STATE OF NEW JERSEY v. ANTON L BERNABELA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2737-08T3

 

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

ANTON L. BERNABELA, a/k/a

ANTON BERNABELLA,

LAFFOREST GLOVER,

 

Defendant-Appellant.

_______________________________

 

Argued March 16, 2011 Decided June 17, 2011

 

Before Judges Lihotz and J. N. Harris.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-09-0845.

 

Alan Dexter Bowman argued the cause for appellant.

 

Andrew C. Olesnycky, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Mr. Olesnycky, on the brief).

 

PER CURIAM

Defendant Anton L. Bernabela appeals from his conviction for carjacking, N.J.S.A. 2C:15-2, following a jury trial, and the sentence imposed by the trial court of a term of ten years of imprisonment, subject to the eighty-five percent period of parole ineligibility set forth in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant presents these arguments for our consideration:

Point I

THE STATE'S PROOFS WERE INSUFFICIENT TO ESTABLISH [THE] COMMISSION OF A CARJACKING.

 

Point II

THE TRIAL COURT ERRED IN FAILING TO SUA SPONTE ORDER A MISTRIAL BECAUSE OF INADMISSIBLE TESTIMONY THAT APPELLANT INGESTED DRUGS PRIOR TO THE INCIDENT [Not Raised Below].

 

Point III

THE TRIAL COURT ERRED IN ITS RULING THAT A DEFENSE WITNESS COULD NOT RECOUNT THREATS UTTERED TO APPELLANT BY [THE VICTIM].

 

We have considered these arguments in light of the record and applicable legal standards. We affirm.

These are the facts taken from the trial court record. On June 14, 2007, at approximately 5:30 a.m. Patrick Williams, a driver for Plainfield Yellow Taxi, received a request for a cab at the Dunkin' Donuts on Terrill Road in Plainfield. After arriving at the location and failing to locate the caller, Williams headed back to the dispatch office. A second call for a cab came in, this time a more specific address "three houses down from the Dunkin' Donuts" on Terrill Road was given. Williams recognized the caller's voice as matching that of the previous caller. Williams returned to the designated address. After about two minutes, he saw five individuals -- Cristh Vasquez, Todd Ford, Tasheem Punter, Esther Rodriguez, and defendant -- exit a parked car which had a flat tire.

Approaching the taxicab, defendant immediately opened the driver s door, grabbed Williams leg, and attempted to pull him from the vehicle. Williams, who had the cab in gear, freed his foot and stepped on the accelerator to drive away. He stopped when defendant stated he was merely "playing" with him. Williams accepted the five individuals as passengers; defendant seated himself in the back seat, directly behind Williams.

When the cab traveled "a couple of feet," defendant struck Williams in the back of the head. Williams was not sure what hit him but stated he experienced "a burning sensation." He immediately parked and exited the cab. The three male passengers, including defendant, also exited the taxi. Defendant turned to his two friends, stating, "[t]his is where it started." Feeling threatened, Williams moved away from the cab to the sidewalk and retreated down the street. When the three males returned to the taxi, defendant entered the driver s seat of the vehicle and drove approximately one mile, where the cab was later found abandoned. Williams contacted the police.

A notice that the taxi was equipped with a video security camera was posted in the cab for passengers to view. The video camera captured the entire sequence of events; however, when the cab was located, the on-board camera had been "torn out." Nevertheless, the images were stored on a hard drive located in the trunk. Detective Frank Wilson of the Plainfield Police Department retrieved the hard drive from the owner of the taxi company.1 The silent video was played for the jury as Williams explained the sequence of events.

Ford, Punter, and Vasquez, who all pled guilty to joyriding, were called as witnesses for the defense. The video was replayed as they each testified. Additionally, defendant testified on his own behalf. Defendant admitted that he struck Williams and drove the cab after Williams "ran away." He insisted he was "in playing[-]around mode, and just jumped in the car for more laughs, . . . just something that went overboard." Defendant argued there were two events -- a period of "disorderly conduct/rowdyism" followed by the taking of the cab because the opportunity to do so presented itself.

The jury found defendant guilty of carjacking. Prior to sentencing, defendant moved for a new trial. On November 21, 2008, defendant was sentenced to ten years imprisonment, subject to the eighty-five-percent provisions of NERA. Requisite fines and penalties were imposed.2 This appeal ensued.

Defendant argues the court erred in denying his motion for acquittal. He maintains "[t]he carjacking statute was specifically enacted to interdict only violent conduct directly connected to the taking of a motor vehicle[,]" and the statute "absolutely requires a nexus between the act of violence and the taking of the vehicle." Because the State's trial proofs "were insufficient to establish a carjacking[,]" he asked that his conviction be vacated. We disagree.

