STATE OF NEW JERSEY v. JOSE M. FELICIANO

NOT FOR PUBLICATION WITHOUT THE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.

JOSE M. FELICIANO,

Defendant-Appellant.

_____________________________

April 22, 2014

Submitted March 17, 2014 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-00486.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the briefs; Stephen A. Pogany, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).

appellant filed a pro se supplemental brief.

PER CURIAM

Tried by a jury, defendant Jose Feliciano was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree robbery, N.J.S.A. 2C:15-1; and two counts of third-degree receiving stolen property, N.J.S.A. 2C:20-7, a Toyota Corolla automobile and a 1995 Nissan Maxima automobile.1 After appropriate merger, defendant was sentenced on the robbery conviction to a ten-year term subject to the eighty-five percent parole bar of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a consecutive five-year term on one count of receiving stolen property; and a concurrent five-year term on the other. Defendant appeals, and we affirm.

Defendant's convictions stem from two separate episodes two weeks apart, on August 1, 2008 and August 14, 2008, involving other co-defendants as well. The former concerned a robbery of a driver waiting in line at a gas station; the latter, the discovery by police of a stolen automobile and a stolen handgun. One of defendant's two cohorts was charged with a separate robbery, on August 12, 2008, that ultimately resulted in defendant's arrest.

According to the State's proofs, on August 1, 2008, at around 4:00 p.m., A.A. was waiting in line to get gas at the Pyramid Gas Station in Belleville when a grey or silver Toyota Corolla with four young persons inside pulled up alongside his car. One of the occupants exited the Toyota and started walking to the gas station office; however, the driver, later identified as defendant, yelled at him to get back in the car. The Toyota then pulled out of the station, circled around, came back into the station from another entrance, and stopped in front of A.A.'s car, which had by then pulled up to the pump.

A man, later identified as Isaih Torian, got out of the Toyota, came around to A.A.'s open window, pointed a gun into the window, and demanded his wallet.2 When A.A. complied, Torian demanded his car keys, which the victim handed over to him. Torian then ran back to the Toyota and the car drove off.3

On August 14, 2008, defendant was arrested in a stolen Nissan Maxima along with Gerena and Torian. Earlier that day, Belleville police detective John McAloon and three other police officers in unmarked vehicles set up surveillance in Newark, down the street from defendant's house, in the hope of arresting the individuals who were currently in possession of the car. When the officers first spotted the vehicle, which had been recently reported stolen in Belleville, it was empty. After a short time, defendant, Torian and Gerena left defendant's home and entered the Nissan Maxima. The officers then moved in. Detective McAloon had his emergency lights on but did not activate his siren. The stolen Nissan kept driving and upon Detective McAloon's approach, accelerated and struck his car, resulting in injuries to the detective's knee and back.

After the collision, Detective McAloon approached the Nissan and observed defendant in the driver's seat, Torian in the front passenger seat and Gerena in the rear seat behind the driver. He also noticed that the airbags had been deployed and saw a silver revolver on the floor on the front seat passenger side. All three men were eventually charged with possession of the weapon.

At police headquarters, Torian agreed to cooperate with the investigation after being advised of his Miranda rights4. He led the police to a Newark street where the silver Toyota Corolla used in the Pyramid gas station robbery and the carjacking was parked. Torian admitted that he and defendant had stolen the Toyota and then robbed A.A. at the gas station. Torian also admitted that he and Gerena stole the Nissan Maxima.5

Defendant, who testified on his own behalf, denied any involvement in the August 1, 2008 A.A. robbery and also denied possession of the handgun found in the Nissan Maxima, but admitted stealing the vehicle with Torian on the morning of August 14, 2008.

As noted, defendant was convicted of conspiracy, second-degree robbery and two counts of receiving stolen property. On appeal, he raises, through counsel, the following issues:

I. THE TRIAL COURT ERRED TO DEFENDANT'S PREJUDICE IN DENYING [DEFENDANT'S] MOTION FOR A MISTRIAL BECAUSE OF COMMENTS THE PROSECUTOR MADE ON HIS FACEBOOK PAGE.

