STATE OF NEW JERSEY v. CARLOS SIERRA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2465-11T4

STATE OF NEW JERSEY,

Plaintiff Respondent,

v.

CARLOS SIERRA, a/k/a JOSE RAMIREZ,

Defendant Appellant.

________________________________

February 12, 2014

Submitted October 28, 2013 Decided

Before Judges Yannotti, St. John and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-09-1596.

Joseph E. Krakora, Public Defender, attorney for appellant (Lon Taylor, Assistant Deputy Public Defender, 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

Defendant Carlos Sierra appeals his judgments of conviction for false imprisonment, simple assault, and conspiracy to commit robbery on Daniel Miller. He raises challenges to the jury instructions he did not raise below, and attacks his sentence. We affirm in part, vacate in part, and remand.

I.

We summarize the evidence in light of the claims raised on appeal. The State's evidence showed Frank Corpi defrauded Veronica Stuart, defendant's girlfriend and the mother of their child, by tricking her into withdrawing approximately $4,000 from her bank account and giving it to Corpi. To carry out the fraud, Corpi used a check bearing Miller's signature and an address in Glen Rock where he lived with Miller. After discovering the fraud, Stuart filed charges against Miller and Corpi.

Defendant made several efforts to force Miller to pay for the fraud. Defendant and Stuart went to the Glen Rock address and demanded money from Miller. Defendant broke a window. Months later, police found defendant and Stuart suspiciously observing the address. After two years, defendant came up with a new tactic to get money from Miller. Defendant exploited the fact that Miller had posted his telephone number on "craigslist" seeking a new relationship.

On May 15, 2010, defendant borrowed the cellphone of his former employee Christian Calderon. Defendant called Miller at home and falsely described himself as a young Cuban man. Defendant said he had gotten Miller's number from craigslist, and asked to come over and meet Miller. Miller gave him the address, told him to come after 11:00 p.m., and asked him to use the back door.

Defendant told Calderon that they were going to Miller's house to beat him up and get money. Defendant and Calderon got into a car, driven by a person referred to as "E.". Defendant programmed Miller's address into the GPS, repeating he was going to get money from Miller and that all three of them would enter Miller's house. As they neared the house, defendant called Miller. Defendant and E. walked to the house, but Calderon remained with the car.

When Miller saw a man opening the back screen door, he opened the inner door. A Hispanic man entered and pushed him down the steps into the basement. There, he was placed face down on the floor, and his neck and head were bound with duct tape. The man, joined by another man, demanded to know where Miller kept his money. Miller claims to have "kind of" blacked out. He could not identify the two men or remember being hit during the twenty-minute ordeal. However, he was later found bloodied and battered, with broken bones in his eyesocket, ribs, and upper arm. His injuries were consistent with an assault.

Eventually, Miller said there was money in the bedroom, and the men went upstairs. Miller later found money missing from a drawer in the house. Meanwhile, defendant and E. returned to the car. Defendant told Calderon he had punched a guy and got money.

Police took a formal taped statement from defendant, in which he claimed to have been in Pennsylvania at the time of the robbery. After his alibi was disproven, police arrested defendant. Defendant then made oral statements to Detective Eric Reamy in which he claimed he drove the two other men to Miller's house, and remained in the car while the other two went into the house and assaulted Miller. Defendant claimed he was "just there," and had nothing to do with assaulting Miller.

At trial, defendant admitted to lying about being in Pennsylvania. He testified that on May 15, 2010, E., joined by Calderon, gave him a ride, to pick up diapers at a friend's house in Fair Lawn, where he remained from 11:00 p.m. until about midnight. He testified that when he was arrested, he told police that he just went on the ride to get diapers, and that when he returned home he saw Calderon had blood on his shoes.

II.

The indictment contained six counts: (1) charging defendant, Calderon, and E. with second-degree conspiracy to commit first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; (2) charging defendant with first-degree robbery, N.J.S.A. 2C:15-1; (3) charging Calderon with second-degree robbery, N.J.S.A. 2C:15-1; (4) charging defendant with first-degree kidnapping, N.J.S.A. 2C:13-1(b)(2); (5) charging defendant with second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and (6) charging defendant with third-degree terroristic threats, N.J.S.A. 2C:12-3(b). Calderon pled guilty and testified at trial as a witness for the State.