When reviewing a defendant's claims of error in the denial of his applications challenging the sufficiency of the State's proofs to support conviction, R. 3:18-1, we use the same standard as the trial judge. State v. Bunch, 180 N.J. 534, 548-49 (2004); State v. Felson, 383 N.J. Super. 154, 159 (App. Div. 2006). A trial judge considering the motion for acquittal must determine whether the evidence is sufficient to warrant a conviction. State v. Reyes, 50 N.J. 454, 458-59 (1967); State v. Kluber, 130 N.J. Super. 336, 341-42 (App. Div. l974), certif. denied, 67 N.J. 72 (1975). As stated in Reyes, supra, a judgment of acquittal is not warranted where

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.

[50 N.J. at 458-59.]

 

See also State v. Wilder, 193 N.J. 398, 406 (2008); State v. Spivey, 179 N.J. 229, 236 (2004); R. 3:18-1.

Defendant was charged with carjacking, which is defined in N.J.S.A. 2C:15-2(a). The statute provides in pertinent part:

A person is guilty of carjacking if in the course of committing an unlawful taking of a motor vehicle . . . he:

 

(1) inflicts bodily injury or uses force upon an occupant or person in possession or control of a motor vehicle;

 

(2) threatens an occupant or person in control with, or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury[.]

 

[Ibid.]

 

In his review of defendant's motion, Judge Heimlich identified the sufficient direct and circumstantial evidence presented by the State, which could reasonably be relied upon by the jury to support a conviction. The State's proofs included Williams' testimony and the video surveillance tape, which the court found showed "enough evidence for the jury to think he was taking the automobile, and he either inflicts bodily injury, [or] uses force" or that defendant "threatened the person or purposely put [him] in fear."3 Williams testified defendant attempted to remove him from the taxi and later struck him over the head. Judge Heimlich noted the force used when slapping Williams on the head was not a playful tap but propelled Williams' head forward. Further, he noted Williams stated his head burned after the striking and he felt the sting for two days afterward. When all three males exited the cab, Williams believed the situation "was serious and [it was] time for [him] to bail out of the car" or face a possible assault. After Williams fled, defendant took control of the cab.

We are not persuaded by defendant's suggestion that his conduct in pulling William's legs and striking him on the back of the head are distinct events separate from the unplanned afterthought of taking the taxicab. We concur with the trial court s assessment of the evidence that the State established the elements of the offense from which the jury could reasonably find defendant guilty beyond a reasonable doubt. Accordingly, we have no basis to overturn the denial of the motion for acquittal.

Inferentially, defendant's argument also encompasses a challenge to the trial court's denial of his motion for a new trial. Ajudge may grant a new trial as being "against the weight of the evidence" if, "in the interest of justice[,]" "it clearly and convincingly appears that there was a manifest denial of justice under the law." R.3:20-1. SeealsoState v. Perez, 177 N.J.540, 555 (2003). "On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.) (citing State v. Balles, 47 N.J.331, 337 (1966), appeal dismissed and cert. denied, 388 U.S. 461, 87 S. Ct. 2120, 18 L. Ed. 2d 1321 (1967)), certif. denied, 151 N.J.470 (1997).

Applying these standards, our examination of the record discloses no miscarriage of justice occurred. In reviewing the evidence, Judge Heimlich identified the video as strong support for the jury's conviction, concluding the evidence "inescapably" revealed a carjacking:

Factually, . . . it's not something that you even have to say did it happen, did it not happen, because it's all there. . . . [D]efendant [] strikes the cab driver in the back of the head violently, so that you see the cab driver, who was sitting, his whole body goes forward into the steering wheel right towards the front where the windshield is. But for the steering wheel [he] would have gone into the windshield. He goes forward and the cab driver, when that happens, stops the car and then leaves the car because he had been just violently assaulted.

 

The defendant gets out of the car, goes up to the cab driver, and according to the cab driver, threatens him. The cab driver is so frightened, now, he runs frantically away and leaves the car there, . . . and [] defendant gets back in the car, proud of what he just did. He doesn't realize he's on camera, and he drives off. When he realizes he's on the camera he, then, puts his hand on the camera, but the whole thing has been taken.

 

Defendant next asserts the trial court erred in failing to sua sponte order a mistrial following testimony suggesting he had ingested an illicit substance prior to the incident. Defendant argues the statements were the equivalent of inadmissible other crimes evidence, the admission of which was prejudicial and denied him a fair trial. This argument was not raised before the trial court, requiring our review under the plain error standard, that is, we determine whether an asserted error was "clearly capable of producing an unjust result," requiring reversal of a conviction. R. 2:10-2.

