STATE OF NEW JERSEY v. TERRELL CORBIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1673-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRELL CORBIN,

Defendant-Appellant.

___________________________________________

November 14, 2012

Submitted May 8, 2012 Decided

Before Judges Reisner and Hayden.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-01-0048.

Joseph E. Krakora, Public Defender, attorney for appellant (Randall J. Peach, Designated Counsel, on the brief).

TheodoreJ. Romankow,Union County Prosecutor, attorney for respondent (David A. Zeitzoff, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Terrell Corbin appeals from his conviction, following a jury trial, on one count of second-degree robbery, N.J.S.A. 2C:15-1. For the reasons that follow, we affirm.

I.

The State presented the following evidence at the trial. Jose Menes testified that he was walking home after work around 1 a.m. on September 14, 2008. No one was on the street when Menes suddenly heard someone approach him from behind. He turned and saw a man, later identified as defendant, who struck him in the head with a full can of soda, causing him to fall to the ground. Defendant stood over him and demanded money. Menes told defendant that he had no money, and was able to escape after defendant stumbled and fell. At this point, defendant somehow lost his shoes.

Menes ran to his residence about a block away and began banging on the window, since he did not have his keys. Before help arrived, defendant, who had followed Menes, smashed the latter's head into a post and punched him in the face, knocking out several teeth. Menes' housemate, Lorenzo Ramirez, came outside and phoned the police at Menes' request. Defendant then tried to run away, but Ramirez, Menes and Menes' half-brother, Isaac Ponz, who also lived in the house, restrained defendant until the police arrived.

Officer Lamont Poaches, along with other officers of the Roselle Police Department, arrived at Menes' residence and saw Menes and another man holding defendant down. According to Poaches, defendant did not appear to have any injuries, but Menes' face was bloodied and swollen. The police arrested defendant and took Menes to the hospital.

In contrast, defendant testified that he left his home to buy a cigar sometime after midnight, and began jogging on his way home. As he came up behind Menes, the latter, apparently thinking defendant was going to rob him, took a swing at defendant, cutting his lip. Defendant tried to defend himself and began hitting Menes two or three times, before defendant fell to the ground. Defendant lost his new sneakers in the scuffle and could not find them on the dark street. Menes left, but defendant did not see which direction he went.

Because defendant did not want to return home without the shoes, he decided to go to a friend's house to borrow sneakers. Unbeknownst to defendant, this route took him past Menes' house. As he passed the house, two men came out and "blindsided" defendant. Menes held him down while the other man hit him,

Neither Ponz nor Ramirez testified at the trial. Menes testified that Ramirez had returned to Mexico. Menes related that, although they had the same father, he did not know Ponz until he came to this country four years ago. He stated that Ponz had moved out of the residence about four months before trial, and that he did not know how to contact him, though he lived somewhere in the general area. The police had tried to contact Ponz but he did not respond.

Defendant sought a Clawans1 jury instruction based on the fact that Ponz did not testify. The trial judge denied the defense request, finding that he was unavailable, neither the State nor its witness had any special control over Ponz, and there was no indication that his testimony would have been unfavorable to the State. Nevertheless, defense counsel in his summation commented on Ponz's failure to testify.

On January 7, 2010 the jury returned a verdict of guilty on the sole count of second-degree robbery. The judge sentenced defendant to seven years in prison with an eighty-five percent parole disqualifier and imposed the mandatory fines and penalties. This appeal followed.

II.

On appeal defendant raises the following contentions for our consideration:

POINT I: THE TRIAL COURT ERRED IN BARRING TESTIMONY ABOUT THE ALLEGED VICTIM'S IMMIGRATION STATUS, WHICH WAS RELEVANT TO SHOW THE ALLEGED VICTIM'S POSSIBLE MOTIVE TO FABRICATE HIS ACCUSATIONS AGAINST DEFENDANT.

