STATE OF NEW JERSEY v. ERIC NIEVES

NOT FOR PUBLICATION WITHOUT THE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.

ERIC NIEVES, a/k/a JASON NIEVES,

Defendant-Appellant.

_____________________________________

March 7, 2014

 

Submitted September 11, 2013 Decided

 

Before Judges Grall and Waugh.

 

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

10-02-0238.

 

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

 

John J. Hoffman, Acting Attorney General, attorney for respondent (Hillary Horton, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

The grand jurors for Middlesex County returned an indictment charging defendant Eric Nieves in ten counts involving four residential burglaries and related crimes committed in 2009. Three counts charged defendant only, and the remainder charged him with one or both of his codefendants, Andrew W. Zeleniak and Victor Torres.

Defendant was tried alone, and the jury found him guilty of ten third-degree crimes: four burglaries, N.J.S.A. 2C:18-2; three thefts, N.J.S.A. 2C:20-3; dealing in stolen property between May 2 and September 26, 2009, N.J.S.A. 2C:20-7.1b; receiving stolen property during the same period, N.J.S.A. 2C:20-7; and conspiracy based on his agreement with codefendants Zeleniak and Torres to commit burglary, theft and fencing "between on or about" May 2 and September 25, 2009, N.J.S.A. 2C:5-2, :18-2, :20-7.1.

The judge did not merge any of the convictions and sentenced defendant to an aggregate sentence of twenty-five year's imprisonment with 150 months twelve and one-half years of parole ineligibility. The individual sentences are discussed in Part III of this opinion.1 In addition to the requisite monetary fines, penalties and assessments, the judge also ordered restitution in the total amount of $4767.

Defendant raises four issues on this appeal:

I. THE COURT ERRED IN ACCEPTING THE

STATE'S LEGALLY ERRONEOUS ARGUMENT THAT A LESSER-INCLUDED OFFENSE OF THEFT SHOULD NOT BE CHARGED WITH RESPECT TO THE ALVAREZ BURGLARY BECAUSE IT WAS A DISORDERLY PERSONS OFFENSE THAT IS, THE VALUE OF THE STOLEN ITEM WAS LESS THAN $200 AND COMPOUNDED THE ERROR BY CHARGING A LESSER-INCLUDED OFFENSE UNSUPPORTED BY THE RECORD. (Not Raised Below).

 

II. THE JURY INSTRUCTIONS ON ACCOMPLICE

LIABILITY DID NOT COMPLY WITH STATE V. BIELKIEWICZ.

 

III. THE RESTITUTION ORDER SHOULD BE

VACATED BECAUSE IT WAS PREDICATED UPON A VAGUE POSSIBILITY THAT DEFENDANT MIGHT WIN THE LOTTERY, WHICH SHOULD BE REJECTED AS AN ILLEGITIMATE CONSIDERATION IN ASSESSING DEFENDANT'S FUTURE ABILITY TO PAY.

 

IV. NOTWITHSTANDING DEFENDANT'S CRIMINAL

RECORD, THE TWENTY-FIVE-YEAR SENTENCE WITH TWELVE-AND-A-HALF-YEAR PAROLE DISQUALIFIER WAS MANIFESTLY EXCESSIVE FOR A HANDFUL OF THIRD-DEGREE BURGLARIES AND THEFTS.

 

For the reasons that follow, we affirm defendant's convictions and remand for merger of his conspiracy conviction and reconsideration of the consecutive sentences imposed in conformity with State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We also remand for reconsideration or amendment of the restitution order.

I

The State's evidence amply supported the verdicts. It included testimony from residents of the four homes burglarized, a bail bondsman who purchased stolen televisions from defendant, and it also included recorded statements defendant gave to the police on September 25, 26 and October 6, 2011.

None of the homes were occupied when entered. Defendant and Torres committed the first two of four burglaries and the three thefts together. On August 22, they entered the Singh residence and took one television set with a value of $1200. Defendant subsequently sold that television and received $30 as his share of the proceeds. The burglary of the Claudino residence, from which two computers with a value of $2000 and other electronic devices were taken, took place on August 24. Defendant admitted being in the car outside that home but claimed that, because Torres rang the doorbell and knocked on the door several times before entering, he thought Torres knew the family.

