STATE OF NEW JERSEY v. DANIEL SANCHEZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6538-05T46538-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL SANCHEZ,

Defendant-Appellant.

_______________________________________

 

Submitted October 23, 2007 - Decided

Before Judges Winkelstein and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Ind. No. 05-06-1383.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Daniel Sanchez was charged in an Essex County indictment with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (count one); third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count two); and second-degree possession of a handgun for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count three). Tried to a jury, defendant was found guilty of all charges. Defendant appeals from his conviction and the sentences imposed. For the reasons that follow, we affirm defendant's convictions but remand for re-sentencing.

I.

We briefly summarize the evidence presented at trial. On December 23, 2004, Alex Perez (Alex) was residing on James Street in Newark, New Jersey. Sometime in the evening, Alex and his younger cousin Michael Perez (Michael) drove into the parking lot near the building where he lived. Alex noticed his sister Stephanie Perez (Stephanie) waving to him from the building. Alex and Michael walked towards the building, and Alex noticed someone alone in the middle of the street heading in his direction.

Alex recognized the man as "Flaco," a person he had known his entire life. According to Alex, "Flaco" was wearing a black jacket, blue jeans, and a black hat that covered his forehead and ears. "Flaco" fired a gun at Alex. Alex was hit once in the upper chest. He sustained internal bleeding, fractured ribs, a bruised liver, and a collapsed lung. Alex and Michael ran to Alex's home, while "Flaco" escaped through the parking lot to Orange Street. Alex was taken by ambulance to the hospital, where he learned from the police that "Flaco's" name was Daniel Sanchez.

Alex testified that he knew Giselle Turner (Turner), who had been defendant's girlfriend. Turner and Alex would see each other occasionally because Turner was a friend of Alex's cousin, Yvette. Alex stated that defendant believed that he and Turner were engaged in a romantic relationship, and that this was the reason defendant shot him. According to Alex, defendant was satisfied with his explanation that he and Turner were "just friends."

Michael initially testified that he had never seen defendant before the shooting but then said that he saw defendant "walking around" the area a few days before the incident. Michael stated that on the night in question, he did not get a good look at the shooter's face but noticed that he had "the shape of braids on the ski mask." Michael described the shooter as a Hispanic male, who was about five feet, eight inches tall; and weighed 140 to 145 pounds. Michael also said that the shooter wore a black jacket and black jeans and that after firing the weapon, the shooter ran towards Boyden Street.

Stephanie testified that she heard about three gunshots shortly after she called out to Alex and Michael. Stephanie said that Alex told her that "Flaco" was the person who shot him; however, Stephanie conceded that she did not see the shooter. Stephanie also said that she had never met Turner before the shooting.

Officer Ranee George-Wimberly (Wimberly) of the Newark Police Department (NPD) testified that she and her partner were in a mobile command center in the area at the time of the shooting. She heard gunshots and saw smoke around 9:45 p.m. The officers responded to the scene. Wimberly did not see the shooter's face because he was too far away; however, she noticed that he was wearing a black jacket and "hoodie" along with blue jeans. Wimberly saw two individuals run into the courtyard of the building, while the hooded person ran through the parking lot area. The officers searched for the shooter but returned to Alex's apartment where Alex informed them that "Flaco" was the shooter.

Detective Jack J. Clarkin (Clarkin) of the NPD was the lead detective for the incident. He testified that at the hospital, Turner introduced herself as Alex's new girlfriend. Turner said that she might know the identity of the shooter. Stephanie and Michael told Clarkin that "Flaco" was the person who shot Alex. Clarkin said that based on that information, they were able to identify defendant as "Flaco".

Clarkin and another detective showed Alex a photo array and he selected defendant's photo. Clarkin said that the officers prepared an arrest warrant but they were unable to locate defendant at the places he was known to frequent. A flyer was disseminated indicating that defendant was wanted by the police. Clarkin testified that defendant was arrested in December 2005 after the NPD received a telephone call from a detective at the Essex County jail.

Defendant elected not to testify but called Turner as a witness for the defense. Turner testified that she and defendant had been in a relationship for five years, and they had a daughter together. Turner said that she did not know the identity of the shooter, and she was not present when the shooting occurred. Turner dated defendant until May 2004. Turner began dating Alex sometime in September 2004 and their relationship lasted about a year. Turner said that she believed defendant was unaware of her relationship with Alex. Turner admitted that she told the police that defendant was known as "Flaco."

