STATE OF NEW JERSEY v. GUILLERMO ALVAREZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2148-04T42148-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GUILLERMO ALVAREZ,

Defendant-Appellant.

________________________________

 

Submitted December 20, 2006 - Decided April 26, 2007

Before Judges Wefing, C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, No. 02-09-02250-I.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Kevin G. Byrnes, Designated

Counsel, of counsel and on the brief).

Appellant submitted a pro se brief.

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of burglary, N.J.S.A. 2C:18-2, and theft, N.J.S.A. 2C:20-3, both crimes of the third degree. The trial court granted the State's motion to sentence defendant to an extended term, N.J.S.A. 2C:44-3a, and sentenced defendant to serve nine years in prison for burglary, four and one-half years of which had to be served before defendant could be considered eligible for parole. The trial court also sentenced defendant to a concurrent five-year term for theft. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand for resentencing.

Defendant's convictions rest upon an incident that occurred in the early afternoon of March 11, 2002, in Oradell, New Jersey, when the home of Anne Marie Quinn was burglarized and various items were stolen from the house. Ms. Quinn's house is located at the end of Demarest Avenue in Oradell, where it dead-ends at a reservoir. A small unpaved street, Lakeview Road, connects the end of Demarest Avenue and Grove Street. Lakeview Road is primarily used by those living in the neighborhood. There was testimony that many residents of the town are not even aware that the street exists.

Ms. Quinn has three young children, and at 12:30 p.m. she picked up her daughter at school to bring her home for lunch. She was in her kitchen giving lunch to the three children when she noticed through her windows an unfamiliar car driving slowly down Lakeview Road. When the children had finished eating, they all got into the car to take Ms. Quinn's daughter back to school. They headed down Lakeview and passed the same car. Because Lakeview is so narrow, the two cars passed within inches of each other, and Ms. Quinn observed the two occupants. She also noted that the car had a New York license plate, which she considered unusual for the street, and she wrote down the license plate number. She proceeded to drop her daughter off at school. When she returned, she met a neighbor, Janet Looram, walking on Lakeview and she pulled her car over to speak for a few minutes. As the women were talking, the same car passed them, and both remarked upon it. They also noted that the car seemed to wait for some period of time at the intersection of Demarest and Oradell Avenues. Ms. Quinn also noted that the car's only occupant was the driver, whom she had seen at very close range a few minutes earlier. She then asked Ms. Looram to come to the house for a cup of tea. The two women arrived at the house with Ms. Quinn's two young children and found that the side door had been tampered with. Ms. Quinn heard a voice in the house. The two women, taking the children, retreated across the street and called the police, who responded immediately.

Ms. Quinn was able to return to her home after the police determined that no one remained in the house and they had concluded their investigation. She found that her home had been ransacked, with various items stolen.

The police traced the license plate number provided by Ms. Quinn to a vehicle registered in defendant's name. A search of the car turned up, in addition to other items, screwdrivers and gloves.

Based upon her observations of the car's driver, Ms. Quinn selected defendant's picture from a photo array, while Ms. Looram was unable to do so. Ms. Quinn also identified defendant at trial.

Two witnesses testified on defendant's behalf, Humberto Suarez and John Ayala. Mr. Suarez testified that defendant worked for him at his garage in Union City. Mr. Suarez testified that defendant would leave only to run errands or to get lunch. The import of his testimony was that such a brief excursion did not afford enough time to travel from Union City to Oradell and back. Mr. Ayala testified that he had dinner with defendant on March 8, 2002, and that during the meal, defendant was approached by a man named Enrique who asked to borrow defendant's car. Mr. Ayala saw defendant give Enrique the keys. Mr. Ayala did not see the car again until the evening of March 11, when it was parked on the street outside the apartment building in which they both lived. Mr. Ayala said he did not see the car in the neighborhood in the interim. Defendant, who had two prior convictions for burglary, did not testify.

After the trial court's instructions, to which no objection was made by either side, the jury retired. After deliberations, it found defendant guilty.

On appeal, defendant raises the following arguments.

POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF CROSS-RACIAL IDENTIFICATION EVEN THOUGH THERE WAS A CROSS-RACIAL IDENTIFICATION AND IDENTIFICATION WAS THE FUNDAMENTAL CONTESTED ISSUE IN THE CASE.

POINT II THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT ERRED IN ITS INSTRUCTIONS TO THE JURY ON THE LAW OF ACCOMPLICE LIABILITY

(Not Raised Below).

POINT III THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY EXCLUDING ADMISSIBLE DEFENSE EVIDENCE.

POINT IV THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT TO SHOW THAT HE DISAPPROVED OR OPPOSED THE ACTIONS LEADING TO THE BURGLARY AND THEFT (Not Raised Below).

POINT V THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF CRIMINAL TRESPASS

(Not Raised Below).

POINT VI THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S DECISION DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL.

POINT VII THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VIII THE SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT ERRED BY IMPOSING AN EXTENDED TERM.

B. THE TRIAL COURT ERRED BY IMPROPERLY BALANCING THE AGGRAVATING AND MITIGATING FACTORS.

C. THE DEFENDANT MUST BE RESENTENCED BECAUSE HE WAS SENTENCED ON THE BASIS OF AN UNCONSTITUTIONAL SENTENCING SCHEME.

Defendant's first argument requires further detail as to what transpired at trial. At the conclusion of the evidence, the trial court conducted a charge conference, during which defense counsel requested a charge on cross-racial identification. State v. Cromedy, 158 N.J. 112 (1999). The trial court noted that defendant was not of a different race than Ms. Quinn but that the charge could be modified for ethnicity. Defense counsel stated, "Dark skinned persons are different from Caucasians," to which the trial court responded that defendant was "not that dark skinned." Defense counsel then pointed out that there had been references to defendant at trial as being "dark skinned." The prosecutor then interjected that he had no objection to such a charge, and the court said it would include it in the instructions if defense counsel wished.

Appellate counsel, as part of the regular course of prosecuting this appeal, ordered a trial transcript. The transcript of the court's charge did not include any reference to a cross-ethnic identification, and defense counsel framed the first argument on appeal accordingly, contending that the trial court erred by omitting such a charge. The State then filed a motion for a limited remand, supported by the notes of the assistant prosecutor who tried the case, which indicated such a charge was given. We granted that motion, and the matter was temporarily remanded to the trial court to settle the record on the court's charge.

In accordance with our instructions, the trial court conducted a remand hearing at which the assistant prosecutor put his recollection on the record that the court had, as defense counsel requested, given a charge on cross-ethnic identification. Defense counsel candidly admitted he had no specific recollection of what had occurred more than two years earlier. The court reporter testified that she could not have made such an error. The conduct of the remand hearing was hampered in some respects in that defense counsel had, in the interim, been appointed a municipal court judge and was precluded from advocating a position for defendant. The trial court declined to make any findings; it stated that until hearing the testimony of the court reporter, it would have been certain that it gave a cross-ethnic identification charge but that it had never known the reporter to make a significant error.

Despite the fact that the trial court declined to make a finding on this contested issue, the State in its brief structures its argument on appeal as if the charge were, in fact, given. It contends alternatively that such a charge was not required and that even if not given, defendant was not prejudiced. The record before us would support a finding in either direction. We note the fact that defense counsel made no objection at the end of the charge, which would support an inference that the court did indeed include the charge counsel had specifically requested. Further, the notes made by the assistant prosecutor and marked as an exhibit at the remand hearing, would also support a finding that the charge was given. In addition, the court reporter testified that the trial court had provided her in advance with a copy of the charge. She said she made notes at times on this copy during the instructions, thus creating the possibility of an error at the time of transcription. Balanced against that testimony is the reporter's clear testimony that it would have been impossible for her to omit such a block of language and the trial court's expressed confidence in her abilities and skills. In that posture, it would be inappropriate for us to make a finding de novo. We thus conduct our review of the matter from the perspective that the charge on cross-ethnic identification was not given.

The Supreme Court addressed the question of cross-racial identification in State v. Cromedy, supra. The defendant in that case, who was African-American, was charged with rape of a white woman. Some months after the attack, the victim spotted defendant on the street and identified him as her assailant. He was taken into custody, and she again identified him. The defendant's attorney requested a charge on cross-racial identification, but the trial court declined the request.

