STATE OF NEW JERSEY v. ELLIOT COLON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5698-03T45698-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ELLIOT COLON,

Defendant-Appellant.

___________________________________________________________

 

Submitted December 13, 2005 - Decided January 18, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 01-02-0158.

Yvonne Smith Segars, Public Defender, attorney for appellant (Sharon A. Quinn, Designated Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaplowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Elliot Colon and three co-defendants, Alberto Santos, Henry Poole and Carlos Feliciano, were tried before Judge John S. Triarsi and a jury on May 14 and 15, 2001. The charges against Santos were dismissed pursuant to a motion made after completion of the State's case. Similar motions made by defendants Colon, Feliciano and Poole were denied. The court granted the motions of all defendants to dismiss the third count of the indictment. Colon, Feliciano and Poole were found guilty of first degree robbery, N.J.S.A. 2C:15-1 and third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-3(e). On or about December 12, 2003, defendant Colon was sentenced on the robbery conviction to a prison term of seventeen years, with a five-year parole ineligibility. The possession count was merged with the robbery count. Defendant is required to serve eighty-five percent of his sentence under the terms of the No Early Release Act (NERA).

On this appeal, defendant raises the following arguments:

POINT I: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS AFTER THE CONCLUSION OF THE STATE'S CASE.

POINT II: THE FAILURE OF COUNSEL TO MOVE FOR A JUDGMENT OF ACQUITTAL, A NEW TRIAL OR TO SET ASIDE THE JURY'S VERDICT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

POINT III: SENTENCE IMPOSED IS ILLEGAL BECAUSE IT IMPOSES A SENTENCE WHICH EXCEEDS THE PRESUMPTIVE SENTENCE FOR FIRST DEGREE ROBBERY.

We reject Points I and II of defendant's arguments and affirm but remand for reconsideration of the sentence.

On or about October 14, 2002, at approximately 3:40 a.m., Juan Negron was using a public telephone located on Third Street, in Elizabeth, New Jersey. His car was parked right in front of the phone booth. Three men approached him. One of the men asked Negron if he knew where they could buy some marijuana. He said he did not and then one of the men asked if he had any money. Negron answered no. The men attacked him. Negron then felt a knife against his neck. He later described the man with the knife as the tallest of the three assailants.

Negron told the three attackers that he had no more than seven dollars and would turn it over to them. They dragged him around the corner and held his back against the wall of a building as two of the men went through his pockets and then tried to pull off his Timberland boots. They took a five-dollar bill and two one-dollar bills from Negron's pocket and as he struggled to get away, one of the men pulled a chain sticking out of Negron's back pocket. His wallet was attached to the chain and one of the men yanked it from him. The wallet contained his driver's license and a B.J.'s Warehouse identification card. Negron was standing in the middle of the street as he watched the three men jump back into a waiting truck, a light colored model and leave the scene.

Negron ran to his car which was parked nearby and wrote on his hand the license plate of the truck. As he drove off, he spotted the truck driving down Elizabeth Avenue. He followed and yelled out the window, "I have your license plate." The truck then turned down Fourth Street, going in the wrong direction down the one-way street. There, the truck was stopped after it came face to face with a police car.

Officers Glackin and Cockinos were traveling south on Fourth Street when they saw a vehicle turn off Elizabeth Avenue and proceed in the wrong direction down Fourth Street. The street was fairly well lit and the vehicle was approximately two city blocks away from the police vehicle when the officers first observed it. The officers noticed that it was a gray truck and that it turned left onto Marshall Street from Fourth Street. The officers activated their overhead lights and attempted to stop the vehicle for the traffic violation they had observed. The truck eventually stopped in the four hundred block of Marshall Street. The police officers stopped approximately five feet behind the truck and then alighted from their vehicle.

According to Officer Cockinos, four males were in the truck. Two were seated in the front and two were on the back seats. The officer noted that defendant Colon was the front seat passenger. Santos was the driver. Feliciano sat behind the driver, and Poole was seated behind Colon. As the officers approached the truck, they were accosted by Negron.

Negron told the officers he had been robbed and that the license plate of the gray truck now in front of them matched that of the truck in which his assailants had left the scene. The four men were removed from the truck and one of the officers searched the inside of the vehicle. Using a flashlight, he found a knife on the floor behind the rear seat. He found Negron's driver's license and the B.J.'s card in the glove compartment of the truck. Negron identified the knife as the one used during the robbery. The officer also removed a five- dollar bill and two one-dollar bills from Feliciano's grasp. Negron identified Feliciano as the person who had held the knife during the robbery.