It is necessary to provide the factual context surrounding this issue. During Ford's cross-examination the assistant prosecutor asked:

[THE PROSECUTOR]: You guys were out all night?

 

THE WITNESS: Yeah.

 

[Q]: You needed to get home?

 

THE WITNESS: We was [sic] all intoxicated. I mean, we had a lot of drugs in our system.

 

Following the assistant prosecutor's objection, the trial judge dismissed the jury. The State requested Judge Heimlich to "give an instruction to the jury to disregard the last statement, to strike the last statement by Mr. Ford." Defense counsel commented:

I avoided the issue [of intoxication and drug use], but it seems to me the State is going in the area setting up a premeditation situation "where were you?" "Why did you need to go home?" And [Ford] gave an honest answer, unprompted by anything. If the State opens the door, you get what you ask for.

 

It is clear from these comments that the defense did not believe the testimony was prejudicial. In fact, earlier in the trial, defendant attempted to elicit similar testimony, which was barred by the court following the State's objection. Judge Heimlich gave the jurors a strong curative instruction directing: "The last comment that was made in an answer that there had been intoxication and use of drugs, that shall be disregarded by you. You shall not consider it when you go back to deliberate. Okay? That s stricken."

Although Ford's statement was impermissible, "there [was] no indication that the error was anything but inadvertent," State v. LaPorte, 62 N.J. 312, 318 (1973), as it was not responsive to the assistant prosecutor's question. Further, the jury was immediately instructed in the clearest way to disregard the remark. Finally, the State's evidence of the defendant s guilt, which included the victim's testimony and contemporaneous video of the events, was strong. Following our review, we conclude that the utterance error was "inconsequential and incapable of raising a reasonable doubt as to whether it 'led the jury to a result it otherwise might not have reached.'" Id. at 318 (quoting State v. Macon, 57 N.J. 325, 336 (1971)). A mistrial was not warranted.

Finally, defendant argues a new trial is warranted because the court excluded defense testimony regarding threats toward defendant, attributed to Williams. We review a trial court s evidentiary rulings to discern whether the determination evinces an abuse of discretion. State v. Kemp, 195 N.J. 136, 149 (2008). If the trial court s evidentiary ruling is found to be erroneous, we will not reverse "unless it is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2.

On direct, in responding to the question: "Why the males exited the cab?" the following exchange took place:

[FORD]: The cab driver was making threats toward . . . [defendant] and he was saying he was going --

 

[THE PROSECUTOR]: I object. Before we get into this, it's hearsay.

 

THE COURT: Side bar, please.

Defendant did not make a specific proffer of statements attributed to Williams, except to suggest they would be inconsistent with Williams's testimony. Defendant never explained how they would differ from the cab driver's testimony or how they aided the defense. After considering counsels' arguments, Judge Heimlich redirected the inquiry, requesting Ford to state what he saw or did, without repeating any statement made by the cab driver.

Defendant asserts Ford's proffered testimony, although hearsay, was admissible as a prior inconsistent statement. He maintains the court's exclusion of the cab driver's alleged threatening statements deprived him the opportunity to present critical exculpatory evidence, denying him a fair trial. We disagree.

A prior inconsistent statement of a trial witness is admissible pursuant to N.J.R.E. 803(a),

provided it would have been admissible if made by the declarant while testifying and the statement: (1) is inconsistent with the witness testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it . . . (B) was given under oath subject to the penalty of perjury at a trial . . . .

 

At no point was Williams asked whether he threatened defendant, or any of the passengers, when he alighted from the cab. Williams stated he heard defendant say something to the two other men while outside of the taxi, but he never expressed he replied to this statement.

Moreover, the exclusion of the statement was not "clearly capable of producing an unjust result[.]" R. 2:10-2. Even though the substance of the allegation was deemed inadmissible, the defense was not undermined. Defendant was permitted to present evidence of and argue to the jury that the men exited the cab because Williams threatened defendant. Ford, Punter and defendant each claimed Williams had said something threatening. We conclude the court, in making this evidentiary ruling, properly exercised its discretion.

A

ffirmed.

1 The hard drive was then given by the police to a company in Dunellen, which transferred the images onto a digital video disc (DVD) that was played for the jury.

2 Defendant was also sentenced on an unrelated Indictment I-07-09-847, charging him with fourth-degree aggravated assault, following his guilty plea entered pursuant to a negotiated plea agreement. The court sentenced defendant to a concurrent sentence of one-year imprisonment.

3 We have not been provided with the video evidence and rely on the description of the witness and the court as set forth in the record.