STATE OF NEW JERSEY v. ERNESTO RIVERA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4802-07T44802-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERNESTO RIVERA a/k/a

ERNESTO DEJESUS,

ERNESTO R. DE JESUS,

VICTOR RIVERA and

ERNEST R. RIVERA,

Defendant-Appellant.

_______________________________

 

Submitted March 16, 2010 - Decided

Before Judges Carchman and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-04-0443.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Attorney, on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ernesto Rivera was charged in Passaic County Indictment No. 07-04-0443 with second-degree robbery, N.J.S.A. 2C:15-1. After trial, a jury acquitted defendant of robbery but found him guilty of third-degree theft, N.J.S.A. 2C:20-3. The court sentenced defendant to a five-year term of imprisonment with a two and one-half year period of parole ineligibility and imposed applicable fines and penalties. Defendant appeals, challenging his conviction and sentence stating:

POINT I

THE COURT ERRONEOUSLY ADMITTED CUSTODIAL STATEMENTS BY DEFENDANT WHICH WERE NOT PRECEDED BY MIRANDA WARNINGS AND WERE NOT THE PRODUCT OF INTERROGATION OR THE FUNCTIONAL EQUIVALENT OF INTERROGATION. (Partially raised below).

POINT II

THE TRIAL COURT ERRONEOUSLY PERMITTED THE STATE TO ADDUCE EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS.

POINT III

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

In light of our review of the record, the arguments of the parties, and the applicable legal standards, we affirm.

These facts, taken from the trial record, support defendant's conviction. Edwardo Nek Zuniga Ramirez owned a small store on Main Street in Paterson. The store's front door was controlled by an automatic locking system so that Ramirez, while sitting at her desk, would press a button unlocking the door to allow someone entry. To exit, a person needed to push the door while the button was also pressed.

Ramirez was familiar with defendant and saw him in front of or in her store over the prior two to three years. At times, defendant asked her for money or a soda.

On October 3, 2006, defendant entered the store three times. He first asked for one dollar, which Ramirez gave him. He returned seeking another dollar, fifteen minutes later, stating he needed two dollars to purchase medicine. Ramirez complied. After another ten to fifteen minute interval, defendant returned to the store, asked for additional money and offered to sell his asthma medicine. Ramirez declined both requests. She then rose from her desk to escort defendant out of the store.

Ramirez testified defendant shoved her against the wall, stole her wallet, which had been left on top of her desk, and ran out the door. He slammed the door such that the locking mechanism engaged and Ramirez could not open it to chase after him. Another store employee pressed the button at Ramirez's desk, as she pushed the door open.

Ramirez called the police and explained her stolen wallet contained $600, her passport, residence card, two credit cards, and her driver's license. One responding officer, Robert Klein, found a prescription antibiotic and "225 black lotion," each with defendant's name on the container.

On October 19, 2006, Ramirez spotted defendant in a local pharmacy. Accompanied by a traffic officer, she entered the Irving Pharmacy. Testimony elicited during a N.J.R.E. 104 hearing, but not presented at trial, included the police officer's inquiries of defendant. Ramirez said she only wanted her credentials returned and did not care about the money. Defendant repeated he did not know her. Ramirez then stated she would not press charges if he returned her documents. Defendant said the documents were at a friend's house. The police officer then arrested defendant. Defendant later consented to a search of his apartment where Officer Steven Leishman found a shoebox containing Ramirez's driver's license, one credit card, and her green card.

On defendant's behalf, Sheila Espinal, an investigator who spoke to Ramirez on June 8, 2007, testified. Ramirez had recounted the incident to Espinal but made no mention of being pushed, as defendant left her store.

First, defendant argues the statements he made in the pharmacy when confronted by Ramirez and the police officer were inadmissible, as they were made while in custody and not preceded by proper Miranda warnings. During trial, defendant did not file a motion claiming Miranda violations. However, he did request a N.J.R.E. 104 hearing, asserting the police officer's questions and defendant's answers to those questions were inadmissible. After Ramirez testified as to what happened in the pharmacy, this colloquy took place:

THE COURT: . . . In the beginning, [Ramirez] said to [defendant] give me back my documents, I don't care about the money.

[DEFENSE COUNSEL]: We have no objection to that coming in.

THE COURT: He denied he knew her at first, then said yes, they're at my friend's house basically. And she said just give me my documents a second time and he said yes, they're at my friend's house. And she stated in direct at that time the police officer put the handcuffs on him. However, it came out later during redirect -- your cross and redirect, that the officer also asked him about -- asked him questions and in his questioning did he know her, he denied that; did he take something from her, he said no. That's what your attempting to exclude?

[DEFENSE COUNSEL]: Yes, yes your honor.

. . . .

THE COURT: Based on what I know of the case, I see no prejudice to either party by striking the comments of the police -- the questions of the police officer at the time of arrest and the -- responses from the defendant to the -- to the police officer at the time of arrest.

