STATE OF NEW JERSEY v. ANGEL VARGEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2062-07T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

 

v.

 

ANGEL VARGEZ,

 

Defendant-Appellant.

________________________________________________________________

September 23, 2010

 

Submitted September 14, 2010 - Decided

 

Before Judges Wefing, Baxter and Koblitz.

 

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-04-1072.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele Adubato, Designated Counsel, of counsel and on the brief).

 

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Luanh L. Lloyd, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a trial by jury, defendant Angel Vargez was convicted of one count of third-degree receiving stolen property, N.J.S.A. 2C:20-7, for which the judge sentenced him to a five-year term of imprisonment, subject to a two and one-half year parole ineligibility term. On appeal, defendant raises the following claims:

I. THE FAILURE OF THE COURT TO EXCUSE JUROR #5 PRIOR TO DELIBERATIONS DENIED DEFENDANT A FAIR TRIAL.

 

II. THE COURT'S FAILURE TO GRANT A MISTRIAL FOLLOWING THE TESTIMONY REGARDING DEFENDANT'S POST-ARREST SILENCE WAS ERROR.

 

III. IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO PERMIT A LAW ENFORCEMENT FACT WITNESS TO PROVIDE OPINION TESTIMONY REGARDING THE ULTIMATE ISSUE IN THE CASE AND TO NEGLECT TO INSTRUCT JURORS REGARDING THEIR EVALUATION OF THIS TESTIMONY. (Not raised below)

 

IV. THE PROSECUTOR'S QUESTIONING OF MR. LOPEZ REGARDING HIS FAILURE TO GIVE THE POLICE EXCULPATORY INFORMATION ABOUT DEFENDANT EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA.

 

V. THE STATE VIOLATED THE RULES OF DISCOVERY WITH REGARDS TO LATE DISCLOSURE OF CERTAIN EVIDENCE UTILIZED AT TRIAL. (Not raised below)

 

VI. THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not raised below)

 

A. Failure to Object to Certain Evidence

 

B. Eliciting Prejudicial Testimony on Cross-examination

 

C. Failure to Request the Dismissal of a Juror

 

D. Failure to Object to the State's Cross-examination of the Defense Witness

 

VII. THE SENTENCE IMPOSED UPON THE DEFENDANT OF 5 YEARS WITH 2 1/2 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below)

 

VIII. THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below)

 

With the exception of the claim defendant advances in Point VI, which we defer for post-conviction review, see State v. Preciose, 129 N.J. 451, 462 (1992), we reject the arguments raised and affirm defendant's conviction and sentence.1

I.

On January 18, 2006, Detectives Francisco Quevas and Tony Brown of the Newark Police Department Auto Squad were on patrol when they observed a silver Audi, in which neither the driver nor either of the two passengers was wearing a seatbelt. When the detectives effectuated a motor vehicle stop, the car pulled over to the curb and the three occupants exited the vehicle. When the detectives asked defendant, who was the driver, to produce his driver's license, the vehicle's registration and proof of insurance, he was unable to do so. The detectives observed a damaged ignition, a screwdriver lying in the center console and damage to the driver's side door. No keys were found in the vehicle. Although the Audi had not been reported stolen, the police contacted the vehicle's owner, Judith Wagner, who reported that she had left her car parked outside her place of employment and had given no one permission to operate it.

On the first day of trial, prior to jury selection, defendant objected to the late production of certain pieces of evidence by the State, namely the certificate of title, the motor vehicle offense summonses issued to defendant, the plea form for co-defendant Frank Meglio and a copy of the car rental agreement. He requested that the documents be excluded from evidence; however, after reviewing the items further, defense counsel withdrew her objection.

