STATE OF NEW JERSEY v. ROLAND CARVALHO, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0371-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROLAND CARVALHO, JR.,

Defendant-Appellant.

________________________________________________________________

February 27, 2013

 

Submitted September 10, 2012 - Decided

 

Before Judges Graves, Espinosa and Guadagno.

 

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-03-0134.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the brief).

 

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Nicole McGrath, Assistant Prosecutor, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

 

Per Curiam

Defendant was indicted for second-degree robbery, N.J.S.A. 2C:15-1(a)(2) (count one), and third-degree theft, N.J.S.A. 2C:20-3(a) (count two). He appeals from his conviction for second-degree robbery and his sentence. We affirm his conviction, reverse his sentence and remand for resentencing.

The charges against defendant arise from a demand note robbery of a bank on December 22, 2005. Defendant does not deny that he entered a bank and handed a bag and a note to a teller that instructed her to give him all the money she had in her top drawer. The teller, Prabjot Kaur, asked defendant if he was kidding or if this was for real and he answered, "yes." When he thought the teller was taking a long time, he told her to hurry up. After she handed him the bag with the money, he asked her to return the note. Kaur did so. Defendant thanked her and left the bank.

Defendant testified that he put on gloves to avoid leaving fingerprints, but left the right glove in his car. Because of his concern regarding fingerprints, defendant put his right hand in his pocket while in the bank. He testified that he did not intend to threaten Kaur and did not think it necessary to do so because it was his understanding that tellers were trained to turn over the money in such situations. He testified that he made no threats and did not gesture at Kaur or point his hand at her. The thrust of his appeal is that this conduct did not support a conviction for second-degree robbery but only a conviction for third-degree theft.

Kaur acknowledged that defendant did not say anything threatening to her. However, she also testified, "[o]ne hand was in his pocket and that kind of threatened me. I thought maybe he had some kind of weapon." She repeated that she could see his hand in his pocket and thought, "he has something." When asked why she thought he might have a weapon in his pocket, Kaur explained, "[b]ecause he's robbing me and he could do anything if I don't give him the money." She described the tone of defendant's voice as "[p]retty scary. He was serious."

At trial, Kaur did not recall whether defendant pointed his hand at her while it was in his pocket. However, after being shown a statement she provided to the police following the robbery, Kaur said her recollection was refreshed as to what she had told the police that day. She then testified that defendant pointed his hand at her while it was in his pocket.

Defendant moved unsuccessfully prior to trial for the dismissal of the robbery count. He filed a motion for a judgment of acquittal on count one pursuant to R. 3:18-1 at the close of the State's case, which was denied. The jury convicted him of second-degree robbery and, pursuant to the court's instruction, did not determine whether he was guilty of the theft count. Prior to sentencing, defendant moved again for a judgment of acquittal on count one or, in the alternative, for a new trial pursuant to R. 3:20-1. This motion was also denied. Defendant was sentenced to a five-year term in New Jersey State Prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, followed by a three-year period of parole supervision, and appropriate fines and penalties.

Defendant raises the following issues for our consideration in his appeal:

POINT I

 

THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1 & -2 WITH REGARD TO THE ROBBERY COUNT. IN THE ALTERNATIVE, THE COURT ERRED WHEN IT DENIED DEFENDANT'S MOTION FOR NEW TRIAL BASED UPON R. 3:20-1 WITH REGARD TO THE ROBBERY COUNT.

 

A. MOTIONS FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1 & -2.

 

B. MOTION FOR NEW TRIAL PURSUANT TO R. 3:20-1.

 

POINT II

 

THE COURT'S CHARGE ON SECOND-DEGREE ROBBERY DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

 

POINT III

 

THE TRIAL COURT ERRED WHEN IT FAILED TO SUA SPONTE CHARGE THE JURY ON THE DEFENSES OF MISTAKE OF FACT OR MATTER OF LAW PURSUANT TO N.J.S.A. 2C:2-4a & -4b, THIS ERROR CONSTITUTES PLAIN ERROR REQUIRING REVERSAL OF THE DEFENDANT'[S] CONVICTION FOR ROBBERY. [NOT RAISED BELOW.]

 

A. N.J.S.A. 2C:2-4a.

 

B. N.J.S.A. 2C:2-4b.

 

POINT IV

 

THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH DID NOT TAKE INTO CONSIDERATION ALL APPROPRIATE CODE SENTENCING GUIDELINES.

 

Defendant raised the following arguments in his supplemental pro se brief:

POINT I

 

THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1 & 2, WITH REGARD TO THE ROBBERY COUNT.

