STATE OF NEW JERSEY v. JAVIER RAMIREZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4521-05T44521-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAVIER RAMIREZ,

Defendant-Appellant.

_____________________________________

 

Submitted September 19, 2007 - Decided October 17, 2007

Before Judges Parker, R. B. Coleman and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-10-0976.

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

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Jason F. Statuto, Assistant Prosecutor, of counsel, on the statement in lieu of brief).

PER CURIAM

Defendant Javier Ramirez appeals from his conviction on criminal sexual contact and attempted sexual assault charges and from the sentence imposed.

The following factual and procedural history is relevant to our consideration of the issues advanced on appeal. On May 7, 2003, defendant, then thirty years old, attempted to rape his eighteen-year-old victim. Defendant became a friend of the victim's family when she was sixteen years old. On the day in question, the victim resided with her mother. While she was home with her mother, defendant called the victim's house to speak to her mother. When the victim informed him that she was sleeping, he invited her out to smoke a "blunt" with him.

Defendant then picked the victim up, and after a few errands, he parked in front of his house and "roll[ed] the blunt," which they smoked on the way to a bar. At the bar, the victim and defendant had two drinks each. On their way to a second bar at about 1:00 a.m., defendant parked the car. While it was parked, he leaned into the victim and tried to kiss her. She pushed him away and informed him that she was not interested in an intimate relationship with him. He then "grabbed [her] head" and "pulled [her] towards him and started kissing [her] really rough." The victim then went on to describe the attack:

And then he tried to rip my shirt off and tried to kiss my breasts and I kept pushing him to stop, but he was so heavy on me.

So, as he was still holding me I had sweatpants on. So, he just pulled them right down and he jumped on top of me and he put my seat down all the way down and started kissing me again.

He tried to touch me down there and I told him to stop . . . .

. . . [H]e looked at me really mad and he's like I could really kill you right now. So, he pushed his whole body -- weight on me and pulled his pants down and just kept grabbing me and I started -- I seen a car coming.

So, I yelled the loudest I could so somebody would hear me. So, he punched me in my mouth and covered my mouth and kept caressing me really hard and he kept holding my head really, really hard and trying to kiss me again.

And I [told] him . . . I kept telling him to stop please and he's like no, I'm going to get it this time. I've been waiting two years for it.

So, he told me like he could really kill me I got really scared. So, I tried to talk . . . him out of it. I was like please, you know, if anything I will go down on you so you won't have to rape me and he's like oh, maybe. I'll think about it.

So, he got back down on his seat and I started jerking him off and I -- you know, I tried to go down on him, but I got asthma and -- when I get aggravated and I am really scared. I got a really bad asthma attack.

Well, I was jerking him off. Okay? And I couldn't breathe. I told him to give me a minute because I -- I couldn't breathe and I was jerking him off and he kept telling me to hurry up because he ain't have time -- he didn't want to wait.

So, I guess he felt kind of good when I was jerking him off and he -- he actually let go of my head and he put his head back and closed his eyes and then I just put my head down to think what I was going to do.

. . . I looked at the door and . . . the lock was easy to pull out. So, I just opened it gently so he wouldn't hear and I grabbed my stuff.

I opened the door and I pulled my pants up like as soon as I walked out the door and I started running down the street running towards . . . Zaina's. It was like maybe two blocks away.

So I seen a cab coming up the street and I actually jumped on top of the taxi so he would stop and he told me what happened and I told him that somebody tried to rape me.

Victor Lopez, the cab driver who picked the victim up after the attempted rape, testified that as the victim approached the car she was "like, afraid and desperate." After she told him that someone had tried to rape her, he told her to get into the cab and took her to a place where she could call the police. Once she was in the cab, he had his cab company dispatcher call the police. He corroborated the victim's testimony that the police did not arrive at that location and after fifteen minutes he took her to her friend at another cab company and they called the police from there. He never spoke to the police at that time.

Officer Victor Gonzalez responded when the call came in to the Paterson Police Department. He testified that the victim appeared upset and was crying. According to the police testimony, the victim did not have any visible injuries. The victim said she did not seek medical treatment after the attempted rape because she only had a cut on her lip and did not feel like medical treatment was appropriate.