The trial commenced with defendant and the remaining co-defendant, Carlos Colon, who was the third occupant of the vehicle, being tried jointly. During the redirect testimony of Detective Quevas, the prosecutor asked, "when you approached the individuals who are already standing out of the car, did anybody deny that they were in that car?" When Quevas answered "no," both defendants objected on the grounds that the question intruded on their Fifth Amendment right to remain silent. After considerable discussion at sidebar, the prosecutor agreed to withdraw the question and, at the request of both defense counsel, the judge instructed the jury to disregard the question and its answer, stating:

[T]he last answer of the detective is stricken. You are to disregard his answer. I'll give you final instructions of what that means in my final instructions. But you're to disregard his answer and you may not consider it in any manner for any purpose in your deliberations.

 

At sidebar, the judge denied co-defendant Colon's motion for a mistrial.

The State also called Detective Brown, who described the damage he observed to the vehicle, stating, without objection, that he saw "damage to the driver's side door which is indicative of auto theft and auto related crimes." Brown explained that he had been a member of the Newark Police Department's Auto Squad, which concentrated on investigating automobile theft and recovering stolen vehicles, adding that he had received "special training" for that position. Brown also explained that he issued summonses to defendant for failing to wear a seatbelt and for driving without a license.

On the second day of trial, before the proceedings began, juror number five informed the judge that she had realized when she returned home after the prior day's proceedings that she had gone to high school with Frank Meglio, who witnesses had described as one of the occupants of the Audi. The juror explained that although she had seen Meglio in the courthouse hallway, she did not remember that he had been in her auto shop class until she returned home. In response to the judge's questions, she said she did not know Meglio, had no "impression about him" and assured the judge she knew nothing about Meglio that would cause her to conclude that he was, or was not, in the Audi with defendant and Colon. She also assured the judge that she had not engaged in any conversation with Meglio in the hallway of the courthouse and that nothing about Meglio or seeing him in the courthouse hallway would in any way interfere with the presumption of innocence to which both defendants were entitled.

Once the juror exited the courtroom, both defendants asked the judge to excuse her, which the judge declined to do in light of the juror's assurances that nothing about Meglio would interfere with her ability to be fair and impartial. Just before juror number five left the courtroom, the judge instructed her not to tell the other jurors "anything we've spoken about[.]" Ultimately, juror number five was designated an alternate and did not participate in the deliberations.

Defendant presented one witness, Frank Lopez, a hotdog vendor working from a truck parked near the location where Quevas and Brown effectuated the stop of the Audi. Lopez testified that defendant approached his hotdog truck on foot and after defendant consumed the hotdog he purchased, "the other two young men came by." Lopez maintained that the three were standing on the sidewalk when Quevas and Brown arrived, at which time the officers "pointed their guns at the [three] and they told them to put their hands up."

On cross-examination, Lopez was asked, without objection, whether he had ever told police that defendant, who was his "regular customer . . . was arrested for something he didn't do." Lopez was also asked whether he had ever contacted police or the Prosecutor's Office "to tell them this didn't happen the way they say it happened." Lopez answered "no" to each question.

Outside the presence of the jury, the judge asked both defense attorneys if they had chosen not to object to the cross-examination of Lopez "for a tactical reason." When both attorneys answered the judge's question in the negative, the judge stated:

You see, this is one of those situations where the Judge may have a superseding responsibility. I'm not a partisan here, but I'm in the job of trying fair cases, fair trials, and with no objection to it, I hate to see this come back if there's a conviction, based on . . . the fact that possibly objectionable evidence has . . . been introduced in front of this jury. There was no objection to it. That much is true.

 

The judge proceeded to explain to the lawyers that the State's cross-examination of Lopez had likely run afoul of the Court's holding in State v. Silva, 131 N.J. 438, 447-48 (1993), that the State may not question a witness about his failure to provide exculpatory information to police without first laying a foundation establishing that the witness was aware of the nature of the charges pending against the defendant, had reason to know that he had exculpatory information and was familiar with the procedure for providing such information to law enforcement authorities.

