STATE OF NEW JERSEY v. JOSE CARRANZA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5053-07T45053-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JOSE CARRANZA,

Defendant-Appellant.

__________________________________

 

Argued: October 7, 2009 - Decided:

Before Judges Cuff and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-04-1265.

John P. Dell'Italia argued the cause for appellant (Dell'Italia, Affinito & Santola, attorneys; Mr. Dell'Italia, on the brief).

Debra G. Simms, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Simms, of counsel and on the brief).

PER CURIAM

A jury found defendant Jose Carranza guilty of third degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1b(7) (Count One); two counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(7) (Counts Two and Five); one count of fourth degree unlawful possession of a weapon (a bottle), N.J.S.A. 2C:39-5d (Count Three); and one count of third degree possession of a weapon (a bottle) for unlawful purposes, N.J.S.A. 2C:39-4d (Count Four). At sentencing, the judge merged Count One with Count Two and Count Three with Count Four. Defendant was sentenced to consecutive four-year terms of imprisonment with eighteen-month periods of parole ineligibility on Counts Two and Five, and a three-year term of imprisonment on Count Four, concurrent to the sentence imposed on Count Two. The appropriate fees, fines and penalties were also imposed.

The charges arise from a barroom brawl. On October 1, 2006, defendant Carranza went to Huguito's Restaurant & Bar (Huguito's) in West Orange with three or four friends. At some point in the evening, a disagreement erupted between one of defendant's friends, Persy Leyva, and four men drinking at the bar: Rafael Ramirez, Roberto Flores, Jesus Flores, and George Villegas. Soon chairs and bottles flew about the room.

Ramirez was hit on the rear right side of his head by a bottle and was soon attacked by defendant and two other men. Ramirez fell to the floor. He attempted to defend himself by pushing his assailants; nevertheless, he was struck in the ribs and sustained injuries to the front left side of his temple and rear left side of his head. During the melee, he observed defendant throwing bottles and chairs at his friends, who had sought cover in a corner of the room.

Despite his efforts to evade the flying bottles and chairs, Jesus Flores was struck in the face with a bottle. He described the person who threw the bottle as a "skinny" bare-chested man. This man was not defendant. Flores did, however, see defendant involved in the fracas.

Allen Torres, the owner of Huguito's, was behind the bar that evening. Torres overheard Leyva "having a little disagreement" with Ramirez. Ten or fifteen minutes later, Torres observed Leyva get up from his chair. As Leyva did so, Ramirez chased him to a corner of the bar. Torres then saw defendant and another man "c[o]me from behind and br[ea]k the bottle over [Ramirez's] head." Defendant then struck Ramirez when he was on the ground. Torres also observed defendant and his cohorts throwing bottles and chairs towards other people. He also heard defendant yell obscenities, such as "f---ing Costa Ricans," at the people who sought refuge in the corner. When Torres announced the police were on their way, defendant and his friends quickly disbursed.

West Orange police officers Keith Reilly and William Sayers responded to the scene. Torres provided a description of those involved in the brawl. He described them as Hispanic males, one of whom was bare-chested. He also informed the officers that one of the men ran north on Ashland Avenue.

Officer Reilly spotted defendant walking about a block from the bar. His attention was drawn to this man because he was wearing a white tee shirt and his arm was covered with blood. After initially resisting detention, defendant was transported to the bar where he was identified separately by Ramirez and Jesus Flores as one of the men involved in the fight. Following the identifications, defendant was arrested. Ramirez was transported to the hospital for treatment.

On appeal, defendant raises the following arguments:

POINT ONE

THERE WAS INSUFFICIENT EVIDENCE PRESENTED FOR THE JURY TO FIND THE DEFENDANT GUILTY

POINT TWO

THE TRIAL JUDGE INCORRECTLY SENTENCED THE DEFENDANT/APPELLANT

A. THE TRIAL JUDGE ERRED IN REJECTING THE PRESUMPTION OF NON- INCARC[E]RATION

B. THE TRIAL COURT ERRED IN DECIDING THE APPROPRIATE SENTENCE

(1) THE TRIAL COURT FAILED TO PROPERLY ASSESS THE AGGRAVATING FACTORS

(2) THE TRIAL COURT ERRED BY NOT CONSIDERING ANY MITIGATING FACTORS

C. THE TRIAL COURT ERRED IN FINDING THAT A PERIOD OF PAROLE INELIGIBILITY WAS WARRANTED

D. THE TRIAL COURT ERRED IN NOT STATING IT[]S FACTUAL BASIS AND BALANCING TEST FOR IMPOSING THE SENTENCE

POINT THREE

THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES

POINT FOUR

DEFENDANT WAS DENIED HIS RIGHT A FAIR TRIAL

POINT FIVE

THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL

A. COUNSEL FAILED TO PROPERLY ADVISE DEFENDANT REGARDING HIS RIGHT TO TESTIFY

B. COUNSEL DID NOT ARGUE THE MITIGATING FACTORS OR ADDRESS THE AGGRAVATING FACTORS

Defendant argues that the State presented insufficient evidence to support the verdict. He insists there is no evidence that he struck Ramirez or Jesus Flores and any involvement in the brawl was limited to acts to defend himself. Therefore, defendant urges that the trial judge should have granted his Rule 3:18-1 motion at the close of the State's case. The State responds that there was more than sufficient evidence to support the charges of third degree aggravated assault, fourth degree unlawful possession of a weapon, third degree possession of a weapon for an unlawful purpose, and conspiracy to commit aggravated assault.