POINT II: THE TRIAL COURT ERRED IN NOT GIVING A CLAWANS ADVERSE INFERENCE CHARGE TO THE JURY, WHICH WAS WARRANTED BY THE STATE'S FAILURE TO CALL, AS A CORROBORATING WITNESS, A CLOSE RELATIVE OF THE ALLEGED VICTIM WHO OBSERVED THE EVENTS IN QUESTION AND WAS AVAILABLE TO TESTIFY.

POINT III: THE TRIAL COURT GAVE INCOMPLETE AND INACCURATE JURY CHARGES, BECAUSE IT OMITTED THE CHARGE FOR "ATTEMPT," EVEN THOUGH THE PROSECUTION'S THEORY WAS THAT DEFENDANT HAD USED FORCE DURING AN ATTEMPTED THEFT (Not Raised Below).

POINT IV: THE TRIAL COURT ERRED IN ADMITTING PHOTOGRAPHS OF THE ALLEGED VICTIM IN A BEATEN AND BLOODY CONDITION, BECAUSE THE PHOTOGRAPHS' INFLAMMATORY NATURE SUBSTANTIALLY OUTWEIGHED ANY PROBATIVE VALUE.

POINT V: DEFENDANT'S CONVICTION FOR SECOND-DEGREE ROBBERY WAS AGAINST THE WEIGHT OF THE EVIDENCE, ESPECIALLY WHERE DEFENDANT TOOK THE STAND AND CONTRADICTED THE ALLEGED VICTIM'S UNCORROBORATED VERSION OF EVENTS (Not Raised Below).

POINT VI: EVEN ASSUMING ARGUENDO THAT NONE OF THE ABOVE ERRORS, STANDING ALONE, WAS SUFFICIENTLY EGREGIOUS TO DEPRIVE DEFENDANT OF A FAIR TRIAL, THE COMBINATION THEREOF CONSTITUTES CUMULATIVE ERROR SUFFICIENT TO WARRANT REVERSAL (Not Raised Below).

POINT VII: DEFENDANT'S SENTENCE SHOULD BE VACATED WHERE THE SENTENCING COURT ENGAGED IN A DEFICIENT ANALYSIS OF THE AGGRAVATING AND MITIGATING FACTORS, WHICH RESULTED IN AN EXCESSIVE SENTENCE, ESPECIALLY WHERE THIS WAS DEFENDANT'S FIRST INDICTABLE OFFENSE.

After carefully considering all defendant's contentions, we are not persuaded. We find no merit in Points IV, V, and VI sufficient to warrant further discussion. R. 2:11-3(e)(2).

In his Point I, defendant argues that the trial judge violated his rights under both the State of New Jersey and United States Constitutions when he prohibited defendant from questioning Menes about his immigration status. Defendant claims that, as a critical aspect of his defense was credibility, he needed to find out if Menes was an illegal immigrant because illegal immigrant status provided a motive for Menes to claim he was robbed when he actually engaged in a street fight. According to defendant, if the police had concluded Menes was the perpetrator and also an illegal immigrant, Menes could have been arrested and deported. By contrast, defendant submits, Menes would not face deportation if he was the victim because, in New Jersey, law enforcement officers may not question crime victims about their immigration status. Defendant argues further that even if evidence of illegal immigrant status created a risk of prejudice, the judge could have provided a curative instruction rather than excluding the evidence entirely.

The Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the State of New Jersey Constitution guarantee a criminal defendant the right to confront those who testify against him. U.S. Const. amend. VI; N.J. Const. art. I, 10; State v. Cabbell, 207 N.J. 311, 328 (2011); State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002). The right to cross-examine a witness lies at the heart of the right to confrontation embodied in the Sixth Amendment. Ibid. Impeaching the credibility of witnesses is one of the primary reasons for cross-examination. Id. at 87.

Yet a litigant's right to cross-examine witnesses is not absolute. State v. Harvey, 151 N.J. 117, 188 (1997). The cross-examiner may not "roam at will under the guise of impeaching credibility." Gaikwad, supra, 349 N.J. Super. at 87 (quoting State v. Engel, 249 N.J. Super. 336, 375 (App. Div.), certif. denied, 130 N.J. 393 (1991)). The critical question in assessing whether a defendant has a Sixth Amendment right to ask certain questions of a witness is whether the evidence is relevant and necessary to a fair determination of the issues. See State v. Garron, 177 N.J. 147, 171 (2003).

