily injury' in order to be guilty of robbery." Id. at 172 (quoting N.J.S.A. 2C:15-1a(2)). The trial judge rejected the defendant's argument, finding that the "totality of the circumstances" -- that a nearly 6'5" man entered the bank, demanded money, jumped a bulletproof divider to access the cash himself and caused the teller to flee in fear -- revealed no rational basis to instruct the jury on the lesser-included theft charge. Id. at 172-73.

We reversed by way of a 2-1 decision, but a four-judge majority of the Supreme Court agreed with Judge Fuentes's dissent in this court, that "no rational jury could come to any other conclusion" than that of robbery, State v. Cassady, 396 N.J. Super. 392, 405 (App. Div. 2007) (dissenting opinion), and, furthermore, held that "to claim that defendant's actions in this case merely constituted a theft improperly minimizes defendant's conduct and wrongfully belittles its import and consequences." Id. at 179.

In speaking for herself and two other members of the Court, Justice Long asserted in dissent that an accused need only "scale a 'low threshold' to avail himself of a jury charge on a lesser-included offense." Id. at 184. The dissent emphasized the rational basis standard, and reinforced the fact that the "'question at that stage of the proceedings centers on the existence of evidence to support the lesser included offense, and not on its worth.'" Id. at 185 (quoting State v. Samuels, 189 N.J. 236, 251 (2007)). The dissenting opinion concluded that because "there is evidence in the record that casts doubt on the existence of the prerequisite mental state for elevating theft to robbery: whether Cassady 'purposely put [the teller] in fear of immediate bodily injury' in the course of stealing the money from her drawer," a rational basis existed for instruction on the lesser-included offense. Ibid. (quoting N.J.S.A. 2C:15-1a(2)).

The close votes in Cassady in both this court and the Supreme Court reveal the difficulty presented by such issues. Nevertheless, the majority's decision in Cassady leads us to conclude that the evidence here presented no rational basis for a finding that defendant merely committed a theft. Although there was a dispute as to whether it was defendant that jumped in Pieri's vehicle and drove off with him inside, there was no dispute that the person who stole the vehicle did so with Pieri inside and made statements and gestures sufficient to put Pieri in fear of immediate bodily injury. We conclude that no rational jury coming to the conclusion that defendant was the person who took Pieri's vehicle could find him guilty of a lesser-included offense. As a result, we hold that the judge's decision was not erroneous and, in light of the lack of objection, was not capable of producing an unjust result.

III

Defendant was sentenced to a forty-five-year prison term, subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2d(10). The ordinary sentencing range for first-degree carjacking is between ten and thirty years. N.J.S.A. 2C:15-2b. Finding defendant extended term eligible, the judge described defendant's "exposure" as "30 to life."

In sentencing defendant to a forty-five-year term, the judge found no mitigating factors and three aggravating factors: the risk of committing another crime, N.J.S.A. 2C:44-1a(3); defendant's prior record and the seriousness of the offense, N.J.S.A. 2C:44-1a(6); and a need to deter, N.J.S.A. 2C:44-1a(9). The judge placed the greatest emphasis on aggravating factors three and six, noting that defendant was "constantly committing crimes against people, . . . people's property rights, burglary . . . and now carjacking." He concluded that defendant "seems to be getting worse because he's escalated to a first-degree crime." In addition, the judge viewed deterrence under factor nine "to be of huge weight" in that he thought "common sense would dictate that the higher you go up in degree, the more the need to deter because now you're getting into the more serious crimes, the more violent crimes." In this regard, the judge emphasized defendant's five prior indictable convictions, three municipal court convictions, a pretrial intervention termination in 1988, as well as defendant's admitted use of marijuana and heroin, and violations of probation and parole.

Although the judge recognized the applicability of State v. Pierce, 188 N.J. 155 (2006), he incorrectly viewed the range that applied to defendant's extended-term exposure as being thirty years to life, whereas Pierce instructs that the extended-term sentencing range is expanded from the minimal ordinary sentence to the maximum extended-term sentence. Id. at 169-70. In applying this principle, the judge should have utilized a range of exposure of ten years to life, not thirty years to life. This misapprehension requires that defendant be resentenced.

In addition, the judge was mistaken in attributing "huge weight" to aggravating factor nine. "Once the decision to impose an extended term has been made, the court should then return its focus primarily to the offense." State v. Dunbar, 108 N.J. 80, 91 (1987). Thus, "the conduct that is the occasion for the sentence controls the severity of the sentence." Ibid. In this regard, on remand the judge should consider State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996), where we held that a sentence for carjacking should be influenced by the type of carjacking for which the defendant was convicted. We held: that the most serious of the four types of carjacking is that which involves the infliction of bodily injury or the use of force, N.J.S.A. 2C:15-2a(1); that carjacking, which includes the threat of bodily injury, N.J.S.A. 2C:15-2a(2), and carjacking, which occurs during the commission or threat to commit a first- or second-degree crime, N.J.S.A. 2C:15-2a(3), are "of intermediate concern"; and that carjacking, which consists of operating a vehicle with the lawful occupant remaining in it, N.J.S.A. 2C:15-2a(4), is "the least serious carjacking." Id. at 291.

Although Zadoyan developed this approach because the Legislature did not set a presumptive term for carjacking -- and now presumptive terms are no longer utilized in sentencing, State v. Natale, 184 N.J. 458 (2005) -- we nevertheless conclude that Zadoyan continues to provide a helpful guide in ascertaining the seriousness of the particular type of carjacking for sentencing purposes.

Here, defendant was convicted of a carjacking that we referred to in Zadoyan as one of "intermediate concern." 290 N.J. Super. at 291. We would further observe what is obvious from the record -- that although the jury found defendant to have threatened the occupant with immediate bodily injury, or purposely or knowingly put the occupant in fear of immediate bodily injury -- that defendant was unarmed and no one was injured.

We conclude that resentencing is required because the trial judge misapprehended the proper sentencing range, unduly emphasized aggravating factor nine, and failed to consider the minimal severity of the crime.

 
Defendant's conviction is affirmed, but the matter remanded for resentencing in conformity with this opinion. We do not retain jurisdiction.

A lesser-included offense has been defined as one that can be "established by proof of the same or less than all the facts required to establish the commission of the offense charged . . . ." N.J.S.A. 2C:1-8d(1).

(continued)

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A-5382-06T4

May 6, 2009