When the jury returned to the courtroom and Lopez was recalled to the stand, defense counsel elicited testimony from Lopez establishing he was unaware of the crime for which defendant was being arrested, police had not asked him any questions about what happened, he did not know where defendant lived and had never seen defendant at any location other than at his hotdog truck. To correct any potential prejudice to defendant arising from the State's cross-examination of Lopez, the judge included the following instruction in his final charge to the jury later that day:

You ve heard testimony about when Frank Lopez, a witness called by [defendant] first came forward with his account of what happened. I instruct you that Frank Lopez had no obligation to provide an account at any time. And there may be many reasons for his not doing so.

 

You may consider the evidence concerning when he came forward and why he did so at that time only for the limited purpose of deciding whether it affects the credibility of his account. You may not use the evidence to conclude that Frank Lopez violated some obligation to come forward, because he had no duty to speak on the subject with anyone.

 

The jury returned a verdict finding defendant guilty of third-degree receiving stolen property, but acquitted Colon of both receiving stolen property and the lesser included offense of unlawful taking of a means of conveyance.

At sentencing, after finding that the three aggravating factors outweighed the non-existent mitigating factors, the judge imposed the sentence we have already described. When sentencing co-defendant Meglio, who had pled guilty, the judge imposed a one-year term of non-custodial probation.

II.

In Point I, defendant maintains the judge's refusal to excuse juror number five after she revealed she attended high school with co-defendant Meglio denied him a fair trial. "[A] criminal defendant's right to a fair trial requires that he be tried before a jury panel not tainted by prejudice." State v. Biegenwald, 106 N.J. 13, 32 (1987). A new trial must be granted when improper influence "'could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge.'" State v. Weiler, 211 N.J. Super. 602, 610 (App. Div.) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)), certif. denied, 107 N.J. 37.

If the trial judge determines that potentially prejudicial material has come to the attention of a juror, the trial judge "must make a probing inquiry into the possible prejudice caused by any jury irregularity, relying on his or her own objective evaluation of the potential for prejudice rather than on the jurors' subjective evaluation of their own impartiality." State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997). If the judge determines the material in question could prejudice the defendant, the court is required to question the remaining jurors to determine whether any of them were exposed to the information. Id. at 487. A trial judge's decision on potential bias is afforded considerable deference by a reviewing court "and a judge's assessment of a juror's credibility in responding to questions will be respected." State v. Carroll, 256 N.J. Super. 575, 599 (App. Div.), certif. denied, 130 N.J. 18 (1992).

Our review of the record satisfies us that Judge Ravin's handling of the issue preserved defendant's right to a fair trial. The juror's recollection of Meglio was so meager that she did not recognize his name during jury selection, and even when she saw him in the hallway she did not remember from where she knew him. Not until she returned home that evening did she remember that he was a former high school classmate. The judge accepted her assurances that nothing about Meglio would in any way interfere with the presumption of innocence to which defendant was entitled. Defendant has presented nothing that would cause us to disturb the judge's findings on that issue, which were based upon his opportunity to observe the juror and evaluate her truthfulness, see Carroll, supra, 256 N.J. Super. at 599, and his own objective evaluation of the potential for any prejudice. Moreover, juror number five ultimately did not deliberate because she was designated an alternate.

On appeal, for the first time, defendant insists that the judge should have questioned the other jurors to determine whether juror number five had told them she knew Meglio from an auto shop class in high school. Although Scherzer requires judges to question the remaining jurors when prejudicial material has come to the attention of a single juror, supra, 301 N.J. Super. at 487, no inquiry of the other jurors was required here because the judge questioned juror number five at the beginning of the court day and instructed her to refrain from discussing her knowledge of Meglio with the other jurors.

Judge Ravin's treatment of the issue was entirely appropriate. We therefore reject defendant's contention that the judge abused his discretion in not conducting voir dire of the remaining jurors and in retaining juror number five.

III.