 

POINT II

 

IN THE ALTERNATIVE, THE COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION FOR A NEW TRIAL, [] BASED UPON R. 3:20-1 WITH REGARD TO THE ROBBERY COUNT.

 

POINT III

 

THE TRIAL COURT ERRED IN ITS GIVING OF INSTRUCTIONS TO THE JURY.

After carefully considering these arguments in light of the record and applicable legal principles, we are satisfied that a remand is necessary regarding defendant's sentence. However, we are unpersuaded by defendant's other arguments. We conclude further that the argument raised in Point III of the brief submitted by defense counsel as well as arguments raised by defendant in his supplemental brief, to the extent they are not addressed in this opinion, lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).

I.

Defendant's motion for a judgment of acquittal at the close of the State's case is governed by Rule 3:18-1, which authorizes the court to enter a judgment of acquittal on one or more offenses charged "if the evidence is insufficient to warrant a conviction." The standard applied to such a motion is

whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the 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.

[State v. Reyes, 50 N.J. 454, 458-59 (1967) (internal citation omitted).]

 

Defendant's motion for a judgment of acquittal after his conviction was governed by Rule 3:18-2, which is subject to the same standard as that applicable to a motion for acquittal made at the close of the State's case. See State v. Palacio, 111 N.J. 543, 550 (1988); State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). "On such a motion[,] the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." Kluber, supra, 130 N.J. Super. at 342.

In our review of the trial court's decision on a motion for a judgment of acquittal pursuant to Rules 3:18-1 and -2, we apply the same standard as the trial court. State v. Moffa, 42 N.J. 258, 263 (1964). If the motion denied by the trial court was made after all the evidence had been presented, the appellate court "is similarly constrained to consider only the State's proofs to determine if the burden has been met." Pressler & Verniero, Current N.J. Court Rules, comment 5 on R. 3:18-1 (2013).

Pursuant to N.J.S.A. 2C:15-1(a), "A person is guilty of robbery if, in the course of committing a theft, he: . . . (2) [t]hreatens another with or purposely puts him in fear of immediate bodily injury[.]" Defendant argues that, because he never explicitly threatened Kaur, the State failed to prove he threatened her or purposely put her in fear of immediate bodily injury. He argues that the fact that his conduct induced Kaur to be fearful is insufficient to satisfy this element, that "[i]t is only the defendant's conscious object which is relevant here, not the victim's characteristics." He contends that his actions and behavior are not consistent with a second-degree robbery, but rather, with a third-degree theft. We disagree.

It is true that, when evaluating the proof to support a robbery charge, the focus "is on the conduct of the accused, rather than on the characteristics of the victim." State v. Smalls, 310 N.J. Super. 285, 292 (App. Div. 1998). This is because a "cautious person . . . may exhibit fear in many settings that are not criminal." Ibid. However, "conduct alone, without threats by [a] person[], may be sufficient to justify a conclusion that the person[] purposely placed the victim in fear of immediate bodily injury[.]" Ibid. "No special words or conduct are required to constitute a threat or to purposely put someone in fear of immediate bodily injury." State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). "The totality of the circumstances must be considered in determining if defendant's purpose was to put the victim in fear of immediately bodily injury." Ibid.

The totality of the circumstances here support a finding that defendant intended to put Kaur in fear of immediate bodily harm. Defendant walked into the local branch of a bank with one hand in his jacket pocket and gave the teller a note with his other hand directing her to place the money in a bag. The trial court correctly determined that, based on these facts alone, a reasonable jury could conclude that defendant's actions were meant to convey a threat of immediate bodily harm to the bank teller. Moreover, Kaur testified that the tone of defendant's voice was "[p]retty scary." She saw his hand in his pocket and thought, "he has something." Her fear that he had a weapon was not caused by any idiosyncratic timidity on her part, but rather, reasonably arose from her consciousness that "he's robbing me and he could do anything if I don't give him the money." We are satisfied the totality of this evidence was sufficient to support the robbery charge.

Defendant also argues that the trial court erred in failing to grant the alternative relief he requested, a new trial. Defendant argues that in deciding this motion, unlike the motions for a judgment of acquittal, the court is not limited to an inquiry as to the existence of supporting evidence, but rather must weigh the evidence. He contends that his testimony, which included his financial circumstances and his understanding that the teller would simply turn over the money if asked, supported a conclusion that he did not intend to put the teller in fear of immediate bodily harm. In short, he argues that the verdict was against the weight of the evidence and constituted a manifest injustice. Again, we disagree.

