STATE OF NEW JERSEY v. GIOVANNY CORTEZ-MORALES

NOT FOR PUBLICATION WITHOUT THE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.

GIOVANNY CORTEZ-MORALES, a/k/a ANTHONY

FLORES, GIOVANNY CORTEZ-AYALA, JAMIE

F. AYALA, JAMIE F. AYALAMOJICA,

GIOVANNY CORTEZ, ERNESTO FLORES, JESUS

LOPEZ, DAVID M. MOJICA, JAMIE F. MOJICA,

GIOVANNY MORALES, GIOVANI RAMOS, GIOVANI

MARTINEZ and GIOVANI MARTINEZRAMOS,

Defendant-Appellant.

_________________________________________

June 15, 2015

Submitted June 2, 2015 Decided

Before Judges Fisher and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-08-1448.

Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).

Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Paul H. Heinzel, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

A jury found defendant Giovanny Cortez-Morales guilty of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1b(2); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a; and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b. After merging the weapons offenses, the judge sentenced him to a fifteen-year term of imprisonment for the attempted murder subject to the periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; to a concurrent eight-year NERA term for the aggravated assault; to a concurrent four-year term for the aggravated assault with a deadly weapon; and to a concurrent eight-year term for possession of a firearm for an unlawful purpose, with a three-year parole disqualifier under the Graves Act, N.J.S.A. 2C:43-6c. Defendant appeals his conviction and sentence. We affirm.

The facts, which were largely undisputed, are easily summarized. Defendant was having a few beers with his neighbors outside their apartment complex in Asbury Park. Defendant purchased some pain pills from one of those neighbors and the two subsequently got into a dispute over whether defendant intended to report the purchase to the authorities. In a video-recorded statement to the police admitted at trial, defendant claimed the man, who had only one arm, called him vulgar names and he in turn punched the man in the face. Although the two were separated by others, defendant claimed the man followed him back toward his apartment and threatened to kill him and his family. Defendant retrieved a gun from his apartment. He then returned to the scene of the earlier altercation, aimed at the man and pulled the trigger. Defendant fired three shots, missing the man but wounding another neighbor. Defendant fled the scene and was apprehended in Red Bank some two weeks later. Although defendant did not testify at trial, his counsel conceded he shot the bystander. Defendant claimed only that he had not intended to hurt either man.

On appeal, in an issue not raised in the trial court, defendant claims

POINT ONE

THE PROSECUTOR IMPERMISSIBLY USED [DEFENDANT'S] SILENCE AS EVIDENCE OF HIS GUILT, IN VIOLATION OF HIS RIGHT AGAINST SELF-INCRIMINATION. (Not raised below).

POINT TWO

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

Defendant filed a supplemental brief raising the following additional issues

POINT I

THE PROSECUTOR['S] SUMMATION VIOLATED APPELLANT'S SIXTH AND FOURTEEN[TH] AMENDMENT RIGHT TO A FAIR TRIAL AND DUE PROCESS WHEN REMARKS WERE MADE TO EVIDENCE THAT WAS NOT PROVEN WHICH MISLED JURY.

POINT II

THE APPELLANT[']S ATTORNEY WAS INEFFECTIVE WHEN ATTORNEY SHOULD HAVE IMPEACHED THE FORENSIC AND EXPERT WITNESS FOR THE STATE REGARDING TESTIMONY THAT WAS INCONSIST[E]NT WITH FACTS.

POINT III

THE STATE FAILED TO PROVE THE CRIME OF FIRST DEGREE ATTEMPTED MURDER BEYOND A REASONABLE DOUBT, DENYING APPELLANT A JUDGMENT OF ACQUITTAL.

A. APPELLANT WAS DENIED [HIS] SIXTH AMENDMENT RIGHT WHEN THE PROSECUTOR INTRODUCES AN IDENTIFICATION PICTURE FROM THE VICTIM WHO DIDN'T SHOW AT TRIAL[,] VIOLATING APPELLANT'S RIGHT TO CONFRONT THE ACCUSED.

We reject those arguments.

Defendant's claim that the prosecutor improperly commented on his silence is based on the following excerpt of his statement, made immediately upon receiving Miranda1 warnings

Detective: . . . This is . . . an arrest warrant for you and I just wanted to explain this to you. . . . It is within the jurisdiction of this [c]ourt, did purposely and knowingly attempt to cause the death or serious bodily injury to [the victim] specifically by shooting the victim in the lower back with a firearm, . . . causing severe injury. That's charge No. 1, ok?

Defendant: (Nods his head yes.)

Detective: Charge No. 2 is, within the jurisdiction of this [c]ourt did purposely and knowingly attempt to cause death or seriously bodily injury to [the victim], specifically by pointing a handgun at the victim and firing it, ok? So, that's the Second Charge. And then, the Third Charge is within the jurisdiction of this [c]ourt, knowingly possess a weapon that being a handgun with the purpose to use it unlawfully against the person or property of another. Do you understand those charges?