After interviewing the victim, the police attempted to locate defendant. Since the victim could not remember defendant's exact address, she accompanied the police to defendant's house. The police proceeded to knock forcefully on the door for about ten minutes, but no one answered. Then they attempted to find defendant's vehicle, which was located a few blocks away from defendant's house. Subsequently, they found it and towed it as a possible crime scene.

On May 10, 2003, defendant arrived at the Paterson Police Department to report that his car had been stolen. Detective Denise Bodanski was assigned to investigate the matter and she informed the Department that if defendant came to retrieve his car, he was to be directed to speak with her. Bodanski escorted defendant into a private room, "provided him with [a] department issued rights form," and "read him his rights." Defendant waived his rights. He informed Bodanski that he and the victim went for a few drinks and then he dropped her off on Main Street in Paterson, in accordance with her request. He denied any sexual advances.

On October 16, 2003, defendant was charged with four counts in Indictment Number 03-10-0976: second-degree criminal sexual assault (fellatio), N.J.S.A. 2C:14-2(c)(1) (Count One); third- degree terroristic threats, N.J.S.A. 2C:12-3 (Count Two); third- degree criminal restraint, N.J.S.A. 2C:13-2(a) (Count Three); and second-degree criminal attempt (vaginal penetration), N.J.S.A. 2C:5-1 (Count Four).

Defendant's trial commenced on February 22, 2005. On March 3, 2005, defendant was found not guilty of sexual assault, but guilty on Count One of the lesser included offense of criminal sexual contact. Defendant was also found guilty of Count Four, attempted sexual assault. He was acquitted on Counts Two and Three.

On October 20, 2005, defendant made a motion for a judgment of acquittal and a motion for a new trial. The trial court denied both motions. On that same date, defendant was sentenced to a period of eighteen months on Count One. On Count Four, he was sentenced to a period of ten years with an eighty-five percent period of parole ineligibility to run concurrent with his sentence for Count One. N.J.S.A. 2C:43-7.2. The other appropriate fines and penalties were imposed, including compliance with the Sex Offender Registration Act. N.J.S.A. 2C:7-1 to -19.

On May 9, 2006, defendant filed a notice of appeal with respect to his October 20, 2005, conviction.

On appeal, defendant presents the following arguments:

POINT I

THE COURT ERRED IN FAILING TO PROPERLY CHARGE THE JURY AS TO THE LESSER-INCLUDED OFFENSE OF CRIMINAL SEXUAL CONTACT AS TO THE FOURTH COUNT.

POINT II

THE COURT'S JURY CHARGE ON ATTEMPTED SEXUAL ASSAULT WAS CONFUSING AS IT INITIALLY FAILED TO DEFINE EITHER THE ACTUS REUS OR THE MENS REA ELEMENTS OF A CRIMINAL ATTEMPT.

POINT III

THE COURT ABUSED ITS DISCRETION IN NOT GRANTING A NEW TRIAL WHERE THE TESTIMONY AND STATEMENT OF VICTOR LOPEZ WERE WITHHOLD [sic] FROM THE STATE'S DISCOVERY, DEPRIVING DEFENDANT OF A FAIR TRIAL.

POINT IV

THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS [OF] ATTEMPTED SEXUAL ASSAULT; CONSEQUENTLY THE CONVICTION ON COUNT FOUR MUST BE VACATED.

POINT V

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.

POINT VI

THE COURT ABUSED ITS DISCRETION IN IMPOSING A DISCRETIONARY EXTENDED SENTENCE.