Thus, a cross-examiner may not ask a potentially inflammatory question without a good-faith basis to support it. State v. Spencer, 319 N.J. Super. 284, 305 (App. Div.), certif. denied, 130 N.J. 393 (1991). The question must be based upon facts admitted into evidence, or the cross-examiner must be able to prove the facts contained in the question. State v. Rose, 112 N.J. 454, 500 (1988); Spencer, supra, 319 N.J. Super. at 305. This is because the question itself is not evidence, yet may suggest the existence of evidence and hence possesses potential to mislead the jury. Ibid.

In denying defendant's request, the judge pointed out that defendant could cross-examine Menes directly about whether he fabricated the robbery to prevent the police charging him for fighting. However, the judge rejected defendant's argument that the immigration status of all witnesses is always at issue because illegal immigrants have a motive to lie to prevent not only arrest but also possible deportation. The trial judge noted the policy implications of allowing litigants to question witnesses about their immigration status, which could discourage undocumented victims from reporting crimes and testifying at trial. Additionally, the judge held that the information was inherently inflammatory, and in this case, the slight probative value was outweighed by the risk of prejudice under N.J.R.E. 403. Further, he observed that defendant had not produced evidence that Menes was an illegal immigrant and was not entitled, under the Confrontation Clause, to question a witness at trial about facts not established.

A trial court is granted broad discretion in determining the relevance of evidence, including N.J.R.E.403 inquiries. Verdicchio v. Rica, 179 N.J.1, 34 (2004). Under Rule403, relevant evidence will be excluded if its probative value is substantially outweighed by the risk of prejudice to the parties. State v. Swint, 328 N.J. Super.236, 253 (App. Div.), certif. denied, 165 N.J.492 (2000). The probative value must be so significantly outweighed by the inflammatory potential as to have the "'probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." State v. Covell, 157 N.J. 554, 568 (1999) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). As we have previously remarked, a witness's immigration status may prejudice the jury against him or her. See Serrano v. Underground Utils. Corp., 407 N.J. Super. 253, 274 (App. Div. 2009) (noting "illegal status in this country is very likely to trigger negative sentiments in the minds of some jurors"). See alsoLiu v. Donna Karan Int'l, Inc., 207 F. Supp. 2d 191, 192-93 (S.D.N.Y. 2002) (noting that questions about plaintiffs immigration status, even if relevant, are unfairly prejudicial).

We conclude that the trial judge did not abuse his discretion in prohibiting questioning about the illegal immigrant status of Menes. Defendant had the opportunity to question Menes about his motive to fabricate in order to avoid arrest for fighting. In our view, the legality of Menes' status in this country had limited probative value but significant potential to unfairly prejudice the jury against him. Consequently, we reject defendant's argument that the trial judge improperly excluded this line of questioning.

III.

Next, defendant argues that because Ponz did not testify, the trial judge erred in refusing to provide an adverse inference charge against the State pursuant to State v. Clawans, 38 N.J. 162, 171 (1962). He submits that Ponz was not unavailable because, while no one knew exactly where he lived, he resided somewhere in Menes' neighborhood. According to defendant, Ponz, as his half-brother, had a special relationship with Menes, and would have wanted to testify to help Menes and to bolster his credibility.

The State argues that defendant does not meet the requisite conditions for a Clawans charge, since neither the State nor Menes had special control or influence over Ponz; he was not available to testify since his location was unknown; and his testimony would have been favorable to the State. Further, the State contended that no harm resulted because defense counsel commented on Ponz's absence in his summation.

