STATE OF NEW JERSEY v. HECTOR S. ALVAREZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3332-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR S. ALVAREZ,

Defendant-Appellant.

_________________________________

December 21, 2012

Submitted December 11, 2012 - Decided

Before Judges Reisner, Yannotti, and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-12-2012.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Hector S. Alvarez appeals from a September 30, 2010 judgment of conviction for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1, and fourth-degree attempted theft, N.J.S.A. 2C:5-1 and 2C:20-3. Alvarez was sentenced to an aggregate term of nine years imprisonment, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, Alvarez argues through counsel and a pro se supplemental letter brief that the trial court committed several substantial errors warranting reversal of the judgment of conviction, and that the resulting sentence imposed was manifestly excessive. We have reviewed the record, considered each of Alvarez's arguments, and find them all unpersuasive. We affirm.

I.

The charges against Alvarez, who was a New York City police officer at the time, stem from events that primarily occurred on May 18, 2007, involving a botched robbery of an alleged money launderer and drug dealer in Rutherford. On that date, around 6:00 a.m., Alvarez and fellow police officer Miguel Castillo met at the 33rd precinct in Washington Heights. Both men were dressed in khaki pants and a blue blazer, with bulletproof vests under their jackets and handcuffs in their pockets. Alvarez wore a firearm in a holster.

Alvarez and Castillo were also in possession of a newly-purchased sledgehammer and pry bar, intended to assist in their plan to break open their victim's makeshift furniture in search of hidden currency. Additionally, the men had a large duffel bag intended to transport the money. By 7:30 a.m., Alvarez and Castillo were at the victim s two-family dwelling, knocking on his door.

The victim testified that when he answered the door, Alvarez and Castillo stood wearing ties and jackets, and he observed the bulge of their bulletproof vests. Alvarez and Castillo identified themselves as either police or private investigators. One told the victim, "we have a warrant to question you," and a scuffle ensued when Alvarez and Castillo attempted to enter the entranceway to the victim's apartment. At that moment, the victim began to shout, "Fuck you, you guys ain t cops, get the fuck out of here!"

The commotion drew the attention of the victim's downstairs neighbor, who also happened to be the owner of the premises. She stepped out into the common hallway and asked Castillo and Alvarez what was going on and whether they had a search warrant. They told the neighbor that they were involved in an investigation but they did not have a search warrant. Alvarez and Castillo left "right away," but not before another neighbor observed the men get into a black sport utility vehicle with New York license plates. This neighbor then notified the Rutherford police department, relaying a description of the vehicle and its license plate number. The entire incident took less than five minutes to unfold.

Rutherford police officers quickly arrived at the scene to investigate. Using the license plate supplied by the victim's neighbor, Rutherford police detectives set out to find the vehicle. In short order, they located it and carried out a motor vehicle stop on the approach to the Lincoln Tunnel. As the detectives drew near to the sport utility vehicle, they observed on the rear seat two bulletproof vests and a "large black bag" with the words, "Police" and "Emergency NYPD Squad," embroidered on the outside. When asked for identification, Castillo maintained that he and Alvarez had traveled to Rutherford to conduct a private investigation. Alvarez added that they were investigating a tip about a man who was transporting drugs between New York and Rutherford.

Alvarez s service weapon was taken. Although the men were not formally under arrest, Alvarez and Castillo agreed to return to Rutherford, and they were transported to police headquarters in police vehicles. Detectives also took the keys to the sport utility vehicle together with Alvarez s and Castillo s driver's licenses and police identifications. Alvarez continued to possess his cellular telephone, and he made several calls while traveling to the Rutherford police station.

At approximately 8:45 a.m., Alvarez and Castillo arrived at Rutherford police headquarters where they were separated for further questioning. During that time, Alvarez was free to roam around the detective bureau, where he was observed "speaking on his phone a lot, sitting, walking around." At one point, Alvarez handed his cellular telephone to a Rutherford police officer, asking that he speak with someone who identified himself as "a PBA lawyer." In the brief conversation that followed, the police officer told the putative PBA lawyer that Alvarez was not under arrest and that he was free to leave.