II. [DEFENDANT'S] AGGREGATE FIFTEEN-YEAR SENTENCE FOR A SECOND-DEGREE OFFENSE WAS EXCESSIVE AND MUST BE REDUCED.

In addition, defendant pro se raises the following issue:

THE MUG-SHOT[] PHOTO[S] THE TRIAL COURT ALLOWED TO BE SUBMITTED INTO EVIDENCE DURING JURY DELIBERATION [WERE] SO IMPERMISSIBLY SUGGESTIVE THAT IT DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE PROCESS OF LAW U.S. CONST. AMEND. VI & XIV.

I

To place the first issue in proper context, some background is in order. At the beginning of the second week of trial, defense counsel moved for a mistrial based on Facebook postings made by the trial prosecutor. Specifically, the prosecutor posted, "Trial finally starting today. Can't wait till (sic) its (sic) over." One of the prosecutor's Facebook friends responded "Guilty!" The prosecutor continued posting:

I finally have some time and energy to update everyone. It's a 2 defendant crime spree including robberies, carjackings, car thefts, guns, other stolen cars, aggravated assaults, and a testifying "flipped" co-defendant. Also had to fly a witness from Ohio. It's going [] nicely. Finishing up next week. Thanks for the good luck wishes.

During argument on defendant's motion, the prosecutor represented that the Facebook privacy settings on the account are set to where only friends can see his posts; that several Facebook friends are defense attorneys and members of the Public Defender's Office; and that one of the Facebook friends was co-defendant's counsel.

Finding no evidence that any juror read the postings or even had access to the prosecutor's Facebook page, the judge denied the mistrial motion.6 Immediately thereafter, the judge extensively and comprehensively admonished the jury against doing independent research on the case or any of its participants. Thus, the court instructed in pertinent part:

Additionally, I must instruct you not to read any newspaper articles, search for or research information relating to this case, including any participants in the trial through any means, including electronic means and any social network. Do not do any research on the internet, in libraries, in the newspapers or [in] any other manner, or conduct any investigation about this case. Do not visit or view any place discussed in this case, and do not use any internet maps or Google Earth or any other program or device to search for or view any place discussed in the testimony. Also, do not research any information about this case, the law or, again, the people involved, including the parties, the witnesses, the lawyers, the Judge, or the Court personnel. Additionally, do not read any news articles or articles in print or on the internet or any blog about this case.

At the conclusion of this instruction, the judge asked the jurors to report any violation of this admonition:

It's going to be your obligations, ladies and gentlemen, as sworn jurors in the State of New Jersey, to come forward, don't discuss it with your fellow jurors, simply let me know . . . . So if you have done any of this, or friends have told you they have done any of this, please don't discuss it with your f[e]llow jurors. Simply let me know, and I'll discuss it with you in greater detail at sidebar.

This charge was largely reiterative of preliminary instructions the judge issued after the jury was sworn and before opening statements of counsel, which forbade the jurors from conducting any research about the case, including by electronic means:

I obviously have no way to monitor you in this area, but I must rely on your good faith and the fact that you have been sworn to comply with the instructions of this Court so that both sides receive a fair trial.

Because this instruction is so important, ladies and gentlemen, it is my duty to remind you of it at the end of each day's proceedings.

Somewhat interesting, ladies and gentlemen, given what has happened with the state of technology in this world, the instructions that I gave these voluminous instructions that I gave you about all the sites, this is a recent instruction because obviously only a few years ago you wouldn't hear a Judge saying to jurors don't go on Google Earth, don't look at various blog sites.

And, so, the law has adapted to technolog[y] changes, and it is very important obviously that every any decision you made be based on only the evidence that you get in this courtroom.

And again, ladies and gentlemen, as I said to you earlier, if anyone should report to their fellow jurors, well, I did my own research into this case and X, Y, and Z, your sworn duty is to report that fact to me and I will take immediate appropriate action. All right, ladies and gentlemen? Thank you.

Under the circumstances, we discern no error in the denial of defendant's mistrial motion as defendant has suffered no manifest injustice, State v. DiRienzo, 53 N.J. 360, 383 (1969), and was not deprived of his right to a fair trial by an impartial jury.

It is axiomatic that a defendant in a criminal trial has a constitutional right to be fairly tried by an impartial jury. State v. Williams, 93 N.J. 39, 61 (1983); U.S. Const. amend. VI; N.J. Const. art. 1, 10. In other words, "a defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." Williams, supra, 93 N.J. at 60. Trial courts must take strong measures to ensure a jury free from extra-judicial, extraneous information. Id. at 63.

