STATE OF NEW JERSEY v. JOSE R. RIVERA

NOT FOR PUBLICATION WITHOUT THE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 R. RIVERA,

Defendant-Appellant.

________________________________________________________________

June 10, 2014

Submitted April 8, 2014 Decided

Before Judges Espinosa and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 11-07-1701.

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

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his convictions for aggravated assault and harassment, and his sentence. He presents the following arguments in this appeal:

POINT I

THE JUDGE'S INADEQUATE INQUIRY INTO A JUROR'S CONTACT WITH A STATE'S WITNESS OUTSIDE THE COURTROOM DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL BY AN IMPARTIAL JURY. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

After reviewing defendant's arguments in light of the record and applicable legal principles, we conclude that none have any merit.

I

Defendant's former girlfriend, Marisol Tirado, testified that, on the evening of October 30, 2010, she and defendant were having an argument in defendant's car. Defendant grabbed Tirado by the hair and hit her approximately three times in the face with his closed fist. When Tirado tried to leave the vehicle, defendant positioned himself on top of her, grabbed a box cutter, and started "slashing" at her neck. She testified she thought defendant was going to kill her. Tirado eventually jumped out of the vehicle on the passenger's side. As she tried to get away, defendant had her shirt in his hands and said if she "got him thrown in jail . . . [she] would pay for it." Tirado went to the residence of a friend who lived nearby. The police were called.

Officer Yvette Truitt of the Camden Police Department was dispatched to the scene and took Tirado to the hospital for treatment of the cuts on her neck, face, and hands. Truitt testified that "[t]he cuts looked serious, deep. She had a lot of blood all over her." On the next day, Tirado went to the police station, filed a police report, and provided a taped statement.

Defendant was indicted and charged with third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count one); third-degree terroristic threats, N.J.S.A. 2C:12-3(a), (b) (count two); third-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count four).

Detective Patricia Goodwater of the Camden Police Department, testified for the defense that, during her investigation of defendant on November 1, 2010, she noticed defendant had some dried blood behind his ear and a black eye. She asked defendant what happened to him and he stated Tirado assaulted him and he did not press any charges on her because "she had children."

The jury found defendant guilty of aggravated assault as charged in count one and disorderly persons harassment, N.J.S.A. 2C:33-4, a lesser included offense of the terroristic threats charged in count two. The jury found defendant not guilty of the remaining counts. Defendant was sentenced on count one to four years imprisonment and to a concurrent sentence of time served on count two. The court imposed all mandatory fines and penalties.

II

Defendant first argues that the trial court erred in failing to conduct a voir dire of every deliberating juror, which deprived him of a fair trial. We disagree.

After the jury commenced deliberations, defendant informed the court that he had observed Juror Number Five, an alternate juror, engaged in a conversation with Detective Goodwater after the court had ended the proceedings the day before. Defendant alleged that, as he passed them near the elevator, the detective said to the juror that "there were people like that." Although he did not hear the whole conversation or hear his name mentioned, defendant believed the detective was referring to him. He did not see anyone else nearby.

The judge conducted a voir dire of Juror Number Five, who denied having a conversation with anyone other than a juror before she left the courthouse, denied seeing Detective Goodwater outside the courtroom, and denied having any conversation with the detective. Juror Number Five added that she does not know the detective.

The judge noted that Juror Number Five "is an alternate juror. There's no evidence that's before the Court that she had a conversation with Officer Goodwater. She's not a deliberating juror. So, therefore, the Court is not going to interfere with this jury's continued deliberations in this matter." Defendant did not object to this ruling.

"A defendant's right to be tried before an impartial jury is one of the most basic guarantees of a fair trial." State v. Loftin, 191 N.J. 172, 187 (2007); State v. R.D., 169 N.J. 551, 557 (2001) (internal quotation marks omitted) ("The Sixth Amendment of the United States Constitution and Article I, paragraph 10 of the New Jersey Constitution guarantee criminal defendants the right to . . . trial by an impartial jury."). "That constitutional privilege includes the right to have the jury decide the case based solely on the evidence presented at trial, free from the taint of outside influences and extraneous matters." R.D., supra, 169 N.J. at 557.

When there has been an allegation of outside influence on jurors, the court has an independent duty "to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." Id. at 558; see Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 1:16-1 (2014). "'[T]he test for determining whether a new trial will be granted because [of juror misconduct] or the intrusion of irregular influences is whether such matters could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs.'" State v. Jenkins, 182 N.J. 112, 131 (2004) (second alteration in original) (quoting Panko v. Flintkote Co., 7 N.J. 55, 61 (1951)).

In this case, the trial judge acted promptly to investigate the nature of the alleged improper conduct. Juror Number Five was placed under oath and questioned in the presence of counsel. The trial judge determined that the juror did not have any contact or conversation with Detective Goodwater. Since the record supports the conclusion that there was no evidence that Juror Number Five or other jurors were tainted, no further action was necessary.

III

Defendant next challenges his sentence as excessive. Again, we disagree.

"Appellate review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). Such an abuse has occurred if (1) the sentencing guidelines were violated; (2) the aggravating or mitigating factors were not based on "competent credible evidence in the record"; or (3) even if "the court sentenced in accordance with the guidelines," the facts of the case made the sentence "clearly unreasonable so as to shock the judicial conscience." State v. Hudson, 209 N.J. 513, 528 (2012); State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Roth, 95 N.J. 334, 364-65 (1984).

Here, defendant was sentenced to an aggregate sentence of four years. The sentence imposed was, therefore, within the statutory range for third-degree offenses, N.J.S.A. 2C:43-6(a)(3), and defendant has not contended that any sentencing guidelines were violated. The court found no mitigating factors and three aggravating factors: the risk that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses of which he had been convicted, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court determined that the aggravating factors substantially outweighed the nonexistent mitigating factors. In doing so, the court made specific findings as to the applicable aggravating and mitigating factors that were supported by the record. Although defendant argues that a lesser sentence would be appropriate because "defendant's conduct was far from the most severe instance of aggravated assault," he does not contend that the trial court erred in its findings regarding the aggravating and mitigating factors. Finally, our judicial conscience is not shocked by the sentence imposed.

Affirmed.