STATE OF NEW JERSEY v. PERSIO LORA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PERSIO LORA, a/k/a PERSIO A.

LORA, JOHN JOHNSON and JOHNNY

LORA,

Defendant-Appellant.

________________________________________________________________

October 9, 2013

 

Submitted September 17, 2013 Decided

 

Before Judges Fisher and Koblitz.

 

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-06-1137.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, of counsel and on the brief).

 

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In February 2001 a jury convicted defendant of two counts of third-degree burglary, N.J.S.A. 2C:18-2, including a burglary into a car and one count of third-degree theft, N.J.S.A. 2C:20-3. After trial, defendant fled and was not apprehended for ten years.1 On March 4, 2011, he was sentenced to three concurrent five-year terms. He now appeals, arguing that the trial court made numerous errors, most of which were not objected to by defense counsel at trial. We affirm.

The evidence at trial revealed the following facts. Late in the night on September 7, 1999, defendant, his brother and co-defendant, Alexander Lora, and Albert Sealy drove to Washington Garage in Bergenfield in defendant's car to steal some tire rims. Defendant parked his car in a church lot next to the fenced-in car repair lot. Alexander Lora climbed over the fence and removed three tires and rims from a Honda Accord parked in the garage lot. Although tools from the garage were used, he was unable to remove the fourth wheel. Sealy also climbed the fence and carried the wheels to defendant, who remained by his car outside the fence.

Bergenfield Police Officer Kevin Doheny noticed defendant's car in the empty church parking lot and asked if everything was all right. Officer Doheny testified that occupants of the car told him that they were fixing a flat tire and that nothing was wrong. Officer Doheny checked the car's license plate number to ensure it was not stolen, surveyed the church and rectory for any signs of entry, and then left the area. Defendant then drove away with Alexander Lora and Sealy.

The next morning, the theft of the three wheels, a car radio and cash from the garage were reported to the police. Tools from the garage were found near the Honda Accord. A glass window had been broken, allowing entry into the garage. Alexander Lora's fingerprint was found on glass from the garage window. Footprints on a car near the fence indicated where the fence was scaled by the intruders.

The police questioned defendant about the whereabouts of his brother, Claudio Lora, who was the rightful owner of the car used in the burglaries. Defendant admitted being present with Sealy and speaking to Officer Doheny in the early morning of September 8. After waiving his Miranda2 rights, defendant denied that either of his brothers was with him and Sealy at the church parking lot. He also denied being involved with the burglary and theft of property from the garage that night.

Sealy pled guilty to an accusation and was therefore not indicted with defendant and Alexander Lora. Sealy testified for the State at trial, as he had agreed to do in exchange for a promised probationary sentence.

After both sides rested at trial, Alexander Lora, who had just been arrested entering the United States from the Dominican Republic, testified on behalf of defendant. Alexander Lora had pled guilty to these and other charges, but fled prior to sentencing. He testified that he went with Sealy to steal the tires and rims. He said defendant innocently gave them a ride, but did not participate in the burglary or theft.

Defendant raises the following issues on appeal:

POINT I: THE JURY WAS EXPOSED TO SO MUCH INADMISSIBLE AND PREJUDICIAL EVIDENCE THAT IT WOULD HAVE BEEN IMPOSSIBLE FOR DEFENDANT TO HAVE HAD THE FAIR TRIAL TO WHICH HE WAS CONSTITUTIONALLY ENTITLED. (Not Raised Below)

 

A. DETECTIVE TORELL'S REBUTTAL TESTIMONY

 

B. FACTUAL BASIS FOR SEALY'S GUILTY PLEA

 

C. REFERENCE TO PHOTO OF CLAUDIO OBTAINED FROM POLICE

 

D. ISSUANCE OF WARRANTS BY MUNICIPAL COURT JUDGE

 

E. CONCLUSION

 

POINT II: THE PROSECUTOR ELICITED TESTIMONY FROM HIS WITNESSES THAT IMPROPERLY POINTED TO DEFENDANT'S AND ALEX'S EXERCISE OF THEIR RIGHT TO POST-ARREST SILENCE. (Not Raised Below)

 