Before granting a Clawans charge request, the judge must evaluate the party's reason for not calling a witness. State v. Hill, 199 N.J. 545, 562 (2009); State v. Velasquez, 391 N.J. Super. 291, 306 (App. Div. 2007). The trial judge must ensure that the situation calls for the charge, as the potential for prejudice is high where an erroneous charge is given. Hill, supra, 199 N.J. at 562; Velasquez, supra, 391 N.J. Super. at 306. The party seeking the adverse inference charge must show:

1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; 2) that the witness is available to that party both practically and physically; 3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue [;] and 4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[Hill, supra, 199 N.J.at 561-62 (quoting State v. Hickman, 204 N.J. Super.409, 414 (App. Div. 1985), certif. denied, 103 N.J.495 (1986)).]

Extreme caution should be shown in utilizing a Clawanscharge, as there are countless reasons a party may choose not to call a witness, many not justifying the adverse inference instruction. Velasquez, supra, 391 N.J. Super.at 309. An adverse inference instruction is unsuitable if the witness is unavailable to the party or equally available to both. Hill, supra, 199 N.J. at 562-563; Wild v. Roman, 91 N.J. Super. 410, 414 (1966). Here, because Ponz's location was unknown, since the State and Menes did not have any special control over him, and because there was no evidence that his testimony was superior to testimony already utilized, we see no error in the trial judge failing to give the Clawans charge. Moreover, any possible error would have been rendered harmless as defense counsel referenced the failure to produce Ponz in his summation.

IV.

Defendant next argues that, since the State's case was based on allegations of a robbery during an attempted theft, the trial judge's failure to instruct the jury on the charge of "attempt," pursuant to N.J.S.A. 2C:5-1, constitutes plain error. R. 2:10-2. The State argues that, although the judge did not explicitly explain the elements of attempted theft, the jury would have understood the meaning of attempted theft in light of the entire jury charge.

Proper jury instructions "are essential for a fair trial." State v. Savage, 172 N.J. 374, 387 (2002); State v. Martin, 119 N.J. 2, 15 (1990). A trial judge must correctly state the applicable law in language comprehensible to a layperson so that the jury can apply the correct legal standard to the facts of the case. Velazquez v. Portadin, 163 N.J. 677, 688 (2000). The jury charge must "fairly set[] forth the controlling legal principles relevant to the facts of the case." State v. Labrutto, 114 N.J. 187, 204 (1989); See also State v. Belliard, 415 N.J. Super. 51, 71-74 (2010). When assessing whether a trial judge erred in instructing the jury, the charge must be read as a whole to determine whether or not it was defective. State v. Torres, 183 N.J. 554, 564 (2005).

Here the trial judge's instructions to the jury about the elements of robbery included that the State must prove the following:

One, the defendant was in the course of committing a theft; two, that while in the course of committing that theft defendant knowingly inflicted bodily injury or used force upon another . . . . [A]n act is considered to be in the course of committing a theft if it occurs in an attempt to commit a theft, during the commission of the theft itself, or in immediate flight after the attempt or commission.

Additionally, the judge provided instructions on the term theft:

Theft is defined as the unlawful taking or exercise of unlawful control over property of another with the purpose to deprive him thereof . . . . A person acts purposely with respect to the nature of his conduct or a result thereof if it is a person's conscious object to engage in conduct of that nature or to cause such a result.

When a defendant is charged with robbery and the State's evidence is that it occurred during an attempted theft, the jury charge generally should define "attempt." See Model Jury Charges (Criminal), Robbery in the Second Degree (Rev. July 2, 2009). A person is considered guilty of criminal attempt under N.J.S.A.2C:5-1 if he "[p]urposely does . . . anything which . . . is an act . . . constituting a substantial step in a course of conduct planned to culminate in his commission of the crime."

Here, the trial court's charge explaining that a defendant must act purposefully with the conscious objective to engage in conduct to commit a theft satisfies two elements of the attempt definition. Belliard, supra, 415 N.J. Super.at 72. To satisfy the "substantial step" element, the defendant's actions must strongly corroborate his criminal purpose; in other words, the step must show a firmness of criminal purpose, and not simply equate to a remote preparatory act. Id.at 73 (citing Model Jury Charge (Criminal), Attempt (Rev. June 15, 2009)).