In Point II, defendant argues Detective Quevas's testimony, that none of the defendants denied being in the car, was an impermissible commentary on his exercise of the right to pre-arrest silence, and the court erred by refusing to declare a mistrial when Colon so moved. A defendant's failure to assert his innocence "while in custody, under interrogation, or 'at or near' the time of his arrest cannot be used against him in a criminal trial." State v. Muhammad, 182 N.J. 551, 558 (2005). "A motion for a mistrial is addressed to the sound discretion of the court; and the denial of the motion is reviewable only for an abuse of discretion." State v. Witte, 13 N.J. 598, 611 (1953). The power to grant a mistrial should be exercised with the "greatest caution" and should only be invoked when "the vice is plainly ineradicable by an instruction to the jury." Ibid.

While we agree with defendant that Detective Quevas's testimony, that the three did not deny being in the car, was a Muhammad violation, we are satisfied that Judge Ravin's immediate and forceful instruction to the jury eradicated any prejudice. As we have noted, the judge informed the jury that the detective's answer to the question had been stricken from the record and they were to "disregard his answer" and were prohibited from "consider[ing] it in any manner for any purpose in [their] deliberations." A jury is presumed to have followed a judge's instructions. State v. Nelson, 173 N.J. 414, 478 (2003). Because this single error in testimony was neutralized by the judge's forceful and immediate jury instruction, the situation did not warrant the more severe sanction of a mistrial. See Witte, supra, 13 N.J. at 611. We thus reject the claim defendant advances in Point II.

IV.

In Point III, defendant maintains that the judge erred in permitting Detective Brown to offer opinion testimony without being qualified as an expert witness as required by N.J.R.E. 702. The Rule generally prohibits a witness from offering "specialized knowledge" or opinion testimony unless, because of the witness's particular knowledge or experience, the judge specifically permits the witness to offer such testimony. See State v. Torres, 183 N.J. 554, 567 (2005) (requiring a preliminary examination of the witness's experience, training or education outside the presence of the jury, thereby enabling the judge to determine if the witness is qualified to provide expert testimony), certif. denied, 129 N.J. 294 (2007). Defendant also maintains that Brown's testimony, that he observed damage to the driver's side door "which is indicative of auto theft and related crimes," constituted an opinion that defendant was guilty, thereby impermissibly invading the province of the jury.

We turn first to defendant's argument that Detective Brown should not have been able to offer an opinion because he was not deemed qualified to do so as required by N.J.R.E. 702. Because defendant did not object to Brown's testimony, we will reverse on this ground only if the error, if any, was "clearly capable of producing an unjust result." R. 2:10-2.

Opinion testimony of lay witnesses "may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist [the jury] in understanding the witness' testimony or in determining a fact in issue." N.J.R.E. 701. Further, "[i]t is well-established that a lay witness may give his opinion in matters of common knowledge and observation." State v. LaBrutto, 114 N.J. 187, 197 (1989). For that reason, "[c]ourts in New Jersey have permitted police officers to testify as lay witnesses, based on their personal observations and their long experience in areas where expert testimony might otherwise be deemed necessary." Id. at 198 (holding that a non-expert police officer could offer an opinion on the point of impact in an automobile accident trial). See also State v. Jackson, 124 N.J. Super. 1, 4 (App. Div.) (concluding that a narcotics detective lay witness "if sufficiently experienced and trained, may testify generally as to the observable reaction of drug users and of the technique of the use"), certif. denied, 63 N.J. 553 (1973).

Here, Detective Brown's lay opinion testimony satisfies the requirements of both LaBrutto and Jackson because Brown's testimony was based upon his own personal observations of the Audi and his years of experience with the Newark Police Department's Auto Squad. We therefore conclude that Brown's testimony about the damage to the car's door being consistent with the vehicle having been stolen is an instance of permissible lay opinion. Therefore, the judge had no obligation to sua sponte order its exclusion.

Moreover, the testimony of the vehicle's owner, Wagner, unequivocally demonstrated she had not given permission to defendant to drive her car, thereby establishing that the vehicle was removed from its location without the consent of the owner and giving rise to the inference that the car had been stolen. Additionally, defendant never argued the car was not stolen, instead confining his argument to the claim that he was never in the car and was therefore falsely accused of committing the crime. Thus, even if Detective Brown's testimony was impermissible opinion testimony, which it was not, its admission did not produce an unjust result. See R. 2:10-2. We therefore reject the first portion of the claim defendant advances in Point III.

