STATE OF NEW JERSEY v. PETER F. SANCHEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3194-04T43194-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER F. SANCHEZ,

Defendant-Appellant.

______________________________________________________________

 

Submitted April 17, 2007 - Decided June 13, 2007

Before Judges Payne, Graves and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Ind. No.

03-10-2011.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Timothy P. Reilly,

Designated Counsel, of counsel and on the

brief).

Stuart Rabner, Attorney General, attorney for

respondent (Daniel I. Bornstein, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Peter Sanchez of two counts of third-degree attempt to lure or entice a child into his motor vehicle in violation of N.J.S.A. 2C:13-6. Defendant was sentenced to two concurrent four-year prison terms. Appropriate penalties and assessments were also imposed. We affirm.

On appeal, defendant presents the following arguments:

POINT I

THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE THE ERROR[]S OF THE TRIAL COURT DENIED DEFENDANT HIS DUE PROCESS RIGHT TO RECEIVE A FAIR TRIAL (U.S. CONST. AMEND. XIV; N.J. CONST. OF 1947, ART. I, 9, 10) (PARTIALLY RAISED BELOW)[.]

(A) THE TRIAL COURT'S JURY INSTRUCTIONS WERE INADEQUATE, CONFUSING, ERRONEOUS AND MISLE[]D THE JURY BY INCORRECTLY INSTRUCTING THE JURY AS FOLLOWS: (1) BY FAILING TO INSTRUCT THE JURY THAT THE DEFENDANT'S "PURPOSE TO COMMIT A CRIMINAL OFFENSE" UNDER THE LURING STATUTE WAS LIMITED TO THE CHARGED OFFENSES, (2) BY STATING THAT A PERSON UNDER 18 CANNOT CONSENT TO SEXUAL CONTACT, AND (3) BY IMPROPERLY EXCLUDING "LEWDNESS" AS A LESSER INCLUDED OFFENSE UNDER COUNT TWO WHICH, IF FOUND, WOULD REQUIRE AN ACQUITTAL SINCE IT IS NOT A "CRIMINAL OFFENSE," A REQUIRED ELEMENT FOR THE STATE TO PROVE UNDER THE LURING STATUTE N.J.S.A. 2C:13-6[.]

(B) REGARDLESS OF THE STRATEGY DECISIONS OF COUNSEL, THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF LEWDNESS, AND THAT IF DEFENDANT'S SOLE PURPOSE UNDER COUNT TWO WAS TO COMMIT AN ACT OF LEWDNESS THEN HE COULD ONLY BE CONVICTED OF LEWDNESS, WAS REVERSIBLE ERROR[.]

(C) THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER THE COUNTS OF THE INDICTMENT FOR TRIAL PURPOSES[.]

[D] THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR A MISTRIAL FOLLOWING THE ADMISSION OF TESTIMONY THAT DEFENDANT WAS "SEEING A PSYCHOLOGIST" SO THAT HE WOULDN'T ENGAGE IN THE CONDUCT OF TRYING TO GET GIRLS INTO HIS VAN AGAIN[.]

POINT II

DEFENDANT, PETER SANCHEZ'S, CONVICTION MUST BE REVERSED SINCE HE WAS DENIED DUE PROCESS OF LAW WHEN THE TRIAL COURT DENIED DEFENDANT'S MOTION TO SUPPRESS HIS CONFESSION[.]

POINT III

THE PROSECUTOR'S ACTIONS THROUGHOUT THE TRIAL CONSTITUTED PROSECUTORIAL MISCONDUCT INCLUDING, USING INADMISSIBLE EVIDENCE REGARDING DEFENDANT SEEING A PSYCHOLOGIST AND MIS-CHARACTERIZING SAME BEFORE THE COURT AND INDIRECTLY COMMENTING ON DEFENDANT'S FAILURE TO TESTIFY[.]

POINT IV

THE DEFENDANT'S CONVICTION MUST BE REVERSED, SINCE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL SINCE TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO EITHER MOTION FOR CHANGE OF VENUE OR OBJECT TO THOSE ISSUES NOTED IN POINTS I, II & III[.]

POINT V

THE SENTENCE IMPOSED BY THE TRIAL COURT VIOLATES DEFENDANT'S RIGHT TO A JURY TRIAL UNDER THE SIXTH AMENDMENT OF THE UNITED STATES CONSTITUTION[.]

