STATE OF NEW JERSEY v. CHRISTOPHER J. STACRUZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1088-11T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CHRISTOPHER J. STACRUZ,

Defendant-Appellant.

______________________________

November 16, 2012

Submitted October 31, 2012 - Decided

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 10-07-1235.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Linda Claude-Oben, SpecialDeputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Tried before a jury on a multi-count indictment, defendant was convicted of fourth-degree aggravated assault, recklessly causing bodily injury to Jessie Ringor with a deadly weapon, N.J.S.A. 2C:12-1b(3) (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count five). The jury found defendant not guilty of second-degree aggravated assault, purposely causing serious bodily injury to Gil Geyrosaga under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1b(1) (count one), and fourth-degree aggravated assault, recklessly causing bodily injury to Gil Geyrosaga with a deadly weapon, N.J.S.A. 2C:12-1b(3) (count two).

At sentencing, the judge merged the conviction for count five into count four. The judge sentenced defendant to five years probation, conditioned upon 364 days in the county jail, on count three, and five years probation, conditioned upon 364 days in the county jail, on count four. The sentences were to run concurrent with each other. Defendant was also assessed appropriate fines and penalties.

On appeal, defendant has raised the following contentions:

POINT I

THE TRIAL COURT'S JURY INSTRUCTION ON CIRCUMSTANTIAL EVIDENCE IMPROPERLY INVITED THE JURY TO REJECT THE DEFENDANT'S TESTIMONY AND MINIMIZED THE STATE'S BURDEN OF PROOF (NOT RAISED BELOW).

POINT II

ELICITING TESTIMONY THAT REFERRED TO GIL GEYROSAGA AS "THE VICTIM" AND TO DEFENDANT AS "THE SUSPECT" PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT III

PROSECUTORIAL "OVERZEALOUSNESS" IN SUMMATION PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL.

A. WITHOUT SUPPORTING EXPERT TESTIMONY, THE PROSECUTOR'S SUMMATION WAS IMPROPER.

B. THE PROSECUTOR MALIGNED TRIAL COUNSEL.

C. THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF JESSIE RINGOR.

POINT IV

IMPOSITION OF A CUSTODIAL SENTENCE OF 364 DAYS IN THE HUDSON COUNTY JAIL AS A CONDITION OF PROBATION WAS MANIFESTLY EXCESSIVE AND A MISAPPLICATION OF THE TRIAL COURT'S DISCRETION.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

In the early morning hours of March 3, 2010, Officer Garrett Hoffman of the Bayonne Police Department was on patrol. At 12:36 a.m., he responded to a report of "a large disturbance" at a home on Lincoln Parkway in Bayonne. When he arrived, he observed a group of people near a shed in the back yard of the residence. There, he found Gil Geyrosaga lying on the ground and bleeding profusely from a head wound. Geyrosaga told Officer Hoffman he had been injured in a fight involving a number of individuals, but he could not identify who had struck him.

Another individual, Jessie Ringor, approached Officer Hoffman. Ringor told the officer he had been involved in the fight and that he had been hit on the arm by defendant with a tire iron. Officer Hoffman observed that Ringor's arm had minor swelling and a small amount of blood was visible. Ringor also told the officer he had seen defendant strike Geyrosaga with the tire iron. Later, however, Ringor told a detective that, although he had seen defendant with the tire iron, he had not actually observed defendant hit Geyrosaga with it.

Officer Hoffman found a tire iron laying on the driveway of the residence and it was admitted in evidence at trial. Courtney MacDonald, a forensic scientist employed by the New Jersey State Police, testified that no blood was found on the tire iron.

Officer Hoffman also seized the shirt defendant was wearing that morning. MacDonald testified that blood was found on the shirt. Erol Azanli, another forensic scientist employed at the State Police laboratory, testified the stain on defendant's shirt matched Geyrosaga's DNA.

Geyrosaga was taken to the hospital, where he was treated for a large wound to the left side of his head. Dr. Sherwin Schrag, the trauma surgeon who examined Geyrosaga, testified he had suffered a fractured skull and internal bleeding in the brain. Dr. Schrag opined that Geyrosaga's head injury was caused by "a blunt trauma, traumatic force."

Geyrosaga testified he had been at the residence to attend a birthday party. There were about seventeen guests at the residence and most of them were drinking beer and vodka. Right before the fight broke out, Geyrosaga testified Ringor began to argue with another guest, Richard Mortel. Because Mortel was physically larger than Ringor, Geyrosaga decided to intervene and he threw a punch at Mortel. All he could remember after that was defendant pulling him off Mortel and that some bottles were being thrown among the other guests. He also saw the tire iron on the ground.

