STATE OF NEW JERSEY v. ANDREW R. GARCIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1066-07T41066-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW R. GARCIA,

Defendant-Appellant.

________________________________________________________________

 

Submitted January 4, 2010 - Decided

Before Judges Lisa and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 05-06-0841.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Jennifer Stonerod, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and third-degree endangering an injured victim, N.J.S.A. 2C:12-1.2. For the aggravated assault, defendant was sentenced in the third-degree range, see N.J.S.A. 2C:44-1f(2), to four years imprisonment, subject to an 85% parole disqualifier under the No Early Release Act, N.J.S.A. 2C:43-7.2. For endangering an injured victim, defendant was sentenced to three years imprisonment which, as required by N.J.S.A. 2C:12-1.2d, was ordered to be served consecutively to the aggravated assault sentence. All mandatory monetary assessments were imposed and defendant was ordered to pay restitution. On appeal, defendant argues:

POINT I

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT CO-DEFENDANT MEGHAN [DIACZYNSKY]'S ENTRY INTO THE PRETRIAL INTERVENTION PROGRAM SHOULD NOT BE CONSIDERED AS SUBSTANTIVE EVIDENCE OF THE DEFENDANT'S GUILT CONSTITUTES PLAIN ERROR (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT FOUR CHARGING ENDANGERING AN INJURED VICTIM MADE AT THE END OF THE STATE'S CASE.

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY CHARGE BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON THE DEFENSE OF SELF-DEFENSE AND BY FAILING TO INCORPORATE THE FACTS OF THE CASE (NOT RAISED BELOW).

(A) THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON SELF DEFENSE (NOT RAISED BELOW).

(B) THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INCORPORATE IN ITS JURY CHARGE THE FACTUAL CONTEXT THAT CONFRONTED THE DEFENDANT (NOT RAISED BELOW).

POINT IV

THE BASE CUSTODIAL SENTENCE OF 4 YEARS IMPOSED ON THE DEFENDANT'S CONVICTION FOR AGGRAVATED ASSAULT ON COUNT THREE WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

We reject these arguments and affirm.

On December 2, 2004, Mark Errichetti was repairing the roof on a building he owned in Burlington City. Thomas Roach was working with Errichetti. The building was one of ten rental properties Errichetti owned in Burlington City. Errichetti normally parked in a paved, fenced-in parking space behind the building, on which he had posted a "no parking" sign. On that date, however, when Errichetti arrived at the building, he found an SUV parked in the space. He parked his vehicle behind the SUV, thus blocking it in.

The SUV belonged to Megan Diaczynsky, who was then defendant's girlfriend. She had gone to the area to pick up defendant, who was staying with his mother, who in turn was staying with a tenant in one of Errichetti's buildings.

Defendant went to a store in the neighborhood to transact business. Diaczynsky went to her SUV, intending to drive it around the block and pick up defendant. When she found her SUV blocked in, an exchange occurred between her and Errichetti. Errichetti admonished Diaczynsky for parking in the space. Defendant then came to the scene and asked Errichetti to move his vehicle.

The participants in this interaction gave differing versions of the particular statements made and language used. However, what happened next is that Errichetti moved his vehicle, and Diaczynsky backed her SUV out of the parking space, after which Errichetti parked in the space. While Diaczynsky remained in the SUV, a heated exchange occurred between defendant and Errichetti, with both men screaming at each other in close quarters. According to defendant, he turned around to leave, but Errichetti walked closely behind him, continuing to yell. Defendant said he turned around, Errichetti pushed his face away with his hand, and defendant then punched Errichetti once in the neck with his left hand. Diaczynsky agreed that Errichetti pushed defendant, but she testified that defendant punched Errichetti twice in the face with his right hand. Errichetti claimed he did not hit or push defendant, but acknowledged that he may have "arm brushed" defendant as he attempted to leave immediately prior to being hit. Roach was climbing down the ladder when the physical altercation occurred, and he did not see defendant hit Errichetti.

Errichetti claimed that before he was hit he believed defendant had a pipe in his hand. Defendant denied this, and no other witness saw a pipe or any other weapon. The police did not recover any pipe or other weapon, and concluded that no weapon was used in the assault.

Diaczynsky said that when defendant punched Errichetti twice he "melted" to the ground, face up. She acknowledged that Errichetti was hurt, but did not believe that he had lost consciousness. She said defendant looked at Errichetti for a second or two, did not appear too concerned, and simply wanted to leave. Defendant testified that he did not believe that Errichetti was seriously injured. He acknowledged in his testimony that Errichetti was wheezing and it sounded like he had gotten the wind knocked out of him. In a statement given to the police one day after the incident defendant said that when Errichetti went down his "head hit the ground and he started breathing funny and that's when [defendant] got scared and he left." The ground where this incident occurred was paved with concrete.

By the time Roach got down the ladder, Errichetti was already on the ground. Roach and defendant exchanged words. Although their versions of the exchange differed, defendant's remarks could have constituted a threat to Roach that the same thing could happen to him. However, there was no physical confrontation between defendant and Roach. Defendant proceeded to get into the SUV, and he and Diaczynsky drove off.

When Roach got to Errichetti, there was blood on the ground and Errichetti was unconscious. Roach immediately called 911 and police responded. The first officer on the scene found Errichetti in a semiconscious and confused state, with an egg-shaped bruise on his forehead and a laceration and swelling on the back of his head. Errichetti was taken to the hospital by ambulance. He was in intensive care for three days. He suffered head and brain injuries, from which he continued to suffer residual effects at the time of trial.

