STATE OF NEW JERSEY v. JUAN ROSARIO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN ROSARIO, a/k/a GOMEZ JOSE,

a/k/a ROSARIO JUAN,

Defendant-Appellant.

_________________________________

July 22, 2014

 

Submitted February 4, 2014 Decided

 

Before Judges Espinosa, Koblitz and O'Connor.

 

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

09-03-0548.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Alison Perrone, Designated

Counsel, on the brief).

 

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant Juan Rosario was charged with three counts of threat to kill, two counts of terroristic threats and one count of witness tampering. He was acquitted of witness tampering and one count of threat to kill and was convicted of three counts of the lesser-included fourth-degree crime of harassment. He also was convicted of one count for third-degree terroristic threats. Defendant appeals his convictions and sentence. We affirm.

I

On March 17, 2009, a Bergen County grand jury charged defendant with first-degree witness tampering, N.J.S.A. 2C:28-5(a)(2) (count one); third-degree threat to kill against Ernesto Vargas, N.J.S.A. 2C:12-3(b) (count two); third-degree terroristic threats against Vargas, his mother and child, N.J.S.A. 2C:12-3(a) (count three); two counts of third-degree threat to kill against assistant prosecutor (prosecutor) Catherine Fantuzzi, N.J.S.A. 2C:12-3(b) (count four and count five); and third-degree terroristic threats against Fantuzzi, N.J.S.A. 2C:12-3(a) (count six).

On March 15, 2012, a jury convicted defendant of the following: fourth-degree harassment of Ernesto Vargas, his mother and child, N.J.S.A. 2C:33-4, as a lesser included offense of terroristic threats (count three); two counts of fourth-degree harassment of Catherine Fantuzzi, N.J.S.A. 2C:33-4, as a lesser included offense of threat to kill (count four and count five); and third-degree terroristic threats against Catherine Fantuzzi, N.J.S.A. 2C:12-3(a) (count six). Defendant was acquitted of first-degree witness tampering, N.J.S.A. 2C:28-5(a)(2) (count one), and third-degree threat to kill against Ernesto Vargas, N.J.S.A. 2C:12-3(b) (count two).

Defendant was sentenced on count six to an extended term of ten-years, with a five-year period of parole ineligibility, to run consecutively to a sentence he was then serving. He was also sentenced to concurrent eighteen-month terms on counts three, four, and five, to run concurrently to the sentence on count six.

II

Defendant committed these offenses during a trial in which he was being prosecuted for, among other things, the first-degree murder of Ralph Pinto1. Defendant made threats against Fantuzzi, the prosecutor handling the case, and co-defendant Ernesto Vargas, who was called as a witness by the State. Vargas had pled guilty to attempted kidnapping and robbery, and as part of the plea agreement consented to testifying truthfully against the co-defendants2 in the murder case.

Defendant also made threats against the prosecutor before trial, but was not indicted for those threats. The pre-trial threats were, however, admitted into evidence during the trial in which defendant was prosecuted for terroristic threats and witness tampering. We refer to this trial as the "second trial" to distinguish it from the underlying murder trial.

A

The pertinent evidence introduced during the second trial was as follows.

On November 15, 2007, the prosecutor and defendant appeared in court for a status conference in the murder case. The prosecutor placed on the record a plea offer of fifty years, with a forty-year period of parole ineligibility. In what the prosecutor described as a "very nasty, arrogant" tone, defendant retorted that he was going to put a bomb in the prosecutor's car. James Bordino, a detective who heard defendant make the threat, went to the jail later in the day to serve him with a criminal complaint.3 At the time, the detective was wearing a recording device. Upon being served, defendant repeated that he was going to kill the prosecutor. This statement was recorded.

In September 2008 the murder trial commenced. On October 2, 2008, the State called Vargas as a witness. During his testimony, defendant interrupted and angrily stated

I'm going to kill you . . . You're a dead man. You are a dead man walking. Better protect his ass. Rat motherfucker. I'm going to kill you. I catch your little kid I'm going to kill him too. Believe that. Yeah. You're tough right now, bitch. I ain't worried about it. Give me all the life all you motherfuckers want. Fuck. I kill you, you little faggot. Live in [protective custody] the rest of your life. Your mother dead.

