STATE OF NEW JERSEY v. ARIEL I. FERNANDEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2858-03T42858-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ARIEL I. FERNANDEZ,

Defendant-Appellant.

 

Submitted September 27, 2005 - Decided February 9, 2006

Before Judges Hoens, R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 00-10-1349.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

On June 8, 2000, a Union County Grand Jury returned Indictment No. 00-10-1349, charging defendant Ariel I. Fernandez, along with co-defendants Percy Selles and Andres Sanabria, with first-degree kidnapping, N.J.S.A. 2C:13-1b (Count One); four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(3), (4), (5), (6) (Counts Two, Three, Four and Five); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Six); four counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Counts Seven, Eight, Nine and Ten); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Eleven); second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (Count Twelve); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (Count Thirteen); first-degree robbery, N.J.S.A. 2C:15-1 (Count Fourteen); second-degree burglary, N.J.S.A. 2C:18-2 (Count Fifteen); third-degree burglary, N.J.S.A. 2C:18-2 (Count Sixteen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Seventeen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Count Eighteen); third-degree terroristic threat to kill, N.J.S.A. 2C:12-2b (Count Nineteen); four counts of first-degree aggravated assault, N.J.S.A. 2C:14-2a(3), (4), (5), (6) (Counts Twenty, Twenty-One, Twenty-Two and Twenty-Three); second-degree sexual assault, N.J.S.A. 2C:14-2c(1) (Count Twenty-Four); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Twenty-Five); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Twenty-Six); and second-degree conspiracy, N.J.S.A. 2C:5-2 (Count Twenty-Seven).

During defendant's March 2002 trial, the State dismissed seven of the original counts of the indictment. Thereafter, the counts originally numbered Twelve to Seventeen and Twenty to Twenty-Seven were renumbered as counts Seven to Twelve and Thirteen to Twenty.

On March 27, 2002, a jury found defendant guilty of all of the charges except that the jury found defendant guilty of the lesser included crime of third-degree aggravated assault in place of second-degree aggravated assault as charged in Count Seven (formerly Count Twelve) and the jury acquitted defendant of fourth-degree unlawful possession of a weapon (a stick) as charged in Count Nineteen (formerly Count Twenty-Six).

The judge sentenced defendant as follows. He first imposed a term of twenty-nine years with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the count of first-degree kidnapping (Count One). He then merged Counts Three, Four, Five, and Six into Count Two, first-degree aggravated sexual assault, and imposed a term of fifteen years with an 85% period of parole ineligibility on Count Two to be served concurrently with the prison sentence imposed on Count One. The judge next imposed a consecutive eight-year term with four years of parole ineligibility on defendant for the second-degree burglary conviction (Count Ten, formerly Count Fifteen), into which Count Eleven, third-degree burglary, was merged. He next merged Counts Fourteen, Fifteen, Sixteen, and Seventeen into Count Thirteen, first-degree aggravated sexual assault, and imposed a concurrent fifteen-year term with an 85% period of parole ineligibility on Count Thirteen. Finally, he imposed concurrent terms of five years for the third-degree aggravated assault conviction (Count Seven); eighteen months for the fourth-degree aggravated assault conviction (Count Eight); fifteen years with an 85% period of parole ineligibility for the armed robbery conviction (Count Nine); ten years with an 85% period of parole ineligibility, for the second-degree possession of a weapon for an unlawful purpose conviction (Count Twelve); five years for the third-degree possession of a stick for an unlawful purpose conviction (Count Eighteen); and an eight year term for the second-degree conspiracy conviction (Count Twenty). We affirm the judgment of conviction in all respects except for certain limited issues relating to the sentence, which we remand for correction.

We have derived the following facts from the trial record. On June 6, 2000, M.M., a fifty-six year old diabetic woman, left her home around 11:15 a.m. to go to the corner store. After reaching the store and discovering that the government benefit card she used to purchase food had a zero balance, she started to walk home. As she was walking, defendant and Selles came up behind her, hit her, and pressed what she believed was a gun against her. Defendant and Selles pushed her into a building and up two flights of stairs into a rooming house, while they continued to press an object she believed was a gun against her and struck her on the head and back. Defendant and Selles then led her into a small room which they unlocked using a spoon.