At around the same time, a Rutherford police officer contacted the New York City police department, eventually speaking with an officer in its internal affairs department. New York City Deputy Inspector Dan Carione, Queensboro Commander for Internal Affairs, was tasked with investigating the developing situation in Rutherford. He collected the internal affairs history of Alvarez and Castillo, their personnel history, and their official police department photographs. Carione identified Alvarez and Castillo as probationary members of the New York City police department. He testified that "[t]here was no way in any shape or form or fashion a police officer assigned to either of their units would be involved with leaving the City in the early hours of the morning to conduct an arrest of an individual in another state."

Consequently, Carione requested that Alvarez s and Castillo's cellular phones be turned over to the Rutherford police. He also managed to speak directly to Alvarez and Castillo. Carione explained to them that they were "on duty," and that he was on his way to meet them in Rutherford. At about 10:30 a.m., Carione arrived and promptly instructed Alvarez and Castillo to remain compliant. Alvarez spontaneously attempted to discuss the incident, but Carione stopped him.

At approximately 2:45 p.m., Lieutenant Timothy Condon of the Bergen County Prosecutor's Office Special Investigations Squad arrived at police headquarters to oversee Alvarez's interrogation. Meanwhile, the uncooperative victim was insisting upon the opportunity to speak with counsel before being interviewed by police at his apartment.

Back at police headquarters, Alvarez was advised of his Miranda rights, which he waived, before questioning ensued. In the midst of Alvarez's interview, but prior to conceding his involvement with Castillo, Alvarez asked an unidentified police officer, "LT, is a PB . . . PBA lawyer here?" Alvarez received a negative response. Later, without the re-administration of Miranda warnings, Alvarez admitted that he conspired with Castillo and another individual, Victor F. Sandoval, to rob the victim. Alvarez's video-recorded interrogation was presented to the jury at trial.1

Alvarez and Castillo were consequently arrested and charged with several crimes. Carione informed them that they were officially suspended from duty. He explained that New York City police department protocol afforded them the option of resigning from the department. Both Alvarez and Castillo elected to proceed with that option in order to avoid being fired.

At trial, Castillo testified against Alvarez as part of his plea agreement.2 Castillo testified that he, Alvarez, and Sandoval devised a plan to intimidate the victim into turning over what was purported to be stolen money. Alvarez did not testify in his own defense. Alvarez s counsel maintained during opening and closing arguments that his client employed poor judgment but that he did not commit a crime.

Although the jury acquitted Alvarez of first-degree armed robbery, second-degree armed burglary, second-degree unlawful possession of a firearm, second-degree unlawful use of a body vest, and fourth-degree impersonating a law enforcement officer, it convicted him of second-degree conspiracy to commit robbery, and fourth-degree attempted theft as a lesser-included offense of armed robbery. This appeal ensued.

II.

On appeal, Alvarez presents the following arguments:

POINT I: THE CONVICTIONS MUST BE REVERSED BECAUSE THE INCULPATORY PORTION OF DEFENDANT'S STATEMENT WAS OBTAINED FOLLOWING A CLEAR, YET UNHEEDED, REQUEST FOR COUNSEL.

POINT II: EVIDENCE THAT AN INDICTED CO-CONSPIRATOR WAS A FUGITIVE FROM JUSTICE SHOULD NOT HAVE BEEN ADMITTED; AND EVEN IF IT WERE RELEVANT TO A MATERIAL ISSUE IN DISPUTE, THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT IT COULD NOT BE USED AS SUBSTANTIVE EVIDENCE OF DEFENDANT'S GUILT VIOLATED DEFENDANT'S RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. (Not Raised Below)

POINT III: TESTIMONY THAT DEFENDANT AND CASTILLO RESIGNED FROM THE POLICE FORCE ON THE DAY OF THEIR ARREST WAS IRRELEVANT AND UNDULY PREJUDICIAL. (Not Raised Below)

POINT IV: THE MATTER SHOULD BE REMANDED FOR IMPOSITION OF A REDUCED SENTENCE.