 

Later that day defendant also threatened the prosecutor. At some point after Vargas testified, the prosecutor learned defendant had, through his attorney, passed a book to a spectator in the court room. While Fantuzzi was addressing the court with her concern that there may have been a note in the book instructing that Vargas be harmed, defendant yelled, in a tone Detective Bordino characterized as one of "high anger" that

It's a bomb. It's a bomb. The courtroom is going to blow up. That what you scared of, bitch? It's going to happen sooner or later whether I get life in prison or what. I will sit in that cell and make it happen, bitch. Remember that. I don t give a fuck how many life sentences you give me. It's going to happen, you fuckin' white bitch.

 

. . . .

 

I don t give a fuck what the fuck happens to me. You think I'm getting a fair trial? Hell, no. Bunch of racist motherfuckers. That's what the fuck you is. I'm going to kill you, you fuckin' bitch.

On October 16, 2008, defendant again threatened the prosecutor. While the court was addressing the jury, defendant looked over at the prosecutor and yelled,

Like I said I spend the rest of my life in prison but I'm going to get you.

 

. . . .

 

From inside of prison I'll take care of business. Believe that. Don't worry about my trial. From inside of prison I'll take care of mine. Believe that. Fuckin' racist bitch. Prejudiced Judge too. Racist too. I know all your moves man. I'm not stupid. I seen those hand signals. I ain't stupid. I'm a fuckin' radical fucker, motherfucker. I'll never buy into your motherfuckers.

 

. . . .

 

Give me all the life sentences you want but I promise you this. I will concentrate from inside of prison to get you killed.

 

B

 

One of the issues at the second trial was defendant's ability to carry out his threats. Under N.J.S.A. 2C:12-3(b), a charge against defendant that did not result in a conviction, a person commits a crime if he threatens to kill another with the purpose of putting him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

Vargas testified at the second trial. He stated he had been a member of a gang known as the Latin Kings, an organization in which defendant is a high-ranking member. Defendant operates by issuing orders to subordinates, who are subject to being injured or killed if they fail to comply with his orders. Defendant has access to those outside of the prison system, as inmates are able to communicate by telephone, mail, or through visitors.

Vargas had been one of defendant's subordinates and, in fact, carried out defendant's order to "handle" Pinto's murder. Vargas also testified about defendant's involvement in the attempted murder of Monica Penalba, a witness to the Pinto murder. Vargas testified that after Pinto was killed, defendant feared Penalba would go to the police, so he "found" a person to silence Penalba, who in fact tried to stab her to death.

Detective Bordino, one of the detectives in the murder investigation, testified about both the threats made before and during trial, and the security measures taken to protect the victims. On cross-examination, defense counsel engaged in a line of questioning suggesting defendant was not imminently capable of carrying out his threats because he was incarcerated.

On redirect examination, the State asked Bordino why he believed defendant's threats were credible, given that defendant was incarcerated. Bordino responded that

[W]e had information, investigative leads that the individuals involved in the homicide wanted the blond Prosecutor removed from the case and they wanted her removed so that the case would be transferred to Passaic County.

 

The defense attorney objected to the testimony on the grounds Bordino's answer did not specifically pertain to defendant and asked that the answer be stricken. The court refused, noting defense counsel would have the opportunity to expose the fact the testimony did not apply to his client on re-cross-examination or during summation.

The prosecutor also testified at the second trial. She said she is aware from her experience with prosecuting gangs and conferring with the State's gang expert that defendant is capable of ordering members of the Latin Kings, three thousand of whom live in New Jersey, to hurt her even though he is in prison. She believed the immediacy of defendant's threats because he could issue an order from his cell at any time and that, given what she knew about defendant, there was a likelihood the threats would be carried out.

On cross-examination, the defense attorney asked the prosecutor if she had any information that anyone had been ordered to do anything to her. She replied, "I am aware of the fact that there were rumors that they wanted to kill the blond prosecutor before the trial began." When confronted about why she did not withdraw from the case when initially threatened before trial, she replied she had by then put substantial time into the case and felt an obligation to try the matter to a conclusion. By the time she received the first threat made during the trial, the case had progressed to the point where it was too late for another prosecutor to take over. The case was complicated and no one knew the matter as well as she did. She also did not want to put another prosecutor in danger.

III

Defendant raises the following for our consideration:

POINT I THE ADMISSION OF HEARSAY THAT ACCORDING TO "INVESTIGATIVE LEADS," DEFENDANT "WANTED THE BLOND PROSECUTOR REMOVED FROM THE CASE" DENIED DEFENDANT A FAIR TRIAL AND HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION. U.S. CONST. Amends. VI, XIV; N.J. CONST. Art. I, 10.