Defendant committed the second two burglaries on his own. The Miranda residence, from which $1300 in cash and personal property with a value of $425 was taken, was burglarized on September 25. When Ms. Miranda returned to her home that day, she saw a man ride a bicycle from the back of her house and past her. He was carrying a laundry bag, which she did not realize was hers until she went inside and discovered that property and cash were missing. Within an hour of seeing defendant, the woman identified defendant and his bike. Defendant denied being the person Ms. Miranda saw.

The Alvarez residence was burglarized on October 6. Ms. Alvarez and her teenage child returned to their home while defendant was inside. The teenager went upstairs and heard a noise. Defendant, who was hiding in the bedroom closet, came out. He urged the Alvarezes not to call the police and fled before the police arrived. The police apprehended defendant nearby, however, and the Alvarezes identified him.

Defendant admitted to entering the Alvarez home and taking a camera he saw there. By his account, his friend "Angie" had a key to the house, invited him inside and left before Ms. Alvarez and her child returned. Defendant admitted that before Ms. Alvarez and her child returned, he had seen a camera in the bedroom and put it in his pocket. As defendant explained it, when he heard the family return, he got "scared" and hid in the closet. Defendant was not charged with theft of the camera, which he had with him when he was arrested, because of its minimal value.

There was also evidence establishing defendant's dealing in and receiving of stolen property. He admitted to helping Torres and Zeleniak sell watches, laptops, cameras and electronic devices that Torres had stolen, and he acknowledged selling two televisions, which he knew were stolen, to an employee of a bail bonds company. The buyer, who paid $400, testified for the State.

The State's theory of the case was that defendant committed the burglaries and thefts either directly or by aiding, abetting or attempting to aid Torres. Defendant was charged with acting alone in the counts involving the Miranda and Alvarez burglaries and with acting in concert with Torres in the Singh and Cluadino burglaries. Defendant, Torres and Zeleniak were all charged in the counts alleging conspiracy, fencing and receiving stolen property.

II

Defendant objects to jury instructions pertinent to lesser-included offenses on the Alvarez burglary. He also objects to the jury instruction on complicity, which was pertinent to the Singh and Claudino burglaries and the charges on dealing in and receiving stolen property.

With respect to the lesser-included offenses of the Alvarez burglary, defendant contends the judge erred in instructing the jurors on trespass and in refraining from instructing them on theft. We reject both claims.

Before instructing the jury, the judge advised the attorneys that she intended to charge the jurors on trespass, but not theft, as an offense included in the burglary of the Alvarez home. There was no objection. To the contrary, defense counsel advised that he agreed with both charging decisions.

The absence of an objection is significant. "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012); State v. Macon, 57 N.J. 325, 333-34 (1971). Consequently, to obtain relief, defendant must show plain error, which is error having a clear capacity to produce an unjust result. R. 2:10-2.

"In respect of a late claim of error in a jury instruction, 'plain error requires demonstration of legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" Singleton, supra, 211 N.J. at 182-83 (quoting State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970))). In our view, there is no error here and certainly none that would lead us to conclude that either charging determination had a capacity to bring about an unjust verdict. R. 2:10-2.

We first consider defendant's newly raised objection to a charge on trespass. He contends that this instruction was improperly given because "[t]here was simply no rational basis for the jury to find that defendant unlawfully entered the [Alvarez] home but did not steal that camera." That argument is based on a misunderstanding of the distinction between burglary and trespass.

Both crimes include a conduct element that requires proof that the defendant, knowing he has no license or privilege, enters or surreptitiously remains in a structure. See N.J.S.A. 2C:18-2a(2) (providing liability for burglary where a person knowingly enters or "[s]urreptitiously remains in a . . . structure . . . knowing that he is not licensed or privileged to do so"); N.J.S.A. 2C:18-3a (providing liability for trespass where a person "knowing that he is not licensed or privileged to do so . . . enters or surreptitiously remains in any . . . structure").

The distinction between the crimes is that a conviction for burglary requires proof that the defendant has an ulterior purpose or objective committing "an offense therein" when the defendant engages in the proscribed conduct. N.J.S.A. 2C:18-2a. Proof of an ulterior purpose is not required for a trespass conviction. N.J.S.A. 2C:18-3.

Defendant's testimony provided a rational basis for the jurors to acquit defendant of burglary on the ground that he did not intend to commit an offense when he entered the Alvarez home or when he hid in the closet. The temporal congruence of the proscribed conduct and the purpose to commit a crime in the structure is critical. See State v. Williams, 29 N.J. 27, 41 (1959) (discussing the need for concurrence of the requisite intention and the prohibited conduct constituting a crime); see also N.J.S.A. 2C:1-14d (defining "conduct" to mean "an action or omission and its accompanying state of mind").

