STATE OF NEW JERSEY v. JUAN TOMAS-AGUILAR

NOT FOR PUBLICATION WITHOUT THE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 TOMAS-AGUILAR,

Defendant-Appellant.

______________________________

May 27, 2014

Submitted March 5, 2014 Decided

Before Judges Grall and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-05-0816.

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

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

PER CURIAM

A jury found defendant Juan Tomas-Aguilar guilty of first-degree robbery, N.J.S.A. 2C:15-1; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2). The judge merged defendant's convictions for possession of a weapon for an unlawful purpose and first-degree robbery, and sentenced defendant to a twelve-year term of imprisonment for first-degree robbery that is subject to terms of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. The judge imposed additional terms of imprisonment for the remaining counts that are concurrent with one another and with his sentence for robbery four years for possession of CDS, nine months for unlawful possession of a weapon and nine months for resisting arrest.

Defendant appeals and raises two issues:

I. THE TRIAL COURT ERRED BY PROVIDING AN

INADEQUATE AND MISLEADING RESPONSE TO THE JURY'S REQUEST FOR CLARIFICATION ON THE ISSUE OF POSSESSION OF A WEAPON. THE ERROR CLEARLY HAD THE CAPACITY TO LEAD THE JURY TO A RESULT IT OTHERWISE MAY NOT HAVE REACHED WITH RESPECT TO THE WEAPONS COUNTS, AS WELL AS THE QUESTION OF WHETHER TOMAS-AGUILAR COMMITTED ROBBERY WHILE ARMED WITH A DEADLY WEAPON. (Not Raised Below).

II. THE JUDGE'S MISHANDLING OF THE JURY'S

REQUEST FOR THE TRANSCRIPTS OF TOMAS-AGUILAR'S TESTIMONY CLEARLY HAD THE CAPACITY OF PRODUCING AN UNJUST RESULT. (Not Raised Below).

Finding no merit in either argument, we affirm.

Defendant's robbery victim was a cab driver, and the men provided conflicting accounts of their encounter. There was no dispute that the driver picked up defendant at the train station in Point Pleasant and agreed to take defendant to Asbury Park for $28. Despite the cab company's policy requiring pre-payment for that trip, the driver did not ask defendant for money before the trip started. According to the driver, defendant asked to be let out at the boardwalk in Asbury Park and asked if the driver had change for a one-hundred-dollar bill. Knowing he could make change, the driver pulled out five twenty-dollar bills before defendant gave him $100.

The driver explained that when he had his money in his left hand, defendant threw his left arm over the driver's shoulder, and then brought his right hand and the knife he was holding in it up to the driver's throat. At that point the driver noticed two women walking by and asked them to call the police. Defendant then asked for and took the money, but the men struggled and the driver managed to take the knife from and hold defendant for a time. By the time the police arrived, however, defendant was fleeing. The women pointed out defendant, who was running away, to the first officer that arrived. Although defendant did not comply with the officer's repeated commands to stop, he was apprehended after he went over a fence and hid behind a snow bank. The CDS and five twenty-dollar bills were found on defendant's person, and the driver identified defendant and gave the police the knife he had taken from defendant's hand. Defendant's employer testified on his behalf and explained that he had paid defendant $400 in cash on February 4, 2011, the day before defendant took the cab ride to Asbury Park.

By defendant's account, he was drunk, went to Asbury Park to purchase drugs and asked the driver to take him back to Point Pleasant. He claimed that he fell asleep and awoke because the driver was shaking him, moving him around in the back seat and hit him in the head. He recalled struggling with the driver, but he had no recollection of a knife, and he ran when the police arrived because he had drugs. Defendant testified that he had been paid with four one-hundred-dollar bills, but he denied having any twenty-dollar bills with him. He did not know what happened to his hundred-dollar bills and did not know how he lost his cellphone and wallet.