Ringor testified he was arguing with Mortel, when Geyrosaga intervened. Defendant entered the fight and hit Ringor several times in the arm with the tire iron, as Ringor raised his arm to fend off the attack. Although he initially told the police he had seen defendant also hit Geyrosaga, he admitted that he did not actually see what happened to his friend.

Three guests at the party, Vergilio Peralta, Arnold Aquino and James Saldana, testified they each saw defendant with the tire iron during the fight. However, none of them saw defendant strike anyone with it.

Defendant called Mortel as a witness. Mortel stated Ringor was talking to him and started "getting loud." Other individuals then grabbed Mortel and a group fight broke out. Mortel said defendant tried to break up the fight. Mortel did not see defendant holding a tire iron and he did not see defendant hit anyone.

Defendant testified he grabbed Geyrosaga in a choke hold when the fight broke out. He released him when he saw Ringor holding a tire iron. Defendant told Ringor to drop the weapon and, when he did not, defendant took it away from him. Defendant then pushed Ringor, who fell on the ground. Defendant then dropped the tire iron. He stated he did not strike anyone in the fight with a tire iron.

II.

Defendant first argues the trial judge did not properly charge the jury on the issue of circumstantial evidence. He asserts the examples the judge gave to illustrate this concept "invite[d] the jury to accept the State's theory of the case," by suggesting that circumstantial evidence "should be 'believed'" by the jury.

It is undisputed that "[a]ppropriate and proper jury charges are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Ibid. The charge must be

read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008). Having applied these standards to the judge's charge in this case, we perceive no error warranting a reversal.

A part of the model jury instructions in every criminal trial is a definition of direct evidence and circumstantial evidence. Here, the judge gave the model charge on each of these concepts. The model charge also requires the judge to give an example of circumstantial evidence. The judge gave the following time-tested example of how circumstantial evidence could be used to prove, in a hypothetical case, what had happened to a jelly doughnut:

Evidence may be either direct or circumstantial. Direct evidence means evidence that directly proves a fact, without an inference, and which, in itself, if true, conclusively establishes the fact. On the other hand, circumstantial evidence means evidence that proves a fact from which an inference of the existence of another fact may be drawn.

My example, you're babysitting a toddler, two or three years old. You put the toddler to bed and you take this nice jelly doughnut, with the white confectionary sugar, you put on the kitchen table. You get up the next morning, the toddler's playing in the living room, and you look into the kitchen, there's no jelly doughnut. You look back into the living room and there's the toddler with this ring of white sugar and little jelly coming out the side of their mouth. You know that toddler ate that doughnut. Circumstantial evidence.

Defendant argues "[t]his instruction, while perhaps innocuous sounding, is biased towards conviction." According to defendant, "[t]he instruction posits a situation in which the actor is clearly guilty of [a] transgression and suggests that a denial would be absurd. The instruction invites the jury to reject the defendant's testimony thereby minimizing the State's burden of proof."

Defendant also argues the "bias towards conviction" underlying this charge was "aggravated" by the judge's preliminary instructions to the jury just prior to trial. At that time, the judge gave the equally time-honored example of circumstantial evidence being used to prove that it snowed during the night:

A simple illustration may help, I have to prove that it snowed in the mountains at night. I find a camper that camped overnight in the mountains, put him on the stand. If you believe his testimony he said I was - - I camped all night in the mountains and it snowed all night long, direct evidence it snowed that night.

Circumstantial evidence, you have nobody that was in those mountains at night but you have a camper that was leaving the mountains just as the sun was going down there was no snow, you find a hiker that gets there the next morning as the sun is coming up, the mountains are covered with snow. If you believe both of their testimonies, it had to snow during the night, circumstantial testimony.

Defendant argues this charge, by including the phrase "if you believe both of their testimonies" suggested to the jury that circumstantial testimony "should be 'believed'" and somehow "diluted the defendant's presumption of innocence because the jury's assessment of the credibility of all the State's witnesses depended entirely, or in part, on circumstantial evidence."

Defendant's contentions are without merit. The judge's instructions fully complied with the model jury charge that is given before the trial begins and just prior to the jury's deliberations. The instructions clearly referred to hypothetical situations. The instructions did not minimize the State's burden of proof in any way. Indeed, the judge specifically and consistently instructed the jury that the State had the burden of proving defendant guilty of each element of each charge beyond a reasonable doubt and that the burden never shifted to defendant.

Defendant raised no objection to either of the instructions at trial, thereby acknowledging their propriety. State v. Brown, 325 N.J. Super. 447, 452 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). Just as significantly, defendant was acquitted of assaulting Geyrosaga. The State's case on the charges involving Geyrosaga was based solely on circumstantial evidence, since no witness had observed defendant strike him with the tire iron. Thus, it is clear the jury followed the judge's instructions regarding circumstantial evidence and that the instructions did not "minimize the State's burden of proof" in any way.