Based on defendant's account, the jurors could rationally have found that defendant thought he had permission to enter the home. Moreover, they could have found that when defendant surreptitiously remained in the Alvarez home by hiding in the closet he knew he had no permission but had no intention of taking anything but the camera he had already stolen. Thus, contrary to defendant's claim on appeal, defendant's statement provided a rational basis for acquittal of burglary and a conviction of trespass. Accordingly, the instruction on that "included" offense of trespass was appropriate. N.J.S.A. 2C:1-8d(1), e.

Defendant's claim that the court erred in not charging theft as an included offense of burglary also lacks merit. Theft is not an offense "included" in burglary. N.J.S.A. 2C:1-8d(1)-(3). Burglary does not require proof of theft, it simply requires proof of an intention to commit "an offense." N.J.S.A. 2C:18-2a; cf. N.J.S.A. 2C:15-1 (defining robbery to include conduct committed during the course of "committing a theft"); State v. Mejia, 141 N.J. 475, 495 (1995) (concluding that theft is a charge included in robbery).

Moreover, the single count of the indictment charging a crime committed in the Alvarez home a crime committed outside the period of the conspiracy alleged in count one did not mention theft as the offense defendant intended to commit in the Alvarez home. Because the theft was not charged or mentioned in the indictment, absent a request from defendant, the judge properly refrained from charging theft. See State v. Thomas, 187 N.J. 119, 129-33 (2006) (discussing considerations of fair notice implicated by charging an offense that is not included within one charged in the indictment).

Defendant's claim of error in the jury instruction on accomplice liability has insufficient merit to warrant more than a brief explanation of our reasons for rejecting it. R. 2:11-3(e)(2). There was no error in that instruction.

In all material respects, the instruction on accomplice liability mirrored the Model Jury Charge Criminal, Liability for Another's Conduct/Accomplice (where defendant is charged as accomplice and jury does not receive instruction on lesser-included charges). That was the proper charge.

In asserting that an additional charge was required, defendant relies on State v. Bielkiewicz, 267 N.J. Super. 520, 528-29 (App. Div. 1993), which involved an instruction on accomplice liability that involved different degrees of the same offense and lesser-included offenses. In contrast, defendant was not charged as an accomplice in crimes involving such offenses. Accordingly, an instruction like the one needed in Bielkiewicz was unnecessary. See State v. Ingram, 196 N.J. 23, 39-40 (2008) (discussing the context in which the principles addressed in Bielkiewicz apply and warrant the instruction).

As the jury instructions do not warrant reversal on any ground defendant asserts, we affirm his convictions.

 

III

We turn to consider defendant's objection to his custodial sentence and the restitution ordered. For the reasons that follow, we conclude that a remand is required.

A. The custodial sentence

As noted at the outset of this opinion, defendant was sentenced on each of his ten convictions for third-degree crimes. His aggregate term of imprisonment is twenty-five years with 150 months twelve and one-half years of parole ineligibility. The aggregate term includes four consecutive sentences, one for an extended term.

Defendant qualified for an extended term as a persistent offender, and, for the Alvarez burglary, the judge sentenced defendant to a discretionary, ten-year extended term with sixty months of parole ineligibility, N.J.S.A. 2C:44-3a and N.J.S.A. 2C:43-7a(4), b. This was the maximum sentence permitted by law.

In addition, the judge imposed consecutive five-year ordinary, maximum terms for three of the third-degree burglaries, each with thirty months of parole ineligibility, N.J.S.A. 2C:43-6a(3), b. Each of the other six sentences those for the three thefts, conspiracy, dealing in stolen property and receiving stolen property is concurrent with the term imposed on one of the consecutive sentences.

Recognizing his extensive criminal record, defendant asserts that he "does not challenge" the judge's determination that the aggravating factors stated in N.J.S.A. 2C:44-1a(3),(6) and (9) applied to his custodial sentence. Defendant's criminal record was unquestionably lengthy seven indictable crimes, more than twenty disorderly persons offenses and five adjudications of delinquency. The indictable crimes included one crime of the second degree, employing a juvenile in a drug distribution, N.J.S.A. 2C:35-6; two third-degree drug crimes, one for distribution and one for possession with intent to distribute, N.J.S.A. 2C:35-5; and three third-degree and two fourth-degree theft offenses. Defendant further acknowledges that the judge made the findings necessary to justify the imposition of the discretionary extended-term sentence, N.J.S.A. 2C:44-3a, and the discretionary parole-ineligibility terms, N.J.S.A. 2C:43-6b.

