STATE OF NEW JERSEY v. FRANCISCO DEMOSCOSO

NOT FOR PUBLICATION WITHOUT THE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.

FRANCISCO DEMOSCOSO, a/k/a FRANCICO R.DEMONCOSO, FRANCISCO RENE DEMOSCOSO, FRANCICO DEMOSCOSO, FRANKIE DEMOSCOSO, FRANKY DEMOSCOSO, MIKE RAMOS, and FRANKY,

Defendant-Appellant.

_________________________________

March 27, 2014

Submitted March 19, 2014 Decided

Before Judges Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-08-00705.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (Count One); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Four). We affirm.

Defendant and Jorge Acosta were tried before a jury over ten days in August and September 2010. We discern the following facts from the evidence adduced at trial.

In January 2008, defendant and his then-girlfriend Maria Monjaras went to a nightclub to help Anna Nieto, who thought her car had been stolen. Defendant got into a physical altercation with Alfredo Moran outside the nightclub. Monjaras stabbed Moran twice in the rib area in alleged attempts to stop the fight. Defendant and Monjaras eventually left in Monjaras' car, and Moran walked away, but they all returned to the nightclub shortly thereafter.

When defendant and Monjaras returned to the nightclub, they saw Moran. Defendant cut Moran's nose with a knife, then chased him as he ran away. Acosta joined defendant, and they returned to the car, which Monjaras was driving. They found Moran several blocks away, and defendant and Acosta hit and stabbed him repeatedly. Moran eventually fell to the ground. Monjaras yelled to defendant and Acosta to stop and that the police were coming. Defendant returned to the car with the knife in his hand and blood on his clothing and hands. On the way home, Monjaras stopped the car and defendant threw the knife into a sewer. A helicopter transported Moran to the hospital, where doctors determined that he had collapsed lungs, blood loss, injury to blood vessels in his neck, and damage to his spleen and colon.

Garivaldi Rodriguez, a taxi driver, witnessed the attack. After defendant, Acosta, and Monjaras left, Rodriguez flagged down a police officer and provided a license plate number and a description of Monjaras' car. Rodriguez testified at trial but was unable to identify the attackers.

Moran gave a statement to the police. He was unable to identify defendant, but he identified Monjaras in a photo array. At trial he was unable to identify defendant, but testified that the man who stabbed him and cut his nose was the same man he initially fought outside the nightclub.

A surveillance camera recorded some of the activity outside the nightclub, including a man and woman that Monjaras identified as defendant and herself. In March 2008, Nieto identified Monjaras as the woman in the surveillance video, but stated that she did not know the identity of the man. Shortly before she testified, detectives informed her that she would be subpoenaed to appear in court, but that she might avoid being subpoenaed if she identified the individuals in the video. She identified defendant as the man in the video. She identified him again at trial, but after testifying, she returned to court and testified that she was unsure about the identification.

Monjaras was charged with attempted murder, aggravated assault, and weapons-related offenses. She pled guilty to unlawful possession of a weapon. A condition of her plea agreement was that she would testify truthfully. At trial, defense counsel attempted to show that she was not credible because she was afraid of deportation and angry with defendant for impregnating another woman.

The jury had the opportunity to watch the surveillance video. At the conclusion of the trial, the jury found defendant guilty on all counts. The judge imposed an extended fifty-year term of imprisonment on Count One, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent one-year term of imprisonment on Count Three. Counts Two and Four merged with Count One.1

On appeal, defendant argues the following points:

POINT I

THE PROSECUTOR'S REPEATED ATTEMPTS TO CONVEY TO THE JURY THAT ANNA NIETO FEARED RETRIBUTION FROM DEFENDANT IRREPARABLY TAINTED THE TRIAL.

POINT II

IN HIS OPENING STATEMENT, THE PROSECUTOR SET AN IMPERMISSIBLE TONE BY BOTH VOUCHING FOR HIS WITNESSES AND APPEALING TO THE JURORS' EMOTIONS. (Not Raised Below).

POINT III

BY INEXCUSABLY FAILING TO INSTRUCT CODEFENDANT MONJARAS, EVEN AFTER DIRECTED BY THE COURT TO DO SO, NOT TO REFER TO DEFENDANT'S PRIOR CRIMINAL RECORD, THE PROSECUTOR WAS DIRECTLY RESPONSIBLE FOR HER TESTIMONY THAT A DETECTIVE CAME TO THEIR HOME ACCOMPANIED BY DEFENDANT'S PAROLE OFFICER. THIS MISCONDUCT WARRANTS REVERSAL.

