STATE OF NEW JERSEY v. TOMAS PEREZ

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5696-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TOMAS PEREZ aka TOMAS TRINIDAD,

Defendant-Appellant.

________________________________________

April 11, 2012

Submitted March 14, 2012 - Decided

Before Judges Koblitz and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-1026.

Joseph E. Krakora, Public Defender, attorney for appellant (Jay L. Wilensky, Assistant Deputy Public Defender, of counsel and on the briefs).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried before a jury on a multi-count indictment, defendant was convicted of first-degree aggravated sexual assault of G.M., a child under thirteen years old, N.J.S.A. 2C:14-2(a)(1) (count eight); second-degree sexual assault of G.M., N.J.S.A. 2C:14-2(c)(1) (count nine); second-degree sexual assault of G.M., a child at least four years younger than defendant, N.J.S.A. 2C:14-2(b) (count ten); third-degree endangering the welfare of G.M., N.J.S.A. 2C:24-4(a) (count eleven); second-degree sexual assault of H.A., a child between the ages of thirteen and sixteen, N.J.S.A. 2C:14-2(c)(4) (count twelve); fourth-degree sexual contact upon H.A., N.J.S.A. 2C:14-3(b) (count thirteen); and third-degree escape, N.J.S.A. 2C:29-5(a) (count fifteen).

At sentencing, the trial court merged the convictions on counts nine, ten and eleven into count eight, and merged the conviction on count thirteen into count twelve. The court sentenced defendant to ten years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on count eight; to a ten-year term on count twelve; and to a three-year term on count fifteen. Defendant was also required to comply with all Megan's Law reporting requirements. The judge did not indicate during the sentencing hearing or in the Judgment of Conviction ("JOC") whether the sentences are to run concurrent or consecutive to each other.

On appeal, defendant has raised the following contentions:

POINT I: THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT CONTAINED HIGHLY IMPROPER COMMENTS ON THE DEFENDANT'S EXERCISE OF THE RIGHT TO SILENCE; FLAGRANT VIOLATIONS OF THE PRHOBITION OF EVIDENCE OF PRIOR BAD ACTS; AND CLEAR INDICATIONS THAT THE DEFENDANT WAS IN CUSTODY. THESE PATENT IMPROPRIETIES CONSTITUTED PROSECUTORIAL MISCONDUCT, AND WERE HIGHLY PREJUDICIAL, NECESSITATING REVERSAL. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10 (SUBSTANTIALLY RAISED BELOW).

A. THE STATE MADE UNMISTAKABLE, AND INTENTIONAL, REFERENCE, IN CROSS-EXAMINATION, TO THE DEFENDANT'S POST-ARREST SILENCE.

B. THE STATE VIOLATED N.J.R.E. 404(b) BY INTRODUCING HIGHLY PREJUDICIAL EVIDENCE OF UNRELATED PRIOR BAD ACTS (PARTIALLY RAISED BELOW).

C. THE STATE ALSO DISCLOSED TO THE JURY THAT THE DEFENDANT WAS IN CUSTODY AT THE TIME OF TRIAL.

D. THE NOTED VIOLATIONS CONSTITUTE PROSECUTORIAL MISCONDUCT, NECESSITATING REVERSAL.

POINT TWO: THE DEFENDANT'S RIGHT TO A FAIR TRIAL BEFORE A NEUTRAL JUDGE WAS VIOLATED BY THE TRIAL COURT'S PROMPTING OF THE ASSISTANT PROSECUTOR TO ELICIT EVIDENCE NECESSARY TO PROVING THE MOST SERIOUS CHARGE AGAINST THE DEFEN[D]ANT, NECESSITATING REVERSAL OF THAT CHARGE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9 (NOT RAISED BELOW).

POINT THREE: THE MAXIMUM SENTENCE IMPOSED FOR SEXUAL ASSAULT WAS EXCESSIVE, NECESSITATING REDUCTION.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

I.

The State developed the following proofs at trial. The child victims in this case, G.M., age twelve, and H.A., age thirteen, were friends who attended school in Plainfield, New Jersey. On the morning of May 2, 2006, the two children decided to skip school and go to a nearby convenience store. Defendant, age twenty, was sitting in a red Ford Mustang in the parking lot when the children arrived at the store. H.A. knew defendant and began talking to him. Defendant invited the children to accompany him to his house and they got in the car with him.