The Supreme Court held that a cross-racial jury instruction should have been provided. It directed that such a charge should be given when identification is a crucial issue in the case and an eye-witness's cross-racial identification is not corroborated by other evidence which would give it independent reliability. Id. at 132. The purpose of such an instruction, the Court noted, "is to alert the jury . . . that it should pay close attention to a possible influence of race." Id. at 133. Following Cromedy, we have been called upon twice to consider the applicability of the principles the Court there enunciated in situations involving Hispanics. The defendant in State v. Valentine, 345 N.J. Super. 490 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002), was African-American and was charged with first-degree robbery and weapons offenses; his victim was Hispanic. Id. at 496. On appeal, defendant argued that the trial court erred when it denied his request for a charge on cross-racial identification. Writing for the court, Judge Rodriguez rejected that argument. In affirming the trial court's denial of such a charge, he noted that the term "Hispanic" is an ethnic identification, not a racial identification. Ibid.

Hispanics are of different races, i.e. African-American, Caucasian, Native-American, or Asian . . . . A Hispanic person can also be of multi-racial descent.

Here, the trial judge and prosecutor concluded that [the victim] was of "Spanish and African background." Therefore, the judge found that there was no cross-racial identification.

[Id. at 497.]

In Valentine, we refused to extend Cromedy to the area of cross-ethnic identification, noting that members of the same race may have different ethnic and cultural self-identifications. Ibid. Significantly, however, we also noted in that case the presence of independent corroborative evidence linking defendant to the crime. Id. at 496.

The question arose in a slightly different context in State v. Walton, 368 N.J. Super. 298 (App. Div. 2004). The defendant in that case, who was charged with robbery, was African-American. Id. at 303. She was identified in a photo array and in court by a witness who was Hispanic. The trial court refused defendant's request for a cross-racial identification charge, noting that the witness had a darker skin tone than did defendant. Id. at 304. We reversed the trial court's refusal to give a cross-racial identification charge. In doing so, we noted that the situation presented mirrored that of Cromedy, in that the witness who identified the defendant was of a different race. We concluded that variations in skin tone did not provide a basis to dispense with a cross-racial identification charge. Id. at 305.

Here, we are confronted with an array of factors to weigh against each other. We agree with Valentine, supra, that "Hispanic" does not constitute a racial identity. We note, however, the absence of corroborative evidence to give Ms. Quinn's identification of defendant independent reliability. We note that Ms. Quinn had the opportunity to observe defendant at very close range as their vehicles inched slowly past each other on Lakeview Drive. We also note the apparent reliability of Ms. Quinn's identification of defendant in the photo array, which was conducted in accordance with the Attorney General's guidelines for such procedure. Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures (April 18, 2001). She was three times separately shown six photographs. On each occasion the photographs were displayed in a different order. On each occasion, she selected defendant's photograph. Ms. Quinn's neighbor, who was unable to identify defendant, described the person she saw as being likely either of Hispanic or Middle Eastern origin, thus giving no indication that it was immediately apparent that defendant was of a different race. Moreover, the State has included in its appendix the color photograph of defendant from the records of the Department of Corrections. From our own review of that photograph it is apparent that defendant's features appear overwhelmingly Caucasian.

Several other factors inform our analysis, as well. Defendant, in summation, made no contention that Ms. Quinn's identification was the product of ethnic or racial confusion. Finally, the identification charge which the trial court did give was detailed and comprehensive. It instructed the jury in the following manner:

To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged, you should evaluate the testimony of the witness in light of the factors for considering credibility that I have already explained to you. In addition, you may consider the following factors:

(1) The witness' opportunity to view the person who committed the offense at the time of the offense.

(2) The witness' degree of attention on the perpetrator when he observed the crime being committed.

(3) The accuracy of any description the witness gave prior to identifying the perpetrator.

(4) The degree of certainty expressed by the witness in making any identification.

(5) The length of time between the witness' observation of the offense and the first identification.

(6) Discrepancies or inconsistencies between identifications, if any.