POINT IV

THE COURT ERRED IN REFUSING DEFENSE COUNSEL'S REQUEST FOR A MISTRIAL.

POINT V

THE AGGREGATE 50-YEAR NERA TERM IMPOSED WAS MANIFESTLY EXCESSIVE UNDER ALL APPLICABLE CIRCUMSTANCES.

I.

Defendant argues that, on three occasions, the prosecutor tainted the jury by attempting to convey that Nieto feared retribution from defendant. We disagree.

A prosecutor's reference to "matters extraneous to the evidence" may constitute prosecutorial misconduct. State v. Jackson, 211 N.J. 394, 408 (2012). Evidence that a defendant has committed other crimes is inadmissible unless introduced for a purpose other than to show that the defendant has a propensity to commit crime. State v. Weeks, 107 N.J. 396, 406 (1987); see also N.J.R.E. 404(b). This rule applies to evidence of gang membership because jurors are likely to conclude that a gang member has committed crimes. State v. Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

When a reviewing court concludes that a prosecutor engaged in prosecutorial misconduct, reversal is warranted only if the misconduct was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). "[T]he prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Smith, 167 N.J. 158, 181 (2001)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). A court should consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Jackson, supra, 211 N.J. at 409 (quoting Smith, supra, 167 N.J. at 182). Generally if a defendant does not object to a prosecutor's remarks, the remarks will not be considered prejudicial. State v. Timmendequas, 161 N.J. 515, 575-76 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

Here, the prosecutor asked Nieto whether she had been compelled to testify and whether she remembered initially reporting to the police that she did not remember the incident. Defense counsel objected to both questions, arguing that counsel had agreed not to ask about Nieto's fear of testifying in order to avoid any references to defendant's alleged gang membership. The judge addressed counsels' arguments at sidebar, out of the presence of the jury, and the jury did not hear any testimony about defendant's alleged gang membership. Therefore, these questions did not prejudice defendant's right to a fair trial.

Nieto testified that she was unsure about her earlier identification of defendant. The judge permitted counsel to ask Nieto about fear and intimidation, but not about gang membership. On cross-examination, the prosecutor asked Nieto about defendant's friend who accompanied Nieto to the courthouse, including whether the friend was a "big guy."

We conclude that this question was not prejudicial. The prosecutor did not mention gang membership. Defense counsel did not object and had the opportunity to elicit testimony that Nieto was unafraid of defendant's friend.

II.

We reject defendant's contention that the prosecutor "set an impermissible tone" in his opening statement by referring to credibility and making appeals to emotion.

A.

We conclude that the assistant prosecutor did not substantially prejudice defendant's right to a fair trial. A criminal trial has an "emotionally charged atmosphere" and therefore prosecutors are not "'expected to present the State's case in a manner appropriate to a lecture hall.'" State v. Marks, 201 N.J. Super. 514, 534-35 (App. Div. 1985) (quoting State v. Johnson, 31 N.J. 489, 510-11 (1960)), certif. denied, 102 N.J. 393 (1986). But they are not permitted to express "personal belief in a defendant's guilt in such a manner as to lead the jury to believe that [their] opinion is based on something other than the evidence adduced at trial." State v. Ramseur, 106 N.J. 123, 321 (1987).

Here, the prosecutor told the jury that:

Originally Ms. Monjaras was charged in this case with the attempted murder. The State is going to be right up front and transparent. You're going to hear that she was charged with that attempted murder. You're going to hear that ultimately she pled guilty to possessing a weapon, a much less-serious offense. To be frank and to be perfectly honest she is going to receive a probationary period for what she did, her crime. Some of her conditions are she has to be truthful. When she comes into this court she has to tell the truth. If she does not tell the truth her plea deal is gone, it is revoked. If she gets up there and does not tell the truth under oath she gets indicted.

The prosecutor also described Rodriguez, the cab driver, as an "honest, hardworking guy" who "doesn't know anybody here" and who "saved Alfredo Moran's life."

These statements did not substantially prejudice defendant's right to a fair trial. Defense counsel did not object to the statements. The comments were brief, occupying in total approximately one page of the transcript for a ten-day trial. Before the opening statement, the judge charged the jury that opening statements are not evidence. Finally, there was strong evidence against defendant. Monjaras and Nieto had both identified defendant and the jury had the opportunity to view the security video. The jury also heard Moran testify that the man who fought with him outside the club was the man who stabbed him.

