STATE OF NEW JERSEY v. LEONARDO VARGAS-RODRIGUEZ

NOT FOR PUBLICATION WITHOUT THE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.

LEONARDO VARGAS-RODRIGUEZ,

Defendant-Appellant.

July 20, 2016

Before Judges St. John and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Municipal Appeal No. 66-2012.

Hugo Villalobos, attorney for appellant.

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Susan L. Berkow, Special Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Leonardo Vargas-Rodriguez appeals an April 25, 2014 order of the Law Division finding him guilty of simple assault, N.J.S.A. 2C:12-1(a). Having reviewed the record in light of applicable law, we affirm defendant's conviction, but remand to the Law Division for imposition of sentence.

We discern the following facts and procedural history from the record. On December 25, 2011, Officer Herrera of the East Brunswick Police Department responded to a domestic violence call at a motel in East Brunswick. Upon arriving at the scene, Herrera spoke to the victim in a hallway. Herrera observed that the victim had a bump on her head, a bruised and swollen right eye, scratches on her back, and blood on her shirt. The victim told Herrera that her injuries were sustained when defendant attacked her.

Herrera photographed the victim's injuries at the scene and then sought out defendant. Herrera located defendant inside the apartment, and asked him to accompany her into the hallway for a conversation. When defendant entered the hallway, Herrera pointed to the victim's injuries and asked him, "did [you] do this to her . . . ?" According to Officer Herrera, defendant responded, "yes," and stated that he knew "he was wrong."

That same day, East Brunswick Municipal Court Summons 2011-001153 charged defendant with one count of simple assault, N.J.S.A. 2C:12-1(a). Defendant pleaded not guilty. Following adjournments requested by both parties, on February 29, 2012, the municipal court judge marked the case try-or-dismiss for March 28, 2012. However, on March 28, 2012, defendant was granted a continuance. By that point, the victim had returned to Mexico and was unavailable for trial. Defense counsel moved to exclude any hearsay testimony regarding the victim's statements to Herrera. The court held the victim's statements to be inadmissible hearsay.

On May 9, 2012, a motion in limine was heard to determine the admissibility of defendant's admission that he hit the victim. The judge held the statement would be admitted. However, trial was again postponed so a translator could be obtained.

Trial finally commenced on August 15, 2012. The prosecution called several witnesses, including Officer Herrera, who testified to the facts within her knowledge. The defense called no witnesses. Based on Herrera's observations of the victim's injuries and defendant's admission that he struck the victim, the municipal court judge found defendant guilty of assault. Defendant was ordered to pay $364 in fees and costs.

Defendant appealed the municipal court's decision to the Law Division. Following a de novo trial, the case was remanded with instructions that the municipal court hold a Miranda1 hearing within thirty days to determine the admissibility of defendant's admission. On February 11, 2014, the municipal court issued an order holding that defendant's statement "was not subject to the protections of Miranda v. Arizona[,]" and reinstated the conviction. Defendant appealed.

Subsequently, on April 11, 2014, a new trial de novo was held before a different Law Division judge. In an April 25, 2014 order, the Law Division judge found defendant guilty of assault, but did not impose a new sentence. This appeal ensued.

On appeal, defendant presents the following issues for our consideration

POINT I

THE STANDARD OF REVIEW ON APPEAL IS WHETHER THE COMPETENT AND CREDIBLE EVIDENCE IN THE RECORD SUPPORTS THE JUDGMENT OF CONVICTION BEYOND A REASONABLE DOUBT.

POINT II

THERE WAS NO COMPETENT CREDIBLE EVIDENCE TO PROVE THE ELEMENTS OF THE OFFENSE BEYOND A REASONABLE DOUBT.

A. THERE WAS NO COMPETENT CREDIBLE EVIDENCE TO PROVE THE ELEMENT OF INTENT OR PURPOSEFUL CONDUCT BEYOND A REASONABLE DOUBT.

B. THERE WAS NO COMPETENT CREDIBLE EVIDENCE TO PROVE THE ELEMENT OF STRIKING TO CAUSE INJURY BEYOND A REASONABLE DOUBT.

C. THERE WAS NO COMPETENT CREDIBLE EVIDENCE TO PROVE THE ELEMENT OF CAUSING BODILY INJURY BEYOND A REASONABLE DOUBT.

POINT III

THE FAILURE TO PROVIDE THE COMPLETE POLICE REPORT AND THE OFFICER'S NOTES SPECIFICALLY REQUESTED OF THE STATE IS SUFFICIENT TO DISMISS THE CASE UNDER RULE 7:7-7.

