STATE OF NEW JERSEY v. JOSE O. DOMINGUEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4768-03T44768-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSE O. DOMINGUEZ,

Defendant-Appellant.

_________________________________________________

 

Submitted January 24, 2006 - Decided June 27, 2006

Before Judges Axelrad and Payne.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

I-00-03-0323.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Alison Perrone

on the brief).

Bruce J. Kaplan, Middlesex County

Prosecutor, attorney for respondent

(Nancy A. Hulett, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Defendant Jose Dominguez was convicted by a jury of fourth-degree unlawful possession of a weapon (a knife) under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d, third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4d, and first-degree armed robbery, N.J.S.A. 2C:15-1. He was sentenced on the robbery conviction to an extended term of twenty-five years with twelve years of parole ineligibility and, following merger of the weapons convictions, to a concurrent ten-year extended term with a five-year parole disqualifier on the charge of possession of a knife for an unlawful purpose. Defendant appeals from his conviction and sentence.

On appeal, defendant raises the following arguments:

POINT ONE

DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO TAILOR THE CHARGE TO THE FACTS THEREBY ALLOWING THE JURY TO ERRONEOUSLY BELIEVE THAT IF DEFENDANT USED THE KNIFE FOR A PROTECTIVE PURPOSE ONLY, HE COULD STILL BE GUILTY OF ROBBERY.

(Not Raised Below.)

POINT TWO

THE PROSECUTOR'S IMPROPER INTRODUCTION OF AND RELIANCE IN SUMMATION ON CHARACTER EVIDENCE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.

(Partially Raised Below.)

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWENTY-FIVE-YEAR EXTENDED TERM.

POINT FOUR

DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR ARMED ROBBERY.

(Not Raised Below.)

Additionally, defendant has submitted a pro se brief, in which he makes the following arguments:

POINT I

The Defendant Was Illegally Sentenced When The Judge, Not The Jury, Decided That The Aggravating Factors Found By the Court Were Enough To Enhance Defendant's Sentence Regardless Of Recent U.S. Supreme Court Decisions In Jones, Apprendi and Blakely, And More Recently By Our State Supreme Court In Natale, Abdullah and Franklin.

POINT II

The Defendant, Jose Dominguez, Received An Illegal Sentence On Count 3, When The Sentencing Court Imposed An Additional Extended Term, When The Code Clearly States That Only One Extended Term Can Be Imposed At The Same Sentencing Proceeding, N.J.S.A. 2C:44-5(a)(2). Therefore, The Extended Term Imposed on Count 3 Must Be Vacated, Either by This Court, De Novo, Or The Case Remanded To The Lower Court For Resentencing.

We affirm defendant's conviction, reverse his sentence, and remand the matter for resentencing.

Evidence at trial was sufficient to demonstrate that defendant entered the kitchen of a Chili's restaurant at 8:00 a.m. and demanded money and car keys from the restaurant's manager, while holding a Chili's steak knife in his hand. Defendant, who testified on his own behalf, denied any attempted theft, and claimed that he entered the restaurant's kitchen to obtain a cup of coffee before the restaurant officially opened. He claimed that he grabbed the knife in self-defense when he became concerned for his safety as the result of the aggressive conduct of the restaurant's employees and defendant's confinement by them in the restaurant's security cage at the entrance to the kitchen. Defendant was arrested by the police at the scene. A Chili's steak knife was retrieved by the police from the floor inside the restaurant.

I.

Defendant argues first on appeal that the court committed plain error in failing to mold its instructions to the jury on robbery to encompass his claim that he grabbed the knife for protective purposes. We disagree. The court properly charged self-defense in connection with its instruction to the jury on defendant's alleged possession of a knife for an unlawful purpose, stating in that context that it was the State's position that defendant possessed the knife in order to facilitate commission of a theft, whereas defendant claimed that he possessed it for his own protection from unlawful force being used against him by two of the restaurant's employees.

The court's charge on robbery followed. In connection with this offense, the State's and defendant's view of events were mutually exclusive, in that the State claimed an attempted theft had occurred, whereas defendant denied it. Defendant never claimed that he obtained the knife for self-defense while attempting theft, but rather that he obtained it to defend himself from the aggressive actions of the restaurant's employees. A charge of self-defense in connection with robbery therefore was not factually warranted, since it was inconsistent both with the State's and defendant's version of events. Defendant has failed to demonstrate any error, let alone plain error, in the charge as given. State v. Jordan, 147 N.J. 409, 422 (1997); State v. Concepcion, 111 N.J. 373, 379 (1988); State v. Tierney, 356 N.J. Super. 468, 477 (App. Div.), certif. denied, 176 N.J. 72 (2003).

II.

Defendant next argues that error occurred as the result of his cross-examination by the prosecutor on his aliases and as the result of the prosecutor's challenge to his credibility in summation on the ground that he had utilized his cousin's driver's license, lacking one himself. We reject these arguments as well.