At trial, defendant received lesser-included-offense instructions for the following counts: (1) conspiracy to commit second-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; (2) third-degree, fourth-degree, and disorderly-persons theft by unlawful taking, N.J.S.A. 2C:20-3(a); (4) third-degree criminal restraint, N.J.S.A. 2C:13-2, and disorderly-persons false imprisonment, N.J.S.A. 2C:13-3; and (5) third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7), and disorderly-persons simple assault, N.J.S.A. 2C:12-1(a)(1).

The jury issued the following verdicts: (1) not guilty of conspiracy to commit first-degree robbery, but guilty of the lesser offense of conspiracy to commit second-degree robbery; (2) not guilty of robbery or theft; (4) not guilty of kidnapping or criminal restraint, but guilty of the lesser, disorderly-persons offense of false imprisonment; (5) not guilty of aggravated assault, but guilty of the lesser, disorderly-persons offense of simple assault; and (6) not guilty of terroristic threats.

On October 28, 2011, the judge imposed sentences on the following counts: (1) nine years in prison for conspiracy to commit second-degree robbery, 85% to be served before parole, followed by three years of parole supervision, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; (4) a concurrent sentence of six months in jail for false imprisonment; and (5) a consecutive sentence of six months in jail for simple assault.1

Defendant appealed, raising the following arguments:

POINT I

THE OMISSION OF AN INSTRUCTION ON CONSPIRACY TO COMMIT THEFT REQUIRES THE REVERSAL OF SIERRA'S CONSPIRACY TO COMMIT ROBBERY CONVICTION. (Not Raised Below).

POINT II

THE OMISSION OF ANY INSTRUCTION REGARDING THE CREDIBILITY OR ACCURACY OF SIERRA'S OUT-OF-COURT STATEMENTS REQUIRES THE REVERSAL OF HIS CONVICTIONS[.] (Not Raised Below).

POINT III

THE IMPOSITION OF A NINE-YEAR SENTENCE OF IMPRISONMENT FOR THE SECOND DEGREE CONSPIRACY CONVICTION [WITH A] CONSECUTIVE . . . SIX-MONTH TERM OF IMPRISONMENT FOR SIMPLE ASSAULT WAS EXCESSIVE.

III.

Defendant claims that the trial judge committed plain error under Rule 2:10-2 by not giving a lesser included offense instruction that defendant did not request as required by Rule 1:7-2. The State does not dispute that conspiracy to commit theft by unlawful taking is a lesser-included offense of conspiracy to commit second-degree robbery. See State v. Cassady, 198 N.J. 165, 177 (2009); N.J.S.A. 2C:1-8(d).2 Instead, the State argues that the evidence did not require the judge to give such a charge sua sponte. See N.J.S.A. 2C:1-8(e).

The Supreme Court has explained that, because of constitutional concerns, there are special restrictions on claims of plain error where a judge did not sua sponte instruct the jury on lesser offenses. State v. Thomas, 187 N.J. 119, 132-34 (2006). To show plain error for not sua sponte instructing on an "included offense," a defendant must show that "'"the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense."'" State v. Maloney, 216 N.J. 91, 107 (2013) (quoting Thomas, supra, 187 N.J. at 132 (citation omitted)). "[A] trial court has no obligation to '"scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty."'" Id. at 108 (citations omitted). Nor must it "'sift through the entire record . . . to see if some combination of facts and inferences might rationally sustain' a charge[;] instead, the need for the charge must 'jump off' the proverbial page." State v. R.T., 205 N.J. 493, 509-10 (2011) (citations omitted). We must hew to that standard of review.

Here, the judge did not commit plain error. Neither party claimed that there had been a conspiracy to commit theft by unlawful taking. Rather, the State's evidence showed that defendant, Calderon, and E. conspired to get money by inflicting bodily injury or using force on Miller. See N.J.S.A. 2C:15-1(a)(1). Defendant's plan to call and meet Miller was intended to ensure Miller would be present to be robbed. Defendant expressly announced that they were going to Miller's house to beat up Miller and take his money. Once there, defendant and E. carried out the conspiracy by using force to inflict injuries on Miller to force him to reveal where he kept his money. See Cassady, supra, 198 N.J. at 178-79 (finding the defendant's request for a lesser-included-offense instruction on theft was properly denied because the facts showed robbery).

