STATE OF NEW JERSEY v. REINALDO GONZALEZ

NOT FOR PUBLICATION WITHOUT THE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.

REINALDO GONZALEZ, a/k/a

REYNALDO GONZALES, ORLANDO LOPEZ,

REINALDO GONZALEZ, TIMOTEO ALVAREZ,

PABLO TORRES,

Defendant-Appellant.

______________________________________

December 23, 2014

Submitted September 22, 2014 Decided

Before Judges Espinosa and St. John.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-12-1210.

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

Grace H. Park, Acting Union County Prosecutor,attorney forrespondent (Kimberly L.Donnelly, SpecialDeputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Reinaldo Gonzalez was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (causing or attempting to cause serious bodily injury (SBI)); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (purposely or knowingly causing or attempting to cause bodily injury with a deadly weapon, a knife); fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d); third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a). The judge sentenced defendant to an aggregate term of eight years imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant seeks to vacate his conviction, challenging the weight of the evidence and the jury instructions. He also asserts the sentence imposed was excessive. Following our review, in light of the record and the applicable law, we affirm.

At trial, the State presented a man named Gomez, the victim, a woman named Paladines, a witness to the incident, and Paulo Fidalgo and Yoan Belon, Elizabeth police officers. The defense called defendant and defense investigator Jose Perez.

On July 23, 2011, Gomez and defendant were in the area of Morris and Union Avenues in Elizabeth. Gomez testified that, after having a couple beers, he walked to his bus stop where he encountered defendant, whom he had known for four or five years by the nickname "Diablo."1 Gomez testified he did not have a contentious relationship with the defendant and only knew him as an acquaintance.

Gomez approached defendant and spoke with him regarding one of Gomez's friends, whom he believed defendant had "wronged." Gomez stated he did not speak to defendant in a threatening manner. Defendant then walked away.

Several minutes later, Gomez observed defendant coming towards him holding what he believed to be a knife. Defendant was accompanied by another man on a bicycle. Defendant told Gomez in an elevated voice, "not to get involved, that was none of [his] business." As defendant was approaching, Gomez grabbed a piece of cardboard and started walking backwards, "to defend [himself]". Gomez thought defendant was "going to kill [him]," and he put the cardboard up to his chest because he saw "him with a knife and did it to defend [himself]." Gomez recalled that defendant was approximately two steps away, but could not recall whether defendant was trying to stab him with a knife. Gomez remembered that defendant was holding the knife in his right hand, behind his body. Gomez was still moving backwards with the cardboard up to his chest when the police arrived.

When the officers arrived at the scene, defendant threw the knife down and then "hugged" Gomez. Thereafter, Gomez and defendant were each handcuffed, and defendant told Gomez not to say anything to the police and "to tell them that [they] were friends."

Ms. Paladines, a witness to the incident, also testified. She was sitting in a car on Morris Avenue near the corner of Union Avenue, when she saw defendant and Gomez. "[O]n that day I stayed in the car while my husband went to buy bread and I saw two men. One man was in the front, the other was coming behind. And the man was attacking." Paladines testified that one of the men was holding a knife with his right hand, making thrusting and stabbing motions toward the other and screaming, "son of a bitch. I'm going to kill you."

Paladines became "fearful" and "terrorized" because "[she] [was] seeing that a man wanted to kill another man." She noted that the man without the knife was "trying all the time to avoid the person who was with the knife." The man who was holding the knife was screaming, although she was unable to hear everything he said. The unarmed man appeared to be afraid, and she watched him pick up a piece of cardboard to protect himself.

While she was observing the two men, her husband returned to the car and started to pull away. She told him not to leave because "there was a man wanting to kill another one." Thereafter, she flagged down a police car. When the police arrived at the scene, she saw the man with the knife throw it away. Paladines identified the man she saw holding the knife and related to police the events she witnessed. She also explained that when the police were on the scene, she heard the man who had been holding the knife say, "we're friends, we're friends."

Paul Fidalgo and Yoan Belon, Elizabeth patrolmen, were the two officers flagged down by Paladines. They both described the intersection of Morris and Union Avenues as very busy with restaurants and heavy street traffic. The patrolmen testified that Paladines was frantic when she flagged down the patrol car. Fidalgo and Belon testified that they saw Gomez using a piece of cardboard as a shield, moving backwards away from defendant, who stood a couple of feet away from him, thrusting a knife at his torso, stomach and chest. According to Belon, while the officers were looking for parking, he observed Gomez drop the cardboard, and saw him and defendant walking nonchalantly, side by side, defendant with his arm around Gomez's shoulders.

