STATE OF NEW JERSEY v. PABLO PEREZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1086-04T44159-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PABLO PEREZ,

Defendant-Appellant.

__________________________________

 

Submitted January 9, 2006 - Decided February 14, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-03-0983.

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles H. Landsman, Designated Counsel, of counsel and on the brief).

Paul T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

On March 19, 2003, an Essex County Grand Jury charged defendant, Pablo Perez, in Indictment No. 03-03-00983 with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count One); third-degree possession of a weapon, a handgun, without obtaining a permit, N.J.S.A. 2C:39-5b (Count Two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three).

Following a jury trial, defendant was convicted on all counts. On June 19, 2004, defendant was sentenced to a prison term of eight years on the conviction for aggravated assault subject to an 85% parole disqualifier under the No Early Release Act (NERA), and three years parole supervision upon release pursuant to the Graves Act; and to a concurrent term of four years on the conviction for possession of a weapon without first obtaining a permit. Count Three was merged with Count One. Appropriate fines and penalties were also assessed. This appeal followed. For reasons stated, we affirm.

On appeal, defendant raises the following issues:

POINT I.

THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR WHEN HE REFUSED TO CHARGE LESSER DEGREES OF ASSAULT AS REQUESTED BY COUNSEL FOR THE DEFENDANT.

POINT II.

THE TRIAL JUDGE IMPROPERLY CHARGED THE JURY AS TO THE UNLAWFUL PURPOSE REQUIRED IN ORDER TO CONVICT DEFENDANT OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE.

POINT III.

THIS MATTER SHOULD BE REMANDED TO THE TRIAL COURT FOR A NEW SENTENCING HEARING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005) [(NATALE II)].

POINT IV.

THE DEFENDANT'S SENTENCE WAS EXCESSIVE AND SHOULD BE VACATED.

On August 30, 2002, while walking home, Anthony McCray (Anthony) saw his brother, Dennis, driving on 6th Street towards Dickerson Street in Newark. Anthony then saw Michael Gayles, who was standing outside his house on Sixth Street, throw a brick shattering Dennis's driver's side window. Dennis parked his car on Dickerson Street, and returned to the intersection where he became involved in a fight with Gayles. Thereafter, another of Anthony's brothers, Bobby, arrived and began fighting with Purcell Streeter. Anthony stayed out of both fights. Defendant approached Anthony, brandishing a gun, and warned Anthony not to get involved. Defendant started to walk towards the fights, and Anthony, believing that defendant was going to shoot one of the persons fighting, used his hands to block defendant's passage. Defendant pushed Anthony, telling Anthony to "get the F' off him." Defendant pointed the gun at Anthony, and pulled the trigger, but the gun jammed. Defendant walked back towards Gayles' house, where he un-jammed the gun, and started firing at Anthony. Two shots whizzed past Anthony's head, and one hit him in the back of his right leg, exiting through his knee, and spinning him around so that he was facing defendant. Anthony saw defendant's hand stretched out holding the gun and shooting at him. So as not to be shot again, Anthony ran to a nearby gas station, where he encountered a friend, Alex Kelly. Kelly drove Anthony to a hospital. After police officers arrived at the hospital, Anthony informed them that defendant was the shooter, and gave the officers a physical description of defendant. Anthony underwent surgery the next day, and was hospitalized for a total of ten days. His knee was reconstructed, and three screws were inserted. He underwent a second operation the following year because his knee locked in position. He continues to attend physical therapy for his knee, which often gives out.

The shooting was witnessed by Michael Jackson, an off-duty East Orange police officer and military officer, whose testimony corroborated Anthony's. The State's ballistics expert testified that the six casings recovered on Sixth Street came from the same gun. Defendant presented two witnesses who testified that they never saw anyone with a gun, although one of the witnesses heard the gunshots.

At the conclusion of trial, the judge charged the jury with respect to each element of all counts in the indictment. However, he declined to instruct the jury on the lesser-included offenses of third- and fourth-degree aggravated assault, as requested by defendant. In addition, the judge instructed the jury that as to Count Three, the unlawful purpose proferred by the State was "to shoot Anthony McCray."

