STATE OF NEW JERSEY v. JACINTO ROMAN POLANCO

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2566-03T42566-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JACINTO ROMAN POLANCO,

Defendant-Appellant.

________________________________________________________________

 

Submitted October 12, 2005 - Decided

Before Judges Wefing, Fuentes and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Ind. Nos. 02-04-0986;

00-06-1248.

Yvonne Smith Segars, Public Defender, attorney for

appellant (William Welaj, Designated Counsel,

of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for

respondent (Karen Fiorelli, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Bergen County Indictment No. 00-06-1248 charged defendant, Jacinto Roman Polanco, with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count three); third-degree possession of a weapon, specifically a screwdriver, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four); and fourth-degree possession of a weapon, a screwdriver, under circumstances not manifestly appropriate, N.J.S.A. 2C:39-5(d) (count five). A jury found defendant not guilty of count one and guilty of counts two, three, four, and five.

The jury returned its verdict on February 8, 2002, and on February 15, 2002, the State filed a notice of motion to have defendant sentenced to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). Thereafter, pursuant to a plea agreement on July 8, 2002, defendant pled guilty to two unrelated counts of second-degree distribution of cocaine within 500 feet of a public park as alleged in counts six and eleven of Indictment No. 02-04-0986. In return for defendant's guilty pleas, the State agreed to recommend that the remaining charges in this indictment be dismissed at the time of sentencing.

At the sentencing hearing on August 23, 2002, defendant's attorney conceded that defendant was statutorily eligible for an extended term under N.J.S.A. 2C:44-3(a), but argued that the motion should be denied because the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied to the second-degree aggravated assault conviction. The State's argument for an extended sentence included the following:

First and foremost, it is important to note that defendant was forty-three years old at the time he committed the present offense. Clearly, defendant is well past the point when most criminals cease their "youthful indiscretions." It is apparent that this was not a momentary lapse in judgment in an otherwise exemplary life. Instead, it was a conscious decision by defendant to break the law. This type of deliberate action demonstrates that defendant is beyond any attempts at rehabilitation, and instead deserves the maximum sentence permissible to protect the public from what is certain to be future crimes by the defendant.

The trial court granted the State's motion to sentence defendant as a persistent offender with respect to his second-degree aggravated assault conviction, noting that defendant had "between five and six indictable convictions prior to this conviction." The trial court merged the third-degree aggravated assault conviction (count three) into the second-degree aggravated assault conviction (count two), and defendant received a ten-year term to state prison, subject to an eighty-five percent parole disqualifier mandated by NERA. Count five, the fourth-degree unlawful possession of a weapon conviction, was merged into the third-degree possession of a weapon for an unlawful purpose conviction (count four), and defendant was sentenced to a concurrent five-year term. Consistent with the negotiated plea agreement, the judge sentenced defendant to concurrent eight-year prison terms with three-year parole ineligibility periods for the two second-degree distribution of cocaine convictions. Mandatory penalties and assessments were also imposed.

On appeal, defendant makes the following arguments:

POINT I

THE TRIAL COURT ERRED IN INSTRUCTING THE JURY REGARDING AGGRAVATED ASSAULT EMBODIED IN COUNT II BASED UPON AN ACTUAL INFLICTION OF SERIOUS BODILY INJURY, DENYING TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE LESSER INCLUDED OFFENSE OF THIRD DEGREE AGGRAVATED ASSAULT PURSUANT TO N.J.S.A. 2C:12-1b(7) ARISING OUT COUNT II SINCE A FACTUAL BASIS EXISTED TO DEMONSTRATE THE INFLICTION OF OR ATTEMPTED INFLICTION OF SIGNIFICANT BODILY INJURY RATHER THAN SERIOUS BODILY INJURY. (NOT RAISED BELOW).

POINT III

THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM ELICITING CLEARLY RELEVANT AND POTENTIALLY EXCULPATORY TESTIMONY.

POINT IV

THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY RESPOND TO THE JURY'S QUESTION REGARDING COUNT II.

POINT V

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT ERRED IN FAILING TO MERGE COUNT IV CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT II CHARGING AGGRAVATED ASSAULT.

