STATE OF NEW JERSEY v. ALEXIS RAMOS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1696-13T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXIS RAMOS, a/k/a ALAXIS RAMOS,

a/k/a ALEXIS APARICIO RAMOS, a/k/a

ALEXIS RAMOSAPARICIO,

Defendant-Appellant.

________________________________________________________________

November 24, 2015

Before Judges Fuentes, Koblitz and Kennedy.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-05-0569.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Sara B. Liebman, SpecialDeputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant Alexis Ramos of one count of second-degree burglary, N.J.S.A. 2C:18-2, after he failed to return for trial after jury selection. The trial judge sentenced defendant to five years in prison, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act, N.J.S.A.2C:43-7.2. Defendant appeals from the conviction and sentence alleging prosecutorial misconduct, errors in the jury charge, improper evidentiary rulings and an excessive sentence. We affirm.

The trial revealed the following facts. The twenty-six year old victim, Sandra,1returned at about 7:30 p.m. and noticed that the lights were on in her home, despite her having locked the door and turned them off as she left. She called out and saw defendant in her room. Sandra yelled at defendant and grabbed him to prevent him from escaping through the window. Sandra saw her friend Palmira drive up and yelled out of the window to Palmira telling her to call the police.

Defendant punched Sandra in her nose and mouth with a closed fist. He hit her again and Sandra fell to the floor. Her face became numb, and the inside of her lip was cut from the blows. Seventeen-year-old Julian was outside on the street. He heard screams coming from the home. Palmira tried to stop defendant, then chased him outside. When Palmira gave up the chase, Julian took over, simultaneously reporting the incident to a 911 operator from his cell phone. Shortly thereafter the police arrived, and Julian pointed defendant out as the man who had been running from Sandra's home.

Sandra and Palmira both identified defendant as the burglar at the scene. A crowbar was found in Sandra's kitchen, which belonged to no one in the home. A kitchen window was discovered broken. Sandra's laptop bag was found in the middle of her bedroom with her valuables inside. She had not put those items in the bag.

Elizabeth Police Officer John Callahan testified that he tested the crowbar discovered at the scene for fingerprints, but was unable to lift any usable fingerprints from it. He did not test the laptop bag or any of the items within for fingerprints.

Defendant raises the following issues on appeal

POINT I: THE PERVASIVE PROSECUTORIAL MISCONDUCT IN THIS CASE DEPRIVED MR. RAMOS OF HIS FUNDAMENTAL RIGHT TO A FAIR TRIAL.

A. THE ASSISTANT PROSECUTOR IMPERMISSIBLY SHIFTED THE BURDEN OF THE STATE'S WITNESSES WITH THE ABSENCE OF EVIDENCE PRESENTED BY THE DEFENSE.

B. THE STATE IMPROPERLY APPEALED TO THE JURY'S EMOTIONS.

C. THE STATE INAPPROPRIATELY EQUATED JUSTICE WITH A GUILTY VERDICT.

D. THE ASSISTANT PROSECUTOR IMPROPERLY COMMENTED ON FACTS THAT WERE NOT IN EVIDENCE.

E. THE CUMULATIVE EFFECT OF THE PROSECUTORIAL MISCONDUCT CONSTITUTES PLAIN ERROR WARRANTING REVERSAL.

POINT II: THE TRIAL COURT ERRED TO MR. RAMOS' DETRIMENT IN FAILING TO CHARGE THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT. (NOT RAISED BELOW)

POINT III: THE TRIAL COURT ERRED IN ALLOWING OFFICER CALLAHAN TO EFFECTIVELY TESTIFY AS AN EXPERT WITH RESPECT TO THE LIKELIHOOD OF RECOVERING FINGERPRINT EVIDENCE FROM THE COMPUTER BAG.

POINT IV: THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY IMPLICITLY INSTRUCTING THE JURY THAT MR. RAMOS COULD BE FOUND GUILTY OF BURGLARY BASED UPON A THEORY THAT WAS NEVER ADVANCED BY THE STATE.

POINT V: THE TRIAL COURT ERRONEOUSLY PROHIBITED THE DEFENSE FROM ELICITING EVIDENCE FROM OFFICER CROBAN REGARDING MS. ROCHA'S PRIOR INCONSISTENT STATEMENTS.

POINT VI: IN THE ALTERNATIVE, THE CASE SHOULD BE REMANDED FOR THE IMPOSITION OF A SENTENCE IN THE THIRD-DEGREE RANGE.

A. THE SENTENCING COURT ERRED IN FINDING AGGRAVATING FACTORS THREE AND NINE.

B. THE COURT BELOW FAILED TO CONSIDER ALL OF THE MITIGATING CIRCUMSTANCES.

C. THE MINOR NATURE OF [THE VICTIM]'S ALLEGED INJURY RENDERS MR. RAMOS' PURPORTED CONDUCT AKIN TO A THIRD-DEGREE OFFENSE.