Accordingly, when presented with a post-empanelment motion to question the jury about exposure to trial publicity, the trial court should analyze the merits of counsel's proffer through a two-part inquiry. State v. Bey, 112 N.J. 45, 83-84 (1988). "The court should first examine the information disseminated to determine if it has the capacity to prejudice the defendant." Id. at 84. "If the court is satisfied that the published information has the capacity to prejudice the defendant, it should [then] determine if there is a realistic possibility that such information may have reached one or more of the jurors." Id. at 86. It is only where the court concludes there is a realistic possibility that information with the capacity to prejudice defendant's right to a fair trial may have reached members of the jury, that it should conduct a voir dire to determine whether any exposure has occurred. Ibid.

Here, defendant has not satisfied either prong of the Bey test. In the first place, unlike Bey, this matter involves neither pre- nor mid-trial publicity. Just as significant, the prosecutor's postings do not amount to extraneous, extra-judicial information. In fact, they contain only information that was before the jury following counsel's opening statements. In this regard, unlike in the mentioning of the defendant's other crimes or criminal record in Bey, we discern nothing in the prosecutor's postings at issue here that had the capacity to prejudice defendant.

Moreover, there is no evidence that any juror was exposed to the prosecutor's comments. Unlike extensive media coverage that could inadvertently reach the jury, the prosecutor's Facebook posts, with his privacy setting, could only be accessed if the juror purposefully sought them out, which would have been a clear and direct violation of the court's repeated instructions. Indeed, after denying defendant's mistrial motion, the court expressly reinstructed the jury on the prohibitions against researching the case, the issues, or anyone involved in the case by any means, including electronic. The jury was repeatedly so instructed throughout the trial. Of course, jurors are presumed to follow the court's instructions faithfully. State v. Manley, 54 N.J. 259, 270 (1969). And when asked on multiple occasions to report any violations of the court's instructions, no juror reported any deviation whatsoever. Thus, in the absence of evidence that any juror had been exposed to the prosecutor's comments on his Facebook post, no voir dire of the jury was warranted, much less the grant of a mistrial.

II

Defendant next argues his aggregate fifteen-year sentence was excessive. We disagree.

In imposing the ten-year NERA term for robbery, the court cited aggravating factors 3, 6 and 9, N.J.S.A. 2C:44-1a(3), (6) and (9), and no mitigating factors, as warranting the sentence at the high end of the second-degree range. Those findings are adequately supported in the record. Only twenty-two years old when arrested for the instant crimes, defendant had already amassed a substantial record, consisting of five adjudications of delinquency for receiving stolen property, eluding, joyriding and violation of probation; nine arrests as an adult; four disorderly persons convictions; and two indictable convictions for burglary and possession of a controlled dangerous substance with intent to distribute. Defendant had also violated probation and was sentenced to a custodial term. Conversely, defendant has offered no basis to support consideration of any mitigating factor. The weighty balance of aggravating factors thus supports the ten-year term for robbery.

Equally justified is the imposition of a consecutive five-year term for one of the two counts of receiving stolen property. As noted by the trial judge, defendant was in possession and control of two stolen vehicles, separately stolen on different dates and from different victims. Moreover, he used one of those vehicles to perpetrate a separate crime the robbery of an individual at a gas station. Under the circumstances, the imposition of a consecutive term was fully warranted. State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

III

Defendant's remaining contention is without sufficient merit to warrant discussion in this written opinion. R. 2:11-3(e)(2).

Affirmed.

1 Defendant was acquitted of other weapons-related offenses.

2 On August 14, 2008, A.A. was shown two photo arrays and identified defendant as the driver of the grey Toyota and co-defendant Torian as the person who approached him with the gun and robbed him.

3 This same Toyota was involved in a carjacking on August 12, 2008, when two men, one of whom was co-defendant Jamil Gerena, pointed a gun at a physician in the parking lot of the University of Medicine and Dentistry in Newark and stole her black Mercedes Benz and purse. Although the doctor could not identify her assailants, her checkbook was found three days later in the Toyota.

4 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

5 Torian pled guilty to the A.A. robbery and received a five-year prison term in exchange for his agreement to testify against defendant and co-defendant Gerena.

6 Indeed, defense counsel acknowledged that there was no indication that any member of the jury read the prosecutor's posts.