The two patrolmen parked and left their car, drew their weapons and ordered the two men to drop to the ground. Fidalgo spoke in English, and Belon in English and Spanish. Fidalgo handcuffed Gomez, while Belon proceeded to arrest defendant. The officers eventually uncuffed Gomez and spoke to him about what happened. As they were speaking to him, defendant also addressed Gomez, encouraging him, in Spanish, to tell the officers that they were friends and told him at one point not to "say anything to the police."

Belon testified that defendant refused to drop to the ground and kept reiterating, "we're friends, we were just playing around, we're friends." At that point, defendant was holding the knife in his left hand at his left side. After multiple commands by Belon, defendant discarded the knife, but continued to protest, saying that he and Gomez were friends.

After several commands to get to the ground, Belon grabbed defendant by the arm and forcibly took him to the ground. Belon "attempted to handcuff him, and he wouldn't allow [him] to handcuff him. [Defendant] had his arms kind of like tucked under his body so that [Belon] couldn't grab his wrist and put his arms behind his back. And then he kept trying to get up." The officer brought his body weight down towards defendant using his knees on his back so as to keep from getting up. He did this three or four times. Belon was able to handcuff defendant only after Fidalgo helped him force defendant's hands out from under his body and draw them behind his back. Belon later filed a "use of force" report concerning his conduct during the arrest.

Defendant received medical treatment at Union Hospital that night. According to Fidalgo's testimony, he was taken first to police headquarters and then to the hospital after complaining of chest pain. Officer Belon testified that defendant received treatment that night after he "continued to complain to [him] that his chest hurt, and he was coughing a lot." Belon stated, "he wouldn't stand up . . . he laid on the ground and wouldn't stand up and just kept saying that his chest hurt, so we called for an ambulance." Defendant was treated and released later that night.

Defense investigator, Jose Perez, testified that two months prior to trial he spoke with Gomez by telephone. According to Perez, Gomez told him that on the date of the incident he picked up a bottle and the cardboard to defend himself. However, in his testimony, Gomez denied holding a bottle at any time during the incident and stated that he did not recall ever speaking to a defense investigator.

Defendant also testified to the events of that evening. He initially disclosed that he was convicted of offenses in 1995 and in 2004, for which he was sentenced to probation and a year in prison respectively. He explained that on the date this incident occurred, his job at a plumbing company involved repairing boilers and pipes. Among the tools that he used was a box cutter, which he carried in his pocket on the day of the incident. After he left a bakery on Morris Avenue, he was approached by Gomez, whom he had seen in the past, but did not know by name. Gomez was "walking fast" towards him and started to accuse him "of things [he] [hasn t] even done." According to defendant, Gomez appeared "a little angry and he smelled of alcohol."

Defendant ignored Gomez, continued walking with his friend who was on a bicycle, and left Gomez where he was standing. Defendant then crossed Westfield Avenue and traveled with his friends down to Morris Avenue and started speaking to friends there. Next, they headed toward a friend's house, which took them back in the direction from which they had come. When he crossed the street, he saw Gomez standing with a girl. When defendant got to the other side of the street, Gomez came towards him. In an angry tone, Gomez starting accusing defendant and moved quickly towards him.

As Gomez was approaching, defendant went towards him and said in a low voice, "what is your problem." Gomez then "went towards the garbage and picked up a bottle," that defendant described as a twelve-ounce, brown, glass bottle. Gomez came towards him with the bottle in hand. Defendant testified that he was frightened because he thought Gomez was going to hit him with the bottle, so he took out the box cutter from his pocket. Neither men said anything to the other; defendant never swung the box cutter, and Gomez never swung the bottle. Gomez then threw the bottle and defendant put away the box cutter in his pocket. At that time, Gomez had the cardboard in his hands.

By then the police had arrived and Gomez said to defendant, "we should not leave things like that . . . we should not fight." When defendant saw the police on the corner, he discarded the box cutter. Defendant testified that when the officers arrived, he complied with their request to put his hands up and kneel. Then the police told him to lie on the ground, which defendant did. A police officer came from behind him, and put his foot hard on defendant's back. As a result, he was in pain. The officer told him to put his hands back on his back, and they handcuffed him. The officers hit defendant's back several times, injuring his chest. The policeman called him profane names.

Defendant said that he complained about chest pain, but was ignored until, at the police station, he was in so much pain that he threw himself onto the floor. It was then that he was taken in a police car to the hospital.

On September 27, the jury found defendant guilty of all charges in the indictment.

On appeal, defendant raises the following issues for our consideration

POINT I

THE JURY INSTRUCTIONS ON THE ISSUES OF SELF-DEFENSE AND THE PRIOR INCONSISTENT STATEMENT MADE BY GOMEZ, BOTH OF CRITICAL IMPORTANCE TO THE DEFENSE, WERE NOT EXPLAINED IN TERMS OF THE TESTIMONY AT TRIAL, DEPRIVING GONZALEZ OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below).