Defendant's testimony was that he was wholly uninvolved, and merely on an innocent ride to get diapers. His initial statement to police claimed that he was in another State at the time of the crime. Even his second statement to police claimed he was "just there" and had nothing to do with the two other men's plan to assault Miller. Cf. State v. Villanueva, 373 N.J. Super. 588, 595 (App. Div. 2004) (citing the defendant's "position throughout the trial proceedings that his conduct constituted an attempted theft").

Thus, the evidence did not show a conspiracy to commit theft. Therefore, there was no clear indication "'that a jury could convict on the lesser while acquitting on the greater offense.'" See Maloney, supra, 216 N.J. at 107, 110. Because there was no obvious need for an instruction on conspiracy to commit theft, the judge was not obliged to give it sua sponte. Id. at 107-08.3

Defendant notes that the judge gave a lesser-included-offense instruction about theft. That instruction, however, was supported by Miller's testimony that money was removed from a drawer after, and on a different floor from, the assault. "Since the removal of the money occurred after the threatening behavior took place, it is conceivable that the jury could find the theft and the threatening behavior not to be part of a continuous transaction." State v. Walton, 368 N.J. Super. 298, 309 (App. Div. 2004).4 Neither party contended that defendant conspired to enter Miller's house to surreptitiously look through drawers without encountering Miller.

IV.

Defendant next argues that the judge should have sua sponte given instructions regarding his out-of-court statements under State v. Kociolek, 23 N.J. 400 (1957), State v. Hampton, 61 N.J. 250 (1972), and N.J.R.E. 104(c). Kociolek held that the jury should be instructed to consider with caution oral "admissions made . . . by the accused, not committed to writing . . . . in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Kociolek, supra, 23 N.J. at 421. Under Hampton and N.J.R.E. 104(c), if as here a court denies suppression of a defendant's statements to police, the jury "shall be instructed to disregard the statement if it finds that it is not credible." N.J.R.E. 104(c); Hampton, supra, 61 N.J. at 272; see State v. Feaster, 156 N.J. 1, 71-72 (1998).

Nonetheless, "if a defendant fails to request either the Hampton or the Kociolek instruction, a trial judge's failure to give the applicable charge is not per se reversible error." State v. Harris, 156 N.J. 122, 183 (1998). Reversal is appropriate "only when, in the context of the entire case, the omission is 'clearly capable of producing an unjust result.'" State v. Jordan, 147 N.J. 409, 425, 428 (1997) (quoting R. 2:10-2).

We do not find plain error regarding defendant's initial statement to police, in which he claimed to have been in Pennsylvania during the crime. That formal statement was tape-recorded and transcribed, so a Kociolek instruction was not required. Furthermore, in testimony and argument, both defendant and the State agreed that his statement was a lie. Where a false statement by a defendant "was not offered as proof of the truth of its contents, an instruction directing the jury to determine the credibility of the declaration under [Hampton] would have been inappropriate." State v. Gomez, 246 N.J. Super. 209, 224 (App. Div. 1991).

Defendant was entitled to Hampton and Kociolek instructions regarding his second statement, made after arrest to Detective Reamy. However, it is undisputed that defendant's statement to Reamy asserted his innocence. See State v. Muhammad, 366 N.J. Super. 185, 209 (App. Div. 2004), rev'd on other grounds, 182 N.J. 551 (2005) (finding no error, in part because the defendant's statement was not inculpatory). Moreover, defendant's statement that he was in a car with Calderon and E. around the time and place of the crime merely mirrored defendant's testimony. See Jordan, supra, 147 N.J. at 426 (indicating that "if the defendant has acknowledged the truth of his statement, the failure to give a Hampton charge would not be reversible error").