Defendant's central argument is that the judge's nearly exclusive reliance on his criminal history is inconsistent with the Code's focus on sentencing based on the nature of the crime. Not one of the four homes was occupied when entered. Defendant did not cause or threaten to cause bodily harm to either of the Alvarezes, who were the only victims he encountered in their home. Nevertheless, as the judge noted, burglaries of residences affect the occupants' ability to feel safe in their own homes.

There is no question that the judge's consideration of the impact on the residents of these homes did not involve a double counting of factors accounted for by the Legislature in grading the crime. State v. Carey, 168 N.J. 413, 425 (2001). Burglary is a crime of the third degree regardless of the structure involved, and the term "structure" is defined to include vehicles and places of business as well as homes. N.J.S.A. 2C:18-1, :18-2.

At the time of sentencing, defense counsel urged the judge to consider the factors the Supreme Court has determined a judge must evaluate in deciding whether sentences for multiple crimes imposed at the same time should be served concurrently or consecutively. In Yarbough, the Court explained "that in fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Code's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing." 100 N.J. at 630. Accordingly, the Court "outline[d] specific standards that shall generally guide courts . . . in the exercise of such sentencing discretion." Ibid. In State v. Miller, 205 N.J. 109 (2011), the Supreme Court listed the Yarbough factors, as subsequent modified by statute, as follows:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

 

. . . .

 

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

 

(a) the crimes and their objectives were predominantly independent of each other;

 

(b) the crimes involved separate acts of violence or threats of violence;

 

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

 

(d) any of the crimes involved multiple victims;

 

(e) the convictions for which the sentences are to be imposed are numerous;

 

(4) there should be no double counting of aggravating factors;

 

. . . and

 

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

 

[Id. at 128-29 (internal citations omitted and emphasis added) (quoting Yarbough, supra, 100 N.J. at 643-44)).]

In Miller, the Court also provided guidance for this court's review of consecutive sentences. "When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal. However, if the court does not explain why consecutive sentences are warranted, a remand is ordinarily needed for the judge to place reasons on the record." 205 N.J. at 129 (internal citations omitted) (reversing the panel's decision affirming on what it discerned the judge considered).

In this case, the judge's discussion of the Yarbough factors is too cursory to permit us to conclude that they were properly evaluated.2 The judge explained his decision to impose four consecutive, maximum sentences for the burglaries, one of which was a maximum extended-term sentence, as follows.

"I am persuaded by the prosecutor's argument under Yarbough. These are separate events, they are separate victims, they occurred at separate times. There are no free crimes." There was no further discussion.

The first problem that must be addressed is blatant. In accepting the State's position that these four burglaries were "separate events," the judge ignored the Yarbough factor stated in paragraph 3(a), which is set forth with emphasis above, and its focus on independent objectives. In this case the grand jurors charged and the State proved at trial that three of the burglaries were the object of a single conspiracy. The conspiracy verdict precludes a finding that "objectives" of those burglaries "were predominantly independent of each other." Thus, reliance on the fact that all of the burglaries were separate was improper.

Another Yarbough factor pertinent here was not addressed at all. We refer to the factor stated in paragraph 3(b), and set forth above with emphasis. Recognizing the validity of the judge's observation about the impact of a home invasion whether or not the occupants are home at the time, the Yarbough factor refers, quite specifically, to "acts of violence or threats of violence." As there was no act or threat that could possibly be perceived as an act or threat of violence in at least three of these burglaries, the absence of that factor must be addressed.

Last, but by no means least, the factor referenced in paragraph 3(e) and quoted with emphasis above whether there are numerous convictions for which sentences are to be imposed must be reconsidered. There are two reasons for directing consideration of this factor on remand.

The first problem is that there is no indication that factor 3(e) was addressed at the time of sentencing. It should have been considered because it clearly was implicated in this case involving ten convictions.

The second problem is that there is an error related to merger of convictions that changes the number of convictions for which the judge could impose a sentence. Imposition of a sentence on conspiracy was precluded by N.J.S.A. 2C:1-8a. In pertinent part, N.J.S.A. 2C:1-8a, provides:

When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:

 

. . . .