At trial, Negron was unable to identify any of the defendants. Negron testified that he identified his attackers at the time of their arrest - not only Feliciano who held the knife, but also two of the others as the men who had strong-armed him. Officer Cockinos, who was the only other witness to testify at trial, confirmed that Negron had identified Feliciano at the scene but according to him, Negron was not able to positively identify the other attackers. Cockinos was also unable to identify any of the defendants in the courtroom.

Defendant Colon contends, as did Poole, that his motion for a judgment of acquittal should have been granted because the State presented no evidence that he was one of the robbers. According to defendant, the State did not demonstrate that he was at the scene of the crime at the time of the alleged robbery. Moreover, defendant asserts that since none of the evidence recovered by the police during the traffic stop was found on his person or in his possession, his motion should have been granted.

We are not persuaded by defendant's argument for the same reasons that led us to deny Poole's identical argument. State v. Poole, No. A-1374-02T4 (App. Div. November 4, 2004). We restate below that portion of our opinion in Poole:

Rule 3:18-1 governing motions for judgment of acquittal provides:

At the close of the State's case or after the evidence of all parties has been closed, the court shall, on the defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.

At trial and on appeal, the standard for determining the sufficiency of evidence to uphold a conviction is "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).

Here, the judge's decision to deny defendant's motion for a judgment of acquittal was proper. Defendant argues that there was no evidence that he was one of the two men, besides Feliciano, that Negron claims attacked him. Negron saw his assailants enter the light colored truck which was driven by a fourth man. When the police stopped the truck shortly after the robbery, defendant was one of the occupants. The court was justified in reasoning, in light of the applicable standard, that a jury could find beyond a reasonable doubt that defendant was also one of the attackers. Only a brief period of time, approximately ten minutes, had passed. According to Negron, he identified defendants as the men who robbed him. He had seen his attackers get into the light colored truck. He memorized and wrote the license plate number on his hand. He described the knife with which he had been threatened and that knife was recovered by the police from the rear seat that had been occupied by [Poole] and Feliciano. The police also recovered from the truck Negron's driver's license and his B.J. identification card. In addition, Officer Cockinos recovered seven dollars from Feliciano, which is the amount Negron said was stolen from him. This evidence, though largely circumstantial, was sufficient for a reasonable jury to infer that defendant was one of the assailants. The trial court's decision denying defendant's motion for judgment for acquittal was not error.

Next, defendant argues that he was denied effective assistance of counsel because his counsel failed to move to set aside the verdict as against the weight of the evidence. When ineffective assistance of counsel is raised, New Jersey courts have adopted the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In order to show ineffective assistance of counsel under our constitution, a defendant must demonstrate acts or omissions that assert unreasonable professional judgment by the attorney, as well as a showing that those acts or omissions prejudicially affected the judgment. State v. Fritz, 105 N.J. 42, 58 (1987).

In Fritz, our Supreme Court adopted the two-part Strickland test in cases where ineffectiveness of counsel is asserted. The Court explained that:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

A reviewing court must look at "the fundamental fairness of the proceeding whose result is being challenged." Fritz, supra, 105 N.J. at 58 (citing Strickland, supra, 446 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699). A reviewing court should also be extremely deferential to counsel's performance, which requires "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). "The benchmark for judging ineffectiveness must be whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." Ibid. (quoting Strickland, supra, 446 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93).

Stated another way, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid.

Defendant argues that after the jury returned its verdict, trial counsel was ineffective for failing to move for a judgment of acquittal, a new trial or to set aside the jury's verdict. We are satisfied that if such motions had been made, they would have been unsuccessful. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). There was sufficient evidence presented to submit the factual disputes to the jury. Therefore, motions by counsel that the verdict was against the weight of evidence would not have changed the outcome of the case.

Finally, defendant contends that his sentence of seventeen years in prison violates Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), since the term imposed exceeded the presumptive term of fifteen years. The State agrees that, in light of the Supreme Court's decision in State v. Natale, 184 N.J. 458, 482 (2005), this matter should be remanded for a reconsideration of the sentence.

 
Affirmed, except as to the sentence, which is remanded for further consideration.

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A-5698-03T4

 

January 18, 2006