Defendant now asserts the court committed plain error, as it was required to strike Ramirez's questions and defendant's responses made in the pharmacy, labeling them "products of interrogation or the functional equivalent of interrogation."

To ensure an individual's meaningful opportunity to exercise the privilege against self-incrimination, a person "who is 'subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way . . . must be adequately and effectively apprised of his rights[.]'" State v. O'Neill, 193 N.J. 148, 168 (2007) (quoting Miranda, supra, 384 U.S. at 467, 477, 86 S. Ct. at 1624, 1629, 16 L. Ed. 2d at 719, 725). These protections apply "to either express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S 291, 300-01, 100 S. Ct. 1682, 1689, 64 L. Ed. 2d 297, 308 (1980).

However, a defendant's "on-the-scene" admissions to police regarding general facts surrounding a potential crime prior to receiving a Miranda warning are admissible where a defendant, although not free to leave the scene, was not yet under custodial interrogation. State v. Gosser, 50 N.J. 438, 445-46 (1967), cert. denied, 390 U.S. 1035, 88 S. Ct. 1434, 20 L. Ed. 2d 295 (1968); State v. Coburn, 221 N.J. Super. 586, 595 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988).

Here, although the issue was presented to the trial judge, defendant's requests -- accepted by the State -- obviated the court's need to consider defendant's contention that his pre-Miranda statements were given in response to custodial interrogation, because the parties stipulated the police officer's statements would be excluded. Nevertheless, we need not address the merits of whether the protections afforded by Miranda apply.

"'[A] defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.'" State v. Kemp, 195 N.J. 136, 155 (2008) (quoting State v. Lykes, 192 N.J. 519, 539 n.7 (2007)). See also State v. Jenkins, 178 N.J. 347, 358 (2004) (explaining "when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant").

"The single exception to this rule is when the errors are 'of such magnitude that they trench directly upon the proper discharge of the judicial function.'" State v. Bishop, 187 N.J. Super. 187, 194 (App. Div. 1982) (quoting State v. Simon, 79 N.J. 191, 205 (1979)). Following our review, we conclude this exception has no application under these facts.

Accordingly, defendant's decision to exclude the police officer's testimony but use his comments to Ramirez, supported his trial strategy. From opening to summation, defendant's theory of the case contested robbery but conceded theft of Ramirez's wallet. This strategy proved successful, as the jury acquitted defendant of the robbery offense. We discern no basis for reversal.

We vigorously reject defendant's next contention that facts suggesting poverty "impute[] a criminal disposition." Defendant argues the trial court's erroneous admission of prejudicial evidence of past conduct cast him in a bad light, suggesting "he was desperate or homeless and from which a jury could find a propensity to commit the charged criminal offense." We disagree.

The testimony complained of was Ramirez's response to the State's inquiry on how she knew defendant. After the court overruled defendant's objection, she replied,

Well, he was outside several times during the week, he would come by and perhaps ask for a dollar or you know, if he need[ed] a Pepsi then he would go and get it[.]

This statement, relevant to the witness's identification of defendant, bears no parallel, as defendant suggests, to excluding evidence of chronic drug dependence. See, e.g., State v. Mazowski, 337 N.J. Super. 275, 287 (App. Div. 2001) (stating "[i]t is difficult to conceive of anything more prejudicial to a defendant than presenting him to the jury as a drug addict"). Defendant's contrary suggestion is meritless. R. 2:11-3(e)(2).

Finally, defendant requests resentencing, asserting the sentence imposed was excessive. The court applied four aggravating factors: the circumstance of the offense, N.J.S.A. 2C:44-1(a)(1), the risk of recidivism, N.J.S.A. 2C:44-1(a)(3), defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6), and the need for deterrence, N.J.S.A. 2C:44-1(a)(9). The judge also considered defendant's apology and applied two mitigating factors, defendant's desire to compensate the victim, N.J.S.A. 2C:44-1(b)(6), and the hardship his incarceration would pose on his family, N.J.S.A. 2C:44-1(b)(11). Finding the aggravating factors preponderated over the mitigating, the court imposed the five-year sentence.

Defendant argues the circumstances of the offense should not have been included. The court utilized this factor because the theft was not from a stranger but instead from someone defendant had befriended and who had shown compassion towards him. Even were this factor incorrectly included, the aggravating factors, which were supported by the evidence, continue to outweigh the mitigating ones. Additionally, in imposing a term of incarceration, the court properly weighed defendant's twenty-one adult arrests, seven of which were felonies. The sentence was within the statutory range for the offense and its imposition under these facts does not shock our consciences. State v. Roth, 95 N.J. 334, 362-63 (1984) (quotations and citations omitted).

 
Affirmed.

At defendant's request, any testimony that the officer asked defendant his name, whether he knew Ramirez, and whether he took anything from her, along with his negative responses were excluded.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

(continued)

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A-4802-07T4

May 27, 2010