POINT II

BECAUSE THE STATE FAILED TO PROVE THE ELEMENTS OF THIRD-DEGREE RESISTING ARREST, DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL AS TO COUNT V SHOULD HAVE BEEN GRANTED.

POINT III

THE SENTENCE IMPOSED, CONSISTING OF EIGHT YEARS, 85% OF WHICH MUST BE SERVED BEFORE PAROLE ELIGIBILITY, IS EXCESSIVE AND NOT BASED ON A PROPER APPLICATION OF AGGRAVATING AND MITIGATING FACTORS.

In a pro se supplemental brief, defendant raises the following point

POINT ONE

BECAUSE THE STATE'S EVIDENCE FAILED TO MEET THE REQUISITE ELEMENTS FOR SERIOUS BODILY INJURY SECOND DEGREE AGGRAVATED ASSAULT, THE CONVICTION SHOULD BE VACATED AND REVERSED FOR A NEW TRIAL.

Defendant argues the jury charges with regard to self-defense and prior inconsistent statements were error depriving him of his right to a fair trial. Defendant was provided with a written copy of the charge prior to its submission to the jury. Defendant requested a certain placement of the self-defense charge in the overall charge, which was granted by the judge, but did not object to the portions of the charge which he now claims are in error.

Appellate review applies the plain-error standard when a defendant fails to object to a given jury charge. See R. 1:7-2; State v. Wakefield, 190 N.J. 397, 473 (2007) ("[T]he failure to object to a jury instruction requires review under the plain error standard.") cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Plain error is that which is "clearly capable of producing an unjust result." R. 2:10-2. In respect of a late claim of error in a jury instruction, "plain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)).

Defendant contends that Gomez made a prior contradictory statement to defendant's investigator Perez in that he told Perez he had grabbed a bottle during the confrontation, but Gomez testified at trial that he did not have a bottle. Defendant asserts "the court merely read the model jury instruction verbatim, without relating it to the evidence."2

In summation, defense counsel forcefully argued that Gomez told Perez "that he picked up a bottle and cardboard after [defendant] pulled out a box cutter." Further, counsel commented "[f]or him to sit here and deny making that statement is really evasive because Investigator Perez is going to take everything down as he hears it." Counsel also posited, "[how] do we know that Investigator Perez is credible? Because it's not a completely one-sided report."

Even if we assume some small error in the portion of the charge to which defendant objects, we would not reverse under the plain-error standard because the charge as a whole thoroughly explained the law and was not clearly capable of producing an unjust result. See State v. Delibero, 149 N.J. 90, 106-07 (1997). "'[D]evised and administered by imperfect humans, no trial can ever be entirely free of even the smallest defect. Our goal, nonetheless, must always be fairness. A defendant is entitled to a fair trial but not a perfect one.'" Wakefield, supra, 190 N.J. at 537 (quoting State v. R.B., 183 N.J. 308, 333-34 (2005)).

We must also consider the charge in light of the arguments made by trial counsel concerning the prior contradictory statement, as those arguments can mitigate prejudice resulting from a less-than-perfect charge. State v. Morton, 155 N.J. 383, 423 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). Considering the instructions in their entirety, in the context of the evidence and the arguments of trial counsel, we are convinced that the charge was fair. The charge impartially instructed the jury, which, in turn, properly discharged its function.

We briefly address defendant's assertion that there was insufficient evidence to convict him for resisting arrest. Defendant contends that he was struggling to get up in order to explain to the officers that he had done nothing wrong, and not resisting arrest.

A motion for judgment of acquittal of a charged offense shall be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The court must view the State's evidence in its entirety, give the State the benefit of all favorable testimony and all favorable inferences, which reasonably could be drawn from the evidence, and determine whether a reasonable trier of fact could find the defendant guilty of the charge beyond a reasonable doubt. State v. Nero, 195 N.J. 397, 410 n.3 (2008). Where the motion is made after both sides have presented all of their evidence, the trial court must confine its analysis to the sufficiency of the State's evidence alone in determining whether the State has met its burden as to all elements of the charged crime. State v. Samuels, 189 N.J. 236, 245 (2007); Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 3:18-1 (2014). Here, the motion was made at the close of the State's case.