N.J.S.A. 2C:12-1b(1) provides that anyone who "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury," is guilty of an offense of the second-degree. Defendant argues that the court erred in refusing to charge the lesser included offenses of third- and fourth-degree aggravated assault, pursuant to N.J.S.A. 2C:12-1b(7), and -1b(3). We disagree.

N.J.S.A. 2C:1-8e directs that "[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." See State v. Sinclair, 49 N.J. 525, 540 (1967); State v. Franklin, 377 N.J. Super. 48, 56 (App. Div. 2005). The Court commented on N.J.S.A. 2C:1-8e, stating:

The statute has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for a jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense.

[State v. Brent, 137 N.J. 107, 113-14 (1994).]

When a defendant requests a charge on a lesser offense, the trial judge must focus on the facts in evidence "'to ensure that there is a rational basis for a jury to reject the greater charge and convict of the lesser'" charge. Id. at 116 (quoting Cannel, New Jersey Criminal Code Annotated, comment 13 on N.J.S.A. 2C:1-8e (1993)). Moreover, where the evidence reasonably supports defendant's request for a jury charge on a lesser-included offense, a trial court's failure to give it is reversible error. State v. Crisantos, 102 N.J. 256, 276 (1986).

The key difference between section "1b(1)" and sections "1b(7)" and "1b(3)" is the difference between "serious bodily injury," in "1b(1);" "significant bodily injury," in "1b(7);" and "bodily injury," in "1b(3)." Anthony's medical records were admitted as evidence of the severity of his injury. He testified to the pain he suffers, the impaired use of his knee, and his corrective and rehabilitative surgeries and therapies. Furthermore, six spent casings were recovered, determined to be from the same gun. Based on the number of shots fired at the victim, the victim being shot in the knee, and the evidence as to the victim's surgeries and impaired function, we conclude the only reasonable inference is that defendant was attempting to cause serious bodily injury. See State v. Mingo, 132 N.J. 75 (1993), rev'g on dissent 263 N.J. Super. 296, 304-07 (App. Div. 1992) (stating that shooting the victim in the knee; which required surgery and a five-day hospital stay, but resulted in no impairment of function, constitutes serious bodily injury). There was no rational basis for the jury to acquit defendant on the charge of second-degree aggravated assault; and thus, we determine no error in the judge's refusal to charge the requested instructions.

II.

Defendant next argues that the court's instruction as to the unlawful purpose element of Count Three was improper, citing State v. Williams, 168 N.J. 323 (2001). As defendant's reliance on Williams is misplaced, we find no merit in the argument.

In Williams, the trial judge stated that the unlawful purpose was to "use it [the firearm] unlawfully" against the victim. Id. at 340. Noting that the charge failed to provide sufficient description of the alleged use of the weapon to be helpful to the jury, the Court reversed the defendant's conviction. Ibid. Here, the judge specified that the unlawful use proposed by the State was "to shoot Anthony McCray." The judge also instructed the jury on the impropriety of returning a conviction based on its own notion of unlawfulness or an undescribed speculative purpose. Ibid. We conclude that Williams is clearly distinguishable in that the unlawful act was plainly stated to the jury, and the jury was free to determine whether defendant had as his objective, the intention to accomplish that goal, i.e., by pulling the trigger six times with the intention to shoot Anthony.

We note defendant's argument that the failure to instruct the jury on imperfect self-defense or defense of others as defendant's purpose in possessing the weapon, and also find it without merit. A justification defense is "not relevant under N.J.S.A. 2C:39-4a" because if defendant possessed a weapon only to protect himself and "not . . . to use [the] weapon unlawfully against another," no justification defense would be necessary as the State would not have sustained its burden of proof. Williams, supra, 168 N.J. at 332 n.1; see also State v. Harmon, 104 N.J. 189, 207 (1986). Defendant relies on Williams, where the Court held that it was plain error for the trial judge not to have explained to the jury that an honest, but unreasonable belief that one need act in self-defense may negate the element of intention to use the weapon unlawfully, though it does not exculpate one from the substantive crime for which the weapon was used. Williams, supra, 168 N.J. at 334-36. Here, however, unlike in Williams, there was no evidence or testimony from defendant or other witnesses in support of either theory. We conclude that a protective purpose charge was not warranted.

III.