POINT IV.A

2 ON 2/29/2012, THE COURT BELOW MARKED THE CASE TRY OR DISMISS FOR 3/28/2012, ABUSED ITS DISCRETION IN REPEATEDLY FAILING TO GRANT THE DEFENDANT'S MOTION TO DISMISS, AND VIOLATED THE DEFENDANT'S RIGHT TO A SPEEDY TRIAL AND DUE PROCESS.

POINT IV.B

THE COURT SHOULD DISMISS THE MATTER BECAUSE THE RIGHT OF CONFRONTATION OF THE DEFENDANT WAS VIOLATED. [NOT DIRECTLY RAISED BELOW].

POINT V

THE COURT SHOULD DISMISS THE MATTER BECAUSE ON 3/1/2013, THE COURT BELOW ORDERED FOR A MIRANDA ISSUE TO BE DECIDED WITHIN 30 DAYS AND IT WAS NOT DECIDED FOR ALMOST A YEAR AND IN THE ABSENCE OF [A] MIRANDA HEARING BELOW THE DEFENDANT'S STATEMENT WAS NOT ADMISSIBLE.

Our review following a trial de novo "is limited to determining whether there is sufficient credible evidence present in the record to support the findings of the Law Division judge, not the municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div. 2005) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). Additionally, under the "two-court rule," we ordinarily will not "alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." Ibid. (quoting State v. Locurto, 157 N.J. 463, 474 (1999)).

Defendant first contends there was no evidence in the record to support the elements of simple assault, N.J.S.A. 2C:12-1(a). Specifically, he argues the Law Division improperly relied on defendant's statement that he hit the victim. According to defendant, the statement is unreliable because it was considered "in a vacuum" without any supporting facts, it is hearsay, and it was made in violation of Miranda. Defendant also contends that the court improperly considered testimony by Officer Herrera that she observed wounds on the victim consistent with an assault. We disagree on both fronts.

Defendant's admission, that he hit the victim and was wrong in doing so, did not present a Miranda issue necessitating a Miranda hearing. As the Law Division judge explained, Herrera's uncontroverted testimony indicated the statement was initially made in the hallway of defendant's building, in the presence of the victim. Therefore, there was sufficient support for the Law Division judge's conclusion that the interaction between defendant and Herrera constituted a mere investigation, and not a custodial interrogation. Likewise, defendant's admission that he struck the victim was admissible at trial as a statement against interest, N.J.R.E. 803(c)(25).

Furthermore, there is ample support for the Law Division judge's decision to admit Herrera's first-hand account of the victim's injuries. Neno v. Clinton, 167 N.J. 573, 583-84 (2001). The judge's decision makes clear that he relied on Herrera's account only to the extent that it demonstrated the presence of injuries, not the cause of those injuries. Defendant's admission that he struck the victim, coupled with the officer's account of the victim's injuries, provides ample credible support for the Law Division's finding of simple assault.

Second, defendant contends he was not provided the complete police report during discovery, and that this omission prejudiced the defense. We disagree. There is sufficient credible evidence in the record to support the Law Division's finding that defendant was supplied the entire police report during discovery.

At trial, the administrator who assembled the investigation report discussed the process for assembling discovery packets, and testified that she had no doubt both pages of the report were included in the discovery packet in this case. The municipal court also heard testimony from the administrator responsible for mailing discovery packets, who testified that the assembled packet was mailed. At the conclusion of the trial de novo, the Law Division judge found, "it appears it [the entire police report] was supplied."

The Law Division's conclusion agrees with the municipal court's finding, made at the May 12, 2012 in limine hearing, and again at the August 15, 2012 trial, that defendant received the pages in question. Thus, the two-court rule applies, and we give extra deference to this finding. See Clarksburg Inn, supra, 375 N.J. Super. at 639. In light of the uncontroverted testimony elicited at trial, we will not disturb the Law Division's conclusion that both pages of the investigation report were properly sent to defendant.

Third, defendant argues the State violated his Sixth Amendment right to a speedy trial by failing to bring him to trial within a reasonable time. Defendant also contends that the municipal court's failure to hold a Miranda hearing within the time limits set by the Law Division required dismissal of the case. We disagree.