POINT VI

DEFENDANT'S SENTENCE IS EXCESSIVE SINCE THE SENTENCING COURT FAILED TO APPROPRIATELY CONSIDER MITIGATING FACTORS WHEN IMPOSING SENTENCE[.]

At approximately 4:00 p.m. on February 24, 2003, two fifteen-year-old ninth-grade girls, C.H. and T.B., were walking on Main Street in Bradley Beach when they heard a man in a red van "calling out" trying to get their attention. The girls did not recognize the man who was operating the red van, and they continued walking and talking. As the girls passed the parked van, the driver began driving at the same pace the girls were walking. According to C.H., the driver, who was subsequently identified as defendant, kept calling: "Girls, come here. I need you to come here. I need to talk to you . . . come here, come here." C.H. testified defendant was "talking loud," and he "sounded very . . . anxious." C.H. testified defendant "just said get in. Come on, get in," but the girls became scared and ran to T.B.'s father's nearby auto shop. When C.H. was asked if the person driving the red van was in the courtroom, defendant's attorney stipulated defendant was the driver of the red van. The other fifteen-year-old girl, T.B., provided similar testimony.

When the girls arrived at the auto body shop, T.B.'s mother was present and she had the girls get in her car to take them home. As T.B.'s mother was driving the girls home, T.B. saw defendant's red van, and the mother began following the van. While both vehicles were stopped at a traffic light, defendant got out of his van and confronted T.B.'s mother. T.B. testified defendant "was saying like he needed to help us or something and there were kids. And my mom just kept like yelling and telling him that she was going to the police. And then the light turned, so he got in his car." Defendant, fearful the mother would follow through with her threat, went to the Bradley Beach Police Station to make a statement. Defendant indicated to the Bradley Beach Police that he was only trying to protect the girls from some boys in the area, who were "going to harass [the girls] and do whatever."

In a subsequent written statement to the police on March 20, 2003, defendant indicated that he told the girls "to come closer, and I motioned with my hand because the[y] could not hear me." Defendant also provided the following information:

Q. Peter drawing your attention to Monday night, February 24, 200[3,] did you have an opportunity to be in this work van on Main Street in Bradley Beach?

A. Yes.

Q. And while operating your work van on Main Street in Bradley Beach did you observe two teenage girls walking on Main Street that evening?

A. Yes.

Q. Can you describe these girls for me, things like age and what they were wearing?

A. Probably sixteen or seventeen, I don't know high school kids. I don't remember, I think one was wearing a white coa[]t and the other a black jacket.

Q. Peter did you approach those girls on that evening?

A. Yes.

Q. Tell me in your own words exactly what happened.

A. I [p]ulled into the bowling alley and they [were] going to harass them and do whatever so I was going to get them in the van. They were probably twelve, thirteen[-] or fourteen[-]year[-]old kids. The girls ran towards the [a]uto[]body shop, and I figured that they would be alright there so I left.

Q. What did you say exactly when you say "I tried to get them in the van"?

A. I just told them to come closer, and I motioned with my hand because the[y] could not hear me.

Q. When did you first see these girls on Main Street and for how many blocks did you follow them?

A. I saw them by the traffic light by Ocean Park Avenue.

Q. Did you start motioning to them at that time to come by your van?

A. No. I just beeped and waved, that's it.

Q. But you continued to follow them until you had an opportunity to talk to them in the parking lot of the bowling alley right?

A. That[']s probably the only time.

Q. What was the reaction of the girls when you beeped at them at the traffic light by Ocean [P]ark Avenue?

A. They just looked that['s] all.

Q. And how about when you spoke to them and asked them to get in the van at the bowling alley?

A. They couldn't hear me.

Q. How do you know they could not hear you?

A. Because I remember one of them saying "what?"

Q. Peter, after you left the area of the bowling alley and the auto body shop, were you confronted by someone who knew these young girls?

A. Yeah, her mother.

Q. And what happened?

A. She just went ballistic on me. She accused me of all kinds of things and called me all kinds of names.

Q. And what did you do[?]

A. I tried to explain myself to her but it was no use.

Q. Did you go to the police station and tell them what happened with the girl[']s mother?

A. Yes.

Q. Why did you do that[?]

A. Because I knew she was going to come over here and make a big stink about [it]. She told me that she knew the Chief of [P]olice and that she was going to see to it that I got apprehended.

