STATE OF NEW JERSEY v. CARLOS GOMEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4598-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS GOMEZ, a/k/a JOSE

GARCIA,

Defendant-Appellant.

December 27, 2012

Submitted October 30, 2012 - Decided

Before Judges Reisner and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1859.

Joseph E. Krakora, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Erin M. Campbell, Special Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Carlos Gomez appeals from his conviction for third degree burglary, N.J.S.A. 2C:18-2; third degree theft, N.J.S.A. 2C:20-3; and third degree hindering apprehension, N.J.S.A. 2C:29-3b(4). He also appeals from the imposition of an extended term of imprisonment of ten years, with five years of parole ineligibility.

On appeal defendant raises the following arguments:

POINT I: BECAUSE DEFENDANT WAS ARRESTED WITHOUT PROBABLE CAUSE, THE MOTION TO SUPPRESS SHOULD HAVE BEEN GRANTED.

POINT II: THE JUDGE'S INADEQUATE INQUIRY INTO THE JURORS' CONTACT WITH DEFENDANT OUTSIDE THE COURTROOM, WHILE HE WAS IN RESTRAINTS AND IN CUSTODY OF THE SHERIFF'S OFFICERS, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY.

POINT III: DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE COURT ERRED IN PERMITTING OFFICER RAPOSO TO OFFER INADMISSIBLE OPINION TESTIMONY, AND FURTHER BY NOT DELIVERING AN INSTRUCTION ON EXPERT TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL.

POINT IV: THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT V: DEFENDANT'S EXTENDED TERM SENTENCE OF TEN YEARS WITH FIVE YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE AND MUST BE REDUCED.

For the reasons that follow, we affirm the conviction and the sentence.

I.

We begin by considering the suppression motion. The State presented evidence establishing the following facts. Belinda Caranza (Caranza) lives in a basement apartment in North Bergen. Her cousin, Eva Nunez (Nunez), lives above her in a first floor apartment. The entrance to both apartments is on the first floor.

On May 13, 2008, Caranza was alone in her apartment when she heard the doorbell ring. Caranza did not answer the door because she was alone and not expecting anyone. The doorbell continued to ring for approximately twenty minutes and then she began hearing noises upstairs. Next, Caranza called Nunez's cell phone and "asked her if she was home and she answered no[.]" Nunez called the police. Caranza stood at the bottom of the stairs and saw a person leave the home. After the person left, she went outside, where Detective George A. Sestan-Raposo had just arrived.

Caranza immediately informed Detective Sestan-Raposo that she observed a "tall male with a two-shaded blue colored sweater, blue jeans, and black sneakers" exiting the first floor of her apartment. Detective Sestan-Raposo began to search the surrounding area with Caranza. Moments later, Caranza pointed out a man approximately two blocks away, later identified as defendant, whom she believed to be the perpetrator.

Detective Sestan-Raposo approached defendant, who was walking rapidly in the opposite direction while removing a two-shaded blue sweater. Detective Sestan-Raposo ran up to defendant and "advised him he needed to stop" and then read him Miranda1 warnings. At that point, Detective Sestan-Raposo said defendant was "taken into custody," with the two-shaded blue sweater in his hands. Subsequently, Detective Sestan-Raposo searched defendant and recovered "a silver quartz watch, [a] silver diesel watch, $6.08, and a gold chain with a heart on it." Shortly thereafter, the police detained defendant in a patrol vehicle, where Caranza again identified him as the perpetrator.

Once Nunez returned home, a police officer showed her the items retrieved from defendant's person. Nunez identified the silver-quartz watch as her daughter's, the Diesel watch as her own, and the necklace with a heart on it as a gift she gave to her daughter. She claimed to keep the watches in the jewelry box in her room and the necklace in her room or her daughter's room.

After the police took defendant to the police station, they logged his property on a prisoner property report. The property report lists defendant's property as "a double shaded blue sweater, black belt, a black Samsung phone with the case, a blue-green colored shirt, an [assorted] beaded necklace, a Chapstick, and a lighter." Defendant then signed the report in Detective Sestan-Raposo's presence. After logging defendant's property, Detective Sestan-Raposo placed it in a plastic bag with the report attached to it and put the bag in temporary storage.2 He also placed the sneakers defendant was wearing into evidence because they appeared to match a footprint on the top of a dusty barbeque grill outside the victims' home.

After careful review of this evidence, we find no merit in defendant's claim that the trial judge erred in denying his motion to suppress. When reviewing a judge's ruling on a suppression motion, the appellate court "must uphold the factual findings underlying the [judge's] decision so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (internal quotation marks and citations omitted).

Generally, prior to conducting a search, the police must obtain a warrant based on probable cause. State v. Valencia, 93 N.J. 126, 133 (1983). An exception to the warrant requirement is a search incident to arrest. State v. McKenna, 228 N.J. Super. 468, 475 (App. Div. 1988). The validity of a search incident to arrest hinges on the validity of the arrest. State v. Anaya, 238 N.J. Super. 31, 36 (App. Div. 1990).

A police officer is permitted to arrest a person if he or she has probable cause to believe the person is guilty of a crime. Carroll v. United States, 267 U.S. 132, 156, 45 S. Ct. 280, 286, 69 L. Ed. 543, 553 (1925). Probable cause is not governed by a bright-line standard, but rather is viewed in light of the totality of the circumstances in any particular police-citizen encounter. See Maryland v. Pringle, 540 U.S. 366, 371, 124 S. Ct. 795, 800, 157 L. Ed. 2d 769, 775 (2003).
Probable cause may exist where "'the facts and circumstances within [the police officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that' an offense has been or is being committed." Brinegar v. United States, 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949) (quoting Carroll, supra, 267 U.S. at 162, 45 S. Ct. at 288, 69 L. Ed. at 555).