On this appeal, defendant raises the following arguments:

POINT I:

THE PROSECUTOR SPECIFICALLY ELICITED TESTIMONY FROM DETECTIVE CLARKIN, IN DIRECT CONTRAVENTION OF STATE v. ALVAREZ, 318 N.J. SUPER. 137 (APP. DIV. 1999), THAT AN ARREST WARRANT WAS OBTAINED BY POLICE AGAINST DEFENDANT (Not raised below).

POINT II:

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE DETECTIVE CLARKIN'S TESTIMONY THAT DEFENDANT WAS ARRESTED AFTER CLARKIN RECEIVED A TELEPHONE CALL FROM THE ESSEX COUNTY JAIL, WAS NOT RELEVANT TO ANY MATTER AT ISSUE, SUGGESTED THAT THIS WAS NOT DEFENDANT'S ONLY ARREST, WAS INADMISSIBLE UNDER N.J.R.E. 404(b), AND DENIED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL (Not raised below).

POINT III:

THE PROSECUTOR IMPERMISSIBLY COMMENTED ON THE DEFENDANT'S FAILURE TO TESTIFY, AND MISSTATED THE LAW, THESE INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF A FAIR TRIAL. U.S. Const., Amends. V, VI, XIV; N.J. Const., Art. I, Para 10. (Not raised below).

A. BY TELLING THE JURY THAT "YOU DON'T KNOW WHAT'S IN THE MIND OF DANIEL SANCHEZ, . . ." THE PROSECUTOR BOTH ATTEMPTED TO SHIFT THE BURDEN OF PROOF AND COMMENTED ON DEFENDANT'S RIGHT TO REMAIN SILENT.

B. THE PROSECUTOR MISSTATED THE LAW IN VARIOUS WAYS WHICH DILUTED THE BURDEN OF PROOF, AND MISSTATED FACTS IN HER SUMMATION.

C. THE PROSECUTOR IMPROPERLY BOLSTERED THE VICTIM'S CREDIBILITY WHEN HE REFERRED TO "FACTS" ABOUT LEFT-HANDED PEOPLE.

POINT IV:

THE TRIAL JUDGE ERRED IN FAILING TO TAILOR THE JURY CHARGE ON IDENTIFICATION TO THE PARTICULAR FACTS OF THIS CASE, DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10 (Not raised below).

POINT V:

THE TRIAL JUDGE OMITTED A KEY SECTION IN THE JURY INSTRUCTION ON FLIGHT, AND IMPROPERLY PLACED THE BURDEN OF DISPROVING FLIGHT ON DEFENDANT.

POINT VI:

GISELLE TURNER'S AND OFFICER WIMBERLY'S TESTIMONY AMOUNTED TO LAY OPINION CONCERNING THE CREDIBILITY OF THE VICTIM AND/OR HIS MOTHER, AND DENIED DEFENDANT A FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I., 1, 10 (Not raised below).

POINT VII:

DEFENDANT'S EXTENDED TERM SENTENCE MUST BE REMANDED PURSUANT TO STATE v. PIERCE.

II.

We first consider defendant's contention that the judge erred by permitting the assistant prosecutor to elicit testimony from Detective Clarkin that a warrant had been issued for defendant's arrest. This contention was not raised at trial. Therefore, we consider whether the admission of the evidence was erroneous and, if so, whether it was an error that "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

At trial, the State called Clarkin as a witness and on direct examination, he testified as follows:

Q. Okay. And upon receipt of the statement of the victim identifying the person who shot him and identification of the photograph of the person who shot him, what did you do next in your investigation, Detective Clarkin?

A. Armed with the information and the positive identification of Daniel Sanchez, I prepared an arrest warrant for Daniel Sanchez.

Q. Once you prepared the arrest warrant for Daniel Sanchez, did you then make an effort to execute that arrest warrant by locating Daniel Sanchez?

A. That's correct. After we got - after I had the warrant signed, yeah, I made a couple [of] efforts, couple days. I went to locations that I was advised that he lived or had lived.

Clarkin additionally testified:

Q. After you went to those locations in an attempt to locate him, what did you do next in an effort to try to execute your arrest warrant?

A. There was a wanted flyer prepared and disseminated throughout the precincts, also in our office. Again, I tried to identify any locations that he frequented.