Rule 3:20-1 provides:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice. . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

 

Similarly, on appeal, "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. When deciding whether there was a miscarriage of justice, the appellate court defers to the trial court with respect to "intangibles" not present in the record, such as credibility, demeanor, and the "feel of the case"; however, it must make its own independent determination of whether a miscarriage of justice occurred. Carrino v. Novotny, 78 N.J. 355, 360-61 (1979); Baxter v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977); Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969).

As we have noted, there was sufficient evidence to support a finding by the jury that defendant's conduct reflected an intention to put Kaur in fear of immediate bodily injury. We are therefore satisfied that the jury's determination that defendant was guilty of second-degree robbery did not clearly constitute a miscarriage of justice.

II.

Defendant argues that the trial court erred in declining to incorporate certain language in the robbery charge. Defendant asked the court to include the following language in the charge based on Smalls, supra: "In evaluating whether the elements of the crime of robbery . . . have been satisfied, you must focus on the specific conduct of the accused and not [on] the reaction[] of the victim."

The court considered this request but concluded that the issue was adequately covered by the language of the model jury charge. The charge to the jury included the following:

No special words or conduct are required to constitute a threat or to purposely put someone in fear of immediate bodily injury. The statute does not require the use of any words whatsoever but merely that there be a threat, whatever its nature, of the immediate use of physical force. The totality of [the] circumstances must be considered in determining if defendant's purpose was to put the victim in fear of or to threaten the victim with immediate bodily injury. In other words, the State must prove that it was defendant's purpose to convey to the teller[,] Ms. Kaur[,] that immediate harm would result [if] resistance was encountered and they, of course, must prove this beyond a reasonable doubt.

 

To preserve the argument that the trial court erred in declining to include the language he requested, defendant had to object to the charge after it was given. See R. 1:7-2 ("[N]o party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . ."). There were, however, no objections to the charge after it was given.

As a result, we review the charge to determine whether there was plain error "clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997); State v. Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200 N.J. 370 (2009). The possibility of an unjust result must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Taffaro, 195 N.J. 442, 454 (2008). When the alleged error concerns only a portion of a charge, the challenged portion is not to be "dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973); see also State v. Delibero, 149 N.J. 90, 106-07 (1997). Moreover, "a trial court is not bound to instruct a jury in the language requested by a party. If the subject matter is adequately covered in the text and purport of the whole charge, no prejudicial error comes into existence." State v. Thompson, 59 N.J. 396, 411 (1971); see also State v. Reddish, 181 N.J. 553, 613 (2004).

The charge given by the court accurately set forth the legal principles applicable to the charge and evidence presented. When we compare the charge given with the language requested by defendant, we are satisfied the concern articulated by defendant -- that the jury understand that the alleged threat be proven by defendant's conduct rather than the teller's reaction -- was satisfactorily addressed by the charge given. We discern no error, let alone plain error, in the instruction given by the trial court.

III.

Finally, defendant argues that his sentence was excessive. The court sentenced defendant to the minimum second-degree sentence available under NERA. Defendant argues that the court erred in its consideration of mitigating factors, in weighing the aggravating and mitigating factors, and in failing to sentence him as a third-degree offender.

At sentencing, defendant asked the court to find mitigating factors (4) (substantial grounds tending to excuse or justify the defendant's conduct); (6) (defendant will compensate the victim of his conduct for the damage sustained); (7) (no prior criminal history); (8) (circumstances unlikely to recur); (9) (defendant unlikely to commit another offense); (10) (defendant is particularly likely to respond affirmatively to probationary treatment); (11) (excessive hardship); and (12) (cooperation with law enforcement authorities). N.J.S.A. 2C:44-1(b).

The trial court found two aggravating factors, N.J.S.A. 2C:44-1(a)(3) and (9), and two mitigating factors, N.J.S.A. 2C:44-1(b)(6) and (7). The court provided no explanation as to why it did not find an adequate basis in the record for the additional mitigating factors requested by defendant, did not identify the weight given to the aggravating and mitigating factors it found, and did not address defendant's request to be sentenced one degree lower.

The standard applicable to our review of the sentence here is one of deference. Even if we would have reached a different result, we 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); N.J.S.A. 2C:43-2(e); R. 3:21-4(g).

The trial court's explanation "is important for meaningful appellate review of any criminal sentence challenged for excessiveness." State v. Bieniek, 200 N.J. 601, 608 (2010). Although it is not necessary for the trial court to "explicitly reject each and every mitigating factor argued by a defendant[,]" the trial court must provide "reasons for imposing its sentence that reveal the court's consideration of all applicable mitigating factors in reaching its sentencing decision." Id. at 609 (citing State v. Pillot, 115 N.J. 558, 565-66 (1989)). And, although the court has discretion as to the weight to be given to each factor, it 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, 504-05 (2005).