Appellate courts are similarly constrained to solely consider the State's proofs upon review of a motion for judgment of acquittal based on insufficiency of the evidence pursuant to Rule 3:18-1. See State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Perez, 349 N.J. Super. 145, 151 (App. Div. 2002), rev'd on other grounds, 177 N.J. 540 (2003); Pressler & Verniero, supra, comment 3.2.6. on R. 2:10-2. In doing so, the appellate court is guided by Rule 2:10-2, under which trial error may be ignored "unless it is of such a nature as to have been clearly capable of producing an unjust result."

Under N.J.S.A. 2C:29-2(a)(3)(a), a defendant must "purposely prevent[] or attempt[] to prevent a law enforcement officer from effecting an arrest," and in the process a defendant must "use[] or threaten[] to use physical force or violence against the law enforcement officer or another." The definition of physical force merely requires "dynamic power showing great strength, power, intensity, fury, [and] destructiveness." State v. Brannon, 178 N.J. 500, 510 (2004) (insertion in original) (citation and internal quotation marks omitted).

After defendant was stopped, he actively resisted the officers' efforts to handcuff him and arrest him. It took two officers to subdue and handcuff defendant. Defendant's conduct clearly demonstrated the elements of resisting arrest; no further discussion of this point is required.

Presented with the foregoing facts, a reasonable trier of fact could find defendant guilty beyond a reasonable doubt. Therefore, defendant's motion was properly denied.

Next, in a pro se supplemental brief, defendant argues that the evidence failed "to meet the requisite elements" for a conviction of second-degree aggravated assault, SBI. In effect, defendant argues that the verdict is against the weight of the evidence and does not support his conviction. We note that this contention generally will not be considered on appeal because defendant failed to move for a new trial on that basis as required by Rule 2:10-1. State v. Reininger, 430 N.J. Super. 517, 538 (App. Div.), certif. denied, 216 N.J. 367 (2013), cert. denied, __ U.S. __, 134 S. Ct. 1947, 188 L. Ed. 2d 962 (2014); State v. Johnson, 203 N.J. Super. 127, 133-34 (App. Div.), certif. denied, 102 N.J. 312 (1985).

For completeness, we address the merits of defendant's argument. A person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily injury to another." N.J.S.A. 2C:12-1(b)(1). "'Serious bodily injury' means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1(b).

In order to convict a defendant of attempted aggravated assault, the State must prove beyond a reasonable doubt that [a] defendant acted with the culpability required for the crime of aggravated assault, and that [a] defendant acted with the purpose of causing the result that is an element of aggravated assault, namely, serious bodily injury of another.

[State v. Green, 318 N.J. Super. 361, 371 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).]

Here, no actual serious bodily injury occurred, but it need not occur. See id. at 372. "[W]here the person does not cause serious bodily injury but only attempts to do so, he is guilty only if the attempt to cause that result is purposeful." State v. McAllister, 211 N.J. Super. 355, 362 (App. Div. 1986) (citing N.J.S.A. 2C:5-1(a)).

The trial judge properly instructed the jury that in order to find the defendant guilty it must find, beyond a reasonable doubt, "defendant purposely attempted to cause serious bodily injury to [Gomez]." We find there was substantial credible evidence, including Paladines' observations that defendant was making thrusting and stabbing motions toward the victim and screaming, "son of a bitch. I'm going to kill you[,]" as well as the testimony of Gomez, upon which a jury could rationally find, beyond a reasonable doubt, all elements of the offense.

Finally, defendant challenges his eight-year sentence, subject to NERA, for the aggravated assault, SBI, as excessive.3 He does not dispute that he was subject to an extended term sentence as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), but argues the court too heavily weighted aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime, and aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of his prior criminal record, because his previous convictions were old and did not involve crimes of violence. We reject these contentions. The sentencing court appropriately viewed the record as extensive and serious.

In State v. Bieniek, 200 N.J. 601, 608 (2010), the Supreme Court reaffirmed that the role of an appellate court is not to substitute its judgment about an appropriate sentence for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612. Here, the sentence imposed fell within the applicable range and was supported by the judge's findings applying applicable aggravating factors and noting the absence of mitigating factors. The court considered whether it should impose an extended term sentence because the defendant was a persistent offender. To defendant's benefit, the court decided that an extended term sentence would not be imposed. We find no abuse of discretion or other reversible error in the court's sentencing decisions. See State v. Roth, 95 N.J. 334, 364-66 (1984).

Affirmed.

1 The court ruled in a pretrial hearing that "Diablo" would only be used for identification purposes. The judge provided the jury with a limiting instruction regarding defendant's nickname.

2 The court read Model Jury Charge (Criminal), "Statements of Defendant" (2010), rather than Model Jury Charge (Criminal), "Prior Contradictory Statements of Witnesses (Not Defendant)" (1994).

3 The sentences for the other charges were either merged into or to run concurrent with this sentence.