Q. What happened at the police station?

A. I explained my story to a police officer and he made a report.

On March 8, 2003, twelve days after the first incident with C.H. and T.B., there was a similar incident involving S.P., a sixteen-year-old tenth-grader at Wall High School. After leaving a nail salon, S.P. was walking home on Route 35 in Wall Township when she saw defendant standing by his van. S.P. testified defendant repeatedly called out to her asking: "What's your name[?]" and "where are you going[?]" S.P. did not respond and she attempted to avoid defendant by taking an alternate route home, but defendant pulled alongside of her in his van. According to S.P.:

A. He pulled alongside me and asked me, do you want a ride[?] And I said no. And he said where are you going[?] And I said I'm going home. And he's like well, where do you live[?] I said I live right around the corner. I don't need a ride.

And then he just . . . became more persistent. And I just told, tried to [make] myself clear to say no to him. And he kind of got angry and said to me no, really get in my car. And that's when I got really scared. And I was like, no and then he said fine and drove off.

Q. Okay. How many times would you say he asked you to get in his car?

A. Like several times, three or four.

Q. Did his mood ever change at any point while he was asking you to get in his car?

A. Yes. At first he was nice, trying to, you know. Be nice about it. And after I was trying to make myself clear, he did seem like he became angry because I wasn't getting in his car.

Q. What made you think he was angry?

A. Because he said no, really get in my car. And I just think that was being very persistent and I was saying no. And how he drove off. He was kind of speeding off. And he said fine, he sped off.

After the Wall Township Police Department notified other police of the incident involving S.P., detectives from Wall Township and Bradley Beach arranged to jointly interview defendant and to take his written statement. In his written statement, dated March 20, 2003, defendant acknowledged he asked S.P. "if she was stranded or if she needed a ride." But he claimed the encounter did not take more than "three, four or five minutes," and he drove off after she said "she only had to go another block."

Defendant's six-page written statement also contains the following information:

Q. With that in mind Peter, as well as everything else that we discussed this evening, we would like to give you an[] opportunity to be honest and tell us anything else that was going through your mind when you asked these girls on both occasions to get in your van?

A. I was hoping to maybe get to know them, I had no intention to do anything bad to them or hurt them in any way. I did not want them to think that I was some kind of lunatic or a mental basket.

Q. Has there been any other incidents other than the two we are discussing here in which you tried to get girls to get in your van?

A. No.

Q. Peter would it be fair and honest to say that you may have a problem with urges to meet young girls in your van?

A. No not necessarily to meet them in my van, more just to meet them in general.

Q. Peter what were you hoping to be the outcome after meeting these girls?

A. No relationship because I'm married and I have four children, it was really so they could get to know me I guess.

Q. Peter I would like to give you an opportunity to add anything you would like to this voluntary statement?

A. I am asking that the [S]tate to try to get me some help so that these things won't happen to me or anyone else at any other time.

When defendant was charged, the child-luring statute, N.J.S.A. 2C:13-6, provided in pertinent part:

A person commits a crime of the third degree if he attempts . . . to lure or entice a child . . . into a motor vehicle . . . with a purpose to commit a criminal offense with or against the child.

"Child" as used in this act means a person less than 18 years old.

To successfully prosecute defendant, the State was required to prove beyond a reasonable doubt each of the following elements: (1) defendant attempted to lure or entice the girls into his van; (2) the girls were under the age of eighteen; and (3) defendant had a purpose to commit a criminal offense with or against the girls. State v. Perez, 177 N.J. 540, 550 (2003). In this case, the first two elements of the offense were not seriously disputed, and the State argued that defendant's statement to the police allowed the jury to infer that defendant's purpose in attempting to lure the girls into his van was to engage in sexual conduct. Defendant contends, however, that his conviction must be reversed because the trial court erred in denying his motion to suppress his statements to the police.

The procedures the police must follow to comply with an accused's privilege against self-incrimination were established by the United States Supreme Court in Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). "The police must warn the suspect (1) of the right to remain silent; (2) that any statement made may be used against him or her; (3) that the person has a right to an attorney; and (4) that if the person cannot afford an attorney, one will be provided." State v. Knight, 183 N.J. 449, 462 (2005). Miranda warnings are given with the purpose "to neutralize the pressure inherent in custodial interrogation." State v. Smith, 374 N.J. Super. 425, 433 (App. Div. 2005).

