STATE OF NEW JERSEY v. ANDRE L. GONZALEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1256-05T41256-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE L. GONZALEZ, a/k/a

ANDREA L. GONZALEZ,

Defendant-Appellant.

______________________________________

 

Submitted May 23, 2007 - Decided:

Before Judges A. A. Rodr guez and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Camden County, Docket No. 04-07-2800.

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

Joshua M. Ottenberg, Special Deputy Attorney General, Acting Camden Prosecutor, attorney for respondent (Nancy P. Scharff, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant, Andre L. Gonzalez, was convicted of first-degree robbery, N.J.S.A. 2C:15-1a (count one); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three); and first-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, 2C:15-1 (count four). Defendant moved for a new trial. The judge denied the motion, merged counts two, three, and four into count one and imposed a twelve-year term with a mandatory NERA parole disqualifier.

These are the proofs presented by the State. On May 14, 2004, at approximately 10:55 p.m., the victim, a delivery man for N & A Pizzeria, attempted to make a delivery to apartment L-3 of the Fountainview Apartment Complex in Blackwood. The victim knocked on the door. Although he heard noises on the other side, no one came to answer it right away. Once the door was opened, two men, each with a kitchen knife, tried to pull the victim into the apartment. The individuals were later identified as defendant and co-defendant Nathaniel Robinson. Each of them had a kind of "black nylon stretchy material" covering their head and part of their faces. Despite the covering, the victim was able to get a "very good look at both of their eyes." During the scuffle, the taller individual's mask was "hanging down loosely . . . and flapping around," which allowed the victim to get a good look at his jaw line and profile.

The taller man announced that he had a knife and held it to the victim's stomach, demanding money, while the shorter man came up behind him and put a knife to his throat, asking him repeatedly if he wanted to "get murdered." The victim grabbed the $400 that he had in his pocket and dropped it on the floor. The assailants checked the victim's pockets for more money, threw him into the interior of the apartment, which was abandoned, and ordered him to wait there while they fled the scene. The victim waited about ten or fifteen seconds and went to his car where he used his cellphone to call the police.

Gloucester Township Police Officer Brian Farrell was dispatched to the scene. He spoke to the victim, who described the robbery in detail. The victim went to the police station and provided a taped statement of the incident.

Gloucester Township Police Detective Sergeant Eric Quintavalle was informed that a witness to the Fountainview robbery was waiting to give a statement. Seventeen-year-old Amanda Robinson was at the station with her parents, who had given permission for her to be interviewed. The Robinsons live in the Fountainview Complex. Amanda gave a taped statement to Detective Quintavalle, incriminating her older brother, Nathaniel.

Nathaniel voluntarily came to the police station with his father. Nathaniel gave a taped statement, admitting to robbing the victim. He told the police that he acted with defendant and that it was defendant's idea. Nathaniel's version of the incident was almost identical to the victim's version. He stated that defendant called the order into the pizzeria and gave the abandoned apartment's address. When the delivery man knocked on the door, defendant put a knife to the victim's stomach and demanded money. Nathaniel admitted getting behind the victim, but said he did not have a knife. Once the delivery man gave them the money, they both took off running.

Based on the information given by Amanda, Detective Quintavalle created two photographic arrays, each containing pictures of eight similar-looking individuals, including defendant and Robinson. The victim was called back to the police station in the early morning hours of May 15, 2004. He was shown the photographic arrays. He identified defendant as one of his assailants.

Detective Quintavalle testified on direct that in compiling the photographic array, he pulled up the suspects' pictures from the in-house computer at the station. Defense counsel objected to the comments and moved for a mistrial. The judge ruled that a curative instruction informing the jury that photos are available in the system for a variety of reasons, including motor vehicle matters and municipal matters, would suffice.

On re-direct, Detective Quintavalle stated that he typed in the name of the "suspect" to obtain a photograph for the array. Defense counsel again objected. The judge ruled that the prior limiting instruction "sufficiently accounts for the existence of names." The judge also ruled that continuing the line of questioning might lead to potentially problematic answers and therefore requested the prosecutor move on to a different area.