During deliberations the jurors submitted three questions to the judge, two of which are at issue on appeal. We discuss them and defendant's objection to the judge's response to each in turn. Because these objections were not raised at trial, defendant is entitled to relief only if he can demonstrate plain error error clearly capable of producing an unjust result and warranting notice by this court in the interests of justice. R. 2:10-2.

The first question was as follows: "May we please have the transcript of defendant's testimony?" The judge responded:

We do not have transcripts. The only thing we have is the readback of the testimony. We can play it back. That will take about an hour. We'll do that, and we'll give you that. If you don't want that, then you can let me know. If you want that, all we have is the testimony and we can play it back. If you could just go back into the jury room and let me know what you want. We don't have transcripts. I mean, transcripts are not done every day. What we do have is we could play his testimony back for you, so what you have to do is go back in, let me know if you want it or not, and you have to give it to me in writing. As I said, you're acting as one body. If you want that, we can give it to you.

There was no objection at the time, and none when the jurors sent out a second note stating "No, do not need a reading." For the first time on appeal, defendant argues that the judge erred by not explaining more carefully that they had an option to listen to selected portions of defendant's testimony instead of listening to an hour of testimony. Defendant contends that the judge was obligated to ask the jurors to refine their request. The jurors' request was an unambiguous request for a transcript of defendant's testimony, and there was no error in the judge's offer to respond to that request by offering to play back the testimony they unambiguously requested. State v. Miller, 205 N.J. 109, 125-26 (2011). Defendant's argument has insufficient merit to warrant any additional discussion.

Defendant also objects to the judge's response to another question the deliberating jurors presented. Referring to the third set of questions on the verdict sheet, which concerned the charge of unlawful possession of the knife, the jurors asked:

"Clarification on number three, [i]s unlawful possession of a weapon determined prior to the crime, i.e., brought it with him, or at [the] time of the crime, i.e., found in the car or wrestled away from [the] driver?"

The judge responded as follows:

The intent to possess, as I said, any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses is guilty of a crime. As I explained to you, and I used the case State v. Villar. That's the case, the fellow with the beer mug, all right, the intent to possess can be formed at the time of the alleged crime. In other words, I'm not going to tell you the facts, but as I said to you in the Villar case, when the gentlemen was seated at the bar holding on to the beer mug, at the time he was drinking beer, right, he had the mug in his hand beforehand, that wasn't a crime. But later on when he got into the argument with the guy next to him, when he bashed him over the head, he formed the intent at that point to possess it, so it could be at the time of the incident. I hope that answers your question.

JUROR NO. 1: Uh-hum.

THE COURT: Okay? You may resume you deliberations.

Juror No. 1 confirmed that it did, and the judge directed the jurors to resume their deliberations. Again there was no objection. And even when the jurors returned with another question asking the judge to explain the difference between unlawful possession of a weapon and possession with an unlawful purpose, defense counsel did not ask the judge to elaborate on his prior explanation of unlawful possession. That is not surprising given the clarity of the judge's recitation of the elements of unlawful possession of a weapon. He explained, "Three elements are simply here for unlawful possession of a weapon[:] that the item is a weapon[;] that the defendant possessed the weapon knowingly[;] and that the defendant's possession of the weapon was, under the circumstances, not manifestly appropriate for its lawful use." Again, there was no objection or request for elaboration.

Defendant now argues that the judge should have re-instructed the jurors on possession. He contends that the jurors wanted to know whether a finding of guilt had to be based on proof that the defendant brought the knife with him or could be based on proof that defendant found the knife in the cab or wrestled it away from the driver.

We agree with defendant's assessment of the point of the question. But we cannot discern how the judge's response fell short of providing the correct answer on the facts of this case. The answer by referring to use of a beer mug to bash someone over the head focused the jurors on the circumstances under which the item was possessed when defendant possessed it. In our view, the response considered as a whole and in the context of the facts contained in the question was adequate and neither erroneous nor misleading.

Affirmed.