Defendant next argues the State's DNA expert, Erol Azanli, improperly opined on defendant's guilt when he referred to Geyrosaga as "the victim" and to defendant as "the suspect" during his description of the DNA testing he conducted. This argument also plainly lacks merit.

Again, defendant raised no objection at trial to these innocuous, brief references. Geyrosaga was a "victim" of an assault; the issue was whether defendant was responsible for it. The judge instructed the jury that the fact defendant was charged with an offense and was a defendant in this action was not evidence of his guilt. Significantly, the jury acquitted defendant of all charges involving Geyrosaga, which obviously means defendant suffered no prejudice whatsoever from this testimony. There was no error, much less a plain error, in the admission of this testimony.

Defendant next argues the prosecutor made improper remarks during her closing arguments. Again, we disagree.

Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996). Considerable leeway is afforded to prosecutors in presenting their arguments at trial "as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Accordingly, the prosecutor's statements to the jury must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).

No misconduct occurred in this case. Defendant first contends the prosecutor improperly argued that the injuries sustained by Geyrosaga and Ringor were consistent with being struck by a tire iron because there was no expert testimony that the tire iron caused the injuries. Prosecutors are "duty-bound to confine their comments to facts revealed during trial and reasonable inferences to be drawn from that evidence." Frost, supra, 158 N.J. at 85. Here, the prosecutor did just that. The prosecutor referred to Dr. Schrag's testimony that Geyrosaga's injury was caused by a blunt force and argued that would be consistent with the use of a tire iron. The prosecutor did not convey a personal belief or intimate personal knowledge or invoke facts outside the record. There was nothing improper about this argument, which constituted fair comment on evidence in the record.

Next, defendant asserts the prosecutor "maligned [his] trial counsel" by stating during summation that defense counsel "would like you to disregard the DNA evidence in this case," and that counsel's arguments were a "clear effort to get you away from the evidence in this case." However, defense counsel had properly and forcefully attacked the DNA evidence during his closing argument. The prosecutor's response was "reasonably related to the scope of the evidence presented" and, therefore, equally proper. Frost, supra, 158 N.J. at 82.

Contrary to defendant's contention, the prosecutor also did not improperly vouch for Ringor's credibility during her summation. The prosecutor offered an explanation for why Ringor's statements to Officer Hoffman and, later, to a detective differed on the day of the fight. The prosecutor then told the jury, "I doubt, sincerely, that he deliberated over what he did. He, certainly, didn't fabricate or attempt to deceive you in any manner." After defense counsel's objection to this comment was overruled by the judge, the prosecutor concluded by stating, "I would submit to you that this testimony was completely and totally credible."

It is well settled that "a prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). However, a prosecutor may argue that a witness is credible based on the evidence adduced at trial. State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997). Here, defense counsel argued in his closing that Ringor had "lied to the police." The prosecutor's brief comments were in direct response to that argument. The prosecutor also referred to evidence in the record and drew reasonable inferences from that testimony. While the prosecutor did state "I doubt, sincerely," that Ringor fabricated his account and that "I would submit" Ringor's testimony was "completely and totally credible," these brief remarks, taken in context and reading the entire summation as a whole, did not deprive defendant of a fair trial. The comments were a fair response to the arguments raised by defense counsel.

Finally, defendant argues that his sentence was excessive. The judge found that aggravating factors one and nine applied, N.J.S.A. 2C:44-1a(1) and (9). The judge also determined that mitigating factors seven and ten were present. N.J.S.A. 2C:44-1b(7) and (10). The judge found the aggravating factors outweighed the mitigating factors and imposed a five-year probationary sentence, conditioned upon 364 days in county jail. In arguing that a custodial sentence should not have been imposed, defendant asserts the trial judge improperly found that aggravating factor one applied. We disagree.

Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, an appellate court should only overturn the sentence when it is clearly unreasonable so as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obligated to affirm. State v. Cassady, 198 N.J. 165, 180 (2009).

Aggravating factor one requires the sentencing judge to consider "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel or depraved manner." N.J.S.A. 2C:44-1a(1). The testimony at trial demonstrated that defendant weighed 200 pounds and was about six inches taller than Ringor. Defendant had struck Ringor in the arm with a tire iron as Ringor attempted to fend off the attack and avoid being hit in the head with the weapon. Under those circumstances, the judge found that defendant's conduct, in "using a weapon against an individual that's so small," was "outrageous."

There was competent credible evidence in the record to support the judge's findings. We perceive no abuse of discretion either in the judge's consideration of aggravating factor one or in the sentence imposed in this case, which was well within the applicable sentencing guidelines for each offense.

Affirmed.