On June 23, 2005, the grand jury indicted defendant for the two charges for which he was convicted, and also a charge of third-degree terroristic threats against Roach, which was dismissed during the course of the trial. The grand jury also indicted Diaczynsky for third-degree endangering an injured victim and third degree hindering apprehension. She was admitted into the pretrial intervention (PTI) program on September 6, 2005, and, upon completing her obligations in the program, the charges in the indictment against her were dismissed on July 14, 2006. As a condition of PTI admission, Diaczynsky agreed to testify truthfully against defendant. When the trial was conducted in April 2007, she did testify on behalf of the State.

In Points I and III, defendant argues that the jury instructions were deficient in three respects. These contentions are raised for the first time on appeal. Accordingly, we are guided by the plain error standard and will not reverse unless any error was clearly capable of producing an unjust result. R. 2:10-2. Not any possibility is sufficient, but it must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). In the context of a jury charge, plain error is "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970). In light of this standard, we evaluate the claimed errors in the jury instruction.

Defendant argues that the court erred in failing to instruct the jury that it should not consider co-defendant Diaczynsky's admission into PTI as substantive evidence of defendant's guilt. Defendant relies on State v. Stefanelli, 78 N.J. 418 (1979). In that case, the Court held that if evidence of a co-defendant's guilty plea is admitted in the trial of a defendant, it is admissible for the limited purpose of reflecting on the credibility of the co-defendant who pled guilty, and may not be considered by the jury as substantive evidence of the guilt of the defendant on trial. Id. at 430-34. In such circumstances, an appropriate limiting instruction must be given to that effect. Id. at 434. The Stefanelli rule does not apply in this case because Diaczynsky did not plead guilty to any offense for which she was charged as a co-defendant. She was diverted from prosecution through PTI, and the charges against her were dismissed upon her successful completion of PTI. All of this information was laid before the jury, including Diaczynsky's agreement with the prosecutor to testify against defendant as a condition of her admission to PTI. There was no error in failing to give a Stefanelli limiting instruction in these circumstances.

Defendant further argues that the judge erred in failing to sua sponte instruct the jury on self-defense. Defendant did not contend that he punched Errichetti to defend himself from a perceived imminent attack. He never asserted the defense of self-defense. He did not argue it to the jury, and he did not request a self-defense jury instruction. Indeed, at sentencing, defendant's attorney urged the court to apply mitigating factors four and five, N.J.S.A. 2C:44-1b(4) and (5), namely that there were substantial grounds tending to excuse or justify defendant's conduct though failing to establish a defense, and that the victim induced or facilitated the commission of the offense. In making the argument, defense counsel made clear that under the facts of this case, the defense of self-defense was not applicable. Defense counsel stated: "As far as self defense, I never argued it, Judge. I don't think it rightly applies in a case where [defendant] had the full grounds to retreat."

Defendant testified in his own behalf. He did not contend that he punched Errichetti because he was in fear for his own safety. The court did not err in failing to sua sponte instruct the jury on principles of self-defense.

Relying on State v. Concepcion, 111 N.J. 373, 379 (1988), defendant argues that the jury instructions regarding endangering an injured victim were deficient because the judge did not elaborate on the context of the material facts of the case. A trial judge "has the right, and oftentimes the duty, to review the testimony and comment upon it, so long as he [or she] clearly leaves to the jury . . . the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it finds them." State v. Laws, 50 N.J. 159, 177 (1967), cert. denied, 393 U.S. 971, 89 S. Ct. 408, 21 L. Ed. 2d 384 (1968). However, "[n]o party is entitled to have the jury charged in his or her own words; all that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J. 409, 422 (1997).

The jury heard substantial testimony regarding the circumstances in which defendant left the scene with Errichetti lying on the ground. All four individuals who were present at that time testified. The jury also heard how defendant described the circumstances to the police in his statement shortly after the incident. The circumstances were straightforward. The incident was of short duration. This was not a complicated situation that needed judicial clarification to assist the jury. Both counsel made effective arguments for the jury's consideration with respect to defendant's knowledge and intentions when he left the scene with Errichetti lying on the ground. The judge did not err in failing to sua sponte elaborate beyond the model charge.

We next consider defendant's argument that the judge erred in denying his motion at the conclusion of the State's case for acquittal of the endangering an injured victim charge. To be found guilty of violating N.J.S.A. 2C:12-1.2, a jury must find (as relevant to this case) the following elements: (1) that defendant caused bodily injury to another; (2) that the injured person was physically helpless, mentally incapacitated, or otherwise unable to care for himself; and (3) that defendant left the scene of the injury knowing or reasonably believing that the injured person was physically helpless, mentally incapacitated or otherwise unable to care for himself. Model Jury Charge (Criminal), "Endangering Injured Victim" (2005). For purposes of this statute, "physically helpless" means "the condition in which a person is unconscious, unable to flee, or physically unable to summon assistance." N.J.S.A. 2C:12-1.2b(1).

A motion for acquittal at the close of the State's case should be granted if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The judge must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). Applying these principles, we are satisfied that the judge did not err in denying defendant's motion. Viewing the evidence most favorably to the State, the jury had before it a situation in which defendant punched Errichetti twice in the face, as a result of which he "melted" to the ground, hitting the back of his head on the concrete, and coming to rest in a motionless state. By defendant's own description, Errichetti was breathing funny, and defendant got scared and left. Immediately after defendant left, Roach observed that Errichetti was unconscious. This evidence was sufficient to establish all required elements of the offense beyond a reasonable doubt.

Finally, defendant's argument that his sentence is excessive is plainly without merit. The judge's findings regarding aggravating and mitigating factors are well supported by the record, the judge did not err in applying the sentencing principles enunciated in the Criminal Code, and the sentence imposed is not unduly punitive, does not constitute a mistaken exercise of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
Affirmed.

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A-1066-07T4

February 2, 2010