POINT VII

THE COURT ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

We will consider defendant's arguments seriatim. Defendant argues that the trial court erred when it failed to properly instruct the jury as to the lesser-included offense of sexual criminal contact with respect to Count Four and the elements of criminal attempt with respect to Count Four. In order to reserve questions regarding a jury charge for review on appeal, a defendant must object "before the jury retires to consider its verdict." State v. Harris, 373 N.J. Super. 253, 270 (App. Div. 2004) (construing R. 1:7-2), certif. denied, 183 N.J. 257 (2005). Where no objection has occurred, the challenged jury charge must be reviewed under the plain error standard, Rule 2:10-2. Ibid. The plain error standard requires the reviewing court to disregard an error "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

Defendant maintains that the trial court should have instructed the jury that the lesser-included offense of criminal sexual contact may be considered with respect to the criminal attempt count. Defendant failed, however, to raise his objection to this omission from the jury charge before the jury retired for deliberations. See Harris, supra, 373 N.J. Super. at 270 (construing R. 1:7-2). Thus, this argument is subject to the plain error standard. R. 2:10-2.

The Supreme Court has held that "where the facts on record would justify a conviction of a certain charge, the people of this State are entitled to have the charge rendered to the jury, and no one's strategy, or assumed (even real) advantage can take precedence over that public interest." State v. Garron, 177 N.J. 147, 180 (2003) (quoting State v. Powell, 84 N.J. 305, 319 (1980)). Moreover, "[t]he judge is more than a referee between contestants. He is the law's representative, and it is his duty to see that the will of the law is done." Ibid. A defendant should not "be convicted of a greater crime or acquitted merely because the jury was precluded from considering a lesser offense that is clearly indicated in the record." Ibid. (emphasis added). Thus, parties cannot claim to be "surprised" when a court chooses to instruct a jury on a clearly indicated lesser-included offense. Ibid.

A trial court, therefore, must give a requested instruction for a lesser-included offense "if there is a rational basis in the record to do so." Garron, supra, 177 N.J. at 181 n.5 (citing State v. Choice, 98 N.J. 295, 298 (1985)). See also State v. Muhammad, 182 N.J. 551, 577 (2005) (holding that "[w]hen a court charges a lesser-included offense and neither party objects,

. . . we will uphold a conviction of the lesser charge so long as the evidence in the record provides rational support for the conviction"). Further, the court is obligated to give a jury charge on a lesser-included offense, absent a request, if it is clearly indicated in the record. Garron, supra, 177 N.J. at 181 n.5. Where the instruction is not clearly indicated and no request is made for such a charge, "the court need not sift through the record to determine whether any combination of facts would support a lesser charge." Ibid.

Under N.J.S.A. 2C:1-8:

d. Conviction of included offense permitted. A defendant may be convicted of an offense included in an offense charged whether or not the included offense is an indictable offense. An offense is so included when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8(d).]

The trial court, however, "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).

Here, defendant failed to request the lesser charge during trial. Moreover, he did not object to the charge that was given. Thus, the trial court was only obligated to give the lesser charge if the facts clearly indicated its necessity. Garron, supra, 177 N.J. at 180. Under the facts in this case, there is no indication that defendant did not intend to commit a sexual assault upon the victim. See Choice, supra, 98 N.J. 295. Defendant pulled his pants and those of the victim's down to vaginally penetrate her. He was on top of her. Moreover, defendant did not agree to stop his efforts at forcing intercourse until the victim, under duress, agreed to perform oral sex on him. These facts do not clearly indicate that he would have stopped his efforts to rape the victim. Thus, the trial court appropriately instructed the jury only as to criminal attempt with respect to Count Four. See Ibid. Further, the court was not required, absent a request for the lesser-included charge, to "sift through the record" to determine whether criminal sexual contact was a theoretical possibility. Garron, supra, 177 N.J. at 181 n.5.

Defendant further contends that the trial court erred in its instruction on criminal attempt because it "failed to define either the actus reus or the mens rea elements of a criminal attempt." There was no objection raised before the jury began its deliberations, so this argument is subject to the plain error standard. R. 2:10-2.

After instructing the jury on the underlying offense, the trial court gave the following charge on attempt:

[T]hese are the elements of attempt. First, that the defendant had the purpose to commit the crime of sexual assault. A person acts purposely with respect to the nature of his conduct or result thereof, if it is his conscious object to engage in conduct of that nature or to cause such a result.