Once in the room, defendant told M.M. that she would have to perform oral sex on him. She asked that he use a condom and he left the room. M.M. then called out the window for the police, but defendant and Selles returned, hit her, and told her to "shut up." Defendant then told M.M. to remove her clothing and forced her to perform a variety of sex acts while Selles watched. When he was finished, defendant took her key chain from around her neck and her earrings, and he broke her glasses so that she could not see him. Defendant and Selles asked M.M. what items she had in her apartment and then departed, leaving her in the room alone.

M.M. then went out of the room where she found Sanabria, who was holding a stick. According to M.M., she asked Sanabria why these men were treating her this way, and he said that "they did that to everybody that they took there." Sanabria allowed her to look for her glasses, which defendant had tossed down a stairwell, but he did not allow her to leave. When defendant and Selles returned about an hour later, M.M. ran back into the small room and shut the door. The two men came back into the room and began insulting her and disparaging the belongings they had found in her apartment. Selles then began to hit M.M. with a stick while defendant started to pull her clothes off again. Although Sanabria entered the room and told the two to stop, they did not.

Defendant and Selles told Sanabria to bring in a bottle and cream and asked M.M. whether she preferred the bottle or the stick to be put inside of her vagina. When she chose the bottle, defendant forced her to put the cream on the bottle and hold it while he kicked it into her vagina. Afterward, Selles thrust the stick inside of M.M.'s vagina and twisted it.

Defendant next forced M.M. to again perform oral sex on him, this time without a condom, and he told Selles to have oral sex with M.M., which he did. Defendant then forced M.M. to have anal sex with him causing her so much pain that she defecated on herself. Selles then hit her with a stick and the two men threatened to kill her if she told the police about what had happened. They then told M.M. to do everything Sanabria said to do and left the room.

M.M. dressed herself and asked Sanabria to let her go, but he refused. In an effort to persuade him, she offered to have sex with him in exchange for her escape. The details of the acts that Sanabria forced her to perform are not germane to the issues on appeal. While it was happening, however, a friend of Sanabria's, Dan Nazario, whistled to him from the street. Sanabria stopped and spoke with Nazario briefly from the window. After commenting to M.M. about how bruised her face was, Sanabria eventually let her go and she ran home.

When M.M. arrived at her apartment, she found that it had been ransacked and that a ring, a television remote control, a Walkman, and $28 were missing. A neighbor called the police for her. They described her apartment as being in disarray. M.M. showed the police where defendant had taken her. Thereafter, an ambulance took her to the hospital, where she was treated for an eye injury, a cut on her mouth, two broken teeth, injuries to her legs and back, and vaginal pain. After leaving the hospital, M.M. spoke to the police about defendant and Selles, but she did not mention Sanabria until two months later because he had never hit her and he had allowed her to leave. She identified defendant and Selles at the police station through photographs.

Dan Nazario told the police that he saw defendant and Selles on the afternoon of the incident, that they looked "sweaty," and that Selles was holding a stick. At the scene where M.M. had been held, the police found a beer bottle, two used condoms, a lotion bottle, a black leather coat with a BB gun inside the pocket, a broken eyeglass frame, two keys on a key chain, pubic hair, and what they believed were drops of blood.

On June 8, 2000, defendant turned himself in. He claimed that Selles had paid M.M. for sex, that he had only had oral sex with M.M., that she had demanded more money, and that he had ransacked her apartment to recover that money. Defendant's statements were read to the jury during the trial.

Defendant raises the following arguments for our consideration on appeal:

POINT ONE

THE ADMISSION OF TESTIMONY IMPLICATING DEFENDANT IN OTHER SEXUAL ASSAULTS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. MOREOVER, COUNSEL'S FAILURE TO OBJECT TO THIS HIGHLY PREJUDICIAL TESTIMONY DEPRIVED DEFENDANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).

POINT TWO

THE JURY INSTRUCTION DID NOT ADEQUATELY CONVEY TO THE JURY THE BRIDGES/BIELKIEWICZ NOTION THAT DEFENDANT COULD BE LIABLE AS AN ACCOMPLICE TO A LESSER DEGREE THAN THE PRINCIPALS. (Not Raised Below).