Defendant argues that this testimony improperly implied that defendant had been taken into custody on an arrest warrant. He contends that this evidence was unduly prejudicial and its admission denied him of his right to a fair trial. In support of this contention, defendant relies upon our decisions in State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), and State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999).

In Milton, the State presented evidence that an unexecuted warrant had been issued to search defendant. We reversed the defendant's conviction because the evidence concerning the warrant implied "that sufficient independent proof had been presented to a neutral judge to believe that defendant would be found in possession of drugs." Milton, supra, 255 N.J. Super. at 520.

Similarly, in Alvarez, the State presented evidence that a warrant had been issued for the defendant's arrest, and a search of the defendant's house was undertaken pursuant to a warrant. Alvarez, supra, 318 N.J. Super. at 142. We stated that the evidence regarding the arrest warrant "suffer[ed] the exact infirmities we condemned in Milton." Id. at 148. We held that the evidence was prejudicial because it "suggest[ed] that a judicial officer with knowledge of the law and the facts believed that evidence of criminality would be found" during the search. Ibid.

However, we considered the issue again in State v. McDonough, 337 N.J. Super. 27 (App. Div.), certif. denied, 169 N.J. 605 (2001). In that case, the State presented evidence from the investigating officers who made "passing references to the arrest and search warrants." Id. at 32. We additionally distinguished Milton and Alvarez, noting that:

the evidence of the warrants in Milton and Alvarez not only indicated that a judge had found sufficient basis to justify their issuance, but also implied that the State had presented evidence to the judge that was not introduced at trial which indicated that the defendant was likely to be in possession of contraband. Consequently, the evidence of the warrants in Alvarez and Milton had the came capacity for prejudicing the defendant as the hearsay evidence of an informer's tip that the court found to constitute reversible error in State v. Bankston, 63 N.J. 263, 271 (1973), that is, that "a non-testifying witness has given the police evidence of the accused's guilt." In fact, Bankston was the sole authority cited by the court in Milton to support its conclusion that evidence of the warrant to search the defendant was inadmissible. 255 N.J. Super. at 520.

[Id. at 34.]

In this case, Clarkin testified about his investigation and how defendant was apprehended. He stated that a warrant had been issued based on Alex's identification of "Flaco" as the shooter. Under McDonough, such evidence need not be excluded. Moreover, unlike the circumstances present in Milton and Alvarez, Clarkin never implied that evidence had been presented to a judge that implicated defendant but had not been introduced at trial.

Therefore, we conclude that the admission of Clarkin's testimony regarding the arrest warrant was not erroneous.

III.

Defendant next argues that the judge erred by allowing Clarkin to testify that defendant was arrested after the NPD received a call from the Essex County jail. Defendant asserts that Clarkin's testimony "made clear to the jury that defendant was arrested for a separate offense in December 2005." Defendant argues that this evidence was unduly prejudicial and inadmissible under N.J.R.E. 404(b). These arguments also were not raised at trial. Therefore, we consider the contentions under the plain error standard. R. 2:10-2.

In response to questioning by the assistant prosecutor, Clarkin testified as follows:

Q. Now, Daniel Sanchez would not be arrested until when, Detective Clarkin?

A. I believe December, 2005.

Q. And that arrest came about upon receiving a phone call from whom?

A. The Essex County Jail.

Q. And Detective Richard Warren called you?

A. Yes.

Q. Okay. And did Detective Richard Warren assist you in effectuating the warrant?

A. Yes, he did.

As this colloquy makes clear, the prosecutor asked Clarkin to identify the person who made the phone call. The prosecutor did not ask Clarkin where the call originated. Therefore, Clarkin's reference to the Essex County Jail was unsolicited and not responsive to the prosecutor's question. Furthermore, Clarkin did not say that defendant had been incarcerated on another charge. Indeed, as the State points out, the jury could reasonably have inferred that defendant had been taken into custody for the instant offense.

We are satisfied that the admission of Clarkin's statement regarding the Essex County jail may have been erroneous but it was not an error that was clearly capable of producing an unjust result. R. 2:10-2. See State v. Engle, 249 N.J. Super. 336, 376 (App. Div.) (holding that witness's statement that he had to serve his sentence in a "separate institution" from co-defendants did not require reversal of the conviction because the statement was unsolicited and unresponsive and the statement played no part in the jury's consideration of the case), certif. denied, 130 N.J. 393 (1991).

IV.