 

POINT II NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Partially Raised Below).

 

POINT III EXTENSIVE OTHER-CRIMES EVIDENCE, ADMITTED WITHOUT A PROPER LIMITING INSTRUCTION, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL, NECESSITATING THE REVERSAL OF HIS CONVICTIONS.

 

POINT IV DEFENDANT'S DISCRETIONARY EXTENDED TERM, OF THE MAXIMUM BASE TERM AND MAXIMUM PERIOD OF PAROLE INELIGIBILITY, IS MANIFESTLY EXCESSIVE AND REQUIRES A REMAND.

 

A

In Point I of his brief, defendant contends that the trial court erred by admitting Detective Bordino's testimony that he had "investigative leads" that those involved in the homicide wanted the prosecutor removed from the case. Defendant argues the testimony was extremely prejudicial hearsay, as it undermined his defense that his threats were mere outbursts borne of an inability to control his temper, rather than a purpose to terrorize. Defendant complains Bordino's testimony suggested his threats were part of a calculated attempt to scare the prosecutor off the case.

However, defense counsel, who did not object to Bordino's testimony at the time of trial on the grounds of hearsay but, rather, on the grounds the statement did not reference defendant at all, elicited the same testimony from the prosecutor on cross-examination. Specifically, defense counsel asked the prosecutor, "You have no particular information as to an individual who was ordered to do anything?" In response, she countered she had been aware of rumors that "they wanted to kill the blond prosecutor before the trial began." Defense counsel made a broad, general inquiry about whether the prosecutor knew if anyone had been ordered to harm her, which triggered the response the prosecutor gave.

Further, introduction of the testimony, if error, was harmless. R. 2:10-2. "Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid. There must be "a reasonable doubt as to whether the error denied a fair trial and a fair decision on the merits." State v. Macon, 57 N.J. 325, 338 (1971). "The harmless error standard 'requires that there be some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. Lazo, 209 N.J. 9, 26 (2012).

Testimony that people wanted the prosecutor "removed" might be highly prejudicial in a different type of case. In this second trial, where the jury was regaled with evidence of severe violence actually perpetrated against individuals, the vague rumors recited were not particularly inflammatory. Defendant was acquitted of most of the more serious charges, indicating the statement did not inflame the jury or lead to an unjust result. Further, there was ample evidence to support those offenses of which he was convicted.

B

Defendant contends the State made comments during its summation that warrant a reversal. He claims the State unfairly depicted defendant as a person who refused to abide by the law, a "gross violation of the prosecutor's duty to refrain from improper tactics to secure a conviction." In support of his argument, defendant cites the following from the State's summation.

Because of his position as a Latin King he was trying to extend the territorial boundaries of the Latin King Nation into this court of law, this court of law that is in the State of New Jersey, in the United States of America. This is not the Latin King Nation.

 

The above passage is taken out of context. Just before making these comments, the State noted defendant was so intent upon making his threats that even being in a courtroom did not deter him. The State said

The other thing I'd like you to remember as you listen to the charges that Judge Guida is going to give you is that persistence equals purpose. The defendant made his purpose known loud and clear again and again and again because he made it known persistently that he was going to kill Assistant Prosecutor Catherine Fantuzzi, and yes, defendant or co-defendant Ernesto Vargas and even his mother and child. He let it be known that he was willing to do anything, even stand up and shout out his evil intent in a court of law surrounded by uniformed officers.

 

That brazen act, those brazen acts tell you how purposeful his conduct was. Because of his position as a Latin King he was trying to extend the territorial boundaries of the Latin King Nation into this court of law, this court of law that is in the State of New Jersey, in the United States of America. This is not the Latin King Nation.

 

First, defendant did not object to these comments at the time of trial, suggesting the error was not consequential. See State v. Ingram, 196 N.J. 23, 42 (2008). Second, to reverse a conviction based upon an alleged improper comment by the State, the comment must have so infected the trial as to render the resulting conviction a denial of due process. State v. Michaels, 264 N.J. Super. 579, 636 (1993), aff'd, 136 N.J. 299 (1994) (citing Darden v. Wainwright, 477 U.S. 168, 181, 106 S. Ct. 2464, 2471, 91 L. Ed. 2d 144, 157 (1986)). It is not enough that the prosecutor exceeded the bounds of fair comment on the evidence; the comments must have actually prejudiced and denied the defendant a fair trial. Ibid.