 

(2) One offense consists only of a conspiracy or other form of preparation to commit the other . . . ."

 

As subsection a(2) clearly indicates, the general rule is that a conviction for conspiracy must be merged with the completed crimes that are its objects. N.J.S.A. 2C:1-8a(2); State v. Hardison, 99 N.J. 379, 386-87 (1985). Defendant was convicted of every crime that was an object of conspiracy. Accordingly, pursuant to N.J.S.A. 2C:1-8a(2), the State was free to try the defendant on conspiracy and the completed crimes that were its objects, but the judge could not enter convictions for both the conspiracy and the completed crimes. Merger of the conspiracy conviction was required as a matter of law.

On remand, the judge must correct the judgment to vacate the defendant's conviction for conspiracy. In addition, the judge must address the pertinent Yarbough factor in light of that merger. With the merger directed here, there are nine, not ten, convictions on which a sentence may be imposed.3

In sum, we find no abuse of discretion in the judge's findings on the aggravating and mitigating factors. Those findings are adequately supported by the record. Nevertheless, the omission of any discussion of the Yarbough factors enumerated in 3(a), (b) and (e) and the need to merge defendant's conspiracy conviction warrants a resentencing. Accordingly, we vacate the sentence and remand for further proceedings in conformity with this opinion and Yarbough. Because we are remanding for resentencing, our decision should not be understood to preclude reconsideration of the balance of aggravating and mitigating factors, their relative weight or the duration of the individual sentences and periods of parole ineligibility imposed.

B. The restitution

Defendant's objection to the restitution order is not to the amount of restitution compared to the loss. His objection is to the judge's factual finding on his ability to pay restitution. The judge found ability to pay based on defendant's potential to "win" a lottery.

In determining that defendant's present ability to pay was not determinative and that defendant's prospects of winning money in the future could be considered, the judge relied on this court's decision in State in Interest of R.V., 280 N.J. Super. 118, 122-123 (App. Div. 1995). Because R.V. supports that determination, we cannot conclude that the judge abused his discretion by following its reasoning. Nevertheless, the judge did not enter an order of the sort the R.V. panel deemed appropriate in a case where a defendant's ability to pay is based on future prospects. As Judge Petrella explained, where a judge finds that a defendant "will have no means to pay the restitution in the foreseeable future," the restitution order should provide that the defendant "shall in the future pay such portion of the amount as is reasonable, and in accordance with his present and future anticipated ability to pay, or potential ability to pay." Id. at 124. The panel noted that an order entered on future prospects of good fortune should "impos[e] appropriate restitution, reduc[e] it to a civil judgment, and mak[e] the amount subject to future enforcement. See N.J.S.A. 2C:44-2b(2) and c(2); N.J.S.A. 2C:46 2b and c." Id. at 123.

The order entered in this case, as we understand it, provides for current enforcement by the Department of Corrections. Accordingly, on remand the judge should either base restitution on defendant's present ability to pay without considering the lottery or make it clear that the order is subject to future enforcement as contemplated in R.V.

Defendant's convictions are affirmed; the custodial sentence and restitution are vacated, and those aspects of the sentence are remanded for merger of the conspiracy conviction, resentencing and amendment of the judgment in conformity with this opinion. We further direct that the amended judgment be scrutinized for agreement with the sentence as pronounced at the conclusion of the resentencing hearing.

 

1 The judgment of conviction does not accurately reflect the overall sentence. In short, it reflects one of the consecutive sentences as concurrent.

2 While appellate counsel does not expressly assert misapplication of the Yarbough factors, his arguments based on the judge's stated reasons for the overall sentence imposing a sentence that would express "society's outrage" and "warehouse[]" defendant for as "long as possible" clearly implicate the Yarbough factors and the purpose they serve. For that reason, the objection raised on appeal implicitly implicates and requires our review of the judge's application of the Yarbough factors.

3 In the interest of avoiding any confusion on remand, under the jury instruction the judge delivered on dealing in stolen property, defendant's conviction for receiving stolen property does not merge with his conviction for dealing in stolen property. While dealing in stolen property can be established by proof of receiving stolen property, N.J.S.A. 2C:20-7.1b and N.J.S.A. 2:20-1k, the jury instruction given did not permit a conviction of that crime based on receiving stolen property. Accordingly, there is no concern that defendant was convicted of two crimes based on the same conduct. See generally Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:20-7.1 (2013) (discussing the overlapping elements of these crimes).