Amanda testified that her brother and defendant were friends and "were together all the time." Nathaniel admitted taking part in the robbery to her. On the night of May 14, 2004, Amanda, Nathaniel, and defendant were all in the Robinson's apartment. Amanda saw defendant take the pizzeria menu and left with Nathaniel. From the balcony of her apartment, Amanda saw defendant on his cell phone, still holding the menu. Her brother was by defendant's side. After defendant got off the phone, she saw him and her brother walk away.

Prior to trial, Nathaniel pled guilty to the robbery. He was serving a sentence for this charge when he testified. Nathaniel's trial testimony was drastically different from the voluntary statement he gave the police. He testified that he alone robbed the victim. Nathaniel said that he knew defendant and was friendly with him, but that the defendant was not involved in the robbery.

Defendant did not testify. The sole defense witness was his mother, Carmen Gonzalez Lewison. Lewison testified that shortly after the robbery, she presented a picture of her son to the victim and asked him whether that was the person who robbed him. According to Lewison, the victim took the picture, looked at it, and told her that it was not the person who robbed him. To the contrary, the victim testified that he recalled Lewison and her husband coming into the pizzeria, attempting to show him a picture, but that he refused to look at it.

On appeal, defendant contends:

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL.

We are not persuaded by this contention.

Defendant argues that testimony elicited from Detective Quintavalle, regarding the source of the photo arrays, prejudiced the jury. Defendant urges that the curative instructions were not enough and that the judge erred in not granting a mistrial.

A motion for a mistrial is addressed to the sound discretion of the trial judge. The Supreme Court has held:

[t]he decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting.

[State v. Winter, 96 N.J. 640, 646-47 (1984).]

Upon review of the trial court's decision, a reviewing court must note that "the denial of the motion is reviewable only for an abuse of discretion." State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). The reviewing court must exercise "the greatest caution, in the furtherance of justice between the accused and the State." Ibid. "Unless the vice is plainly ineradicable by an instruction to the jury, a mistrial is not allowable of right." Ibid.

Judged against that standard, we conclude that a reversal is not required. The curative instruction was adequate to correct the problem.

Defendant also contends that:

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.

Therefore, this denied him of a fair trial. We disagree.

Defendant asserts the prosecutor made comments which improperly shifted the burden of proof from the State to the defense by focusing on the absence of testimony showing strife between defendant and Nathaniel. The prosecutor stated:

Two other things about Nathaniel Robinson. You heard no testimony that Nathaniel Robinson and [defendant] had any problems amongst each other. There were no testimony that one was trying to get back at the other one for whatever reason, that they had gotten into some sort of disagreement over a girl, or some sort of fight in the neighborhood. Any reason why Nathaniel would make something up against Andre for no reason. You heard no testimony about that. It's because it didn't happen, it didn't exist. There was no reason for Nathaniel to make that up, no reason to get back or get at Andre. There's just nothing there.

Defendant maintains that in saying the above comments, the State tried to shift the burden of proof, including the burden of providing testimony. Additionally, defendant argues, the comment also improperly drew the jury's attention to the fact that the defendant did not testify. This assertion, however, is not substantiated.

Generally, prosecutors are afforded considerable leeway in summation, so long as the comments made are reasonably related to the evidence. State v. Frost, 158 N.J. 76, 82 (1999). Criminal trials take place in a "charged atmosphere," State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993), and therefore, improper comments by the prosecutor in summation will be grounds for reversal only when they are so "egregious" as to deprive the defendant of a fair trial. Frost, supra, 158 N.J. at 83. In reviewing a prosecutor's summation, a reviewing court must also consider the context in which the challenged statement was made. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991).

Here, we conclude that taken in context with the rest of the prosecutor's summation, the remarks on the lack of proof of ill-will between defendant and Nathaniel is a proper commentary regarding the credibility of Nathaniel and Amanda Robinson. The comments were in response to the conflicting stories of Nathaniel Robinson and the testimony of Amanda Robinson, who knew the defendants well enough to know the state of their friendship. Such comments by the prosecutor were not improper and certainly not a basis for reversal.

Defendant also contends that he was deprived of a fair trial by the following comments by the prosecutor:

Finally, justice, ladies and gentlemen, justice for [the victim].

. . .

Justice is what [the victim] deserves, and I submit to you that the evidence that the state has put forward to you, proves each and every element of this offense, and it proves that this defendant, Andre Gonzalez, participated in that robbery, he planned it, and that he held [the victim] at knife point and took $400 of his money, and took his food, and that, ladies and gentlemen, needs to be dealt with.