In Belliard, supra, 415 N.J. Super.at 74, the trial judge

provided instructions establishing the proper elements for robbery but neglecting to define attempt. We found that the defendant's conduct in pushing a person down the stairs so others could rob him established a conscious objective to assist in the robbery by showing conduct that was a substantial step in the commission of the offense. Id.at 73-74. "Therefore, while the judge's failure to charge the jury with attempt was in error, this error was not sufficient to lead the jury to a result it otherwise would not have reached." Id.at 74. But seeState v. Gonzalez, 318 N.J. Super.527, 536 (App. Div.), certif. denied, 161 N.J.148 (1999) (where the defendant's actions were disputed and might not have constituted only theft, the failure to instruct the jury regarding attempt constituted plain error).

We determined in Belliardthat a reasonable jury could not have reached a different result given that it was established that defendant intended to rob the victim. Id.at 73-74. We perceive that this case is similar to Belliardin that the jury could either credit Menes' testimony that defendant took a substantial step to commit a theft by knocking him to the ground and demanding money or credit defendant's testimony that Menes started a fight and there was no step whatsoever taken to commit a theft. If the jury found Menes' testimony credible, it would necessarily find that defendant had taken a substantial step to engage in the criminal conduct charged. Accordingly, while it was error for the trial judge not to give the jury charge on attempt, under the facts of this case, we perceive that this error was not sufficient to lead the jury to a result it would not have otherwise reached. R. 2:10-2.

V.

Finally, defendant argues that the trial judge improperly balanced the mitigating and aggravating factors, resulting in an excessive sentence. We disagree.

Judges have wide discretion, within statutory limits, in sentencing. State v. Natale, 184 N.J.458, 472 (2005). A judge is required, however, to consider aggravating and mitigating factors, N.J.S.A.2C:44-1, supported by the evidence, and to determine the appropriate sentence within the statutory range. State v. L.V., 410 N.J. Super. 90, 109, 111-112 (App. Div. 2009), certif. denied, 201 N.J.156 (2010). A reviewing court may only modify the sentence if the application of the facts to the law constitutes such a clear error of judgment that it "shock[s] the judicial conscience." State v. Roth, 95 N.J.334, 363-65 (1984).

Here, the trial judge found that the following aggravating circumstances were present: risk that defendant would commit another offense (aggravating factor three), N.J.S.A. 2C:44-1a(3); the length and seriousness of his prior record (aggravating factor six), N.J.S.A. 2C:44-1a(6); and the need to deter him and others from violating the law (aggravating factor nine), N.J.S.A. 2C:44-1a(9). The judge also found the following mitigating factors: defendant had no adult criminal record (mitigating factor seven), N.J.S.A. 2C:44-1b(7), and defendant may be amenable to probation (mitigating factor ten), N.J.S.A. 2C:44-1b(10).2

We agree that the record shows that the judge correctly found aggravating factors three, six and nine, and mitigating factors seven and ten. We find no merit in defendant's claim that the judge improperly balanced the defendant's lengthy juvenile record under aggravating factor six, yet found mitigating factor ten that defendant, who had just become eighteen years old, had no adult criminal record. Nor does the record suggest that the judge found an additional aggravating factor present because the prosecutor merely mentioned the vulnerability of the victim. Defendant argues that the judge should have found mitigating factor eleven, N.J.S.A. 2C:44-1b(11), but produced no proof at sentencing that his imprisonment would cause excessive hardship to dependents. Indeed, at the sentencing hearing his child was not even mentioned nor did counsel argue mitigating factor eleven should apply.

Under the circumstances here, defendant's sentence follows the sentencing guidelines, is reasonable, and does not "shock the judicial conscience." Roth, supra, 95 N.J.at 365.

Affirmed.

1 State v. Clawans, 38 N.J. 162, 171 (1962).

2 In his oral opinion at sentencing, the trial judge specified that he had considered defense counsel's argument that defendant might be amenable to probation, although the judgment of conviction does not reflect consideration of this factor.