We turn next to defendant's claim that Brown's testimony impermissibly contained an opinion that defendant was guilty, thereby invading the province of the jury. We start by stating the obvious: "[t]estimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." N.J.R.E. 704. Such testimony is nonetheless still subject to exclusion if the risk of undue prejudice substantially outweighs the probative value of the evidence. State v. Berry, 140 N.J. 280, 298 (1995).

The seminal case interpreting N.J.R.E. 704 is State v. Odom, 116 N.J. 65 (1989), in which the Court established guidelines for the appropriate use of a hypothetical question in a drug distribution case. Id. at 80-82. While we recognize that Brown's testimony here was not expressed in response to a hypothetical question, the opinion he expressed is of the sort typically arising in the context of a hypothetical question and we will therefore apply the guidelines established by Odom. The expert's opinion must be limited to the facts adduced at trial; in a drug distribution trial, the expert may express an opinion on the ultimate issue of whether the drugs were possessed for distribution or for personal consumption; the expert must inform the jurors of the information on which the opinion is based; the expert must avoid directly expressing an opinion on the defendant's guilt; and, to the extent possible, should not parrot the statutory terminology. Odom, supra, 116 N.J. at 78-79.

Applying Odom, the Court had occasion in State v. Summers, 176 N.J. 306 (2003) to make the following observations:

Obviously, the expert must walk a fine line. His or her opinion can be 'expressed in terms of ultimate issues of fact, namely, whether drugs were possessed with the intent to distribute,' but it cannot contain an explicit statement that 'the defendant is guilty of the crime charged under the statute.' Finally trial courts should instruct the jury in respect of the proper weight to be given to the expert's opinion, reminding jurors that the ultimate decision concerning a defendant's guilt or innocence rests solely with them.

 

[Summers, supra, 176 N.J. at 314-15 (quoting Odom, supra, 116 N.J. at 80-81).]

 

In light of the criteria approved by the Court in Odom and Summers, we are satisfied that Brown's fleeting reference to the damage to the driver's side door being "indicative of auto theft" stays well within the permissible confines of expert opinion as it contains no "explicit statement," id. at 315, that defendant was guilty of the crime charged. While we recognize that the judge gave the jury no limiting instruction on the use of the opinion provided by Brown, we will not reverse on this ground as defendant never requested such an instruction and the judge's failure to so instruct the jury was not "clearly capable of producing an unjust result." See R. 2:10-2. In light of the nature of defendant's defense, that he had not been in the car, and the uncontroverted testimony from Wagner that her car had been taken from her without her permission, any error in not sua sponte providing such an instruction to the jury had no capacity to produce an unjust result. We thus reject in its entirety the claim defendant advances in Point III.

V.

In Point IV, defendant maintains that the cross-examination of defense witness Lopez violated the mandates of Silva, supra, 131 N.J. at 447-48. Again, because defendant did not object to this testimony, and indeed it was the judge who sua sponte raised the Silva issue, we will not reverse on this ground unless any error was "clearly capable of producing an unjust result." R. 2:10-2. Having thoroughly reviewed defendant's contentions in light of the applicable law, we conclude that his Silva argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, Judge Ravin's firm, specific and clear instruction to the jury, which was delivered in his final instructions the same day that Lopez testified, fully eradicated any prejudice caused by the original Silva violation. The judge's instruction therefore satisfies the standards the Court recently announced for curative instructions in State v. Vallejo, 198 N.J. 122, 134-35 (2009). We reject the claim defendant presents in Point IV.

VI.