We next consider defendant's contentions that the assistant prosecutor made improper comments during her summation. These contentions also were not raised at trial.

The principles that govern our consideration of defendant's arguments are well established. A prosecutor is "permitted considerable leeway to make forceful, vigorous arguments in summation." State v. Nelson, 173 N.J. 417, 472 (2002). An appellate court must assess the propriety of the comments "in the context of the entire trial record." Ibid. (citing State v. Morton, 155 N.J. 383, 419-20 (1998)). A prosecutor's comments, even if considered to be improper, will not result in the reversal of a conviction unless the misconduct "was so egregious as to work a deprivation of a defendant's right to a fair trial." State v. Feaster, 156 N.J. 1, 59 (1998) (citing State v. Ramseur, 106 N.J. 123, 322 (1987)).

Furthermore, in determining whether a prosecutor's statements denied a defendant a fair trial, we must consider whether defense counsel made a "timely and proper objection." State v. Ramseur, 106 N.J. 123, 322-23 (1987) (citing State v. Bogen, 13 N.J. 137, 141-42 (1953)). "If no objection is made, the remarks usually will not be deemed prejudicial." Ibid. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999).

Here, defendant contends that the prosecutor attempted to shift the burden of proof and commented on defendant's right to remain silent when she made the following statements to the jury:

There's no one way to commit a crime. You know for yourself some folks have committed crimes with face covers. Some folks have committed crimes with their face wide open. You don't know what's in the mind of Daniel Sanchez, and for you to try to draw any logical and reasonable inferences that Daniel Sanchez would not have possibly [committed] this crime with his [face] exposed is ridiculous.

According to defendant, these remarks "forcefully suggested" that defendant had an obligation to testify in this matter.

We disagree. The prosecutor's statements were in direct response to those of defense counsel, who stated in his summation that it made no sense for defendant to approach someone he knew with an open-faced ski-mask. Defense counsel asserted that a reasonable person would not expose himself to possible identification. The proseccutor's statements were a response to these arguments, not an effort to shift the State's burden of proof to defendant. In our view, the prosecutor's response was not improper. See State v. Hawk, 327 N.J. Super. 276, 284-85 (App. Div. 2000) (noting that a prosecutor need not sit idly by "as a defense attorney attacks the credibility of the State's witnesses").

Defendant next argues that the prosecutor misstated the law when she made the following statements:

I remind you again, the State reminds you that you are the finders of fact, and you are to determine where the truth lies in this case.

And to do that, you have to assess the credibility, the believability of all witnesses, including any witnesses that [were] put on by [the] [d]efense. And the State also reminds you that the burden of proof is on the State.

Defendant maintains that the prosecutor's statements were improper because the jury's duty is not to determine the truth but rather to determine whether the State has proven its case beyond a reasonable doubt.

Again, we disagree. The prosecutor never suggested that the State did not have the burden of proving its case beyond a reasonable doubt. Furthermore, it was not improper for the prosecutor to state that the jury was obligated to determine where the truth lies because every trial is "'a search for the ultimate truth.'" State v. Cary, 331 N.J. Super. 236, 244 (App. Div. 2000) (quoting State v. Briley, 53 N.J. 498, 506 (1969)). In addition, the judge made clear in his instructions that the State had the burden of proving all of the elements of the offenses beyond a reasonable doubt.

Defendant also contends that the prosecutor improperly stated the following:

Ask yourselves, Ladies and Gentlemen, are you going to say a man is not guilty of a crime because the victim comes in and tells who did it, but because no one else came in and [said], oh, I was there and I saw it, too, that [defendant] can't be guilty? That is not the test in weighing the evidence. The test is do you believe the victim.

Defendant argues that these remarks misstated the law because they implied that the jury's ultimate decision was whether or not it believed the victim, rather than whether the State had proven the charged offense beyond a reasonable doubt.

The prosecutor's remarks were made in response to defense counsel's assertion in his summation that the jury should not give Alex's identification any credence because Michael made no identification and Michael's description of the shooter was not credible. In our view, the prosecutor's statements were fair comment on the evidence. The prosecutor essentially argued that the jury could find defendant guilty if it believed Alex's testimony. There was nothing improper in her statements.