His pro se supplemental letter brief adds the following contentions for our review:

POINT I: THE PETITIONER/APPELLANT CONTENDS HE WAS DEPRIVED OF THE FOURTEENTH UNITED STATES CONSTITUTIONAL AMENDMENT RIGHT TO DUE PROCESS OF LAW SECURED BY ART. 1, PAR. 1 OF THE NEW JERSEY CONSTITUTION ESTABLISHED IN (1947),

POINT II: POLICE INTERROGATION CONTINUED EVEN AFTER THE ASSERTION OF THE RIGHT TO COUNSEL, THUS CONSTITUTING A VIOLATION OF MIRANDA TO INCLUDE VIOLATIONS OF ART. 1, PAR. 10, AND THE EARLIER PROVISION IN ART. 1, PAR. 8, OF THE 1844 CONSTITUTION.

POINT III: THE PETITIONER/APPELLANT WAS DEPRIVED OF THE FIFTH UNITED STATES CONSTITUTIONAL AMENDMENT RIGHT TO A FAIR AND LEGAL TRIAL.

We are unpersuaded by all of these arguments and affirm.

A.

Alvarez's first claims that his motion to suppress statements made by him in the presence of the Rutherford police should have been granted. He argues that the incriminating statements used against him at trial were collected in violation of his constitutional right to confer with defense counsel prior to speaking with investigators. Accordingly, he urges that the jury should not have heard those statements and because it did, his conviction must be reversed.

The Fifth Amendment to the United States Constitution and our State's common law guarantee criminal defendants a right against self-incrimination. State v. Presha, 163 N.J. 304, 312- 13 (2000). Admissibility of a defendant's custodial statements requires a knowing, intelligent, and voluntary waiver of that right. Miranda v. Arizona, 384 U.S. 436, 444-45, 86 S. Ct. 1602, 1612, 16 L. Ed. 2d 694, 706-07 (1966). Absent such waiver, which must be demonstrated by the State beyond a reasonable doubt, custodial statements generally may not be used against a defendant. State v. O'Neill, 193 N.J. 148, 168 & n.12 (2007).

Alvarez argues that there is no question that he requested an attorney. He adds, "[a]lthough the lower court's opinion makes no mention of defendant's request," the interrogation video unambiguously reveals that he inquired whether a PBA lawyer was present at the police station. Alvarez further contends that "inexplicably, that officer never communicated the request to the interrogating officer." Alvarez, however, does concede that "it is within the realm of possibility" that the officer may have interpreted the question not as a request but as the voicing of concern regarding his future employment.

In State v. Alston, 204 N.J. 614, 619-625 (2011), our

Supreme Court outlined the legal principles applicable to our review. As initially articulated in Miranda, if the accused "indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning." Miranda, supra, 384 U.S. at 444-45, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. Once a request for counsel has been made, an interrogation may not continue until either counsel is made available or the suspect initiates further communication sufficient to waive the right to counsel. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S. Ct. 1880, 1884-85, 68 L. Ed. 2d 378, 386 (1981). "[A] suspect need not be articulate, clear, or explicit in requesting counsel; any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel." State v. Reed, 133 N.J. 237, 253 (1993). "[I]f the words amount to even an ambiguous request for counsel, the questioning must cease, although clarification is permitted; if the statements are so ambiguous that they cannot be understood to be the assertion of a right, clarification is not only permitted but needed." Alston, supra, 204 N.J. at 624.

Not every reference to a lawyer will require a halt to questioning. In State v. Messino, 378 N.J. Super. 559 (App. Div.), certif. denied, 185 N.J. 297 (2005), the defendant effectively asked the officer for advice, asking "[d]o you think I need a lawyer?" Id. at 573. The officer told him it was his responsibility to tell the defendant he had a right to a lawyer but "that was his call." Ibid. We held that, unlike such statements as "Maybe I should have an attorney," Maglio v. Jago, 580 F.2d 202, 203 (6th Cir. 1978), or "I had better talk to lawyer," United States v. Clark, 499 F.2d 802, 805 (4th Cir. 1974), the defendant's request for advice was not an assertion of the right to counsel. Messino, supra, 378 N.J. Super. at 578. However, in State v. Chew, 150 N.J. 30, 63 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999), overruled on other grounds by State v. Boretsky, 186 N.J. 271, 284 (2006), the Court held that "an equivocal request for an attorney is to be interpreted in a light most favorable to the defendant," and that where defendant makes an equivocal request for counsel, "questioning should cease and the police should inquire of the suspect about the correct interpretation of the statement." Ibid.