. . .

It proves that this defendant was involved, and I submit that you give [the victim] justice.

. . .

[Defendant] was the second robber that night. It's not fair that just one guy take the fall and the other one go free.

Defendant argues that these remarks suggested to the jury that the "only way in which the jurors could perform their duties and insure justice would be by returning guilty verdicts against the defendant on all counts," and such a suggestion was, in effect, a warning to the jurors about not doing their jobs, which is an egregious form of prosecutorial misconduct. We disagree.

Defendant relies on State v. Acker, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993), which dealt with an alleged sexually-violent predator. The prosecutor said:

Every group in the country seems to have a spokesman. Now it doesn't make any difference what group, racial groups, religious groups. All kinds of groups have spokesmen, people marching up to the when anyone [sic] offends them except children. We do have some special laws to protect them. Those laws are only as good as the juries that are willing to enforce them. Albeit, it will be a difficult decision if you find him guilty beyond a reasonable doubt to say it, it sure it will. [sic] It's going to be tough. But it's not going to be any tougher than turning your back on these three little kids who did what they were taught to do. They were taught to report it, tell about it. They had the courage to come in here and tell you about it. Give them some justice folks.

[Id. at 354-55.]

In Acker, we held the prosecutor's remarks to be egregious in that the remarks essentially told the jury it was their job to protect young victims of alleged sexual offenses as a group. "The clear import was that unless the jury convicted defendant, the jurors would violate their oaths." Id. at 356-57.

There is a clear distinction between the prosecutor's remarks in Acker and the remarks made in this case. Taking both summations in context, it seems that the prosecutor was responding to defense counsel's following remarks: "Return a verdict that's just. We're looking for justice here. Don't be smooth. Thank you." The comments do not amount to misconduct.

Defendant also contends that:

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL.

The motion for a new trial was based on the failure of the State to turn over certain discovery. We disagree that a reversal is warranted.

During direct examination, Nathaniel admitted that he had pled guilty to the robbery charges in the instant matter, but that he was also serving concurrent time for a drug charge to which he also pled guilty. This information was not disclosed to the defense prior to trial, and the prosecutor admitted to the oversight. Defense counsel moved for a new trial based on the fact that Nathaniel Robinson's drug charge was not disclosed prior to trial. The judge ruled:

Because there's no question that it was not turned over, this issue then turns on whether or not what was not turned over caused harm. In effect, the question becomes, was there some materiality to the evidence, and was there harm caused by the absence of this evidence, and I find that there was no harm caused. While the material would have been material if it was turned over, I find that in effect it was turned over at or about the time of trial.

The judge went on to note that defense counsel was able to aggressively cross-examine Nathaniel.

R. 3:20-1 states that a "trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." Furthermore, R. 2:10-1 states that "[t]he trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law."

Given the judge's analysis of the effect of the non-disclosure, the fact that the disclosure came out during trial, which allowed for the defense to cross-examine Nathaniel with regard to the information, and the fact that the defendant himself does not claim manifest injustice, but rather that he was denied the opportunity to assess the "best manner in which to utilize such information[,]" we reject defendant's argument and affirm the lower court's holding.

Lastly, defendant contends that:

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

He argues that the judge abused his discretion by "failing to impose a term commensurate with a third-degree offense," or, in the alternative, by failing to impose a lesser term. We disagree.

The judge found two of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3), the risk that defendant will commit another offense, and (9), the need to deter defendant and others. Additionally, the judge found two mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (7) defendant has no history of criminal activity; and (9), the character and attitude of the defendant indicated that he is unlikely to commit another crime. The judge also considered the defendant's youth and the impact of a lengthy sentence as a mitigating factor, in accordance with State v. Dunbar, 108 N.J. 80 (1987). The judge imposed a twelve-year term, less than the midpoint of the statutory range. Therefore, the constitutional issues raised in State v. Natale, 184 N.J. 458 (2005), are not implicated here.

From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Roth, 95 N.J. 334, 364-65 (1984). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience.

Affirmed.

No Early Release Act, N.J.S.A. 2C:43-7.2.

(continued)

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A-1256-05T4

December 7, 2007