Defendant further contends that the prosecutor misstated the law when she made the following statements:

But we cannot, the State submits to you, we cannot allow Daniel Sanchez to get away with [the offenses], because of his emotions, because he couldn't control his emotions, because of whatever reason that went on between [defendant] and Alex, he had a grudge against him, he was upset with him about something, he picked up a gun on December 23rd, he waited across the street from the parking lot where he knew Alex lived, where Alex [parked] his car, where Alex would come home and come walking out, when no one is on the street[.] [H]e came across the street with that gun, he approached him, he faced him, and he shot him, and that, Ladies and Gentlemen[,] cannot go ignored. That, Ladies and Gentlemen, cannot be disregarded, despite Giselle Turner's efforts to diminish this event.

Defendant argues that these statements diluted the State's burden of proof by suggesting that unless the jury found defendant guilty, the jury would be disregarding what had occurred, and would allow defendant to "get away" with the crime even if the State had not proven its case beyond a reasonable doubt. We are not persuaded by this contention. In our view, the prosecutor's statements were fair comment on the evidence. The prosecutor did not in any way suggest that the jury should find defendant guilty even if the State had not met its burden of proof.

Defendant additionally argues that the prosecutor improperly bolstered the credibility of Michael Perez by making the following statements:

[Defense counsel] wants you to say, well, because he's left handed, he couldn't have possibly used his right hand. I don't' know, Ladies and Gentlemen, ask yourselves. Whatever hand you use, do you sometimes pick up your other hand? Do you write with your left hand?

But [the] State submits to you left-handed people have a tendency to just write with their left hand, but do everything else with their right hand, sports, bowl, fish, play cards. Too speculative.

Michael had testified that the shooter held the gun in his right hand and Turner testified that defendant only wrote with his left hand. According to defendant, the prosecutor "went far beyond the bounds of propriety" in making this factual recitation about the "habits of left-handed people."

However, the record shows that the prosecutor was responding to the statements of defense counsel, who remarked that, "If you're going to take the risk of trying to shoot someone, are you doing to do it with your dominant hand, or are you going to do it with your non[-]dominant hand?" The prosecutor suggested that the fact that defendant only wrote with his left hand did not mean that he did not shoot the gun with his right hand.

We agree with defendant that the prosecutor erred by commenting on the "habits of left-handed people." There was no evidence in the record to support the prosecutor's remarks. However, defense counsel apparently did not believe the remarks were prejudicial when they were made because he did not object. Frost, supra, 158 N.J. at 84. Viewing the record in its entirety, we are convinced that the prosecutor's remarks regarding "left-handed people" were not egregious and did not deny defendant of his right to a fair trial. V.

We turn to defendant's contention that the judge erred by failing to tailor his instructions on identification to the particular facts of this case.

The record shows that the judge instructed the jurors that defendant had denied his guilt. The judge instructed the jury on the burden of proof and then commented that:

[t]he State has presented testimony of Alex Perez. You will recall that this witness identified the defendant in court as the person who committed the shooting. The State has also presented testimony that, on a prior occasion before the trial, this witness identified a photo of the defendant as the person who committed this offense. I believe there was testimony that there was a photo array of six photos, and one was picked out by Alex Perez.

According to the witness, his identification of the defendant was based upon the observations and perceptions that he made of the perpetrator at the time the offense was being committed.

It is your function to determine whether the witness's identification of the defendant is reliable and believable or whether it is based on a mistake or for any reason is not worthy of belief.

Defendant concedes that the judge's instructions followed the Model Jury Charge on identification. However, defendant argues that the judge erred because he failed to explain, in general terms, defendant's contentions regarding the alleged weaknesses in Alex's identification.

In State v. Robinson, 165 N.J. 32, 42 (2000), the Court stated that in some situations, a judge is required to tailor the instructions to the evidence presented at trial. The Court added:

As a general rule . . . we believe that summarizing the strengths and weaknesses of the evidence is more appropriately left for counsel. That said, we intend nothing in this opinion to foreclose the trial court from referring to the facts in a charge. We note, as does the model charge, that trial courts are free to add specific factual references to the identification instruction when necessary for clarity or when the court concludes that such references are required in the interest of justice. . . . By the same token, if the court refers to the State's evidence in any significant way, it must also refer to the defendant's contrary contentions.

[Id. at 45.]

Here, the judge simply noted that Alex had identified defendant as the person who shot him. The judge did not discuss any other facts or evidence that might bear upon Alex's credibility. Moreover, the judge specifically instructed the jurors that it was their "function to determine whether the witness's identification of the defendant is reliable and believable or whether it is based on a mistake or for any reason is not worthy of belief." The judge went on to explain the manner in which the jurors should evaluate the identification, and the factors that the jurors could take into account when doing so.