Examination with respect to aliases possessed by a defendant is generally not permitted at trial because it raises the inference of prior criminal conduct. See, e.g., State v. Salaam, 225 N.J. Super. 66, 72-76 (App. Div.), certif. denied, 111 N.J. 609 (1988). However, defendant testified on his own behalf at the trial of this case, and as a result, his extensive record, including a conviction for a first-degree crime in 2000 and receipt of a fifteen-year sentence with an eighty-five percent parole disqualifier, was properly admitted in sanitized form. State v. Brunson, 132 N.J. 377, 394 (1993). In these circumstances, where the existence of prior criminal conduct was properly presented to the jury pursuant to N.J.R.E. 409, we find the prejudicial nature of the alias evidence was outweighed by its probative value as demonstrating defendant's propensity for untruthfulness. N.J.R.E. 403.

In his cross-examination regarding aliases, the prosecutor queried whether defendant had ever used the name Aleides Marmolejos, eliciting the response that the name belonged to defendant's cousin, and he used the name for driving purposes after the cousin lent defendant his license. The question and response led an objection by the defense attorney, who stated that he understood where the prosecutor was going but he thought "stopping it at this point is a good idea" and requested an instruction to the jury that it not consider the aliases as bearing upon defendant's credibility. Upon learning that all of the aliases about which defendant had been questioned had appeared on his rap sheet, which was produced in discovery, the court denied the defense motion, finding the questions relevant to defendant's credibility. However, in light of its ruling with respect to sanitization of convictions, the court ordered the prosecutor "from this point on don't go into any more detail."

On appeal, defendant challenges the prosecutor's further use of this information in summation. The challenged portion of the prosecutor's statement appears in a longer argument, in which the prosecutor questioned defendant's credibility, stating first:

The judge told you in your preliminary instructions before your service began in judging witnesses how do you judge their credibility? Does somebody have a motive to testify a certain way? Does somebody have a certain interest in the outcome of this case?

After presenting defendant's version of events, and arguing that "this story just doesn't cut," the prosecutor continued:

[Defendant] did in fact admit to you he has a criminal record and the only reason you should use this is judging the credibility of somebody. Do you take the testimony of somebody who hasn't lead a law-abiding life or two folks [restaurant employee witnesses] who came in here and told you their story who ha[ve] led a law-abiding life? I ask you to take that into consideration. First of all does [defendant] make sense? Is he somebody that you're willing to listen to anyway? He uses his cousin's name to get a driver's license. Is that something you're going to hang your coats on here today? I submit no.

We find no reversible error in the prosecutor's comments when viewed in their entirety. Because defendant took the stand to testify and his testimony was at variance from that provided by the State's witnesses, it was appropriate to challenge his credibility. Portuondo v. Agard, 529 U.S. 61, 69, 120 S. Ct. 1119, 1125, 146 L. Ed. 2d 47, 56 (2000); State v. Daniels, 182 N.J. 80, 97 (2004). The fact that defendant utilized aliases was relevant to his credibility. That he had used his cousin's alias for an illegal purpose was volunteered by defendant himself. Moreover, both the cross-examination on that topic and the prosecutor's comments in closing were brief in their nature. We find in the circumstances that even if the comment were found improper, in light of the evidence against defendant, it was incapable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 326 (1971).

III.

Defendant's final arguments, presented through counsel and on a pro se basis, relate to his sentence. In that regard, the State concedes that defendant's conviction for possession of a knife for an unlawful purpose, which the court merged at sentencing with his conviction for unlawful possession of a knife under circumstances not manifestly appropriate for its lawful use, should also have been merged with his robbery conviction. For that reason, only one extended term sentence should have been imposed, and arguments relating to the second extended term sentence have been mooted.

We decline to accept the State's argument that the court erred in merging defendant's conviction for unlawful possession of a knife for a purpose not manifestly appropriate for its lawful use into his conviction for possession of a knife for an unlawful purpose under State v. Brown, 325 N.J. Super. 447, 456-58 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000). In Brown, we found for purposes of merger that the offense of possession of a weapon under circumstances not manifestly appropriate for its use was separate from the defendant's other substantive crimes when the weapon had been found on the defendant at arrest, but had not been used in connection with the commission of a crime. In this case, however, defendant brandished the knife. Thus, his conviction for possession of the knife under circumstances not manifestly appropriate for its use also provided the foundation for his conviction for possession of a knife for an unlawful purpose. In this circumstance, merger was appropriate. N.J.S.A. 2C:1-8.

We find no violation of the principles set forth in State v. Natale, 184 N.J. 458 (2005) and the federal precedent upon which it relies in the imposition of an extended term sentence of twenty-five years upon defendant (a sentence less than the then-presumptive term of fifty years established by N.J.S.A. 2C:44-1f), premised upon aggravating factors three (risk of reoffense), six (prior criminal record) and nine (need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). Such factors fall within the recidivism exception recognized by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) and in New Jersey by State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). We have previously approved the use of those factors in imposing a discretionary extended term, finding that the practice does not violate a defendant's constitutional right to due process under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 1531, 159 L. Ed. 2d 403 (2004). See State v. Young, 379 N.J. Super. 498, 510 (2005); State v. McMillan, 373 N.J. Super. 27-28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div 2001), certif. denied, 172 N.J. 181 (2002).

Defendant's conviction is affirmed; his sentence is reversed, and the matter is remanded for resentencing.

 

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A-4768-03T4

June 27, 2006