POINT III: THE COURT FAILED TO PROVIDE THE JURY WITH THE APPROPRIATE CHARGE AS TO TESTIMONY OF A COOPERATING CO-DEFENDANT. (Not Raised Below)

 

POINT IV: THE COURT'S FAILURE TO INSTRUCT THE JURY AS TO THE INHERENT UNRELIABILITY OF TESTIMONY REGARDING DEFENDANT'S ORAL STATEMENT REQUIRES REVERSAL. (Not Raised Below)

Trial counsel failed to object to almost all of the complained-of testimony, evidence and jury instructions. In those instances where he did not object at trial, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336-37 (1971). A conviction will be reversed under this standard only if the error is "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. McGuire, 419 N.J. Super. 581, 592 (App. Div.), certif. denied, 208 N.J. 335 (2011).

I

A

Defendant argues that much of the evidence introduced by the State was improper. Alexander Lora testified that he returned to the United States to be sentenced and serve his sentence and that he did not hide his identity when entering the country. Englewood Police Detective Timothy Torell testified in rebuttal that he spoke to an immigration inspector who told Torell that although Alexander Lora came into the country using his correct name, he denied the warrants found in the immigration check pertained to him. Ultimately, a fingerprint comparison was required to verify his identity. Although his trial attorney did not object to this testimony, defendant maintains on appeal that this hearsay testimony violated his right to confront the witnesses against him. Crawford v. Washington, 541 U.S. 36, 51-52, 124 S. Ct. 1354, 1364, 158 L. Ed. 2d 177, 193 (2004); State v. Chun, 194 N.J. 54, 137 (2008).

The State attempted to undermine Alexander Lora's credibility with the hearsay statement of the immigration inspector. Had defense counsel objected, this testimony should not have been admitted. The hearsay statement from the immigration inspector confirmed that defendant's brother gave his correct name when entering the country. Alexander Lora purportedly denied only that he was the individual named in the arrest warrants. The jury knew that Alexander Lora was about to be sentenced on several charges so it was aware he was involved in criminal activity. Evidence of the relatively minor conflict between Alexander Lora's testimony and what he told the immigration inspector was not clearly capable of producing an unjust result.

B

Defendant also argues that the judge should not have permitted Sealy to be rehabilitated on re-direct through the extended use of his guilty plea testimony. Sealy was cross-examined by defense counsel with regard to inconsistencies in his initial statement to the police, the factual basis for his guilty plea and his trial testimony relating to when and whether he climbed over the fence into the garage lot. On redirect, the judge allowed the State to elicit from Sealy his entire factual basis. In this instance defense counsel did object, claiming that allowing the entire factual basis was "rehashing all of [the] testimony [Sealy] gave this morning." Defense counsel said his cross-examination had focused only on the inconsistencies between the statements. The judge overruled this objection, indicating that defense counsel had "opened the door." The judge did not abuse his discretion by allowing the State to rehabilitate Sealy through an expanded use of the factual statement Sealy gave when entering his guilty plea. A prior consistent statement may be admitted to rebut a charge of recent fabrication when cross-examination highlights inconsistencies between the two statements. N.J.R.E. 607; State v. Silva, 131 N.J. 438, 449 (1993), citingState v. Johnson, 235 N.J. Super. 547, 556 (App. Div.), certif. denied, 118 N.J. 214 (1989). Additionally, the doctrine of completeness allowed the State to demonstrate how little Sealy's two prior statements differed from each other or the testimony at trial. State v. Marshall, 148 N.J.89, 168-69 (1997); N.J.R.E.106.

C

A police officer testified on direct that he obtained a copy of a photograph of the owner of the Honda Accord, Claudio Lora, from the police department. Defendant argues that this testimony, not objected to by defense counsel, unfairly impugned the reputation of the "Lora brothers." This argument is without sufficient merit to require discussion. R. 2:11-3(e)(2).