Our courts "utiliz[e] a totality of the circumstances framework for determining whether a particular defendant has invoked his or her rights" related to the privilege against self-incrimination through a "careful and searching review of all of the facts and circumstances surrounding any defendant's interrogation." State v. Diaz-Bridges, 208 N.J. 544, 572 (2012). To determine whether a waiver resulted from a voluntary decision, we consider "'the suspect's age, education and intelligence, advice concerning constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature, and whether physical punishment and mental exhaustion were involved.'" State v. Knight, 183 N.J. 449, 462-63 (2005) (quoting State v. Galloway, 133 N.J. 631, 654 (1993)).

Alvarez's circumstances belie his claim that his question about the whereabouts of a PBA lawyer amounted to even an equivocal request for counsel. As a police officer versed in Miranda warnings, Alvarez never cut short the interview, stood mute, or otherwise manifested an interest in either speaking to an attorney or waiting for one to arrive. His curiosity about a PBA attorney neither triggered a need for clarification nor mandated a breather until new Miranda warnings could be administered.

Assuming that the jury's consideration of Alvarez's incriminating statements violated federal or state constitutional rights, we are nevertheless satisfied the error was harmless beyond a reasonable doubt. See State v. Burris, 145 N.J. 509, 546 (1996) (Stein, J., concurring). We acknowledge that a violation of a defendant's federal constitutional right can be reversible error, except if the error "was harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 828, 17 L. Ed. 2d 705, 710-11 (1967), overruled on other grounds by Brecht v. Abrahamson, 507 U.S. 619, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993); see also State v. W.B., 205 N.J. 588, 614 n.12 (2011). Self-incrimination violations are subject to the harmless-error analysis. SeeState v. Marshall, 123 N.J.1, 121 (1991) (applying harmless-error analysis to violations of defendant's constitutional privilege against self-incrimination).

Here, there was powerful, compelling evidence from Alvarez's confederate Castillo, as well as from the victim and the neighbors, about Alvarez's role in the conspiracy and attempted robbery. Moreover, there was physical evidence found in the sport utility vehicle that strongly supported the State's theory of the case. Finally, the highly suspicious sequence of events in the early morning hours of May 18, including Alvarez's questionable law enforcement status in New Jersey, fortified the ultimate determinations of the jury. That Alvarez was acquitted of more charges than he was convicted does not alter the picture of Alvarez's complicity in unlawful activity in New Jersey. Accordingly, we conclude that even if the admission of Alvarez's statements were erroneous, it was harmless beyond a reasonable doubt.

B.

Next, Alvarez contends that the trial court should have limited the effect of the evidence of Sandoval's fugitive status on the jury's deliberation of his guilt. Alvarez argues that Sandoval's fugitive status was irrelevant and that the trial court's failure to instruct the jury that Sandoval's absence could not be substantively used to determine Alvarez's guilt denied him a fair trial. We disagree.

"A trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Rose, 206 N.J. 141, 157 (2011). "However, if the party appealing did not make its objection to [the] admission known to the trial court, the reviewing court will review for plain error, only reversing if the error is 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2); see also State v. Torres, 183 N.J. 554, 564 (2005). Plain error does not exist on this record.

First, evidence of Sandoval's fugitive status was relevant. The State alleged that Alvarez, Castillo, and Sandoval conspired to rob the victim. Alvarez and Castillo attempted to flee to New York City when their plan was foiled. It was demonstrated that Alvarez immediately contacted Sandoval to warn him that things had not gone well. Alvarez, notably, also spoke with Sandoval a few more times before his phone was seized by the Rutherford police. Consequently, Sandoval managed to evade the reach of law enforcement. This testimony was relevant because it occurred in the course of the conspiracy, which hindered Sandoval's arrest.