The comments here do not warrant a reversal. It is unrefuted defendant made the threats; he uttered them in open court and on the record. The comments clearly did not have the impact defendant alleges nor deny him a fair trial.

Defendant next contends that, during its summation, the State claimed both Vargas and the prosecutor were aware defendant had tried to "silence" Penalba. Defendant claims such comment was not based upon the evidence and was prejudicial as it "unfairly portrayed defendant as a murderer, making it more likely that the jury would then assume that defendant intended to kill Fantuzzi."

The State's comments were, however, supported by the evidence. Moreover, there was unrefuted evidence defendant instructed Vargas to "handle" Pinto's murder, which provided support for the contention defendant was capable of carrying out threats of violence, including murder.

Defendant claims the State improperly told the jury that it had a societal duty to convict defendant, citing the following from the State's summation in support of his argument.

All that is necessary for evil to triumph is for good people to do nothing. Catherine Fantuzzi is a good person and she refused to let evil triumph.

 

. . . .

 

And I know that the duty you have is a serious one and I would say we have proven our case. We have done our job and now I ask that you do yours and find this defendant guilty of each and every count in the indictment.

 

In fact, the State did not say the jury had a duty to convict defendant. The comment was made in reference to Fantuzzi. Further, defendant did not object to the comment, signaling defendant did not regard the error as consequential. See Ingram, supra, 196 N.J. at 42. Applying the plain error standard, we cannot say the alleged error was of sufficient magnitude to raise a reasonable doubt that the jury reached a verdict it would not have otherwise done. See State v. Feal, 194 N.J. 293, 312 (2008).

C

The court ruled that the threats made against the prosecutor before the murder trial were admissible pursuant to N.J.R.E. 404(b). The State had argued that the pretrial threats were relevant to dispel any suggestion that the threats made during the murder trial were simply outbursts caused by the stress of the trial and thus not said with a purpose to terrorize, see N.J.S.A. 2C:12-3(a), or with a purpose to put the prosecutor in imminent fear of death, see N.J.S.A. 2C:12-3(b). The State believed that evidence defendant made threats before the trial started, when he was not under as much pressure, exposed that he did intend to threaten the prosecutor. Defendant complains the admission of the pretrial threats was error.

The trial court analyzed the admissibility of the pretrial threats by applying the four-prong test in State v. Cofield, 127 N.J. 328, 338 (1992). These four factors are:

1. The evidence of the other crime must be admissible as relevant to a material issue;

 

2. It must be similar in kind and reasonably close in time to the offense charged;

 

3. The evidence of the other crime must be clear and convincing; and

 

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

[Ibid.]

 

As noted in State v. Williams, 190 N.J. 114, 131 (2007), the second prong "need not receive universal application in Rule 404(b) disputes. Its usefulness as a requirement is limited to cases that replicate the circumstances in Cofield." Ibid.

The trial court found the pretrial threats relevant because they tended to show defendant had the intent to threaten the prosecutor during the trial. The threats were similar in kind to those made during the trial, as the threats before and during trial were to physically hurt the prosecutor; the time between the pretrial threats and those made during trial was not a critical factor. Given defendant made the first pretrial threat in open court and the other was recorded by Detective Bordino in his presence, there was clear and convincing evidence defendant had made the pretrial threats. Finally, the trial court found that any prejudice was outweighed by the probative value.

When the pretrial threats were admitted, the court gave the following limiting instruction:

Before we go any further I just want to tell you, give you an instruction. I really need you to pay attention to this because it is important and I'm going to say it again later on at the end of the case.

 

This case is about Mr. Rosario being charged with making alleged threats in October 2008.

Now, the State has just introduced evidence that the defendant, Juan Rosario, threatened Assistant Prosecutor Catherine Fantuzzi on another occasion.

 

Now, normally such evidence is not permitted under our Rules of Evidence. Our rules specifically exclude evidence that a defendant has committed other crimes, other wrongs or other acts when it's offered only to show that he has a disposition or a tendency to do wrong and, therefore, he must be guilty of the charged offenses here.

 

Before you can give any weight to this evidence you must be satisfied that defendant Rosario did, in fact, make those other statements.

 

If you're not satisfied you may not consider it for any purpose. However, our rules do permit evidence of other crimes, other wrongs or other acts when the evidence is used for a specific, narrow purpose.