"The State must prove beyond a reasonable doubt that a defendant's confession was voluntary and was not made because the defendant's will was overborne." Knight, supra, 183 N.J. at 462. In evaluating the voluntariness of a defendant's statement, the court should take into consideration defendant's age, intelligence, education, and criminal experience, among other relevant factors. State v. Timmendequas, 161 N.J. 515, 614 (1999). When examining the police conduct during questioning, courts should not suppress a defendant's statement because a promise was made by the police to encourage the statement, unless the promise overcame defendant's free will. State v. Starling, 188 N.J. Super. 127, 133 (Law Div. 1983), aff'd, 207 N.J. Super. 79 (App. Div. 1985), certif. denied, 103 N.J. 481 (1986). "The law is clear. Promises alone do not vitiate the voluntariness of a confession. Voluntariness depends upon all of the circumstances of a particular case." Ibid.

The only witness to testify at the pre-trial Miranda hearing was Detective Greg Carpino, a member of the Wall Township Police Department. Defendant did not call any witnesses, and he elected not to testify at the suppression hearing. When he was interviewed at the Bradley Beach Police Department on March 20, 2003, defendant was forty-one years old, a high school graduate, who spoke and wrote English, and he owned an air conditioning and heating company. The trial court's findings and conclusions included the following:

On March 19th, 2003, Det[.] Scully contacted Mr. Sanchez. We now find they've known each other for probably their whole lives. And requested that he come to Bradley Beach police headquarters' detective bureau to discuss these incidents. On March 20th about six p.m.[,] he did come. Det. Carpino and Det. Scully met him there. Scully ushered him back into the detective bureau and they advised him as to his constitutional rights, that is Scully did, using the uniform Monmouth County warning and waiver form.

He was advised as to his rights. And I find that he signed the warning waiver form, as did the two police officers. I find that he was calm. He was coherent. It did not appear that he was under the influence of anything. He was relaxed. He was interested in the discussion. He was attentive, and his responses were appropriate to the questions asked. He displayed no problems walking or talking. I asked the officer because the name Sanchez could be a Hispanic name, whether or not he understood English. He said he understood English. He showed no signs, the officer noticed no accent.

There was discussion about these two incidents, the one in Wall, Officer Carpino spent about 15 minutes questioning him about that. Scully spent about 15 minutes questioning about the Bradley Beach incident. They asked whether or not he would provide a written statement. He agreed. The officer started using a computer and typing out the statement. The first part of the typing included once again advising Mr. Sanchez as to his rights under Miranda. He was advised again as to his rights, and it appeared that he understood early on when the rights were first given and he understood again.

S-2 is the defendant's statement. It has been marked into evidence. The formal statement was started at 6:40 p.m. He got to the headquarters about six. There was a[n] oral discussion and questioning, and the formal statement was started at 6:40 p.m. It concluded at 7:32 p.m. I find that the defendant was not threatened. The detective says that Scully raised his voice a few time[s]. He never hollered at him. He never yelled at him. He didn't curse at him and threaten him.

At no time did anybody promise Mr. Sanchez anything. They didn't promise to recommend that if he was charged that he would be released to his own recognizance. They didn't tell him that he was going to be arrested. They didn't tell him he was going to be charged. They didn't know until after the statement was concluded that they were going to charge him.

I find that the statement was concluded at about 7:55 p.m. Mr. Sanchez signed this statement. He initialed each page after having the opportunity to read the statement. I find that he voluntarily, knowingly and willingly gave a statement. I find that he voluntarily, knowingly and willing waived his right to remain silent. I find that at no time was he threatened by the officers. I find that at no time was he made any promises by the officers.

There was discussion during the statement that he may need help. And the officers said we'll get help for you. I find that the requirements of Miranda have been met. So I'll permit the use of the statement.

The trial court's findings of fact and conclusions of law are supported by substantial credible evidence in the record. State v. Locurto, 157 N.J. 463, 472 (1999); State v. Johnson, 42 N.J. 146, 162 (1964); see also State v. Watson, 261 N.J. Super. 169, 177 (App. Div. 1992) (applying substantial credible evidence standard to decision to admit statements), certif. denied, 133 N.J. 441 (1993). Thus, we are convinced the defendant's motion to suppress was correctly decided.

At trial, defendant elected not to testify or call any witnesses on his behalf. In light of defendant's admissible statements to police, we conclude it was reasonable for the jury to infer that defendant's purpose in attempting to lure C.H., T.B., and S.P. into his van was to commit a prohibited sexual offense punishable by a term of imprisonment in excess of six months.

After reviewing defendant's remaining contentions in light of the record, the briefs, and the applicable law, we conclude that his arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

(continued)

(continued)

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A-3194-04T4

June 13, 2007