D

Defendant argues that the judge should have sustained the objection to the police officer's comment that, having already obtained a warrant for defendant, he "requested to see our Municipal Court Judge who issued the [arrest] warrants" for Alexander Lora and Sealy. Defense counsel had previously asked the judge to exclude any reference to an arrest warrant having been issued for the defendant. The judge agreed that the State should not say anything about a judge issuing a warrant for defendant's arrest. Defendant argues that by mentioning that a municipal court judge issued a warrant for Alexander Lora and Sealy, the jury would assume the municipal court judge also issued the warrant for defendant. The testimony regarding the warrant should not have been permitted but, as we stated in State v. Williams, 404 N.J. Super. 147, 168 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010), the "passing reference to an arrest warrant [does] not imply that the State had any evidence in addition to that which was heard by the jury. . . ." Ibid. We explained that the jury was not required to be "shielded from knowledge that . . . warrants have been issued. . ." against defendant. Ibid. (quoting Marshall, supra, 148 N.J. at 240). Here, as in Williams, the prosecutor's "fleeting" reference to a warrant issued for the other two men who participated in the burglaries was harmless error. Id. at 169.

II

In Point II of his brief, defendant argues that by eliciting testimony from Sealy that he gave a statement to police when he was arrested, the State improperly drew attention to defendant and Alexander Lora's invocation of their right to remain silent. See State v. Muhammed, 182 N.J. 551, 568-69 (2005) (explaining that "[o]ur state-law privilege against self-incrimination offers broader protection than its federal counterpart under the Fifth Amendment"). Defendant also points out that the State asked the police whether Alexander Lora chose to give a statement when he was arrested, to which the officer testified that Alexander Lora said "[h]e was going to give the information to his lawyer and he didn't have anything else to say." Defense counsel did not object to these questions, and we assume that whatever subtle comparison to defendant's failure to give a formal statement was not noticeable, particularly in light of the fact that defendant did give an oral statement to the police, acknowledging his presence at the church parking lot, although denying his participation in the crime. Defendant's argument that the State impinged on his right to remain silent is not persuasive.

III

In Points III and IV of his brief, defendant raises for the first time objections to the charge to the jury. Unquestionably, "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004).

Although the plain error standard of R. 2:10-2 applies to our review of the charge, we must assure that a defect in the charge was not likely to have been consequential. Indeed, "[e]rroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998).

Defendant argues that the judge, absent a request, should nonetheless have cautioned the jury with regard to the testimony of an accomplice who cooperates with the State. See Model Jury Charges (Criminal), Accomplice Testimony (January 25, 1999) (revised in 2006 after defendant's trial). Such a charge should not be given absent a defense request. State v. Gardner, 51 N.J. 444, 459-60 (1968). Here, one accomplice testified for the State and one for the defense. The motive for Sealy to testify against defendant was brought out in detail by defense counsel, who reviewed Sealy's favorable plea agreement in great detail on cross-examination. The judge did not err in following the clear direction enunciated by our Supreme Court in Gardner.

Defendant also argues that the judge's failure to caution the jury regarding the oral statements given by defendant to the police represents plain error. See State v. Hampton, 61 N.J. 250 (1972); see also, State v. Kociolek, 23 N.J. 400 (1957). Although the Hampton/Kociolek charge should be given whether or not it is requested, the failure to give such a charge is not plain error unless it is clearly capable of producing an unjust result. State v. Jordan, 147 N.J. 409, 426 (1997). Defendant did not request such a cautionary charge. In fact, defense counsel acknowledged the veracity of most of defendant's statements. Counsel stated in summation that defendant left out the presence of Alexander Lora to protect his brother, but otherwise was truthful in the information he volunteered to the police. Defendant's oral statements were largely consistent with Alexander Lora's testimony and constituted the defense version of the incident: that defendant drove the other two men to the scene of the crime, but was not himself criminally involved. As a whole, the charge correctly instructed the jury and the failure to caution the jury concerning defendant's oral statements or charge accomplice liability does not constitute plain error.

The law entitles defendant to a fair trial, not a perfect one free from any error. State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000). Defendant was not deprived of a fair trial.

Affirmed.

1 We note that in a criminal matter final judgment occurs at sentencing. R. 3:21-5. If defendant had fled after sentencing, we would not have heard his appeal. See Matsumoto v. Matsumoto, 171 N.J. 110, 122 (2002) (explaining that "where a defendant is a fugitive . . . the application of the fugitive disentitlement doctrine to bar him from pursuing a criminal appeal is firmly rooted in our jurisprudence.").

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