STATE OF NEW JERSEY v. FERNANDO C. VASQUEZ-VOLANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5232-07T45232-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FERNANDO C. VASQUEZ-VOLANO,

Defendant-Appellant.

______________________________________________________________

 

Submitted December 2, 2009 - Decided

Before Judges Axelrad and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-08-7766.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel; Margaret C. Canning, Legal Assistant, on the brief).

PER CURIAM

Defendant, Fernando Vasquez-Volano, appeals from his sentence and convictions for armed robbery and weapons offenses. We affirm.

On May 26, 2007, a taxi driver, John Salvatore, responded to a call from a bartender at the Uptown Bar in Keyport to transport a patron to the Ken Garden Apartments in Aberdeen. Salvatore arrived at the bar at approximately 11:25 p.m. Salvatore saw defendant waiting outside the bar. Defendant entered the cab; Salvatore asked if he wanted to go to Ken Gardens Apartments and defendant responded, "yes." Salvatore also asked if defendant wanted to go to the house at the rear of the apartment complex and defendant again responded, "yes." There was no further conversation during the seven to ten minutes that it took to get to the apartments.

Upon arrival, Salvatore pulled in front of the house, put the car in park and turned on the interior light. He turned around to face defendant and told him that the fare was ten dollars. When defendant reached into his pocket, Salvatore turned back forward, believing that he was reaching for money to pay him. Instead, Salvatore saw a knife coming at him from his right side. Salvatore grabbed defendant by his forearm and threw him into the back seat of the vehicle. He received a minor cut on his chin in the process. Salvatore testified that he thought defendant was going to slice his throat. He unfastened his seatbelt, kicked open the door so hard that he bent the fender on the car, and got out.

Defendant came out of the car on the driver's side and took a swipe at Salvatore with the knife. Salvatore grabbed defendant and threw him on the ground. Defendant continued to swing the knife at Salvatore as they wrestled on the ground. Salvatore testified that he was terrified, thinking that defendant was going to stab him.

Salvatore was yelling for help when a white SUV, driven by Laverne Finley, pulled up. At this point, Salvatore was holding defendant, with defendant's arm wrapped around his neck. Salvatore testified that he brought defendant over to the car. He told Finley, "this guy just tried to cut slice my throat," and asked him to call the police.

Finley called 9-1-1. Defendant tried to squirm away from Salvatore, who threw him on the ground, kneeled on top of him and grabbed his throat. Salvatore testified that he was panicked, almost in shock at what had occurred. As he was holding defendant down, he told Finley that he was just giving defendant a ride; that defendant tried to slit his throat and that this could have happened to any of the people he worked with, including women who worked as drivers.

Salvatore testified that the police arrived within minutes. Officer Mary Johnston of the Aberdeen Police Department testified that, upon arrival, she saw a white male on top of another male on the ground. Uncertain about the circumstances, she asked the white male to identify himself. Salvatore responded that he was the cab driver and the man he was holding down tried to slit his throat. When she asked defendant to identify himself, he only stared and smiled. She asked him if he spoke English but received no reply. Officer Johnston handcuffed defendant and patted him down but found no knife. She testified that Salvatore was extremely excited, his voice was high pitched and his arms were flailing about. He told her that defendant had thrown the knife away. Officer Johnston searched the area for the knife and located it on the grass.

Defendant was indicted for armed robbery, N.J.S.A. 2C:15-1, (count one); possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count two); and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three). Following a jury trial, he was convicted on all counts. The trial court merged counts two and three into count one and imposed a custodial term of twelve years with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, as well as appropriate fines and penalties. Defendant later filed a motion for reduction of sentence pursuant to Rule 3:21-10(b)(3), which was denied.

In this appeal, defendant presents the following issues:

POINT I

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED ROBBERY, THE TRIAL JUDGE ERRED IN DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNT ONE. U.S. CONST. AMEND. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

THE TRIAL COURT PERMITTED IMPROPER AND HIGHLY PREJUDICIAL HEARSAY TESTIMONY FROM JOHNSTON AND FINLEY, WHICH BOLSTERED THE TESTIMONY OF SALVATORE, CHARACTERIZED THE INCIDENT AS A "ROBBERY," AND NECESSITATES REVERSAL. U.S. CONST., AMEND. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 10.

A. OFFICER JOHNSTON'S TESTIMONY.

B. LAVERNE FINLEY'S TESTIMONY.

POINT III

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

After carefully reviewing the record and briefs of counsel, we are satisfied that none of these arguments have merit.