The standard applicable to a motion for judgment of acquittal at the close of the State's case is well-known:

[T]he trial judge must determine . . . whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J 454, 458-59 (1967).]

This court utilizes the same standard to review the disposition of a Rule 3:18-1 motion.

Our review of the record demonstrates that the State presented sufficient evidence to withstand this motion on all counts but conspiracy. One of the victims, Ramirez, identified defendant as the man who hit him. The owner of the bar, Torres, identified defendant as the man who broke a bottle over Ramirez's head. Witnesses testified that defendant and another man were observed throwing bottles and chairs at others. While there may have been a question concerning the extent of the injuries suffered by Ramirez and Jesus Flores, the nature of the blows inflicted on both men, including bottles broken over their heads and blows to their mid-sections, amply demonstrated that defendant purposely attempted to cause significant bodily injury to both men. Cf. State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986) (a defendant is guilty of aggravated assault contrary to N.J.S.A. 2C:12-1b(1) if he purposely attempts to cause serious bodily injury).

We reach a different disposition, however, on Count One, third degree conspiracy to commit aggravated assault. To support a conspiracy charge, the State was required to submit evidence that defendant made an agreement with Leyva, one of the men drinking with defendant at Huguito's that evening, and an unidentified co-conspirator, to aid or assist him in the assault on Ramirez and Jesus Flores and other patrons in the bar. In State v. Samuels, 189 N.J. 236, 245 (2007), the Court explained that

the agreement to commit a specific crime is at the heart of a conspiracy charge. Such an agreement is central to the purposes underlying the criminalization of the inchoate offense of conspiracy. Thus, under the Code ""the major basis of conspiratorial liability [is] the unequivocal evidence of a firm purpose to commit a crime'" that is provided by the agreement. State v. Roldan, 314 N.J. Super. 173, 181 (App. Div. 1998) (quoting Model Penal Code 5.03 comment 2 (Tentative Draft No. 10 (1960)). "'The agreement is an advancement of the intention'" to commit the crime. State v. Abrams, 256 N.J. Super. 390, 401 (App. Div. 1992) (quoting State v. Carbone, 10 N.J. 329, 336-37 (1952)), certif. denied, 130 N.J. 395 (1992).

A conspiracy may be proven by circumstantial evidence. Id. at 246. An implicit or tacit agreement may be inferred from the circumstances. State v. Kamienski, 254 N.J. Super. 75, 94 (App. Div.), certif. denied, 130 N.J. 18 (1992).

The essential elements of the conspiracy must be evaluated with reference to the underlying offense. Samuels, supra, 189 N.J. at 246. Here, that is aggravated assault (significant bodily injury). The State was required to prove that defendant made an agreement with Leyva or the unidentified co-conspirator to cause significant bodily injury purposely or knowingly, or under circumstances manifesting extreme indifference to the value of human life acted recklessly and caused significant bodily injury. See N.J.S.A. 2C:5-2; N.J.S.A. 2C:12-1b(7). In other words, defendant, Leyva and the unidentified person agreed to engage in the brawl and to inflict or attempt to inflict significant bodily injury on others in the bar on that evening.

The State presented no direct evidence of such an agreement. Here, all the State presented was that defendant and Leyva and others were at Huguito's at the same time. There is no testimony that the melee commenced with the simultaneous action of defendant and others. There is no evidence that defendant and others acted in response to a signal from someone. There is testimony that angry words were exchanged between Leyva and Ramirez, but several minutes passed before Leyva started to approach Ramirez again. As he did so, Ramirez started to chase Leyva. According to the record, then and only then did defendant and another act ostensibly to protect their friend.

The State argues that a conspiracy charge is appropriate because once the brawl commenced, defendant acted in concert with others. This argument conflates conspiracy and accomplice liability. These two concepts are markedly different. The former criminalizes an agreement to engage in a criminal act and some further action in aid of the plan. Samuels, supra, 189 N.J. at 245-46. The latter allows criminal liability to be imposed on a person for the acts of another in which that person participates. See Roldan, supra, 314 N.J. Super. at 189.

Here, the facts would permit a conspiracy charge solely based on association and presence at the scene and a spontaneous response to threatened violence to another. That is not permitted. See State v. Madden, 61 N.J. 377, 395 (1972) (conspiracy not supported by evidence of spontaneous response to violence); Abrams, supra, 256 N.J. Super. at 401 ("mere knowledge, acquiescence, or approval of the substantive offense, without an agreement to cooperate, is not enough" to support a conspiracy charge). Moreover, these facts are markedly different from the facts of Samuels. There, the defendant was in a car with another for a lengthy period of time late at night, he helped another try to escape, and he helped another find the room where they knew they would find the intended victim of an armed robbery. Samuels, supra, 189 N.J. at 249.