 

In this case the State is presenting evidence the defendant, Juan Rosario, threatened Assistant Prosecutor Catherine Fantuzzi on November 15, 2007. This evidence has been offered to convince you that defendant, Juan Rosario's threats demonstrate his intent to threaten Assistant Prosecutor Catherine Fantuzzi on the date set forth in this indictment in which is in 2008.

 

Now, whether this evidence does, in fact, demonstrate defendant Juan Rosario's intention to threaten Assistant Prosecutor is for you to decide. You may decide that the evidence does not demonstrate defendant, Juan Rosario's intent to threaten Assistant Prosecutor Fantuzzi and it's not helpful to you at all. In that case you must disregard the evidence.

 

On the other hand, you may decide that the evidence does demonstrate defendant Juan Rosario's intent to threaten Assistant Prosecutor Fantuzzi and use it for that specific purpose.

 

However, you may not use this evidence to decide that the defendant, Juan Rosario, has a tendency to commit crimes or even that he's a bad person. That is[,] you may not decide that just because defendant Juan Rosario has committed other crimes, wrongs or acts, that he must be guilty of the present crime.

 

I've admitted the evidence only to help you to decide the specific question of whether defendant Juan Rosario's threats on November 15, 2007 demonstrate that defendant Juan Rosario intended to threaten Assistant Prosecutor Catherine Fantuzzi in this instance.

 

You may not consider it for any other purpose and may not find defendant Juan Rosario guilty now simply because the State has offered evidence that he committed other crimes, wrongs or acts in the past. Understand? I just want you to keep that in mind. I'll remind you again.

 

The standard of review of an evidential Rule 404(b) ruling is the abuse of discretion standard. State v. Castagna, 400 N.J. Super. 164, 182-83 (App. Div. 2008), certif. denied, 217 N.J. 286 (2014). Under that standard, this court accords deference to the trial court "in recognition that the admissibility of extrinsic evidence of other crimes or wrongs is best determined by the trial judge[,] . . . who is in the best position to weigh the [evidence's] probative value versus potential prejudice." Ibid.

Here, the court's limiting instruction, repeated during the trial and as part of the final charge, advised the jury why the evidence was being introduced, what the jury was supposed to do with the evidence, and that the evidence could not be used as a basis to find defendant committed any crimes. See State v. Gillispie, 208 N.J. 59, 92-93 (2011). We are satisfied the trial court did not abuse its discretion in admitting evidence of the pretrial threats.

Defendant also complains the limiting instruction that accompanied the admission of the pretrial threats was inadequate. We disagree. Further, immediately after the court gave the limiting instruction, defense counsel commented that, while he had a standing objection to the admission of the pretrial threats, he did "appreciate the limiting instruction the court has given in connection with the 404(b) admission in this matter."

Subject to Rule 2:10-2, the plain error rule, the defense attorney's failure to object to the limiting instruction constituted a waiver. "If a defendant fails to object to a trial court's instructions, the failure to challenge the jury charge is considered a waiver to object to the instruction on appeal." State v. Maloney, 216 N.J. 91, 104 (2013) (citing R. 1:7-2); State v. Torres, 183 N.J. 554, 564 (2005). There was no plain error here.

D

In Point IV of his brief, defendant argues that his sentence is excessive. We review defendant's sentence for an abuse of discretion, State v. Pierce, 188 N.J. 155, 166 n.4 (2006), with "great deference" to a sentencing court's decision, State v. Bieniek, 200 N.J. 601, 608-09 (2010). "The role of appellate courts in reviewing sentences is to determine: (1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and (3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience." State v. Megargel, 143 N.J. 484, 493 (1996).

The court determined that defendant qualified for a discretionary extended term pursuant to N.J.S.A. 2C:44-3(a) because of his prior convictions. The court considered statutory aggravating factors including defendant's lengthy, serious criminal record, found no mitigating factors, and imposed the maximum term and maximum parole disqualifier for which defendant was eligible. The sentence the judge imposed is supported by the record and does not shock our conscience.

Affirmed.

 

1 Defendant, who was born in 1960, was acquitted of murder but found guilty of reckless manslaughter and other offenses, and sentenced to an aggregate twenty-year term, subject to a seventeen-year period of parole ineligibility. This sentence was consecutive to a sentence imposed in 2009 for third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), which were committed on separate dates.

2 Seventeen defendants were indicted for offenses related to Pinto's murder.

3 The record does not indicate what defendant was charged with in the criminal complaint, but both parties acknowledge the complaint arises out of the threat made in court earlier that day.