STATE OF NEW JERSEY v. YAMILET DURAN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2093-06T42093-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YAMILET DURAN a/k/a

BELLY Y. MONGE DURAN a/k/a

BELLY YAMILETTE MONGE DURAN,

Defendant-Appellant.

_______________________________

 

Submitted October 20, 2009 - Decided

Before Judges Fuentes and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-01299.

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

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Reza Mazaheri, Assistant Prosecutor, on the brief).

PER CURIAM

On December 1, 2005, a Union County Grand Jury charged defendant Yamilet Duran, along with co-defendants Marie Duran, her mother; and Zoila Morales, with second-degree aggravated assault by causing serious bodily injury to another, N.J.S.A. 2C:12-1b(1) (count one); third-degree possession of a weapon (a knife) for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (count three). A jury found defendant and Morales guilty of third-degree aggravated assault by causing significant bodily injury to another, pursuant to N.J.S.A. 2C:12-1b(7), as a lesser-included offense of count one, and acquitted them of counts two and three. The same jury found Maria Duran guilty of all charges.

On September 29, 2006, the court sentenced defendant to 180 days in the Union County Correctional Facility through the Wristlet Program, and to a one-year period of probation. The court also imposed all mandatory fines and penalties. Lastly, the court directed defendant to pay $434 restitution to the Victims of Crime Compensation Board.

On appeal, defendant argues:

POINT I.

THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL NOT ONLY WITH RESPECT TO COUNT [ONE] CHARGING SECOND DEGREE AGGRAVATED ASSAULT (SERIOUS BODILY INJURY) BUT ALSO WITH RESPECT TO THE LESSER INCLUDED OFFENSE OF THIRD DEGREE AGGRAVATED ASSAULT (SIGNIFICANT BODILY INJURY) OF WHICH THE DEFENDANT WAS EVENTUALLY CONVICTED.

We affirm and remand to enter a corrected judgment of conviction indicating that defendant was found guilty of count one by a jury.

We discern the following facts from the evidence presented to the jury during the State's case. On June 25, 2005, defendant, Morales, and Carolina Rodriguez attended a party, during which defendant and Rodriguez had a physical altercation. On June 27, 2005, defendant and Morales telephoned Rodriguez's boyfriend several times inquiring as to Rodriguez's whereabouts so that they could fight her.

Later that day, while Rodriguez stood outside of her apartment building in the City of Plainfield with her two young children, Maria Duran approached Rodriguez stating, "now do to me what you did to my daughter on Saturday, bitch. Why don't you take it on with me?" While Maria Duran grabbed Rodriguez's hair, defendant and Morales approached and one of them said: "Now we [are] going to fight." Defendant and Morales cornered Rodriguez against a handrail. While defendant punched Rodriguez, Maria Duran slashed the left side of Rodriguez's face with a kitchen knife. After Rodriguez grabbed the knife out of Maria Duran's hand, the three assailants fled.

Rodriguez telephoned 9-1-1, and Plainfield Patrolman James Stillman responded. Rodriguez informed Stillman what had occurred and gave Stillman the knife. The Plainfield Rescue Squad transported Rodriguez to Muhlenberg Hospital where she received thirty-five sutures to close the wound. Ten months post-assault, Rodriguez underwent surgery to reduce the residual scar.

At the end of the State's case, defendant moved for judgment of acquittal of count one. Defendant contended that, although the State had presented evidence that Maria Duran assaulted Rodriguez with a knife, the State had failed to present evidence that defendant was aware that her mother possessed the knife prior to the assault. Defendant asserted that insufficient evidence existed for a jury to find her guilty beyond a reasonable doubt of aggravated assault under the principle of accomplice liability. The court denied defendant's motion. In so doing, the court reasoned:

The [c]ourt finds that what [the jury] could find, given reasonable inferences to the State, is that Zoila called [Rodriguez's boyfriend] prior to the attack, [stating] "tell that jerk we're looking for her." His . . . response was that "there's no problems [sic] with his girlfriend Carolina, and would you please stop bothering her." He says that to his sister. His sister says "tell her we're looking for her."

Later on, [defendant] calls and says "put that jerk on," or "put that bitch on, we're looking for her."

Clearly the communications of Zoila and from [defendant] is that they are looking for Carolina Rodriguez.

At the . . . scene Carolina is approached by Maria. And Maria verbally begins to have a discussion with her, and telling her -- I don't have the specifics, but quite a bit of language there that she [would] like to have the confrontation right now in response to what happened on June 25th.

. . . [M]aria begins to pull Carolina's hair, and at that point [defendant] and Zoila come out of the car, running towards the fight which is beginning to ensue.

At that point all three of them are into the melee . . . and . . . [defendant] throws a punch, or makes a movement towards Carolina. And according to various testimony, . . . [defendant] makes a movement to the face and the neck. And when [Rodriguez] moves her face to the left, towards Maria, and at this point [defendant] is attempting to inflict the punches, Zoila is also trying to hit her at that time, but is not making contact, because she's directly behind [defendant] and to the side is Maria. And as they push -- [defendant] pushes her with the punch towards Maria, Maria then takes the knife and slashes her across the face, causing a very large, very deep and significant wound to the bottom of the jaw area, into the -- towards the throat area.