POINT VII

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

The State concedes that the possession of a weapon for an unlawful purpose conviction (count four) merges with the conviction for aggravated assault (count two), as defendant argues in Point VI. Because "the only asserted unlawful purpose in possessing the weapon was to commit the assault," the count should merge. State v. McLean, 344 N.J. Super. 61, 73 (App. Div. 2001), certif. denied, 172 N.J. 179 (2002) (citing State v. Diaz, 144 N.J. 628, 641 (1996)).

We have considered each of defendant's remaining arguments in light of the record, the briefs filed, and the applicable law. We conclude defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

The aggravated assault charge arose from an incident on April 24, 2000. At that time, both defendant and the victim, Elvin Sanabria, were working as barbers at the Latin Barbers Hair Cutting Shop in Englewood. Due to an apparent dispute over a customer, defendant and Sanabria had an altercation, and defendant stabbed Sanabria nineteen or twenty times with a screwdriver. Sanabria was admitted to the Intensive Care Unit at Englewood Hospital, but he did not have insurance and he was discharged the next day.

Sanabria told the jury that while he and defendant were cutting hair "words were exchanged." He also testified that defendant attacked him and repeatedly stabbed him for no reason:

So I was cutting the guy and then, you know, all of a sudden, I started feeling different with myself, like, something was going to happen as far as me and him arguing or something. You know, so I kind of put my clippers, hung my clippers up, and walked away over to the closet to get a towel because in the barbershop, we all use the straight razor to line the customers up, and I went to go get a towel, and I didn't have nothing in my hand. I turned my back. And I started getting stabbed up for no reason.

. . . .

Q. Now you had nothing in your hands?

A. I didn't have anything in my hand at all.

Q. What happens next?

A. I just started -- I just got stabbed. I just started getting stabbed, then I fell in the closet and he kept stabbing me, then I put my arm up. I was scared he was going to stab me in my heart. And he just kept stabbing me, and I was saying, Roman, what you doing?

. . . .

Q. Okay. So you said what to him, again?

A. I said, I was asking him why was he doing what he was doing while I was trying to block him from hitting me in my heart.

. . . .

Q. . . . [w]ell, what was he stabbing you with?

A. It was -- I just seen it, it was just a metal object until I realized it was a screwdriver he was stabbing me with.

Defendant elected not to testify, but he called Anthony Swope as a witness. Swope testified defendant was cutting his hair when the other barber, Sanabria, "came after" defendant. Swope testified:

I didn't actually see him, I was sitting there, and he came after Roman, that's when I got up out of the chair. I turned around and they were, you know, they were wrestling, they were scuffling around, and that's when I had seen a screwdriver in the other gentleman's hand.

Q. In whose hand did you see the screwdriver?

A. The other barber.

During his summation, defendant's attorney told the jury that "the most important witness in this case was Anthony Swope," and he argued that defendant acted in self defense. "He reacted strongly, he's a big man, there's no question about that, but he did what he felt was necessary at the time." The jury also heard from the prosecutor, who had this to say about Swope's testimony:

Self defense. [Defense Counsel] suggests that Mr. Swope is the lead witness in this case because he blows the whole thing wide open for the defense. Well, when you listen to the charge on self defense, you have to decide whether that's accurate. Let's see, Mr. Swope doesn't know the street, he doesn't know the day, he doesn't know the name of the shop, he doesn't even know what color the clothing of the barbers are. He doesn't call the police. He stands outside for a couple of minutes, then he doesn't look inside, he doesn't get a view as to what's going on, but fortunately, fortunately, he absolutely remembers that Elvin started the fight, that Elvin got the screwdriver. Elvin started, and now somehow this man wrestles the screwdriver, without any apparent injury to himself, wrestles the screwdriver from Elvin, and then he didn't see anything because after all he's only outside for two minutes and not looking inside the window, and not calling the police, and apparently not seeing Officer Marsh with his gun and badge running and putting Mr. Polanco back into the barbershop.

. . . .

Well, okay, if you want to accept that testimony, go right ahead. But I submit to you, it flies in the face of what Officer Marsh tells you, and Officer Marsh's testimony is supported by physical evidence.

