STATE OF NEW JERSEY v. JULIO C. RIVERO

NOT FOR PUBLICATION WITHOUT THE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.

JULIO C. RIVERO,

Defendant-Appellant.

_________________________________________

August 4, 2014

Submitted June 25, 2014 Decided

Before Judges Fuentes and Koblitz.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-10-01089.

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

Grace H. Park, Acting Union County Prosecutor,attorney forrespondent (Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Julio C. Rivero was tried before a jury and convicted of first degree carjacking, N.J.S.A. 2C:15-2; first degree robbery, N.J.S.A. 2C:15-1; third degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-5d; third degree terroristic threats, N.J.S.A. 2C:12-3a; third degree resisting arrest, N.J.S.A. 2C:29-2a; third degree possession of cocaine, N.J.S.A. 2C:35-10a(1); and fourth degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-4d.

After merging the applicable convictions, the court sentenced defendant on the carjacking conviction to a term of twenty years, with an eighty-five percent period of parole ineligibility and five years of parole supervision pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, a consecutive term of four years for third degree resisting arrest, a concurrent term of four years for third degree possession of cocaine, and a concurrent term of nine months for fourth degree unlawful possession of a knife. This resulted in an aggregate term of twenty-four years, with a minimum of seventeen years before he is eligible to apply for parole.

As defendant concedes on appeal, the underlying "core facts" that led to his arrest and conviction are not disputed. The only issue on appeal concerns defendant's intoxication and its effect on his mental state, as it relates to the affirmative defense of intoxication codified in N.J.S.A. 2C:2-8a. Defendant also challenges the sentence imposed by the trial court as "manifestly excessive." We reject these arguments and affirm.

The case took three days to try, including jury selection, witness testimony, an N.J.R.E. 104 hearing conducted outside the presence of the jury after the State had rested its case,1 and final jury deliberations. The State presented two witnesses: Carlos Aguirre, the victim of the robbery and carjacking, and Roger Alves, a police officer in the City of Elizabeth who arrested defendant, after he and three other Elizabeth police officers wrestled defendant to the ground and eventually overcame his physical resistance to being arrested.

In his defense, defendant called City of Elizabeth Detective Heruc Colon, who had interviewed Aguirre and took a sworn statement from him about his interactions with defendant on the day in question. Colon testified that Aguirre spoke to him in Spanish because he spoke "very little English." Defense counsel questioned Colon about whether Aguirre used the word "borracho," the Spanish word for "drunk," to describe defendant's demeanor on the day of his arrest.

As indicated earlier, however, this appeal is not about the facts that led to defendant's conviction. In fact, the State has adopted defendant's statement of facts as recited in defendant's appellate brief. We will thus describe the events that led to defendant's conviction by quoting directly from defendant's appellate brief:

Carlos Aguirre testified that on July 16, 2010, shortly after 2 p.m., he parked his Audi in Elizabeth on Jackson Avenue and went into a Chinese restaurant there. Inside, a man, whom Aguirre later identified as defendant, came into the restaurant, and spoke "in an aggressive manner" to the staff, after which he approached Aguirre and, smelling like alcohol, asked Aguirre if he knew what country he was from. When Aguirre guessed that he was from Argentina, the man corrected him, telling him that he was from Chile. Aguirre testified that, other than smelling like alcohol, defendant did not act drunk, but there was a dispute in the trial -- focused on the meaning of the Spanish word "[borracho]" -- whether Aguirre had told police later in a statement that defendant was "drunk," or merely that he had been "drinking."

Aguirre testified that he then left the restaurant and, when he got to his car, defendant came from behind him, put a six- to eight-inch knife to Aguirre's back and demanded the keys, which Aguirre gave him. Aguirre entered the car, into the driver's seat, and claimed at trial, although not in his statement to police, that defendant climbed over him to get into the passenger seat. Defendant gave Aguirre the keys and Aguirre started the car, acceding to defendant's demand to drive to a Bank of America branch because, he claimed, defendant was threatening to kill him and telling him that it was "an act of God" that they were together. Soon, however, at Newark Avenue, Aguirre came to a quick stop and exited the car, escaping. Defendant said, "No, no, no, wait," and then kept driving, according to Aguirre, in the same direction they had been heading.

Aguirre's cell phone had no battery life, he testified, and, fearing that people in the area suspected that he had been the wrongdoer in the episode, he went to a local police station to report the matter, rather than trying to get help from anyone nearby. After a short while, he and Officer Roger Alves went together to view a suspect that police had detained, but that was not the right person, Aguirre testified. But, on North Broad Street, thereafter, Aguirre spotted defendant, identified him to Alves, and defendant was arrested. Aguirre testified that defendant was "aggressive" with the officers who arrived to arrest him, but that "four or five" officers tackled him to the ground and detained defendant.

Alves testified that he and an Officer Banks each grabbed defendant's arms when defendant appeared "hostile" to the notion of being arrested, and they "took him to the ground" where two other officers helped get his hands behind him to be handcuffed. Defendant initially tried to keep his hands "in front of him," but the four officers were able to put the cuffs on. Alves noted that usually an intoxicated person is more lethargic and easier to arrest than that, and he also testified that he had no indication that defendant was "under the influence." A search of defendant's pockets revealed a knife, a set of car keys, a liquor-store receipt and a vial of cocaine.