The Sixth Amendment to the United States Constitution protects a defendant's right to a speedy trial after arrest or indictment. State v. Long, 119 N.J. 439, 469 (1990). A speedy trial claim is analyzed under a four-part test requiring consideration of (1) the length of the delay; (2) the reasons for the delay; (3) whether and how the defendant asserted the right; and (4) the amount of prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972).

In State v. Cahill, 213 N.J. 253, 271 (2013), the Court declined to "adopt a rigid bright-line try-or-dismiss rule[,]" and reaffirmed the applicability of the Barker factors. "None of the Barker factors is determinative, and the absence of one or some of the factors is not conclusive of the ultimate determination of whether the right has been violated." Id. at 267 (citing Barker, supra, 407 U.S. at 533, 92 S. Ct. at 2193, 33 L. Ed. 2d at 118). "All factors are related, thereby requiring a balancing of all applicable factors while recognizing the fundamental right bestowed on a defendant to a speedy trial." Ibid.

Here, there is no doubt that the process was characterized by delay. However, an analysis of the Barker factors reveals that the delay was not constitutionally unacceptable. Defendant was charged on December 25, 2011. An in limine hearing was held five months later in May 2012, and trial commenced in earnest on August 15. Thus, the length of time between the first substantive hearing and trial was not overly long. Furthermore, as noted above, the delay is attributable to both parties. For example, defendant's attorney delayed trial because of other trial commitments and a private matter. On one occasion, trial was delayed because neither the State nor the court was made aware that a translator would be required.

Defendant contends that he frequently and vociferously asserted his right to a speedy trial. He also contends he was prejudiced by the delays because he had to drive from his current residence in Connecticut to New Jersey, and the victim was unavailable by the time of trial. However, given that the delays were partially attributable to defendant, and defendant had access to the victim prior to trial, these factors are insufficient to render the delay constitutionally defective.

Fourth, defendant contends, for the first time on appeal, that his right of confrontation was violated because the prosecutor's failure to try the case earlier prevented defendant from examining the victim at trial. We disagree.

Because it was not properly raised below, we review this argument for plain error. Thus, even an erroneous holding will not be disturbed unless it is "clearly capable of producing an unjust result," and "'sufficient to raise a reasonable doubt as to whether the error led the [factfinder] to a result it otherwise might not have reached[.]'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)); R. 2:10-2. Defendant had the burden of proving that the error was clear and obvious, and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997). For the reasons expressed below, we are satisfied that defendant failed to meet that burden.

The Sixth Amendment to the United States Constitution, and Article One, paragraph ten of the New Jersey Constitution both provide a criminal defendant with the right to "be confronted with the witnesses against him." State v. Michaels, 219 N.J. 1, 15 (2014). In addition, both the Fifth Amendment right to due process and Article 1, paragraph 1 of the New Jersey Constitution, ensure the right of a criminal defendant "to call witnesses in his own behalf." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S. Ct. 1038, 1045, 35 L. Ed. 2d 297, 308 (1973); State v. Jenewicz, 193 N.J. 440, 451 (2008).

Here, neither the municipal court, nor the Law Division relied on any statement made by the victim. Thus, defendant cannot claim he was deprived of the right to cross examine the victim. Rather, defendant appears to argue that he was deprived of the right to call the victim as a witness.

As noted above, much of the delay in this case was attributable to defendant. Furthermore, defendant concedes that he had access to the victim prior to her departure, he was aware of her imminent departure, and he brought the victim to two court dates. Thus, defendant had every opportunity to take a de bene esse deposition of the victim prior to trial. Likewise, there is no indication in the record that defendant took any action to subpoena the victim to compel her appearance at the trial. Therefore, defendant was not significantly prejudiced by the procedural delays in this case.

Finally, although we detect no error in the court's findings and conclusions, we are compelled to remand the case for sentencing. "The Law Division, if it finds a defendant guilty after a trial de novo from a municipal court conviction, is required to impose a new sentence." State v. Moran, 202 N.J. 311, 325 (2010); R. 3:23-8(e). The new sentence must be no greater than that imposed by the municipal court. See State v. Loce, 267 N.J. Super. 10, 14 (App. Div. 1993) (citing State v. De Bonis, 58 N.J. 182, 188-89 (1971)). We therefore remand the case for sentencing by the Law Division.

We affirm defendant's conviction and remand for sentencing.

1 Miranda v. Arizona, 384 U.S. 486, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).