A person acts purposely with respect to attendant circumstances, or he believes or hopes that they exist. The second element is that the defendant purposely did or omitted to do anything, which, under the circumstances as a reasonable person would believe them to be is an act or omission that is a substantial step in the course of conduct planned to culminate in his commission of the crime.

However, the step taken must strongly show the defendant's criminal purpose. That is, the step taken must be substantial and not just a very remote preparatory act and must show that the accused has a firmness of criminal purpose. If you find that the State has proven each of these elements beyond a reasonable doubt, then you must find the defendant guilty of an attempt to commit sexual assault.

However, if you find that the State has failed to prove any of these elements beyond a reasonable doubt, then you must find the defendant not guilty of an attempt to commit sexual assault.

The judge clearly instructed the jury on the requisites of criminal attempt. See Model Jury Charge (Criminal), Attempt (1997). Defendant's argument, therefore, lacks merit on this point.

Defendant next argues that Rule 3:13-3 required that the trial court grant his motion for a new trial due to the State's alleged deficiency in providing discovery to defendant. Rule 3:13-3(b) sets forth the requirements for post indictment discovery:

A copy of the prosecutor's discovery shall be delivered to the criminal division manager's office, or shall be available at the prosecutor's office, within 14 days of the return or unsealing of the indictment. Defense counsel shall obtain a copy of the discovery from the criminal division manager's office, or the prosecutor's office, no later than 28 days after the return or unsealing of the indictment. A defendant who does not seek discovery from the State shall so notify the criminal division manager's office and the prosecutor . . . .

[R. 3:13-3(b).]

Moreover, Rule 3:13-3(g) creates a continuing obligation for the State to supplement discovery. If a party fails to comply with their discovery obligations, the court "may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." R. 3:13-3(g). A new trial for newly discovered evidence is only warranted if such evidence is: "(1) material to the issue and not merely cumulative or impeaching or contradictory; (2) discovered since the trial and not discoverable by reasonable diligence beforehand; and (3) of the sort that would probably change the jury's verdict if a new trial were granted." State v. Bey, 161 N.J. 233, 287 (1999).

Defendant argues that he was not provided with the information related to Victor Lopez's testimony, including its corroborative nature and thus this omission denied him a fair trial. As a result, he claims that his motion for a new trial should have been granted. During this motion at trial, the State responded:

During pretrial, I indicated that -- initially [I] said approximately six weeks prior to the pretrial date we had contact with the cabdriver [Victor Lopez]. I then corrected on the record the next day that it was not six weeks, it was actually a few months ago, after I spoke with the detective, who assisted me with this case, Detective Jimenez. At which point, I said that we had contacted the detective and that he, in fact, was the fresh complaint [sic]. And that was all done during pretrial, Judge.

In addition, [defense counsel] was absolutely on notice about this corroborative information in that not only was there an indication in the police report, the responding officer's report [by Detective Gonzalez], that she met with a cabdriver who took her [a]way, but additionally, there is extensive information in the discovery that was initially provided in Detective Pleasant's report, . . . which indicates that there was a taxi driver that helped [the victim], and it says in the report from this cabdriver, which was provided over a year ago to [defense counsel], that his name was Victor, where he worked, [a] telephone number, [and] the company that he worked for, and the attempts that the detective made locating him.

He was not located by the initial detective. He wasn't located until October of 2004 by Detective Jimenez, at which point, he came in and met with myself and Detective Jimenez approximately December of 2004, at which point, no statement was taken, no notes were taken, and he was informed that he was going to have to come back, and he was going to be subpoenaed for trial.

Moreover, the substance of Lopez's testimony was outlined in the State's opening statement. Additionally, Jimenez testified that no statement was taken from Lopez and he did not take notes during this encounter.

Defendant then was on notice far in advance of trial that Lopez existed as a potential corroborating witness. Prior to trial, the State informed defendant that Lopez had been located, and Lopez was listed on the State's witness list. In addition, the State outlined Lopez's testimony during its opening statement, seven days before Lopez actually testified. The State, therefore, was not deficient in its discovery production. Further, there was no prejudice demonstrated to the defendant by the timing of Lopez's appearance. See State v. Koedatich, 112 N.J. 225, 319 (1988). We also note no adjournment was sought by the defense. See State v. Utsch, 184 N.J. Super. 575, 580 (App. Div. 1982).