At his home, defendant took the children to his bedroom and gave each a beer. Defendant and H.A. began kissing and asked G.M. to leave the room. Defendant and H.A. engaged in sexual intercourse. Defendant then told H.A. to call for G.M.

G.M. came to the room and H.A. went downstairs. G.M. tried to follow her, but defendant grabbed her and began touching her breasts. G.M. tried to push defendant away, but he threw her on the bed, pulled down her pants and engaged in sexual intercourse with her. When defendant was done, G.M. joined H.A. downstairs. H.A. asked defendant to drive them to Dunellen and he did so.

On May 19, 2006, G.M. ran away from home. When she was found, she told police that defendant had sexually assaulted her and her friend. When questioned, H.A. confirmed G.M.'s account. The children provided descriptions of defendant and information about his address and vehicle. The police located a red Mustang, with Pennsylvania license plates, that was registered to defendant.

Defendant was found and arrested. The next day, as defendant was being transported with other inmates to the Union County Jail, defendant slipped out of his handcuffs and ran away. The officers pursued and captured him.

Defendant testified at trial through an interpreter and denied that he had ever met either child. He claimed that he had been at work in New Brunswick that day. He also asserted that his roommates had access to his vehicle. Defendant alleged that he was unaware that he was not permitted to run away from the police after his arrest.

II.

Defendant contends that five errors occurred during trial which separately or cumulatively require reversal of his conviction. First, defendant argues that the prosecutor impermissibly asked him questions on cross-examination about his post-arrest silence, violating his right against self-incrimination.

"It is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him." State v. Taffaro, 195 N.J. 442, 456 (2008) (citations omitted). "Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises 'at or near' the time of arrest, during official interrogation, or while in police custody." State v. Muhammad, 182 N.J. 551, 569 (2005). However, that privilege was not violated in this case.

In exploring defendant's claim that he was unaware that he was not permitted to attempt to escape, the prosecutor asked defendant whether he recalled meeting with detectives after he was arrested and whether he had been advised that he was being charged with sexual assault. Defendant admitted that one of the detectives spoke to him in Spanish and that he was aware that he had been arrested and charged.

The prosecutor then asked defendant about his attorney's opening statement where the jury was told that defendant had been waiting "to tell his story." The prosecutor asked whether anyone had "pressed you or stopped you from talking about this." The prosecutor's next question was, "And as a matter of fact, on June 30th, the day after your arrest when you met with Detective Klaskin and Detective Garcia, they not only advised you of what you were charged with but attempted to go over your Constitutional rights with you, correct?"

The trial court immediately intervened, called counsel to sidebar, and asked the State for a proffer. The prosecutor explained that her questions were designed to explore defendant's claim that he was unaware that he was not allowed to escape from custody and to highlight that, in most other areas, defendant had had no problem understanding what he had been told by the police after his arrest. The court asked defense counsel, "Do you object to this?" Defense counsel replied that the prosecutor's question could confuse the jury. The court sustained the objection, explaining that defendant may not have spoken with police for reasons other than his ability to understand the charges or his rights.

Our courts have reversed for prosecutorial comment on post-arrest silence when the prosecutor uses the defendant's silence as substantive evidence of guilt. Muhammad, supra, 182 N.J. at 573. In Muhammad, the prosecutor "repeatedly elicited testimony and made comments on defendant's silence. . . ." Ibid.

Here, unlike in Muhammad, the prosecutor did not comment on defendant's silence over the course of the trial in an effort to rebut the defense's trial theory. Rather, the questioning was brief and, as soon as the trial court perceived that the prosecutor was about to cross the line, the questioning was terminated by the court. At the completion of the sidebar, defense counsel did not ask for any instruction to be given to the jury and did not move for a mistrial. Indeed, defense counsel had not objected to the testimony about defendant's discussions with the detectives until after the court had called counsel to sidebar. The objection raised at that time, however, was not based upon an allegation that the prosecutor was improperly commenting upon defendant's post-arrest silence.