(7) The circumstances under which any out-of-court identification was made. Here, a series of six photos were shown to Anne Marie Quinn.

(8) Any other factor based on the evidence or lack of evidence in the case which you consider relevant to your determination whether the identification was reliable.

If, after consideration of all of the evidence, you determine that the State has not proven beyond a reasonable doubt that the defendant was the person who committed these offenses, then you must find the defendant not guilty. If, on the other hand, after consideration of all of the evidence, you are convinced beyond a reasonable doubt that the defendant was correctly identified, you will then consider whether the State has proven each and every element of the offenses charged beyond a reasonable doubt.

We see no reversible error in the charge that was given in the context of this trial.

Defendant's second argument also revolves around one aspect of the court's charge, that dealing with accomplice liability. Defendant contends that the court failed to comply with State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993), in which we reversed a defendant's conviction as an accomplice for the failure of the trial court to make clear to the jury that an accomplice may be convicted of a lesser offense than a principal if he or she does not share the same criminal intent as the principal. Defense counsel did not object at trial to the formulation of the charge on accomplice liability although he did object to charging on the subject of accomplice liability at all.

Here, the court charged the jury twice on accomplice liability, once with regard to the crime of burglary, and again with regard to the crime of theft. Each time, the trial court clearly told the jury that in order to find defendant guilty, it would have to be satisfied beyond a reasonable doubt that it was defendant's purpose to promote or facilitate that particular crime. The trial court also told the jury each time that it had to be satisfied beyond a reasonable doubt that defendant "possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal act." There was no error in the charge.

Defendant's next argument, also raised as plain error, complains that the court's charge on "mere presence" in some manner shifted the burden of proof to him. We are satisfied that defendant misreads the charge. The trial court in no way imposed a burden of proof on defendant. It is clear from the charge read as a whole, as it must be, State v. Wilbely, 63 N.J. 420, 422 (1973), that the jury was clearly told that the burden of proof remained throughout on the State.

Similarly, we reject defendant's next argument, that the trial court erred in not instructing the jury on the lesser-included offense of criminal trespass. At a charge conference held prior to trial, both counsel agreed that criminal trespass was not, in the context of this case, an appropriate lesser-included offense.

"The 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." N.J.S.A. 2C:1-8(e). "The evidence must present an adequate reason for the jury to acquit the defendant on the greater charge and to convict on the lesser." State v. Brent, 137 N.J. 107, 118-19 (1994). "[S]heer speculation does not constitute a rational basis." Id. at 118. Based upon the testimony of the theft of the items in the house, there is no basis in the record to support a finding of criminal trespass, as opposed to burglary.

Defendant's next two arguments--that the court erred in denying his motion for acquittal and that the verdict is against the weight of the evidence--lack sufficient merit to warrant discussion in a written opinion because it would have no precedential value. R. 2:11-3(e)(2).

Defendant also challenges his sentence. The State agrees that defendant must be resentenced under State v. Natale. In connection with that remand, the trial court should again review the application for an extended term under N.J.S.A. 2C:44-3a. State v. Pierce, 188 N.J. 155, 169 (2006).

Defendant makes no complaint of the court's inclusion in its charge of a charge on flight, and thus we do not address whether it was proper. Similarly, defendant makes no complaint of the court's failure to charge the jury that Mr. Ayala had no obligation to come forward with exculpatory evidence in advance of trial.

Defendant has filed a pro se brief in which he makes the following contentions.

POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE UNITED STATES CONSTITUTION AND ART I PART 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT[']S DECISION, DENYING THE DEFENDANT[']S MOTION FOR JUDGEMENT (sic) OF AQUITTAL (sic).

POINT II THE TRIAL COURT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART I PAR 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF BURGLARY TOOLS.

Defendant's first pro se point mirrors that contained in counsel's sixth point. As to the second, nothing within the record on appeal would support presenting such a charge to the jury. It was, moreover, never requested at trial.

Defendant's convictions are affirmed. The matter is remanded to the trial court for resentencing. We do not retain jurisdiction.

 

(continued)

(continued)

18

A-2148-04T4

April 26, 2007