Lastly, we address defendant's arguments under Points III and IV concerning his sentence. Defendant argues that the judge failed to consider as mitigating factors the fact that the victim induced or facilitated the commission of the offense, N.J.S.A. 2C:44-1b(5); that there were substantial grounds to excuse or justify the conduct, though failing to establish a defense, N.J.S.A. 2C:44-1b(4); that defendant acted under a strong provocation when confronted by Anthony, N.J.S.A. 2C:44-1b(3); and that defendant's conduct was the result of circumstances unlikely to recur. N.J.S.A. 2C:44-1b(8).

When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "'clearly mistaken.'" State v. Krumphold, 162 N.J. 345, 355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). On review, we look to what is reasonable and fair in light of the factors considered by the court. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent[,] credible evidence in the record." Natale II, supra, 184 N.J. at 488-89 (quoting O'Donnell, supra, 117 N.J. at 215).

It is only where statutory mitigating factors are supported by evidence in the record that the judge is obligated to find and consider such factors when sentencing a defendant. State v. Dalziel, 182 N.J. 494, 504-05 (2005). The record fails to demonstrate that defendant acted under strong provocation. Although the victim was not involved in the fight, defendant shot the victim from a distance of three houses, after having walked away to un-jam his gun. There is no evidence that defendant was attempting to protect anyone or that the victim provoked or induced defendant's commission of the offense, as the victim stated that he had no intention of getting involved in the fights, and was unarmed. There is no evidence to support a determination that his conduct was the result of circumstances "unlikely to recur." The defendant's extensive criminal record for a young individual speaks otherwise.

Lastly, defendant argues that the imposition of a sentence above the then statutory presumptive term was unconstitutional and manifestly excessive, in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Natale II, our Supreme Court held "that a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale II, supra, 184 N.J. at 466. Thus, when a defendant receives a sentence higher than the presumptive term based on a judicial finding other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6a. Natale II, supra, 184 N.J. at 487.

For defendants whose cases were on direct appeal as of August 2, 2005, or who had raised this challenge to their sentences at trial or on direct appeal, and who had been sentenced to a term above the presumptive in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. Id. at 494. At that hearing, which is to be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

The judge discussed defendant's criminal record, subsequent to which he found the following aggravating factors: N.J.S.A. 2C:44-1a(3) ("risk that the defendant will commit another offense"); N.J.S.A. 2C:44-1a(6) ("extent of the defendant's prior criminal record"); and N.J.S.A. 2C:44-1a(9) ("need for deterring the defendant and others from violating the law"). He did not find any mitigating factors. As to defendant's record, the judge stated "The Presentence Report indicates that as a juvenile six petitions were filed against you. . . . [A]s an adult you have nine arrests. This represents your third indictable conviction."

As suggested in Natale II, the judge began the weighing process at seven years, the midpoint of the sentencing range for a second-degree offense, five to ten years. N.J.S.A. 2C:43-6(a)(2). Finding no mitigating factors, and three aggravating factors, he concluded that the scale tipped in favor of a higher sentence than the middle, sentencing defendant to an eight-year term. While noting that the judge discussed defendant's record and life history first, before turning to his list of aggravating factors, we determine from the record that the judge's recitation of defendant's criminal history supports a finding of aggravating factors (3), (6), and (9). We conclude that defendant's criminal record was extensive; and aggravating factors (3), (6), and (9) may be used to "increase the 'penalty for a crime beyond the prescribed statutory maximum,'" State v. Abdullah, 184 N.J. 497, 506 n.2 (2005) (quoting Apprendi, supra, 530 U.S. at 488-90, 120 S. Ct. at 2361-63, 147 L.Ed. 2d at 454-55), because these factors "arguably, are inextricably linked to the recidivism exception," the need to deter a defendant from re-offending. Ibid. We find no error in the judge's application of those factors, or in the sentence imposed.

 
Accordingly, the convictions and sentences are affirmed.

N.J.S.A. 2C:43-7.2.

N.J.S.A. 2C:43-6c.

Serious bodily injury "means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b.

Significant bodily injury is "a temporary loss of the function of any bodily member or organ or temporary loss of any one of the five senses." N.J.S.A. 2C:11-1d.

Bodily injury is "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a.

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A-1086-04T4

February 14, 2006