Defense counsel's failure to specifically object to the State's questions suggests counsel did not believe the questions were unduly prejudicial. See State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). That inference is particularly applicable here, where defense counsel had told the jury in his opening statement that defendant had a Fifth Amendment right to remain silent and that "he's not going to hide behind" it. The prosecutor's questions about whether defendant was aware of this right, therefore, did not provide the jury with any new information. The court also intervened before defendant could answer the question about his constitutional right to remain silent. Under these circumstances, we conclude that the prosecutor's questions did not deprive defendant of a fair trial.

Defendant next contends that his convictions should be reversed because the prosecutor asked him questions about "other bad acts and crimes." During his opening statement, defense counsel commented upon defendant's immigration status. Because defendant was not a legal resident, his counsel explained that defendant would not be able to provide any documentation that he had been at work on the day of the crimes. Defendant also discussed his status during direct examination.

On cross-examination, the prosecutor asked defendant a series of questions about his decision to register his Ford Mustang in Pennsylvania rather than in New Jersey. Defendant admitted that he had used a false address when registering the vehicle in Pennsylvania in order to get around New Jersey's requirement that he possess valid identification. When asked whether he had "a habit of doing things that you know you shouldn't, just because you want to," defendant replied that he "did it because I needed a car." Defense counsel raised no objection to these questions.

The prosecutor then asked defendant whether he was aware of the laws governing immigration and whether he knew "there [are] plenty of people in Guatemala1 who have followed those laws and are on a waiting list to come into U.S. [sic] with visas." At that point, defense counsel objected on the ground of relevancy. A sidebar was held. After hearing argument, the court told the jury that the objection had been sustained and the jury was instructed, "Once again, just because facts are put in a question, that question's never answered, the facts put into question by the attorney are not evidence."

The prosecutor later asked defendant whether he was "hiding behind [his] language barrier?" Defense counsel objected and the objection was sustained.

On appeal, defendant contends that the prosecutor's questions about his immigration status and the references to his illegal Pennsylvania car registration constituted "other bad acts or crimes" which should not have been introduced at trial. He also complains that the prosecutor's question about his "language barrier" was an improper reference to defendant's immigration status.

The admissibility of evidence of other crimes is limited by N.J.R.E. 404(b), which states:

[E]vidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

When "other crimes" evidence is admitted under N.J.R.E. 404(b), the jury must be instructed as to the limited use of the evidence. State v. Gillespie, 208 N.J. 59, 92 (2011).

We do not approve of the tenor of the prosecutor's questions concerning whether there was "a waiting list" to come to the United States and whether defendant was "hiding behind [a] language barrier." However, there was no violation of N.J.R.E. 404(b) under the circumstances presented here. Defendant raised his immigration status in his direct testimony. He also discussed the reasons why his vehicle had been registered outside New Jersey. The prosecutor, therefore, was permitted to follow-up with cross-examination in these areas. Defense counsel did not ask for a specific "other crimes" limiting instruction. In its charge to the jury, however, the trial court instructed them that defendant's immigration status could only be considered in reference to why he could not provide proof of employment and why he may have attempted to escape from the police. Defense counsel specifically declined the court's offer to charge the jury regarding defendant's registration of the vehicle in Pennsylvania. Under these circumstances, we conclude that defendant's arguments on this point do not support his request for a new trial.

Defendant next argues that the State improperly disclosed to the jury that he was in custody at the time of trial. However, the record does not support this contention.

During cross-examination, the prosecutor asked defendant whether he could contact the roommates who he alleged had access to his vehicle. Defendant replied that he had been told by his landlord that the roommates had moved and that he could "sometimes" reach the landlord by writing a letter. Defense counsel objected, arguing that the State was attempting to suggest that defendant should call the landlord as a witness. The trial court overruled this objection, but it cautioned the prosecutor at a sidebar that this line of questioning could lead defendant to blurt out that he was currently incarcerated.

Later, the prosecutor asked defendant whether he could contact his employer to confirm his claim that he had been working on the day of the crimes. Defendant answered that he did not know his employer's address. Further questions revealed that defendant had a cell phone with his employer's number in it, but that he did not know what had happened to the phone.

The trial court asked counsel to come to sidebar. The court again advised the prosecutor that it was concerned that the line of questioning could lead to defendant explaining that he no longer had the phone because he was incarcerated. The prosecutor agreed to move on to another topic.