POINT THREE

IMPOSITION OF PRISON TERMS ABOVE THE PRESUMPTIVE WHICH INCLUDE PAROLE DISQUALIFIERS VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below).

POINT FOUR

THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S KIDNAPPING AND BURGLARY CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE v. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

POINT FIVE

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF THIRTY-SEVEN YEARS BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

POINT SIX

DEFENDANT'S CONVICTIONS FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND CONSPIRACY SHOULD MERGE INTO ONE OF THE GREATER CONVICTIONS. (Not Raised Below).

Our careful analysis of these arguments compels us to conclude that, with the exception of certain of the arguments relating to the sentence that require further review on remand, there is no basis for relief.

Defendant first contends that the statement that M.M. attributed to Sanabria to the effect that defendant and Selles "did that [beat and sexually assaulted] to everybody that they took there" was "other crimes" evidence, see N.J.R.E. 404(b), and that its admission without the required hearing, see State v. Cofield, 127 N.J. 328 (1992), deprived defendant of a fair trial. We do not agree.

As to this contention, we note that there was no objection to the testimony at the time that the statement was made at trial, requiring that we evaluate it in accordance with the plain error standard. R. 2:10-2. Under that standard, we will not reverse absent a showing that the error was "clearly capable of producing an unjust result." Ibid. The showing required to support reversal, moreover, must be "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. Macon, 57 N.J. 325, 336 (1971). Applying this standard we find no error. First, the statement itself was at most a vague, passing comment rather than a reference to any specific prior act or crime. In the overall context of the evidence and testimony, that single remark could not have had the capacity to lead to an unjust result. Second, were we to apply the four-part Cofield test, see Cofield, supra, 127 N.J. at 338, to this testimony, it would be admissible. Defendant contended that M.M. was a prostitute who had consented to the acts and who also demanded money that, in defendant's mind, excused his decision to ransack her apartment and take her jewelry. In that context, the statement was certainly relevant, the acts referred to were similar in kind and close in time, the evidence was sufficiently clear and convincing and the probative value was not outweighed by any prejudice. Ibid. Third, we agree with the State's contention on appeal that the statement was also admissible as the statement of a co-conspirator. See N.J.R.E. 803(b)(5); State v. Savage, 172 N.J. 374, 402 (2002); State v. Phelps, 96 N.J. 500, 509-10 (1984).

Nor are we persuaded that there is any merit to defendant's alternate argument, namely, that the failure of his attorney to object to this statement constituted ineffective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). In light of the fact that the statement would have been admitted into evidence over an objection, there is no ground on which to conclude that defendant's attorney's decision not to object was in any sense a deficient performance. See State v. Worlock, 117 N.J. 596, 625 (1990). Moreover, as our Supreme Court has held, even mistaken decisions made for strategic reasons will not support relief "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of a fair trial." State v. Buonadonna, 122 N.J. 22, 41-42 (1991)(quoting State v. Dennis, 43 N.J. 418, 428 (1964)). Applying this test to the record on appeal we find no ground on which to conclude that defendant was in any sense deprived of a fair trial.

Second, defendant attacks the jury instructions as inadequate. Specifically, he argues that the charge lacked sufficient clarity with respect to the liability of accomplices and that the jury was not therefore correctly instructed that he could be found guilty of lesser crimes than the other defendant. See State v. Bielkiewicz, 267 N.J. Super. 520, 527-28 (App. Div. 1993). Our review of the charge demonstrates no error. First, defendant did not object to this aspect of the charge, as a result of which we review it as well in accordance with the plain error rule. R. 2:10-2; see State v. Mays, 321 N.J. Super. 619, 630 (App. Div.), certif. denied, 162 N.J. 132 (1999). Second, contrary to the assertion in defendant's brief on appeal, the judge did instruct the jury that it was required to independently evaluate each defendant's mens rea in reaching its verdict. The instruction to the jury sufficiently advised the jury that defendant's liability depended on his own state of mind. See State v. Bridges, 254 N.J. Super. 541, 566 (App. Div. 1992), rev'd on other grounds, 133 N.J. 447 (1993). Third, notwithstanding defendant's arguments, there was no ground on which to conclude that his culpability could have been less than that of his co-defendant, making any more detailed explanation of accomplice liability to lesser offenses unnecessary under the circumstances. See State v. Crumb, 307 N.J. Super. 204, 221-22 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). Finally, because there was no basis in the record on which the jury could have concluded that defendant was merely an accomplice, the failure to give a more detailed Bielkiewicz charge cannot constitute plain error. See State v. Oliver, 316 N.J. Super. 592, 597 (App. Div. 1998), aff'd, 162 N.J. 580 (2000).