Reamy did testify that defendant also said he drove to Miller's house and stayed in the car while the two men assaulted Miller. However, in cross-examining Reamy, defense counsel questioned whether defendant had made this "blurt out," showed that Reamy's written record of the statement differed from Reamy's testimony, and elicited that defendant had said "he had nothing to do with beating up Miller." Defendant testified that Reamy had "twisted my story." Defense counsel in closing again questioned whether the "blurt out" had occurred, arguing that Reamy's testimony was unreliable and uncorroborated.

Thus, the defense made the jury "well aware of the questions surrounding the reliability of defendant's alleged statements to" Reamy. Feaster, supra, 156 N.J. at 72. Further, "the court provided a detailed credibility instruction that sufficiently guided the jury in assessing [the conflicting] testimony" of Reamy and defendant. Ibid. Accordingly, "[w]e find no plain error in the court's failure to provide a Hampton [and Kociolek] charge sua sponte," ibid., which "in the context of the State's entire case against defendant, was not clearly capable of producing an unjust result." Harris, supra, 156 N.J. at 183. Indeed, the prosecutor in opening conceded defendant "did not confess," and in closing made only brief mention of defendant's "story number two."

Defendant also complains about the absence of a Kociolek instruction regarding his oral statements to Calderon. In extensive cross-examination and argument, defense counsel vigorously challenged the credibility of Calderon as "the prosecution's lapdog" and "a career criminal with an ax to grind" because defendant had fired him. In attacking Calderon's "preposterous" version of events, counsel specifically argued that Calderon "cannot be believed" regarding defendant's alleged oral statements.

Given these defense arguments and the judge's extensive credibility instructions making specific reference to Calderon, "the critical issue of the reliability of defendant's incriminating statements [to Calderon] was thoroughly and sufficiently placed before the jury." Feaster, supra, 156 N.J. at 73. Thus, the failure to give a Kociolek instruction was not plain error. Id. at 72-73 (finding no plain error even though the defendant's incriminating oral statements were "at the heart of the State's case against defendant"); see Jordan, supra, 147 N.J. at 428 (noting it would be "a rare case where failure to give a Kociolek charge alone is sufficient to constitute reversible error"); State v. Crumb, 307 N.J. Super. 204, 251 (App. Div. 1997) (finding "no reported case in which a failure to include a Kociolek charge has been regarded as plain error"), certif. denied, 153 N.J. 215 (1998).

V.

Defendant next contends that the judge's imposition of a nine-year sentence for conspiracy to commit second-degree robbery, with a consecutive six-month sentence for simple assault, was excessive. "We review a sentence imposed by the trial court to determine whether the court: (1) followed the sentencing guidelines; (2) based its determination of aggravating and mitigating factors on credible evidence in the record; and (3) applied the guidelines in a manner that did not result in a sentence that shocks the judicial conscience." State v. Morgan, 423 N.J. Super. 453, 474-75 (App. Div. 2011), aff'd, 210 N.J. 477 (2013).

A.

Defendant argues that the jury's verdicts showed he was not "primarily involved in the incident," and that the judge found him "vicariously responsible" for Miller's injuries. To the contrary, the guilty verdicts indicate the jury found not only that he conspired to inflict bodily injury or use force on Miller to rob him, N.J.S.A. 2C:15-1(a)(1), but also that he then restrained Miller "so as to interfere substantially with his liberty," N.J.S.A. 2C:13-3, and attempted to or did cause bodily injury to Miller, N.J.S.A. 2C:12-1(a)(1). Thus, the judge reasonably inferred that the jury found defendant entered Miller's house to commit these crimes, and properly characterized this conduct as a home invasion. The trial testimony and Miller's statement at sentencing supports the judge's finding that Miller's injuries were "horrendous," and that "Miller will live with this mental fear for the rest of his life." The judge's comment that home invasions were among "the worst type of offenses" because they "physically and mentally terrorize the public" was neither inaccurate nor inapposite.