The next argument raised by defendant is that the trial court should have set aside the verdict because it was against the weight of the evidence. A motion for acquittal may be made after a jury enters a verdict and "[t]he court on such motion may set aside a verdict of guilty and order the entry of a judgment of acquittal and may so order if no verdict has been returned." R. 3:18-2. In deciding such a motion, the trial court must decide "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, 459 (1967). A court should sift through the evidence when determining whether "any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Afandor, 134 N.J. 162, 178 (1993) (quoting State v. Carter, 91 N.J. 86 (1982)). The same standard applies to a reviewing court. State v. Kittrell, 145 N.J. 112, 130 (1996). Moreover, a reviewing court should not overturn a conviction simply because it would have decided the matter differently if a reasonable jury could have entered the conviction. Ibid.

In the instant case, there was ample testimony from the victim that defendant tried to vaginally penetrate her. Moreover, her testimony that she immediately ran out in front of a car for help once she escaped from defendant's car was corroborated by the cab driver, Lopez. A review of the evidence shows that a reasonable jury could have believed the victim over defendant's arguments and, thus, found him guilty. There is sufficient evidence in the record to support defendant's conviction.

A court may reverse a conviction when there are multiple errors that alone would not justify reversal, but when considered together constitute reversible, cumulative error. State v. Orecchio, 16 N.J. 125, 129 (1954); State v. Taylor, 350 N.J. Super. 20, 42 (App. Div. 2002). Defendant, however, has failed to raise errors either individually or cumulatively that rise to the level of cumulative error.

Defendant lastly raises two sentencing arguments. First, defendant contends that the trial court improperly imposed an extended term for his conviction under Count Four because it was in violation of State v. Pierce, 188 N.J. 155 (2006). This argument is apparently based on the trial judge's statement at the end of the sentencing when he said, "I'm sentencing him pursuant to the persistent offender statute." This statement is confusing. We do not see how defendant was eligible for an extended term pursuant to N.J.S.A. 2C:44-3 because the presentence report indicates only one prior conviction. Moreover, defendant was sentenced on the attempted sexual assault charge, a second-degree offense, to a ten year term, which is within the range for a second-degree conviction. See N.J.S.A. 2C:43-6a(2). We note though that the trial court reviewed on the record a report from the Adult Diagnostic and Treatment Center, which found defendant to be within the purview of N.J.S.A. 2C:47-3 ("the offender's conduct was characterized by a pattern of repetitive, compulsive behavior") and sentenced defendant to the Avenel Diagnostic and Treatment Center (ADTC). It is not clear, however, whether the judge was referring to N.J.S.A. 2C:47-3. Because the record is not clear as to what the trial judge meant by his statement, we remand the matter to the trial judge to clarify the record on that point.

Defendant also argues that the trial court erred by not finding mitigating factor ten, "[t]he defendant is particularly likely to respond affirmatively to probationary treatment." N.J.S.A. 2C:44-1(b)(10). Because defendant served a probationary term for his prior conviction for sexual assault and at the time of sentencing had a pending case in the Superior Court for a subsequent sexual assault, both of which had similar facts as the facts underlying this matter, the court's decision to disallow mitigating factor ten was not an abuse of discretion.

Having reviewed all of defendant's points we find them without merit and, therefore, affirm the conviction in all respects, except that we remand the matter to the trial judge to clarify the record regarding his "persistent offender" comment. We do not retain jurisdiction.

During a pre-trial conference, Count Four was corrected to reflect a second degree offense rather than a third degree offense. The implications of this amendment were explained to defendant and he was asked whether he wanted to proceed to trial or negotiate a guilty plea. Defendant indicated his desire to proceed with the trial.

(continued)

(continued)

20

A-4521-05T4

RECORD IMPOUNDED

October 17, 2007