In Point V, defendant maintains that the late turnover of some of the pretrial discovery on the morning the trial began denied him a fair trial. We disagree. As we have already noted, defense counsel withdrew her objection after reviewing the documents in question, commenting that she anticipated being able to effectively address the newly-produced discovery items during her cross-examination. Further, the items in question (the certificate of title, the motor vehicle summonses issued to defendant, Meglio's plea form, the car rental agreement and the appraisal of the car) were either already known to defendant or, in the case of the motor vehicle documents, were encompassed in the police reports that had already been provided. We thus reject the claim defendant advances in Point V.

VII.

In Point VI, defendant asserts that trial errors by defense counsel denied him the effective assistance of counsel. He points to trial counsel's failure to object to certain testimony, eliciting prejudicial testimony during cross-examination, failing to request the dismissal of juror number five and failing to object to the State's cross-examination of his witness, Lopez. The Court has "expressed a general policy against entertaining ineffective assistance of counsel claims on direct appeal," noting that such claims should generally be deferred for a subsequent post-conviction relief (PCR) proceeding. Preciose, supra, 129 N.J. at 460. Defendant has presented no meritorious reason for us to deviate from the salutary rule established in Preciose. We therefore defer defendant's ineffective assistance of counsel claims to the PCR stage.

VIII.

In Point VII, defendant asserts that the sentence imposed was excessive and urges us to exercise original jurisdiction to modify and reduce it. Our role in reviewing claims of an excessive sentence is sharply circumscribed. State v. Bieniek, 200 N.J. 601, 607-08 (2010). So long as the judge's findings of statutory aggravating and mitigating factors "were based upon competent credible evidence in the record," and the judge imposed a sentence within the permissible range for the offense, we will not substitute our view of a proper sentence for the sentence imposed by a trial judge, who is afforded considerable discretion in the imposition of sentence. Ibid. (quoting State v. Roth, 95 N.J. 334, 345 (1984)). When trial judges exercise their discretion in accordance with the principles set forth in Roth and in the Code, "they need fear no second-guessing." Id. at 608 (quoting Roth, supra, 95 N.J. at 365).

Here, the judge found the following aggravating factors: three, the risk defendant will commit another offense; six, the extent of defendant's prior record; and nine, the need for deterrence. N.J.S.A. 2C:44-1(a)(3), (6) and (9). Those findings are well supported by the record. Although only twenty-five years old at the time he was arrested for this offense, defendant had already amassed a record consisting of juvenile adjudications of delinquency for drug distribution and attempted possession of a controlled dangerous substance (CDS), as well as adult convictions for receiving stolen property and possession of CDS. As to the mitigating factors, none were urged at sentencing and none are urged on appeal.

Moreover, the period of parole ineligibility imposed by the judge was appropriate in light of the judge's finding that he was "clearly convinced that the aggravating factors substantially outweighed the non-existing mitigating factors." See N.J.S.A. 2C:43-6(b).

Last, we reject defendant's claim that his sentence was excessive because it vastly exceeded the probationary sentence imposed on co-defendant Meglio. A sentence will not be deemed unfairly disparate when the extent of a co-defendant's participation in the crime is less than the defendant's or where the co-defendant's prior record is less extensive. State v. Lee, 235 N.J. Super. 410, 416 (App. Div. 1989). Here, Meglio, unlike defendant, was not the driver of the Audi, but was merely a passenger, thereby involving a different level of culpability, which no doubt explains why Meglio was sentenced to probation.2 Meglio was in a far different position than defendant, thereby warranting the disparate sentences imposed. We therefore reject the claim defendant advances in Point VII.

IX.

Finally, in Point VIII, defendant maintains that the aggregate errors denied him a fair trial. This claim warrants little discussion. As we have already concluded, many of the issues upon which defendant claims error were not errors at all and, to the extent there were any errors, they did not deny him a fair trial.

Affirmed. Remanded to the trial court for the entry of an amended JOC deleting the reference to a plea agreement.

1 The judgment of conviction (JOC) does, however, contain a clerical error as it states on the bottom of the second page that the sentence was the result of a plea agreement, which is obviously incorrect. We remand for correction of the JOC.

2 The record contains no information on the extent of Meglio's prior criminal record, if any.