Based on defendant's crimes against Miller and his "substantial prior record," the judge properly found as aggravating circumstances: the risk that defendant will commit another offense; the extent of defendant's prior criminal record and the seriousness of his current offenses; and the need to deter defendant and others. N.J.S.A. 2C:44-1(a)(3), (6), (9). The judge then found, as a mitigating factor, that imprisonment would entail hardship for defendant and his child. N.J.S.A. 2C:44-1(b)(11). Under these circumstances, the judge reasonably found that the aggravating factors substantially outweighed the mitigating factors. The nine-year sentence for conspiracy to commit robbery, with parole limited under NERA, does not shock the judicial conscience.

B.

Defendant argues that imposing a six-month sentence for simple assault consecutively was improper under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). However, we need not reach this argument because we must first address a predicate question, namely whether any sentence could be imposed for simple assault. The answer is no, because simple assault must merge with the conviction for conspiracy to commit robbery.

If defendant had been convicted of the robbery he conspired to commit against Miller, the two offenses would have merged. State v. Hardison, 99 N.J. 379, 380 (1985); N.J.S.A. 2C:1-8(a)(2). Merger should also occur here, because the simple assault was a component of that robbery. See State v. Connell, 208 N.J. Super. 688, 695 (App. Div. 1986) (ruling that "[a]ggravated assault and conspiracy to murder the person assaulted therefore merge under N.J.S.A. 2C:1-8(a)(1) and (d)(3)."). As noted above, the second-degree robbery charge required that defendant inflict bodily injury or use force upon Miller in the course of committing a theft. N.J.S.A. 2C:15-1(a)(1). The jury convicted defendant of causing bodily injury to Miller, N.J.S.A. 2C:12-1(a)(1). Because the completed crime of simple assault is a lesser-included offense of the charged second-degree robbery, N.J.S.A. 2C:1-8(a)(1), and differs "only in the respect that a less serious injury or risk of injury to the same person [or] property" was involved, because he was acquitted of theft, N.J.S.A. 2C:1-8(d)(3), those offenses must merge. See Connell, supra, 208 N.J. Super. at 692-95. Otherwise, defendant could be sentenced more severely because he was convicted not of second-degree robbery, but only of a lesser-included offense. Id. at 692.

We must then consider which sentence survives merger. Where a defendant is convicted of a crime and a conspiracy to commit solely that crime, the conspiracy conviction merges into the completed offense. State v. Bridges, 133 N.J. 447, 479-80 (1993); Hardison, supra, 99 N.J. at 380, 385-86. Here, the opposite occurs for two reasons. First, the conspiracy to commit robbery is a second-degree offense, but the simple assault is a disorderly persons offense. "The grading provisions of the Code ordinarily offer the appropriate measure of culpability to determine which offense survives merger when weighing culpability under N.J.S.A. 2C:1-8(d)(3)." Connell, supra, 208 N.J. Super. at 695. Second, the conspiracy offense is subject to NERA, but the simple assault is not. See id. at 696-97. "No crime of greater degree or culpability can merge into one of lesser degree or culpability." State v. Hammond, 231 N.J. Super. 535, 545 (App. Div.), certif. denied, 117 N.J. 636 (1989). Accordingly, the simple assault merges into the conspiracy to commit robbery. Otherwise, defendant, having conspired to commit robbery, would lessen his sentencing exposure by carrying out the assault.

Therefore, we vacate the conviction and sentence for simple assault. We remand to the judge for entry of a corrected judgment of conviction, in accordance with our opinion. We affirm the remaining convictions and sentences.5

Affirmed in part, vacated in part, and remanded.

1 Defendant pled guilty to a separate indictment for the disorderly persons offense of providing false information to an officer, for which the judge imposed a concurrent six months in jail. The judge also assessed fees.

2 The portion of the second-degree robbery statute referenced in the indictment and instructions provides: "A person is guilty of robbery if, in the course of committing a theft, he . . . [i]nflicts bodily injury or uses force upon another[.]" N.J.S.A. 2C:15-1(a)(1).

3 Because we must look at "'the facts adduced at trial'" about defendant's role, id. at 107 (citation omitted), it is irrelevant that Calderon pled guilty to conspiracy to commit theft in a separate, cooperating plea proceeding.

4 We note that the jury acquitted defendant of this theft, but convicted him of assaulting and falsely imprisoning Miller.

5 The State has not asked for a remand for resentencing if the simple assault sentence could not be sustained.