After the jury determined that defendant was guilty of aggravated assault by "purposely or knowingly causing serious bodily injury to Elvin Sanabria or by purposely attempting to cause seriously bodily injury," it was required to answer two additional questions: (1) the jury determined that the defendant used or threatened the use of a deadly weapon; and (2) it also found that defendant did not cause serious bodily injury. Thus, the jury found defendant had attempted to cause serious bodily injury to Elvin Sanabria with a deadly weapon.

Defendant argues that the trial court erred in its jury charge regarding aggravated assault (count two). We do not agree. The correctness of a jury charge does not depend on the outcome of the trial, but on the facts before the jury. Here, pursuant to count one, defendant was charged with attempted murder. When defense counsel moved for acquittal of this charge at the close of the State's case, he argued, "this is not an attempted murder." The judge responded: "But wasn't there testimony, one [wound] was right between the eyes, and others in the head, and others in the ear, others in the area of the chest . . . all I heard was that someone got stabbed in the head with a screwdriver." Based on the severity of the victim's injuries, we conclude that there was sufficient evidence for the jury to consider not only whether defendant attempted to cause or actually caused serious bodily injury, but also whether defendant attempted to murder Sanabria.

In Point III, defendant argues that the court erred by not permitting testimony by defendant's son about an alleged conversation between Sanabria and defendant outside defendant's home a few weeks prior to the trial. Defense counsel explained to the court that defendant's son would testify that he heard Sanabria request money from his father in exchange for not testifying at trial. Sanabria had testified that he never went to defendant's house.

While prior inconsistent statements can be allowed into evidence to attack credibility, the statements are subject to N.J.R.E. 403, which permits the trial court to exclude evidence if the probative value of that evidence is "outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." The trial court is in the "best position to engage in the balancing process" set forth in this rule. State v. Ramseur, 106 N.J. 123, 266 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993).

A trial court's evidentiary rulings are accorded substantial deference on appeal. State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The ruling may be reversed only if the trial court committed a clear error of judgment. State v. Harvey, 151 N.J. 117, 184 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

In this case, there was no question that defendant stabbed the victim at least nineteen times. The main issues for the jury to determine were defendant's intent during the attack, and whether defendant acted in self-defense. The proffered testimony by defendant's son was not relevant to either of these issues. Moreover, because the alleged solicitation by Sanabria occurred almost two years after the assault and filing of charges, it could not possibly have been a motive for the criminal charges. Additionally, if admitted, the proposed testimony would have led to a mini-trial on this collateral issue. As noted by the State, such testimony would have resulted in the need for rebuttal witnesses, including "the people whom the victim testified would corroborate his claim that it was defendant who offered money to him not to pursue the charges." On balance, we are convinced the trial court properly exercised its discretion.

Defendant also argues that his sentence is manifestly excessive, but we perceive no basis to intervene. Defendant's prior record was fairly extensive, and defendant committed two second-degree distribution of drug offenses while the aggravated assault and attempted murder charges were pending. At sentencing, the trial court stated:

I do find that there is a risk he will further offend as the extent of his prior record, the need to deter, and I found no mitigating factors at all. This is at least his fifth indictable conviction.

On the aggravated assault, second degree, which is Count No. Two, considering the extended term and the 85 percent, this Court sentences you to the Division of the Department of Corrections for a period of ten years. You must serve 85 percent of that before you're eligible for parole.

In formulating defendant's sentence for aggravated assault (count two), the trial judge found the following aggravating factors: the risk defendant will commit another offense, N.J.S.A. 2C:44-1a(3); the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1a(9). Based on those aggravating factors, and the lack of mitigating factors, the court sentenced defendant to the lowest end of the range for the extended term on count two. See N.J.S.A. 2C:43-7a(3) (for a crime of the second degree, extended term shall be fixed by the court between ten and twenty years). That determination was entirely consistent with existing law. The court did not commit a "clear error of judgment" that shocks our judicial conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).

We affirm defendant's convictions and the sentence defendant received for the aggravated assault conviction (count two). We vacate defendant's sentence under count four and remand for resentencing consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

 

(continued)

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13

A-2566-03T4

November 16, 2005

 


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