STATE OF NEW JERSEY v. STEFAN ZEBROWSKI

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-04232-11T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEFAN ZEBROWSKI, a/k/a

STEFAN ZEBROSKI C-LOW,

Defendant-Appellant.

________________________________

February 3, 2015

Before Judges Koblitz and Haas.

On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 09-03-0268, 08-08-1080 and 08-08-1185.

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

CameliaM. Valdes,Passaic CountyProsecutor, attorney for respondent (Robert J. Wisse, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Stefan Zebrowski, appeals his jury conviction and sentence for second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1).1 He raises the following issues on appeal

POINT I: THE JUDGE'S INSTRUCTION FOR THE JURORS TO CONTINUE DELIBERATIONS, AFTER THEIR REPRESENTATION THAT THEY WERE UNABLE TO REACH A UNANIMOUS VERDICT BUT WITHOUT FURTHER INQUIRY ABOUT THE DEADLOCK, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (NOT RAISED BELOW)

POINT II: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

POINT III: DEFENDANT IS ENTITLED TO ADDITIONAL JAIL CREDIT.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction, remanding only for the award of additional jail credit.

I

Defendant was seventeen and one-half years old on June 20, 2007, the date of the sexual assault. He was waived up from juvenile court to the adult criminal division and indicted for the following crimes: first-degree aggravated sexual assault while armed with a knife (N.J.S.A. 2C:14-2(a)(4)); third-degree possession of a knife for an unlawful purpose (N.J.S.A. 2C:39-4(d)); and fourth-degree unlawful possession of a knife (N.J.S.A. 2C:39-5(d)).

J.M., the victim and first witness during the two days of trial testimony, testified to the following. At approximately 11:30 p.m. on the evening of June 20, 2007, she was walking down a street in Paterson when she saw two men walking towards her. Defendant asked J.M. her name. Defendant stopped; his companion kept walking. Defendant then grabbed her shoulders and put a knife to her side. He led her into a backyard and told her that she was going to do as he said. Still holding the knife, he told her to "suck his dick." Defendant ejaculated in her mouth and told her to swallow it. He then told her to undress.

While defendant was on his cell phone, he turned away and J.M. ran across the street, yelling that she had been raped. Juan Ramos testified that he heard J.M. screaming, gave her some clothing and called the police. J.M. was crying and shaken, saying that someone had held a knife to her neck and raped her behind Ramos' house.

After the police arrived, J.M. was taken to the hospital where her mouth was swabbed. A DNA swab later taken from defendant matched the DNA profile from the swab taken from J.M. as part of the sexual assault collection kit. No knife was found at the scene of the attack. J.M. identified defendant as her assailant in court.

The day after the assault, J.M. entered a detoxification program to treat her heroin addiction. She testified that although she had "used" at around 7:00 a.m. on the morning of the assault, she was "coherent," which was corroborated by the police. She admitted to convictions for theft and possession of drugs.

On the day after testimony concluded, the jury began their deliberations shortly after 12:30 p.m., opting to skip lunch. At 2:21 p.m., the judge received a note that read: "The jury is not unanimous on any counts." The judge noted that they had been deliberating for less than two hours and suggested that she "give them a break and then have them come back, give them the Allen2 charge and tell them to continue to deliberate." Neither party objected.

The jury chose to take a fifteen minute break, rather than a longer lunch break. Upon their return, the judge said the following

I am going to ask you all to continue with your deliberations. As I said before, you've been deliberating now for a little under two hours. I'm going to give you an instruction. And after I give you this instruction, I will ask you to return to the jury room and continue your deliberations.

Now it is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberation, do not hesitate to reexamine your own views and change your opinion if convinced it is erroneous but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors or for the purpose of returning a verdict. You are [] not partisans. You are judges, judges of fact.

So with that, I will ask you to return to the jury room and continue deliberations.

The jury deliberated until approximately 4:30 p.m. and was then dismissed for the weekend, to return the following Tuesday.

Upon their return, at approximately 9:30 a.m., the jury requested clarification of aggravated sexual assault and the lesser-included offense of sexual assault. The judge repeated the instructions for those offenses. Later that day, the jury found defendant guilty of the lesser-included charge of sexual assault and not guilty of the remaining charges.

II

Defendant argues for the first time on appeal that the absence of the judge's inquiry as to whether the jurors were deadlocked, or if further deliberations would be productive, prior to instructing jurors to continue their deliberations, was coercive and violative of defendant's right to due process and a fair trial. "The test for plain error is whether under the circumstances the error possessed a clear capacity for producing an unjust result, that is, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached[.]" State v. Czachor, 82 N.J. 392, 402 (1980) (citations and internal quotation marks omitted).