The evidence against defendant was overwhelming. In defendant's absence, his attorney valiantly attempted to mount a defense out of whole cloth that defendant and Sandra had been dating, and Sandra was now falsely accusing defendant of burglary to exact revenge, when in fact defendant broke into her house to retrieve his own possessions. Defense counsel based this argument on the fact that the victim and defendant were approximately the same age and both spoke Spanish, as well as the fact that the victim confronted defendant rather than immediately calling for help. As the judge noted in sentencing defendant, even if the two parties did know each other, that did not negate the fact that defendant broke into the home and struck the victim. Given the defense's florid argument to the jury, the issues raised by defendant on appeal are without sufficient merit to require extensive discussion in a written opinion. R. 2:11-3(e)(2). We will briefly discuss only the State's summation and the sentence imposed.

After the defense version of events was argued in summation, the State summed up, stating in part

Ladies and gentleman, [defense counsel] in his opening statement gave you an interesting story. It was juicy, scandalous. It would probably make a good episode of Law and Order or Days of Our Lives. But it s a story. It's not evidence. What he says is not evidence. What I say is not evidence. Where did I tell you the evidence came. The exhibits and right there.

There was nothing presented. You haven't seen anything or heard anything to corroborate any part of [defense counsel's] story. Nothing.

. . . .

If they knew each other why isn't Alexis saying it. He says nothing.

Now, you don't have to believe Sandra; believe Julian. Third party to this. Doesn't know Alexis, doesn't know Sandra, doesn't know Palm[i]ra. Doesn't hear a thing. There's no conversation going on at all, whether it's screaming or not. You're just hearing a woman screaming because Alexis wanted to get out of there. He didn't know the woman. He's not saying this is my stuff. Nothing, whether it's in English or Spanish.

. . . .

[T]he victim who came in here, testified, looked at you. When she told you she couldn't remember something, she told you. And had answered questions in front of myself and defense counsel about that night. That's the truth. That's what happened. Not a story. That is the evidence.

As we have noted, "[a] prosecutor is permitted to respond to an argument raised by the defense so long as it does not constitute a foray beyond the evidence adduced at trial." State v. Munoz, 340 N.J. Super. 204, 216 (App. Div. 2001) (citations omitted), certif. denied sub nom., State v. Pantoja, 169 N.J.610 (2001). In State v. Engel, we stated that we "'must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo.'" 249 N.J. Super. 336, 379 (App. Div.) (quoting United States v. Young,470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985)), certif. denied, 130 N.J.393 (1991). Although any reference to a defendant's failure to testify is strictly prohibited, State v. Jones, 364 N.J. Super. 376, 382 (App. Div. 2003), a prosecutor may comment on the strength of his case.

Similarly, when the State elaborated on the assassination of Abraham Lincoln by way of illustrating that eye-witnesses may have different recollections of an event, it was an unnecessarily dramatic example. Similarly, however, defense counsel began his summation describing George Washington camping out in brutal conditions nearby in Morristown. He went on to discuss Monica Lewinsky, Bill Clinton, George Bush and Martha Stewart, all in the context of explaining that a witness might not tell the truth. Neither lawyer objected to the other's emotional, over-dramatic performance.

The judge, however, gave the following curative charge

Now, when I use the term evidence, I mean the testimony that you've heard and seen from this witness box and the exhibits that have been admitted into evidence. As jurors it is your duty to weight the evidence calmly, without any passion, prejudice or sympathy for anyone involved in this matter. Any influences caused by these emotions had the potential to deprive the State and the Defendant who you promised a fair and impartial trial by fair and impartial jurors.

The judge told the jury, "Arguments, statements, remarks, openings, and summations of counsel are not evidence and must not be treated as evidence." We presume that the jurors follow the instructions of the judge. SeeState v. Timmendequas, 161 N.J.515, 578 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "A defendant is entitled to a fair trial but not a perfect one." State v. R.B., 183 N.J.308, 334 (2005). Here, the absent defendant received a fair trial.

Defendant also claims that his sentence was excessive. He received the lowest possible custodial sentence for a second-degree crime, absent the court sentencing him for a third-degree crime "where the interest of justice demands." N.J.S.A.2C:44-1(f)(2). The findings of fact regarding aggravating and mitigating factors were based on competent and credible evidence in the record, the court correctly applied the sentencing guidelines enunciated in the New Jersey Code of Criminal Justice, and the court did not abuse its discretion in imposing the sentence. See State v. Cassady, 198 N.J. 165, 179-84 (2009); State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

1 We use first names only to preserve the anonymity of the lay witnesses.