Defendant testified that he is an alcoholic and that when he drinks, he cannot stop. He often wakes up "at the hospital or in prison" and someone has to tell him what he has done. On the day of the incident, defendant testified, he did not eat breakfast and went to get a haircut at about 10:20 a.m., but noticed on the way there, at about 10:30 a.m., that the nearby liquor store was open earlier than usual. So he bought a six pack of Corona beer, went home, drank two and put away four, and then changed his mind and drank those four as well. Then at about 11:30 a.m., his unemployment check arrived in the mail, and so he cashed that at a local Bank of America, and went to an "Irish bar near the bank." There he had two glasses of whiskey, and still nothing to eat, picked up his son at school, took him home, gave him $20 and said, "Sweetie, stay here because Daddy will be back." And off defendant went to the liquor store again, where he bought a bottle of whiskey, took "a big gulp" from the bottle and poured "the other half" into a ginger ale bottle to conceal its alcoholic nature. He had "another sip" of the whiskey/ginger-ale mixture and "went to get a haircut." While he got his hair cut, defendant drank more from the ginger-ale bottle, eventually finishing it and getting "very dizzy" as a woman washed his hair. "Everything was turning" and he "even felt like throwing up." He admitted that he had "forgotten about eating and everything. . . [and] just wanted to drink." Defendant does not "know if [he] paid or if [he] didn't pay" for the haircut because he next "woke up with [his] head on the floor [sic]. . . in the street." He "couldn't stand" because his hands were behind him, but, eventually, someone got [him] up." "Everything was turning," he testified. He had "a lot of pain on [his] head" and then woke up in a jail cell. "I don t remember anything," he told the jury.

[(Internal citations omitted).]

Against these undisputed facts, defendant now raises the following arguments.

POINT I

THE JURY INSTRUCTION ON THE DEFENSE OF INTOXICATION DEVIATES FROM THE MODEL CHARGE, AND, IN DOING SO, IT CONTRADICTS ITSELF REGARDING THE ASSIGNMENT OF THE BURDEN OF PROOF IN RESPECT TO AN INTOXICATION DEFENSE. (Not Raised Below)

POINT II

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

We reject these arguments and affirm. With respect to the jury charge on intoxication, we first note that defendant did not object to the trial judge about any aspect of this charge at any time.2 Thus, we must apply a plain error standard of review. State v. Wakefield, 190 N.J. 397, 473 (2007); R. 1:7-2. As clearly stated in Rule 2:10-2, we must disregard any error that was not brought to the attention of the trial court unless the error "is of such a nature as to have been clearly capable of producing an unjust result[.]"

With respect to errors in the trial court's legal instructions to the jury in a criminal trial, the alleged legal impropriety of the charge must be of such magnitude as to "prejudicially affect[] the substantial rights of the defendant and [be] 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." 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). This standard was recently reaffirmed by the Court in State v. Singleton, 211 N.J. 157, 182-183 (2012).

Here, the trial court included the following statement while instructing the jury on defendant's intoxication defense: "if you are satisfied that the defendant's faculties were so prostrated by his consumption of alcohol that he couldn't form the intent to act purposely or knowingly, then . . . it is a defense . . . to all [] charges." We do not view the court paraphrasing some of the wording in the standard charge to amount to a shift of the burden of proof from the State to defendant. In short, when viewed in its entirety, we discern no error, much less plain error, in the court's jury instructions on intoxication.

With respect to defendant's sentence, we discern no legal basis to interfere based on an abuse of discretion standard of review. State v. Cassady, 198 N.J. 165, 180 (2009). Although the sentence is facially harsh, we are not permitted to substitute our judgment for the judgment of the sentencing judge. As Justice O'Hern made clear thirty years ago on behalf of a unanimous Court in State v. Roth, 95 N.J. 334, 365 (1984), "[w]hen conscientious trial judges exercise discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]. . ., they need fear no second-guessing."

Affirmed.

1 The N.J.R.E. 104 hearing was prompted by defendant's application for the court to charge the jury with the affirmative defense of intoxication as codified in N.J.S.A. 2C:2-8a, to negate or create reasonable doubt as to whether defendant acted knowingly or purposely, which are elements of the offenses defendant was charged with committing, including first degree carjacking and first degree robbery. After hearing from defendant's wife and a longtime, close friend, the trial court denied defendant's application. The court found these two witnesses could only testify about defendant's chronic alcohol abuse, as they did not have any personal knowledge about his state of intoxication on the day he committed these offenses. See State v. Warren, 104 N.J. 571, 577 (1986).

2 Although not raised as an issue by the parties, we note that the trial court conducted the charge conference to discuss the proposed jury instructions with the attorneys after the attorneys had completed their closing arguments. This is in direct violation of the procedures established by the Supreme Court in Rule 1:8-7(b), which directs the trial court in criminal cases to hold the charge conference "prior to closing arguments." In addressing the jurors for the final time, the attorneys must be fully aware of what the trial judge intends to say concerning the legal principles that will guide the jurors in their deliberations, in order to tailor their remarks accordingly. Having said this, we discern no reason to conclude this error was clearly capable of changing the outcome of this trial. We note this only for didactic purposes.