In determining the propriety of a trial court's response to a jury's inability to reach a unanimous verdict, our Supreme Court has identified two principal concerns: (1) whether the supplemental instruction has the capacity to improperly influence the dissenting jurors to change their votes; and (2) whether 'the weighty role that the judge plays in the dynamics of the courtroom' improperly coerced the jury into returning a verdict.

[State v. Dorsainvil, 435 N.J. Super. 449, 481 (App. Div. 2014) (quoting State v. Figueroa, 190 N.J. 219, 237-38 (2007)).]

"[E]ven a general inquiry by the judge about deliberations may present the possibility of coercion." Figueroa, supra, 190 N.J. at 238.

When a "jury announces an inability to reach a unanimous verdict, the decision whether to grant a mistrial turns on whether the duration of the deliberations balanced against the length of the trial and the complexity of proofs shows the jury has made a good-faith effort to reach a sustainable verdict." Dorsainvil, supra, 435 N.J. Super. at 481. If the "'difference of opinion between members of the jury is clearly intractable,' . . . then the jury is deadlocked and a mistrial should be declared." State v. Ross, 218 N.J. 130, 145 (2014) (quoting Figueroa, supra, 190 N.J. at 237). Here, after a brief period, the jury indicated only that they were not unanimous; there was no indication that they were "intractable" or firm in their positions. See State v. Adim, 410 N.J. Super. 410, 419, 426 (App. Div. 2009) (finding that a supplemental jury instruction was coercive when it deviated from the approved charge and was given after jurors reported that they were "'not in agreement'" and were "'firm'" in their decision).

Defendant cites to Czachor, supra, 82 N.J. at 403-4, in which, following a one-day trial, the jury received the Allen charge three times before ultimately convicting the defendant. Our Supreme Court held that undue pressure was placed upon jurors because of the content of the now superseded Allen charge itself. Id. at 402. In addition, the Court found reversible error because the charge was used "a third time, after the jury had engaged for many hours in serious deliberations and reported that despite sincere efforts, a unanimous verdict was not possible." Id. at 403-4.

The Court in Czachor approved "the modern version of supplemental instructions trial judges now use in response to a jury's announcement of being deadlocked." Dorsainvil, supra, 435 N.J. Super. at 482. Although the trial judge referred to the "Allen charge," in fact she gave the charge approved in Czachor, leaving out only the introductory first three sentences: "The verdict must represent the considered judgment of each juror. In order to return a verdict, it is necessary that each juror agree thereto. Your verdict must be unanimous." and the final sentence: "Your sole interest is to ascertain the truth from the evidence in the case." She gave this charge only once after deliberations began.

"A judge has discretion to require further deliberations after a jury has announced its inability to agree, Figueroa, supra, 190 N.J. at 221, but exercise of that discretion is not appropriate 'if the jury has reported a definite deadlock after a reasonable period of deliberations.'" Adim, supra, 410 N.J. Super. at 423-24 (emphasis added) (quoting Czachor, supra, 82 N.J. at 407). The instruction here was given after jurors had been deliberating less than two hours following two days of trial.

Recently, in Ross, supra, 218 N.J. at 136-37, our Supreme Court found no plain error in a "Czachor charge" given to a jury after five days of deliberation following an eight-day trial. In Ross, the jury sent a note stating "that it was 'unable to reach a unanimous decision on any count' of [the] defendant's indictment and sought instruction from the court." Id. at 136. Counsel did not object to the trial court giving jurors the "Czachor charge." Id. at 138. Our Supreme Court found that "the trial court properly applied the principles articulated by this Court in Czachor." Id. at 145.

Similarly, here, the trial judge gave the "Czachor charge" without objection and without questioning the jury. As in Ross, the judge "refrained" from compromising inquiries when the jury gave no indication that they had reached "an intractable divide." Ibid. See Figueroa, supra, 190 N.J. at 239-240 ("In light of the brevity of the deliberations, we find no error in the trial court's decision not to inquire specifically about whether further deliberations would likely result in a verdict."). Thus, we also find no error in the decision not to question the jury before giving the approved charge in these circumstances.

III

Defendant argues that the sentence imposed for this second-degree crime was excessive. In determining defendant's sentence, the judge stated that she was "clearly convinced" that the aggravating factors substantially outweighed the nonexistent mitigating factors and that a sentence "at or above the midpoint of the range" was warranted. She imposed a term of eight years with a mandatory 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. She also imposed the mandatory provision of parole supervision for life. N.J.S.A. 2C:43-6.4.

Defendant was also sentenced on two other indictments, pursuant to a plea agreement entered into after the jury verdict. He received a concurrent term of five years with a three year mandatory minimum for second-degree unlawful possession of a handgun, which occurred on January 17, 2008, as well as a concurrent term of eighteen months for a fourth-degree violation of a regulatory provision related to his purchase of a gun on March 14, 2008.