Here, the State presented nothing more than that defendant and others were drinking at a bar when defendant went to the aid of a friend, who was being chased in a threatening manner by another patron. Such evidence is not sufficient to establish that defendant and others entered an agreement to initiate a melee in a local tavern. The motion to dismiss the conspiracy charge at the close to the State's case should have been granted. We, therefore, reverse the conspiracy conviction.

Defendant argues that he was denied a fair trial because the trial judge did not provide an adequate instruction to the jury about publicity surrounding this and subsequent charges lodged against defendant. For defendant to succeed in this argument, we must conclude that the trial judge not only erred, but that any error was clearly capable of producing an unjust result because defendant did not seek any special instruction about publicity at trial. R. 2:10-2; State v. Adams, 194 N.J. 186, 206-07 (2008).

During the trial, the trial judge issued the usual instruction that jurors should not discuss the case with anyone, including fellow jurors, family, friends, acquaintances, and co-workers. He also directed the jurors not to read any stories in the newspapers about the case.

On the evening following the first day of testimony, the judge saw a news report on a cable news program involving defendant. The next day at trial, the judge extended his admonition about newspapers to televised or radio news reports. Defendant did not object to this expanded instruction. On appeal, defendant now argues that the judge should have expanded the instruction to include "any publicity regarding other cases involving defendant."

At oral argument, we were informed that unrelated homicide charges had been lodged against defendant involving a notorious incident in which four young college students were killed in a schoolyard in Newark during the summer of 2007. Although defendant had a legitimate concern about detrimental publicity, we have struggled with how the judge could have fashioned a suitable instruction that would avoid precisely what such instructions are designed to do; that is, to avoid obtaining extra-record information about the accused that could cause manifest prejudice to him.

Defendant now insists that each juror should have been separately interviewed about publicity regarding defendant. This, of course, is an entirely different issue as it relates more to empanelling an impartial jury. In any event, we discern no error, much less plain error, in the charge provided on the issue of publicity.

Defendant argues that trial counsel provided representation that denied him his Sixth Amendment right to counsel. Defendant contends that his trial attorney failed to properly advise him regarding his right to testify and failed to present any mitigating factors at sentencing or minimize the aggravating factors cited by the State.

Claims of ineffective assistance of counsel are best suited for the post-conviction relief procedure. State v. Preciose, 129 N.J. 451, 460 (1992). That is so because claims of ineffective assistance of counsel normally require development of a factual record beyond the trial record. Ibid. Such is the case here.

We cannot discern from the trial record the nature of the advice given to defendant about testifying at trial. We also cannot determine from the trial record how trial counsel prepared for sentencing. We, therefore, defer any consideration of the effectiveness of the representation provided to defendant to the recognized post-conviction relief procedure. See R. 3:22-1 to -12.

Defendant is serving an aggregate term of eight years in prison with a three-year period of parole ineligibility. The judge merged Count One, the conspiracy conviction, with Count Two, third degree aggravated assault, and imposed a four-year term of imprisonment with an eighteen-month period of parole ineligibility. This term is consecutive to a similar term imposed on Count Five, third degree aggravated assault (significant bodily injury). The judge also merged Count Three, unlawful possession of a weapon, with Count Four, unlawful possession of a weapon, and imposed a three-year term of imprisonment. In fashioning this sentence, the judge cited aggravating factors one (the nature and circumstances of the offense), three (the risk that defendant will commit another offense), and nine (the need for deterrence).

At the time of sentencing, defendant had a prior record of arrests but only one conviction for a disorderly persons offense. These charges represented his first conviction for an indictable offense. Defendant argues, therefore, that as a first offender he was presumptively eligible for a non-custodial term. We disagree.

A non-custodial term in this case ignores the injuries sustained by both men. Such a disposition also ignores the mayhem that erupted in Huguito's on that night and the damage caused to its contents.

On the other hand, we question the finding of aggravating factor one. This was a fight in a bar. We have held that there was no evidence that defendant, Leyva and others entered Huguito's that night with the express purpose of inciting a brawl. Although the conspiracy charge merged with the substantive offense, finding aggravating factor one strongly suggests that the conspiracy charge heavily informed this finding. Therefore, we direct the trial judge to reconsider the aggravating factors in light of the reversal of the conspiracy charge and, of course, without any reference to any other pending charges.

Defendant also argues that the trial judge failed to express the reasons for consecutive terms. We surmise the judge elected to impose a consecutive term because there were two victims, but neither defendant nor this court should have to speculate why the judge imposed a specific term. On remand, we direct the judge to identify the relevant factors that informed the imposition of a consecutive term. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

Affirmed in part; reversed in part; remanded for re-sentencing consistent with the terms of this opinion. We do not retain jurisdiction.

 

Due to inconsistencies in the spelling of the names, we use the names as listed in the indictment.

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A-5053-07T4

January 22, 2010