B.

We also conclude that the prosecutor did not make inappropriate appeals to the jurors' emotions. In their opening statements, prosecutors may only state facts that they plan to prove in good faith and argue proper inferences therefrom. Timmendequas, supra, 161 N.J. at 577.

The prosecutor described Moran as being left "in a heap on a corner alone," referred to "the knife tearing into his colon, . . . tearing into his spleen," and stated that Moran "has scars . . . to this day, that will never, ever go away, ever." This description was based on the evidence and fair inferences therefrom. There was testimony that defendant, Acosta, and Monjaras drove away and left Moran on the ground and that the stabbing damaged Moran's colon and spleen, and the jury was shown pictures of Moran's scars. Therefore, the prosecutor's statements were not improper.

III.

We reject defendant's argument that Monjaras' references to defendant's criminal history and the judge's refusal to grant a mistrial were reversible error.

"Fleeting" and "inadvertent" references to a defendant's criminal history usually do not constitute prejudicial error. See State v. Harris, 156 N.J. 122, 173 (1998), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001); State v. Childs, 204 N.J. Super. 639, 651-52 (App. Div. 1985). A trial court's decision on a motion for a mistrial "is granted great deference on appeal" and should be affirmed unless it would result in manifest injustice. State v. Hogan, 297 N.J. Super. 7, 15 (App. Div.), certif. denied, 149 N.J. 142 (1997).

Monjaras testified that she and defendant broke up about three or four months after defendant "got locked up." The next day, the prosecutor asked Monjaras how a detective knew to speak with her, and she answered "[b]ecause his parole officer would come with " Defense counsel objected to both statements and requested a mistrial after the second statement. The judge denied the motion for a mistrial, instructed Monjaras outside the presence of the jury that she was not permitted to refer to jail, arrest, or parole officers, and provided a curative instruction, stating in part that:

You are not to infer in any way that from that statement that this was [defendant's] parole officer or or to use that statement in any way to infer guilt of [defendant] just Officer Wilson had his parole officer with him. Okay.

You're not to infer that anyone associated with this case had a parole officer. And the fact that a parole officer was with Officer Wilson can't be used in any way to infer guilt on the part of either defendant.

. . . .

Secondly, I wanted to point out to you that previously there was reference by Ms. Monjaras that she stopped going out with the defendant after he was locked up or arrested or whatever. . . .

[Y]ou're not to infer that either of the defendant[s] are bad people because they may have gotten arrested and charged in this case.

. . . [Y]ou, the jury, have to decide whether they're guilty regardless of whether they were arrested or not, whether the evidence in the case proves them guilty, not that they were arrested.

Both of Monjara's comments were fleeting and elicited unintentionally by the prosecutor. The judge provided a thorough curative instruction that directed the jury to disregard both references. Therefore, these comments did not constitute reversible error. The judge acted within his discretion by providing a curative instruction, and the judge's decision denying a mistrial did not result in manifest injustice.

IV.

Defendant argues unconvincingly that the judge imposed an excessive sentence. The abuse of discretion standard applies to a judge's decision to impose an extended term. State v. Pierce, 188 N.J. 155, 166 (2006). A judge has discretion to impose an extended term when a defendant meets certain age and criminal history criteria to be considered a persistent offender.2 N.J.S.A. 2C:44-3a. Once a judge finds that the persistent offender statute applies, the judge must consider aggravating and mitigating factors, including the need to protect the public, to determine the term of imprisonment. Pierce, supra, 188 N.J. at 169.

The judge found that aggravating factors three (risk defendant will reoffend), six ("extent of the defendant's prior criminal record"), and nine ("need for deterring the defendant and others") applied pursuant to N.J.S.A. 2C:44-1a. He did not find any mitigating factors. These findings were based on defendant's prior convictions for numerous felonies, including possession of a weapon for an unlawful purpose, possession of a controlled dangerous substance, burglary, and aggravated assault with a deadly weapon.

The judge correctly determined that defendant was a persistent offender and applied an extended-term sentence with a range of ten years to life. The judge stated that a mid-range sentence would be forty to forty-five years and, after finding a need to protect the public from defendant and considering the aggravating factors, sentenced defendant to a fifty-year term. The judge did not abuse his discretion, and therefore we will not disturb the sentence.

We conclude that defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

1 The judgment of conviction incorrectly indicates on page three of four that there was a negotiated plea.

2 Defendant concedes that he met these criteria.