Again, we do not approve of the prosecutor asking questions which had the potential of soliciting testimony that defendant was incarcerated at the time of trial. Because of the trial court's prompt intervention, however, this did not occur. All the jury heard was that defendant's roommates had moved, that his landlord could be reached by letter and that defendant did not know what had happened to his phone. The trial court properly intervened to prevent any possibility that defendant would inadvertently reveal his custodial status. Therefore, defendant's contentions on this point lack merit.

In Point II, defendant alleges that the trial court improperly assisted the prosecutor during her direct examination of H.A. The child had testified that she and defendant "had sex." However, H.A. did not specify that defendant had penetrated her. When direct examination moved into another area, the court asked counsel to come to sidebar. The court stated that the charges concerning H.A. involved penetration and asked the prosecutor whether she was "dismissing any charges regarding this victim regarding penetration?" The prosecutor replied that she was not finished with direct examination and that she was not dismissing any of the charges. When direct examination resumed, the prosecutor elicited the fact that, when H.A. testified that she and defendant "had sex," she meant that "[h]e put his penis in my vagina."

Defendant did not raise an objection to the trial court's actions. We review arguments raised for the first time on appeal under a "plain error" standard. Under that standard, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971).

It is not improper for a trial judge to bring a possible inadvertent mistake to the attention of the attorneys at a sidebar outside the presence of the jury. A trial "is not a game and confidence in our judicial system requires that a result not turn upon a momentary lapse of attention on either side." Sate v. Kashi, 360 N.J. Super. 538, 546 (App. Div. 2003), aff'd o.b., 180 N.J. 45 (2004). Defendant fully cross-examined H.A. on all aspects of her testimony. There was no error, much less plain error, in the court's actions.

Lastly, defendant argues that the aggregate of errors committed deprived him of a fair trial. Although we are not in agreement with all of the prosecutor's actions during defendant's cross-examination, defendant, for the most part, did not object at trial to the prosecutor's questions. When an objection was raised, the trial court took appropriate action, either by sustaining the objection, terminating the line of questioning or providing a curative instruction. The State presented overwhelming evidence of defendant's guilt. We do not find that the errors alleged by defendant, considered separately or together, rendered the trial unfair or warrant reversal.

III.

The remainder of defendant's arguments are centered upon his sentence. The trial court merged defendant's convictions on counts nine, ten and eleven into count eight, first-degree aggravated sexual assault. The court sentenced defendant to ten years in prison and the parties agree that this sentence, which is at the very bottom of the ten-to-twenty year sentencing range for first-degree offenses, was appropriate.

The court merged count thirteen into count twelve, second-degree sexual assault, and sentenced defendant to a ten-year term. Defendant asserts that this sentence was excessive because, to be consistent with the sentence on count eight, he should have been sentenced to five years, which is the bottom of the second-degree sentencing range. We agree with defendant that the court's sentence on count twelve requires further review and explanation.

In imposing each of the sentences, the trial court cited aggravating factors two and nine, N.J.S.A. 2C:44-1(a)(2) and (9), and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), and found that the aggravating factors outweighed the mitigating factor. In finding aggravating factor two, the trial court apparently relied upon the fact that the victims in this case were children, who would be "particularly vulnerable or incapable of resistance" to defendant's actions. N.J.S.A. 2C:44-1(a)(2). However, because the age of the child victims was an element of the crimes of which defendant was convicted, it cannot be considered an aggravating factor for sentencing purposes. State v. Pineda, 119 N.J. 621, 627 (1990). Therefore, the court erred by finding aggravating factor two.

The trial court also did not explain how it balanced the factors in determining the sentences it imposed. Although the ten-year sentence imposed on count twelve is within the range for second-degree offenses, we are unable to ascertain why defendant was sentenced at the top of the range for this offense when he was sentenced at the bottom of the range for his first-degree conviction.

The JOC also does not indicate whether the sentences on counts eight, twelve and fifteen are to run concurrent or consecutive to each other. From the trial court's comments at sentencing, we perceive that its intent was to have all of the sentences run concurrently, but the JOC is unclear.2 Therefore, we must remand this matter for resentencing on counts twelve and fifteen.

Affirmed; except remanded to the trial court for resentencing. We do not retain jurisdiction.

1 Guatemala is defendant's country of origin.

2 The JOC also incorrectly states that the sentence was imposed as the result of a "negotiated plea" instead of after a trial. This should be corrected on remand.