Defendant argues that the trial court erred in denying his motion for a judgment of acquittal at the close of the State's case pursuant to Rule 3:18-1, on the grounds that the evidence was insufficient to establish a prima facie case of robbery. To satisfy the elements of N.J.S.A. 2C:15-1, the State must prove that defendant (1) inflicted bodily injury or used force upon Salvatore; or (2) threatened Salvatore with or purposely put him in fear of immediate injury "in the course of committing a theft." Defendant's only challenge to the sufficiency of the evidence concerns whether his conduct in attacking Salvatore was committed in the course of committing a theft.

A judgment of acquittal may be entered pursuant to Rule 3:18-1 "if the evidence is insufficient to warrant a conviction." The standard applicable to this motion is set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):

[T]he question the trial judge must determine is 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.

See also State v. Wilder, 193 N.J. 398, 406 (2008).

Applying this standard to the evidence in this case, there was sufficient evidence to support a conclusion that defendant drew a knife and attacked Salvatore in response to Salvatore's request to be paid the fare. Defendant argues that this fails to constitute evidence that he used force against Salvatore "in the course of a theft." This argument lacks merit because defendant's failure to pay the fare constitutes a theft and "any conduct denominated as theft is within the four corners of a robbery indictment." State v. Smith, 136 N.J. 245, 251-52 (1994). See also State v. Grissom, 347 N.J. Super. 469, 475 (App. Div. 2002) (undisputed that a theft did in fact occur when defendant exited the cab without paying the fare). Defendant's motion was, therefore, properly denied.

Defendant's next argument concerns the admission of testimony from Officer Johnston and Laverne Finley that he characterizes as inadmissible hearsay testimony.

The testimony from Officer Johnston that is challenged here concerned her conversation with Salvatore at the scene, when she recounted what Salvatore told her had happened. Because this issue is raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2006).

The challenged testimony was no more than a summary of Salvatore's version of events. As both Officer Johnston and Salvatore testified, these statements were made within minutes of the robbery, when Salvatore was extremely excited, his arms flailing about, and, in his words, almost in shock at what had occurred. Therefore, although Salvatore's statements to Officer Johnston did constitute hearsay, the statements qualified as excited utterances and were admissible pursuant to N.J.R.E. 803(c)(2) ("A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate."). The admission of these statements was not error, let alone plain error.

Finley testified, without objection, that when Salvatore reached his vehicle, holding onto defendant, he explained what had happened:

[Salavatore] told me that he was in the in the cab and he had brought the gentleman home and [Salvatore] said he tried to stab him in the neck. He's like, call the police because this guy just tried to kill me.

He provided additional testimony, without objection, in which he repeated what Salvatore told him while he was holding defendant up against Finley's car. These statements, made while Salvatore was still fighting off defendant's attack, also qualify as excited utterances, N.J.R.E. 803(c)(2), and were properly admitted.

Defendant did object later when the State asked Finley how the police knew who the perpetrator was and Finley gave the following reply:

Well, because [Salvatore] had pointed him out and said this gentleman tried to rob me and he explained the story to what had occurred to them as well.

The trial court allowed this testimony as res gestae evidence.

We grant substantial deference to the trial judge's discretion on evidentiary rulings. Bd. of Educ. of Clifton v. Zoning Bd. of Adjustment of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). As a general rule, the trial court's ruling will not be disturbed unless there is a clear abuse of discretion. Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Bd. of Educ., supra, 409 N.J. Super. at 430.

The testimony objected to here was a recitation of statements that were already properly before the jury through the testimony of Salvatore, who was subject to cross-examination, and Officer Johnston, in her recounting Salvatore's excited utterances. There was no clear abuse of discretion here. The evidence of defendant's guilt, which included his capture at the scene of the offense by his own victim, was compelling. It is therefore clear that the admission of this limited testimony did not result in a manifest denial of justice.

Defendant also challenges his sentence as excessive. Appellate review of a sentence entails the following determinations:

(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience.

[State v. Megargel, 143 N.J. 484, 493 (1996).]

The standard of review is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); see N.J.S.A. 2C:43-2(e); R. 3:21-4(g). Although the judge has discretion as to the weight to be given to each factor, the judge lacks discretion to decline to "take into account a mitigating factor that is fully supported by the evidence," but "must [include such factor as] part of the deliberative process." State v. Dalziel, 182 N.J. 494, 505 (2005).

Defendant does not contend that the aggravating factors identified by the court lack support in the evidence or that the court failed to acknowledge any mitigating factor that was supported by a preponderance of the evidence. He challenges the weight given to these factors and argues that the court should have imposed a sentence of ten years, the lowest available sentence for defendant's first-degree conviction. This argument lacks merit because it calls for us to intrude improperly upon the trial court's exercise of discretion.

 
Affirmed.

(continued)

(continued)

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A-5232-07T4

July 26, 2010