Court finds that the jury could find that based upon all the conversations that were made by Zoila, the conversations that were made by [defendant], the activity -- [defendant] and Zoila trying to punch and harm the victim, and cornering the victim in the rail area, and punching her, and pushing her towards the mother who has the knife, the mother was then permitted to slash her with the knife, because she had no other avenue to escape. Jury can find [that] factual scenario.

Motions for judgments of acquittal are governed by Rule 3:18-1, which provides in pertinent part that at the close of the State's case, the trial court may enter "a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction." In deciding such a motion, the court applies the following standard:

Whether the evidence viewed in its entirety, and giving the State the benefit of all its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

[State v. D.A., 191 N.J. 158, 163 (2007).]

On appeal from a denial of a motion for judgment of acquittal, we apply the same standard as the trial court. State v. Pickett, 241 N.J. Super 259, 264 (App. Div. 1990).

"Under the [New Jersey Code of Criminal Justice (the Code)], an accomplice to a crime is legally responsible for 'the conduct' of the person who actually commits the crime." State v. Whitaker, 200 N.J. 444, 457 (2009) (quoting N.J.S.A. 2C:2-6). N.J.S.A. 2C:2-6(c) provides in relevant part that a person is an accomplice if: "(1) [w]ith the purpose of promoting or facilitating the commission of the offense," the person either "(a) [s]olicits such other person to commit it[,]" or "(b) [a]ids or agrees or attempts to aid such other person in planning or committing it[.]" Thus, to be found guilty as an accomplice "a defendant must act with a purposeful state of mind in furtherance of the crime." Whitaker, supra, 200 N.J. at 457.

When two individuals are charged with having committed a criminal offense as a principal and as an accomplice, "the Code requires an individualized assessment of each defendant's criminal responsibility." Id. at 458. (footnote omitted). "An accomplice is only guilty of the same crime committed by the principal if he shares the same criminal state of mind as the principal." Ibid. Thus, "[a]n accomplice who does not share the same intent or purpose as the principal may be guilty of a lesser or different crime than the principal." Ibid. Simply stated, "[t]o be found guilty as an accomplice, a defendant must not only share the same intent as the principal who commits the crime, but also must 'at least indirectly participate[] in the commission of the criminal act.'" Id. at 459 (quoting State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993)). It is against these principles that we consider defendant's argument.

On appeal, defendant presents the same argument that she raised in the trial court. Defendant contends that the court should have granted her motion for judgment of acquittal at the conclusion of the State's case because the State failed to prove that she shared the same intent as her mother. Defendant asserts that she was unaware her mother possessed the knife and intended to use it against Rodriguez during the assault.

A lack of knowledge that a principal possessed a weapon prior to committing a crime may be a valid defense when the defendant is charged as an accomplice to the crime. State v. White, 98 N.J. 122, 131 (1984). Such is the case where possession of a weapon is an element of the offense. "For example, an accomplice who does not have a shared purpose 'to commit a robbery with a weapon' is guilty of robbery not armed robbery." Id. at 459 (quoting State v. Weeks, 107 N.J. 396, 405 (1987)). However, possession of a weapon is not an element of N.J.S.A. 2C:12-1b(1). Rather, the gravamen of the offense is the nature and extent of the bodily injury inflicted or attempted to be inflicted as defined in the Code. State v. Jones, 214 N.J. Super. 68, 73 (App. Div. 1986), certif. denied, 107 N.J. 102 (1987).

Under the Code, "[b]odily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. An individual is guilty of second-degree aggravated assault if the person "[a]ttempts to cause serious bodily injury to another, or causes injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1b(1). "Serious bodily injury" is defined in the Code as "injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ." N.J.S.A. 2C:11-1b.

Whether defendant was aware that her mother possessed the knife prior to the assault was not a determinative factor in deciding the motion. The jury could have reasonably determined from the evidence presented by the State that defendant intended to promote or facilitate the infliction of serious bodily injury upon Rodriguez even if defendant was unaware that her mother possessed the knife. Defendant had fought with Rodriguez two days prior to the assault, had threatened Rodriguez both before and during the assault, had participated in assaulting Rodriguez with two other individuals, and had cornered Rodriguez so that she was unable to escape while Maria Duran assaulted her.

 
Affirmed and remanded for the trial court to correct the judgment of conviction to reflect that defendant was convicted of count one of the indictment after a jury trial.

The indictment incorrectly referenced count three as a crime of the third degree. N.J.S.A. 2C:39-5d provides that any person who commits an act in violation of that statute "is guilty of a crime of the fourth degree." Although it does not appear that the indictment was amended to correctly state the degree of the crime, the judgment of conviction, confirming defendant's acquittal of count three, references the offense as a crime of the fourth degree.

The judgment of conviction mistakenly indicates that defendant pled guilty to count one pursuant to a negotiated plea agreement.

Defendant also moved for judgment of acquittal as to the two weapon offenses. Because defendant was acquitted of the weapon offenses, the issue concerning the court's denial of that part of the motion is moot.

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A-2093-06T4

April 1, 2010