We agree with the trial judge that Caranza's identification, combined with defendant's actions as Detective Sestan-Raposo approached him removing the two-shaded blue sweater and walking quickly away gave the detective "a reasonable belief . . . defendant was, in fact, involved in criminal activity, that a crime in fact had been committed, and that defendant had committed it." Thus, there was probable cause to arrest defendant. Accordingly, the search of defendant following his arrest, which lead to the discovery of the fruits of the burglary, was proper.3 Anaya, supra, 238 N.J. Super. at 36.

II.

With defendant's second point, he argues that the jury observed him in restraints, thereby violating his right to a fair trial. We disagree.

In accordance with the right to a fair trial, absent compelling circumstances, a criminal defendant has the right to appear before a jury free from restraints. State v. Artwell, 177 N.J. 526, 534 (2003). This right does not necessarily extend to situations where a defendant is being escorted between the courthouse and the jail, although a limiting instruction should be given if the jury inadvertently sees the defendant in that situation. See State v. Damon, 286 N.J. Super. 492, 499 (App. Div. 1996); State v. Jones, 130 N.J. Super. 596, 599 (Law Div. 1974).

Here, defendant's attorney informed the trial judge that defendant believed the jury observed him wearing restraints during a lunch break of the trial. The trial judge found defendant's observation to be inaccurate, as he recalled the jury exiting the courtroom and then a sheriff's officer coming into the courtroom to say the hallway was clear prior to defendant exiting. We find no basis to disturb the trial judge's decision not to question the jurors as to the legitimacy of defendant's contention.

III.

Defendant also argues that the trial judge should not have permitted Detective Sestan-Raposo to testify that the sole of defendant's shoes matched a shoeprint left on a barbeque grill beneath a window outside the victims' home. We disagree and find that Detective Sestan-Raposo testified as a lay witness regarding the shoeprints, which is permitted under our rules of evidence. N.J.R.E. 701; State v. Harvey, 121 N.J. 407, 427 (1990) ("Comparison between a shoe print and the shoe alleged to have made the print does not require expert testimony."), cert. denied, 499 U.S. 931; 111 S. Ct. 1336; 113 L. Ed. 2d 268 (1991); State v. Johnson, 120 N.J. 263, 295 (1990) ("footprint identification is an area in which lay-opinion testimony is acceptable").

IV.

Defendant next argues that the trial judge erred by failing to instruct the jury that the State had to prove identification beyond a reasonable doubt. We disagree. Because defendant did not object to the jury charge, we review it under the plain error standard. See State v. Gaines, 377 N.J. Super. 612, 627 (App. Div.), certif. denied, 185 N.J. 264 (2005).

To ensure a criminal defendant receives a fair trial, the jury must be properly charged prior to deliberation. State v. Green, 86 N.J. 281, 287 (1981). "When identification is a 'key issue,' the trial court must instruct the jury on identification, even if a defendant does not make that request." State v. Cotto, 182 N.J. 316, 325 (2005) (citing Green, supra, 86 N.J. at 291). However, where there is both circumstantial and identification evidence, a separate jury instruction on the identification issue may not be necessary. State v. Copling, 326 N.J. Super. 417, 434 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000).

Here, the evidence against defendant was strong. Caranza identified defendant as the perpetrator, almost immediately after the burglary, making misidentification unlikely. In addition to the almost immediate identification, Detective Sestan-Raposo found the fruits of the burglary on defendant's person. Moreover, defendant had the opportunity to address the issue of identification throughout the trial. Defense counsel cross-examined Caranza on the accuracy of her identification. Additionally, during summation defense counsel argued the possibility that defendant was not the perpetrator. Thus, the lack of a specific instruction on identification was not clearly capable of producing an unjust result. R. 2:10-2.

V.

Finally, we reject defendant's contention that he received an excessive sentence. Defendant's conviction enabled the State to file a motion requesting that the trial court find defendant to be a persistent offender and sentence him to a discretionary extended term. See N.J.S.A. 2C:44-3 (conferring discretion on sentencing court to impose, on application made, extended-term sentence on persistent offender). At sentencing, the trial judge considered the aggravating factors and the standard for imposing an extended term. Based on defendant's previous seven indictable convictions,4 and the nature of the crime, the trial judge appropriately applied aggravating factor three (likelihood of committing another offense), six (extent of prior record), and nine (need for deterrence of others). N.J.S.A. 2C:44-1a. The judge found no mitigating factors applied, nor do we. Based on the record before him, the judge found defendant to be a "persistent offender," N.J.S.A. 2C:44-3a. and imposed an extended sentence of ten years imprisonment, with a five-year period of parole ineligibility.

We are satisfied that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Affirmed.

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

2 Detective Sestan-Raposo explained that the two-shaded blue colored sweater was logged as personal property, and not as evidence, because defendant had already been identified twice by Caranza; as a result, he apparently concluded that identification was not an issue in the case.

3 Defendant also contests the fact that the suppression motion was heard by two different judges. Only two witnesses, Detective Sestan-Raposo and defendant, testified before the first judge. The judge who ultimately decided the motion reviewed the transcripts of the proceedings before the first judge, and both Detective Sestan-Raposo and defendant were recalled and testified before him as to the crucial testimony regarding the two-shaded blue sweater. We find no error in this regard.

4 This conviction represents defendant's fourth burglary conviction. He also has a robbery conviction. At the time of this offense, defendant was on probation for one of his burglary convictions.