We note that defense counsel did not object to the judge's instruction. In view of the judge's brief discussion of the State's evidence, and his thorough and detailed instruction regarding the jury's responsibility to determine whether Alex's identification was reliable and believable, we are convinced that the judge's failure to set forth the specific grounds upon which defendant disputed the identification was not plain error. R. 2:10-2.

Defendant additionally argues that the judge erred by failing to instruct the jurors regarding the Attorney General's Guidelines for conducting photo identification procedures. However, there was no evidence at trial concerning those guidelines and defense counsel did not request an instruction on this point. We are convinced that the absence of any reference to the Attorney General's Guidelines in the charge was not erroneous, let alone an error that was clearly capable of leading to an unjust result. Ibid.

VI.

Defendant next argues that the judge erred in his instructions on flight.

Here, the judge instructed the jury that there was some testimony from which it could infer that defendant fled shortly after the commission of the offense. The judge then stated, "The [d]efense has suggested, through the testimony of [Giselle] Turner, that the defendant remained in the area because she dropped off their daughter for visitation." The judge omitted the statement, "The defendant denies any flight." He went on to say that:

[i]f you find the defendant's explanation credible, you should not draw any inference of defendant's consciousness of guilt from the defendant's departure. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment. It is for you, as judges of the facts, to decide whether or not evidence of flight shows consciousness of guilt and the weight to be given such evidence in light of all the other evidence in the case.

Defendant argues that this charge lessened the State's burden to prove flight. Defendant contends that the instructions were flawed because he did not offer an explanation for flight; rather, he asserts that he denied any flight whatsoever.

We note that, at trial, defense counsel argued that the flight charge should not be given at all. The judge rejected that argument and stated that he would instruct the jury that defendant had denied through Turner's testimony that there was any flight in the matter. Defense counsel did not raise any specific objection to the actual charge or the omission of a statement that defendant had denied flight.

In any event, we are convinced that the instructions, although flawed, were not clearly capable of producing an unjust result R. 2:10-2. We reject defendant's contention that the charge lessened the State's burden of proof. The jurors were repeatedly instructed that defendant could not be found guilty unless the State proved all elements of the charged offenses beyond a reasonable doubt. In addition, the jury was told that defendant had denied that he was the shooter. In the circumstances, the judge did not have to tell the jury that defendant denied flight. That was implicit in his defense that he was not the person who shot Alex Perez.

Moreover, Turner testified that defendant had remained in the Newark area for about a year after the shooting. The police had disseminated a flyer indicating that defendant was wanted by the police. Defendant was not apprehended for almost a year in part because he was not found in places he might be expected to frequent. Based on this evidence, the jury could reasonably believe that defendant was evading arrest and this indicated a consciousness of guilt. Turner's testimony suggested that such a belief might not be reasonable.

VII.

Defendant additionally argues that Turner and Wimberly provided testimony that included improper hearsay and inadmissible lay opinions concerning the credibility of Alex Perez and his mother.

At trial, Turner testified on direct examination:

Q. December 23rd, 2004, the night of the shooting, you received a phone call.

A. Yes.

Q. Who was that phone call from?

A. Alex'[s] mother.

Q. What did she tell you?

At this point, the prosecutor objected and the objection was sustained.

Turner's testimony continued:

Q. What did you do after the phone call?

A. I went to the hospital.

Q. To do what?

A. To see if Alex was okay?

Q. Do you know what happened to Alex?

A. His mother told me he got shot?

On cross examination, Turner said that she did not believe Alex or his mother lied to her when they said that defendant shot Alex. Turner testified as follows:

Q. And that's because Alex was shot by Daniel Sanchez, that you were told by his mother; is that correct?

A. Yes.

Q. And did you have any reason to think his mother was not telling you the truth?

A. No.

Later in her cross examination, Turner testified as follows:

Q. And when Alex said, on December 23rd, 2004, that [defendant] shot him . . . , you didn't disbelieve him?

A. He didn't tell me. His mother did.

Q. When you heard that Alex said that, you had no reason to believe that Alex would lie about something like that?

A. No.

We agree with defendant that Turner's testimony about what Alex and his mother said to her was inadmissible hearsay. We are additionally convinced that Turner should not have been permitted to testify as to whether she believed Alex "would lie about something like that." However, we are not convinced that defendant was unduly prejudiced by this testimony. We note that defense counsel did not object to it. Moreover, Alex testified at trial. Defense counsel was able to cross examine him regarding his statements, and the jury was able to assess his credibility.