The judge found that aggravating factor (3), "[t]he risk that defendant will commit another offense[,]" and aggravating factor (9), "[t]he need for deterring the defendant and others from violating the law[,]" were applicable. N.J.S.A. 2C:44-1(a).

Defendant contends that due to his "diagnosed mental illness," mitigating factors (4) and (8) should have been found by the judge: "[t]here were substantial grounds tending to excuse or justify the defendant's conduct, though failing to establish a defense[,]" and "[his] conduct was the result of circumstances unlikely to recur[,]" respectively. N.J.S.A. 2C:44-1(b). The judge found neither factor applicable.

"'On appeal, a trial judge's sentencing determinations are entitled to substantial deference.'" State v. Jaffe, __ N.J. __, __ (2014) (slip op. at 15) (quoting State v. Pagan, 378 N.J. Super. 549, 558 (App. Div. 2005)). "Appellate review of a criminal sentence is limited; a reviewing court decides whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)).

"A judge's sentencing analysis is a fact-sensitive inquiry, which must be based on consideration of all the competent and credible evidence raised by the parties at sentencing." Jaffe, supra, slip op. at 2. "'[T]he finding, weighing, and balancing of [these] mitigating factors' requires the court to assess the character of the offender, as well as 'the severity' of the proposed sentence in relation to 'the crime that the defendant committed.'" Id. at 11 (quoting State v. Randolph, 210 N.J. 330, 345, 349 (2012)).

During a pretrial hearing, defense counsel asserted that his client "suffers from a mental condition." When asked by the judge if there was any evidence to support that assertion, counsel replied that defendant had a "competency evaluation which verifies that he suffers from schizophrenia and bi-polarism." The trial judge then stated, apparently referring to a report

I see where the . . . licensed psychologist who evaluated the [d]efendant opined that he is not suffering from any genuine psychiatric illness. And that he's malingering and feigning symptoms of psychosis and that he has a history of manipulative behavior and tendencies. I'm not seeing what you're referring to.

Counsel replied that he had other reports, but no reports were put into evidence or furnished on appeal.

Defendant's Adult Presentence Report states that defendant "reported that his physical and mental health are good at this time. He related that when he was a juvenile he was diagnosed with [s]chizophrenia and [p]ost-[t]raumatic [s]tress [d]isorder. However, he stated that now that he is an adult he no longer has such a diagnosis."

Even if defendant does still suffer from a "diagnosed mental illness," it is not clear how that condition supports the two mitigating factors put forward by defendant on appeal. Defendant sexually assaulted J.M. in June 2007. Defendant also pled guilty to two crimes involving handguns: one that occurred in January and one in March 2008, both shortly after he turned eighteen years old. He was incarcerated for a total of 828 days prior to sentencing on February 10, 2012, when defendant was twenty-two years old. Especially in light of the brief amount of time that he was not incarcerated, defendant had accumulated a serious criminal record.

Unquestionably, "mitigating factors supported by credible evidence are required to be part of the deliberative process." State v. Case, 220 N.J. 49, 64 (2014) (citation and internal quotation marks omitted). The mitigating factors urged by defendant, however, were not supported by the record. The sentencing judge did not abuse her discretion when sentencing defendant to eight years for the sexual assault, which is in the mid-range for a second-degree crime that carried a possible sentence of five to ten years. The 85% period of parole ineligibility is mandatory. N.J.S.A. 2C:43-7.2(a), (d)(8).

IV

Defendant argues, and the State concedes, that 533 days of jail credit awarded defendant on the eight-year sentence for sexual assault should also be given to defendant on both of the shorter, concurrent terms imposed on the same date. State v. Hernandez, 208 N.J. 24, 28 (2011).

We therefore affirm the conviction and remand solely for the award of 533 days of additional jail credit to the sentences imposed on Indictments 08-08-1080 and 08-08-1185.

Affirmed, remanded only to award proper jail credits.

1 After conviction and prior to sentencing, defendant pled guilty to second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), as charged in Indictment No. 08-08-1080, and to a fourth-degree violation of a regulatory provision related to the purchase of firearms, N.J.S.A. 2C:58-3(a) and 2C:39-10(a), charged in Indictment No. 08-08-1185. The guilty pleas were part of an agreement with the State that the remaining charges would be dismissed and any sentences imposed be served concurrently to the sexual assault sentence.

2 The judge was no doubt referring to Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896), which upheld the death penalty after defendant's third murder trial, and approved a charge given to the jury to persuade them to reach agreement: a charge that is now considered coercive.