In addition, defendant raises several arguments on appeal respecting the propriety of the sentence imposed upon him. In short, he attacks the imposition of any sentence on any count that exceeds the formerly-recognized presumptive term on Blakely grounds. He challenges the imposition of consecutive sentences as inconsistent with the dictates of Yarbough. He argues that the term of twenty-nine years for first-degree kidnapping is excessive. He contends that the judge failed to merge the counts for possession of a weapon for an unlawful purpose and for conspiracy. We address these arguments, to the extent that we need to do so, in reverse order. The State concedes that the failure to merge the weapon possession and conspiracy counts was error that requires a remand for correction of that aspect of the judgment of conviction. As the terms imposed for these counts were concurrent with other terms of imprisonment that were imposed, and as neither was otherwise objectionable, we need not consider this argument further.

Next, we reject defendant's assertion that the imposition of consecutive sentences was inappropriate. As our Supreme Court has held, the imposition of consecutive sentences otherwise in compliance with the dictates of Yarbough, supra, does not offend the Constitution. See State v. Abdullah, 184 N.J. 497, 514-15 (2005). Our review of this record supports the conclusion that the consecutive sentences were imposed in compliance with the appropriate analysis under Yarbough and we decline to disturb them. Similarly, we reject defendant's further challenge to the imposition of periods of parole ineligibility as a part of his constitutional attack on his sentence. As the Court has squarely rejected that argument, see Abdullah, supra, 184 N.J. at 508-12, we need not address it.

In light, however, of the recent decisions of our Supreme Court, the imposition of the twenty-nine year term for first-degree kidnapping and the eight year term for second-degree burglary, each of which exceeds the presumptive terms formerly recognized for those offenses, requires that we remand this aspect of defendant's sentence for reconsideration by the trial judge. See State v. Natale, 184 N.J. 458 (2005); Abdullah, supra. In addition, defendant attacks his sentence more specifically, arguing that the trial judge erred in his weighing of the aggravating and mitigating factors and failed to find that certain mitigating factors were applicable. As to these arguments, we agree that the decisions of the Court in Natale and Abdullah have altered the appropriate analysis and have limited the aggravating factors that the sentencing judge may utilize to those that relate exclusively to defendant's criminal history. See, e.g., Natale, supra, 184 N.J. at 487; Abdullah, supra, 184 N.J. at 506-07. Similarly, to the extent that any mitigating factors are suggested by the evidence in the record, they must be considered as well. See State v. Dalziel, 182 N.J. 494, 504-05 (2005). We rely on the sound discretion of the trial judge during the remand proceedings to appropriately weigh and evaluate these factors in considering the sentence to be imposed consistent with these principles.

The convictions are affirmed and the matter is remanded only for correction of the judgment of conviction to reflect merger of the counts for possession of a weapon for an unlawful purpose and for conspiracy and for review of the sentence pursuant to Natale, supra, and Abdullah, supra. In all other respects the judgment of conviction is affirmed.

 

Defendant was tried jointly with co-defendant Selles. Their co-defendant, Sanabria, was tried separately.

The counts that were dismissed were the four counts of third-degree aggravated criminal sexual contact (Counts Seven, Eight, Nine and Ten), fourth-degree criminal sexual contact (Count Eleven), third-degree unlawful possession of a weapon (Count Eighteen), and third-degree terroristic threat to kill (Count Nineteen).

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 193, 89 L. Ed. 2d 308 (1986).

(continued)

(continued)

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February 9, 2006