Defendant also takes issue with certain testimony given by Wimberly. During cross examination by defense counsel, Wimberly was asked whether she had ever been told by a witness in the case "that there were other individuals in the area that may have seen what happened?" Wimberly replied, "No I don't. I don't recall. Because [Alex] identified the person that shot him."

Defendant argues that Wimberly's statement was inadmissible lay opinion testimony. According to defendant, Wimberly opined that Alex told the truth when he said that "Flaco" shot him. However, Wimberly made no such assertion. She offered no opinion whatsoever as to Alex's credibility. Therefore, the contention is entirely without merit.

VIII.

We turn to defendant's contentions regarding his sentences. Defendant argues that his sentence should be vacated and he should be re-sentenced pursuant to State v. Dalziel, 182 N.J. 494 (2005), and State v. Pierce, 188 N.J. 155 (2006).

Here, the judge granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3a. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk of re-offense); (6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and (9) (need to deter defendant and others from violating the law). The judge found no mitigating factors.

After merging count three with count one, the judge sentenced defendant to a twelve-year term with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge also imposed a concurrent four-year term on count two. Appropriate fines and penalties were assessed.

We reject defendant's assertion that Dalziel requires re-sentencing because the judge failed to find a mitigating factor under N.J.S.A. 2C:44-1b(11) (imprisonment of defendant would result in excessive hardship to defendant's dependent). At trial, Turner testified that she was the mother of defendant's child and on occasion defendant would visit the child. However, there was no evidence that defendant and Turner shared custody of the child, nor was there any evidence to establish that defendant provided any support for the child. Therefore, the judge did not err by failing to find a mitigating factor under N.J.S.A. 2C:44-1b(11).

However, we agree with defendant that re-sentencing is required by Pierce, which was decided shortly after defendant was sentenced in this case. The judge imposed an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The extended term for a second-degree offense is between ten and twenty years. N.J.S.A. 2C:43-7a(3), and the presumptive extended term for such an offense was fifteen years. N.J.S.A. 2C:44-1f(1).

In State v. Natale, 184 N.J. 458 (2005), the Court eliminated presumptive terms from our sentencing scheme, and held that re-sentencing is required for all cases that were in the "pipeline" at the time of its decision, or cases where the Natale issue had been raised at trial or direct appeal. Id. at 494. In Pierce, the Court applied the Natale principles to extended-term sentencing.

The Court stated in Pierce that when the trial judge finds that a defendant meets the criteria for imposition of an extended term sentence, the maximum sentence to which defendant may be exposed "is the top of the extended-term range." Pierce, supra, 188 N.J. at 169. The Court stated:

Where, within that range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court - subject to reasonableness and the existence of credible evidence in the record to support the court's findings of aggravating and mitigating factors and the court's weighing and balancing of those factors found. . . . [The reference in State v. Dunbar, 108 N.J. 80 (1987)] to a finding of "need to protect the public" is not a precondition to a defendant's eligibility for sentencing up to the top of the discretionary extended-term range.

Moreover, just as we no longer have presumptive sentences as a starting point for a court's sentencing analysis, so too there will not be a presumptive starting point for a court's analysis within the broadened range encompassing the breadth of the original term range and the available extended-term range. As noted when, in [Natale, supra, 184 N.J. at 486], we eliminated presumptive terms from the sentencing process to avoid a Sixth Amendment violation, we expect that courts nonetheless will perform their sentencing function by using the traditional approach of finding and weighing aggravating and mitigating factors and imposing a sentence within the available range of sentences. That determination will be reviewed for reasonableness.

[Id. at 169-70.]

We are convinced that defendant must be re-sentenced in accordance with these new sentencing procedures. As stated in Pierce, the judge may consider on remand the "full range of sentences available from the bottom of the ordinary-term range to the top of the extended-term range." Id. at 174. However, defendant may not be sentenced to a term in excess of the twelve years previously imposed. Ibid.

 
Accordingly, we affirm defendant's convictions and remand for re-sentencing pursuant to Pierce. We do not retain jurisdiction.

(continued)

(continued)

29

A-6538-05T4

November 21, 2007