Defendant: Yes.

And these comments by the prosecutor in summation

What does it mean when a regular argument or misunderstanding or name-calling in any event, what does it mean when that elevates to somebody going and grabbing a gun? Picking it up and pointing it at a human being? What does that tell you? It's the inference. It's your common sense. You know what his intent is based on every single thing he did and said on that night of March 5 of 2011. He tells you he exploded. He tells you I felt disrespected.

And on top of what he tells you, think about what he doesn't say. March 5, this occurs. March 16th he's arrested. Nobody talks to him about the case. Nobody says a word to him. He's got no information. Assumingly knows exactly why the police show up in Red Bank that night. Take a ride down to the Asbury Park Police Department and for the very first time he sits in a room with two detectives who are charged with investigating this case. And what's the first thing they do after they read him his Miranda rights? They tell him what the charges are. What do they tell him? You're charged with attempting to kill someone. Now, what is the average person who didn't mean to kill someone say or do at that point? What's the normal reaction of the innocent person who is now being accused of shooting someone? If his intent was just to scare him, well, that's odd that he didn't just show the weapon or yell at him or fire a shot in the air or something like that. If his intent was just to hurt him, why didn't he continue to beat him up? If his intent was anything shy of causing an actual death, how is he just nodding when he's being told you're being charged with trying to kill someone? The reason why he's nodding and you don't see any reaction is because he already knows it. Because he knows what he meant to do that night and he knows he went and he got that gun and he went and he pulled the trigger twice and he knows that he did it to try to kill [the victim].

. . . .

There is no debate or issue about who the shooter was. There is no debate that this defendant is not entitled to carry a gun in the State of New Jersey. There is no debate that shooting somebody or shooting at somebody is a crime.

It is not a defense to the crime to say that, oops, I hit the wrong person because your intent to kill, one, that intent to pull the trigger and knowingly or purposely cause that harm transfers to anybody that you hurt. You know what his intent was. He tells you. I exploded. I was disrespected. You know what his intent was because he doesn't say a word when he's told you're charged with trying to kill someone and you know what his intent was because if he just wanted to hurt him he had already done it. He could have jumped back on him, he could have hit him again, he could have yelled back at him. He could have done a thousand other things.

What he didn't need to do is what he did do. Walks back into his house, picks up that gun, stands there, points it at him, shoots once, sees that he misses, and then stands there lying in wait for his second chance.

Because the State may not use a defendant's silence "at or near" the time of his arrest "for any purpose at trial," State v. Stas, 212 N.J. 37, 57-58 (2012), we have no hesitation in concluding the prosecutor erred in arguing in summation that defendant's intent could be gleaned "from what he d[id]n't say."

We reject out of hand the State's argument that "the prosecutor's summation does not constitute an improper comment on defendant's silence, but rather refers to defendant's conduct of nodding his head in response to police questioning." As our Supreme Court hastrenchantly noted, "[m]aking reference at trial to what a defendant did not say to the police is commenting on his silence." State v. Muhammad, 182 N.J. 551, 565 (2005). Whether defendant remained silent or nodded his head is beside the point. The prosecutor clearly invited the jury to infer defendant's intent to kill from his failure to proclaim his innocence to the police upon being advised he was being charged with attempted murder.

We do not, however, conclude that the prosecutor's error warrants a new trial under a plain error standard. See State v. Elkwisni, 190 N.J. 169, 181 (2007) (finding prosecutor's brief comments on the defendant's silence at arrest did not warrant a new trial). Defendant admitted punching a man in response to name calling, and thereafter leaving the scene to obtain a gun. Defendant returned to the scene and admitted aiming the gun at the man and pulling the trigger. The main thrust of the prosecutor's summation was that defendant's intent could not be any clearer had he announced it. Defendant for his part maintained consistently in his statement to the police that he shot at, but did not intend to hurt or kill, either victim. We cannot conclude under these circumstances that the prosecutor's brief comments were a significant factor in defendant's conviction. Cf. Stas, supra, 212 N.J. at 59 (finding plain error where the factfinder expressly relied on defendant's silence). Certainly it is fair to infer that defense counsel did not find the remarks prejudicial when made. See State v. Timmendequas, 161 N.J 515, 576, cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). We conclude in the context of this trial that they were not "clearly capable of producing an unjust result." See State v. Taffaro, 195 N.J. 442, 454 (quoting R. 2:10-2).

We also reject defendant's argument that his sentence, which is at the midpoint of the permitted range for attempted murder, although the aggravating factors predominate, and runs all other terms concurrent, is excessive. "Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). We are satisfied that the judge's findings and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

We find the arguments raised in defendant's supplemental brief to be without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), with the exception of his ineffective assistance claim, of which we defer consideration to an application for post-conviction relief, finding the trial record inadequate to resolve the issue. See State v. Preciose, 129 N.J. 451, 460-62 (1992) (noting ineffective assistance claims are generally not appropriately addressed on direct appeal).

Affirmed.

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