Defendant argues that the trial court erred in failing to find the mitigating factors requested at sentencing1 and cites the following to support the application of these additional mitigating factors: Defendant was fifty-seven years old at the time he committed this, his first offense. Prior to this offense, he had obtained a master's degree and was a productive member of society. At the time of the offense, he had lost two jobs and faced financial difficulties. He relapsed into alcohol use and was suffering from depression. He did not contemplate that his offense could cause harm because he believed that tellers were trained to turn over money upon request without any threat being made. He has school-age children and cooperated with law enforcement when they confronted him about the robbery. Although he acknowledges that his amenability to probation is of limited value in light of the fact that he is being sentenced on a NERA charge, he nonetheless argues that this factor should be considered for purposes of determining whether it would be appropriate to sentence him one degree lower.

Defendant's financial circumstances, relapse, and depression do not provide a basis for finding a mitigating factor under N.J.S.A. 2C:44-1(b)(4). The hardship he describes as resulting from his incarceration is commensurate with that commonly endured by the family of an inmate and does not rise to the level cognizable under N.J.S.A. 2C:44-1(b)(11). See State v. Jabbour, 118 N.J. 1, 8 (1990); State v. Wilson, 421 N.J. Super. 301, 312 (App. Div. 2011), certif. denied, 209 N.J. 98 (2012). The fact that defendant cooperated with law enforcement authorities by giving a statement also fails to support a finding of mitigating factor N.J.S.A. 2C:44-1(b)(12). See State v. Read, 397 N.J. Super. 598, 613 (App. Div.), certif. denied, 196 N.J. 85 (2008). We are therefore satisfied that the trial court did not err in failing to find mitigating factors (2), (4), (11), and (12). N.J.S.A. 2C:44-1(b).

The trial court found aggravating factor N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense) and mitigating factor N.J.S.A. 2C:44-1(b)(7) (lack of prior criminal history) but made no finding as to mitigating factors N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was the result of circumstances unlikely to recur") or (9) ("character and attitude of the defendant indicate that he is unlikely to commit another offense"). Aggravating factor (3) is clearly related to mitigating factors (8) and (9). See State v. Towey, 244 N.J. Super. 582, 593 (App. Div.), certif. denied, 122 N.J. 159 (1990). On this record, appellate review is impeded by the absence of any explanation as to why the court found it likely defendant would commit another offense when he had been offense-free for more than half a century. In addition, the absence of an explanation regarding mitigating factors (8) and (9) calls into question whether the court found inadequate support in the record for those factors or failed to consider them. We are unable to discern the court's reasons for its findings on these factors or whether the court considered all applicable mitigating factors in reaching its sentencing decision.

Defendant's request that the court sentence him as a third-degree offender called upon the court to engage in a two-step process pursuant to N.J.S.A. 2C:44-1(f)(2) to determine whether his sentence should be downgraded. See State v. Megargel, 143 N.J. 484, 496-98 (1996); State v. Rice, 425 N.J. Super. 375, 389-90 (App. Div.), certif. denied, 212 N.J. 431 (2012); State v. Lake, 408 N.J. Super. 313, 325-27 (App. Div. 2009). First, the sentencing court must be "clearly convinced that the mitigating factors substantially outweigh the aggravating factors[,]" and second, "the interest of justice must demand the downgrade." Megargel, supra, 143 N.J. at 495. While a sentencing court does not need to follow a set formula when applying N.J.S.A. 2C:44-1(f)(2), it must "apply the basic principles that are applicable to all sentencing decisions under the [Criminal] Code." Id. at 500. The record does not reveal that the court engaged in this process.2

Accordingly, a remand is required for the court to provide a statement of reasons that explains its basis for accepting or rejecting aggravating and mitigating factors based upon the evidence, balances the relevant factors, and explains how it arrives at the appropriate sentence. In addition, the court should engage in the two-step process to determine if a sentence pursuant to N.J.S.A. 2C:44-1(f)(2) is appropriate.

D

efendant's conviction is affirmed. His sentence is reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 Defendant also argues for the first time on appeal that there was adequate support to find mitigating factor N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate serious harm). The verdict here reflects an implicit finding by the jury that defendant "purposely" put Kaur "in fear of immediate bodily injury." In light of this finding, defendant's denial of any intention to threaten the teller fails to provide sufficient support for a finding of N.J.S.A. 2C:44-1(b)(2) and the court's failure to find this mitigating factor did not constitute plain error.

2 The court's written statement of reasons includes the following sentence: "The Aggravating Factors outweigh the Mitigating Factors and the plea agreement is reasonable." Since there was no plea agreement here and no further explanation is provided, we are unable to discern the court's reasoning.