Secondly, Alvarez's contention that the trial court's purported failure to charge the jury sua sponte that Sandoval's absconding could not be used as substantive evidence of his guilt is unpersuasive. Alvarez was acquitted by the jury of numerous charges, which further demonstrates that he was not prejudiced by the mention of Sandoval's fugitive status.

Lastly, we find no abuse of discretion in the trial court's treatment of the evidence or in the manner of explaining the applicable law to the jurors. Alvarez's contention that his trial was unfair is meritless.

C.

Alvarez also argues as plain error that the testimony concerning his and Castillo's resignation from the New York City police department on the day of their arrest was improperly admitted into evidence because it was both irrelevant and unduly prejudicial, citing N.J.R.E. 403 (stating "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury"). We do not agree.

A party moving to exclude evidence under N.J.R.E. 403 has the burden of convincing the court that the risk of prejudice substantially outweighs the probative value. State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000). The probative value must be "'so significantly outweighed by [its] inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." State v. Covell, 157 N.J. 554, 568 (1999) (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)).

Here, Carione testified that even if it were true that Alvarez and Castillo had gone to Rutherford to investigate a tip about an individual involved in the drug trade between New York and New Jersey, their violation of New York City police department protocol would have resulted in their termination regardless if their acts amounted to criminal offenses. This statement was notably employed by defense counsel who argued to the jury that regardless of the legality of Alvarez's conduct, "whatever happens here today [Alvarez] is never going to get his job back." We fail to see how Alvarez's resignation in the face of the myriad of evidence against him either was unduly prejudicial or had the capacity to improperly influence jurors.

D.

Alvarez's last argument concerns the propriety of his nine-year NERA sentence. He contends that the sentence is manifestly inappropriate and that we should order a reduction of the sentence "to the mid-point of the second-degree range" or remand to the trial court for a reassessment of the aggravating and mitigating factors. Finding nothing substantially amiss in the trial court's discretionary sentencing determination,3 we decline Alvarez's invitation to intervene.

In reviewing a "sentence challenged for excessiveness[,] [t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). When the judge has followed sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, an appellate court will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364; accord State v. Cassady, 198 N.J. 165, 183-84 (2009). Here, the trial judge's findings regarding the sentencing factors were substantially supported by the record, except for aggravating factor two (vulnerability of the victim), which the State concedes "was improperly found." Nevertheless, there was substantial compliance with the Code of Criminal Justice, N.J.S.A. 2C:1-1 to 2C:104-9; the excision of aggravating factor two does not materially change "the landscape of the aggravating/mitigating factors," and the aggregate sentence does not shock our conscience.

Affirmed.4

1 Alvarez unsuccessfully moved to suppress his statements before the trial began. The trial judge conducted a testimonial hearing and issued a thirteen-page opinion finding that "the State has met its burden of proving beyond a reasonable doubt that the defendant [was] advised of [his] rights, and proceeded to provide all statements knowingly, voluntarily, and intelligently." The denial of this suppression motion forms the basis for many of Alvarez's arguments on appeal.

2 Sandoval, indicted for conspiracy along with Alvarez and Castillo, was a fugitive at the time of trial. Among other things, Sandoval was accused of supplying the sport utility vehicle that transported Alvarez and Castillo to Rutherford on February 18, 2007. Also, there were at least five attempted telephone calls between Alvarez and Sandoval on the morning of the crimes.

3 Calling Alvarez "a dirty cop" at sentencing, the trial court found aggravating factors one, two, three, four, and nine were applicable. N.J.S.A. 2C:44-1(a)(1), (2), (3), (4), and (9). It also applied mitigating factor seven, but "[gave] very little weight" to it. N.J.S.A. 2C:44-1(b)(7). In the balance, the trial court found the aggravating factors "overwhelm[ed] the landscape of the aggravating/mitigating factors," and accordingly imposed the nine-year NERA sentence. In a subsequent amplification pursuant to Rule 2:5-1(b), the trial court referred to Alvarez as "this 'rogue cop' [who] not only stained the reputation of all law enforcement officers but also breached the public's trust in law enforcement."

4 The arguments contained in Alvarez's pro se supplemental letter brief do not warrant further discussion because they are duplicative of the arguments made by his designated appellate counsel or are meritless. R. 2:11-3(e)(2).