STATE OF NEW JERSEY v. PABLO S. MACHADO

NOT FOR PUBLICATION WITHOUT THE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.

PABLO S. MACHADO,

Defendant-Appellant.

___________________________________

May 22, 2105

Submitted May 4, 2015 - Decided

Before Judges Sabatino and Guadagno.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-09-1414 and 07-10-1579.

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

Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

This appeal stems from a case that we remanded in 2011 for a new trial. The case was tried a second time and again resulted in defendant's conviction.

The indictment arose out of the robbery of a taxi driver in New Brunswick in 2007. The driver had taken two passengers to their requested destination about a mile away. One of the passengers, alleged to be defendant, then pointed a gun at the driver's head, demanded money, and began striking him. Several other men wearing masks appeared, and they took part in robbing the driver of cash, a silver chain, and other items. At some point, defendant also allegedly disconnected the taxi cab's two-way radio.

At the first trial in December 2008, the primary factual dispute centered on the identification of defendant as one of the robbers. The jury convicted defendant of armed robbery, conspiracy to commit armed robbery, terroristic threats, and fourth-degree theft. After mergers, the court sentenced defendant on the armed robbery count to a thirteen-year custodial term, subject to a parole disqualifier under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, plus a seven-year concurrent term on the conspiracy count.

In his first appeal, defendant argued, among other things, that the trial judge had improperly admitted proof of caller identification, which the prosecution used to connect him to the robbery. We concluded that the judge had erred in admitting that evidence, because it was based upon multiple layers of inadmissible hearsay. Because the admission of the hearsay proof was not harmless, we remanded the matter for a new trial. See State v. Machado, No. A-3047-09 (App. Div. Oct. 14, 2011).

Thereafter, defendant was tried again before a jury and a different judge1 in August 2012. He was once again convicted of armed robbery and conspiracy to commit armed robbery. The State dismissed the weapons count, and the jury found defendant not guilty of the remaining counts. The sentencing judge imposed the same custodial terms that had been imposed after the first trial, subject to certain jail credits and a five-year period of parole supervision.

Defendant raises the following points for our consideration

POINT ONE

BECAUSE THE JUDGE FAILED TO PROVIDE THE JURY WITH AN ACCOMPLICE CHARGE CONSISTENT WITH STATE V. BIELKIEWICZ, DESPITE THE APPELLATE COURT'S CLEAR INSTRUCTION THAT HE DO SO, THE JURY RECEIVED NO GUIDANCE REGARDING LESSER-INCLUDED OFFENSES THAT WERE CLEARLY EVIDENT FROM THE RECORD, NOR DID THE JUDGE EXPLAIN THAT AN ACCOMPLICE COULD BE GUILTY OF A LESSER OFFENSE IF HIS INTENT WAS DIFFERENT FROM THAT OF THE PRINCIPAL.

POINT TWO

THE PROSECUTOR'S BLATANT AND REPEATED MISCONDUCT PERVADED AND CONTAMINATED ALL ASPECTS OF THE PROCEEDINGS AND DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., Amend. VI, XIV; N.J. CONST., ART. I, para. 1, 9, and 10. (Partially Raised Below).

A. The Prosecutor Impermissibly Vouched

for the State's Witness.

B. The Prosecutor Elicited Evidence that

this Court had Ruled Inadmissible.

C. The Prosecutor Disregarded and

Disobeyed the Judge's Repeated

Instructions to Lower His Voice at

Sidebar.

D. The Prosecutor Nodded His Agreement to the State's Witnesses' Answers While the Witness was Being Questioned by Defense Counsel.

E. The Prosecutor's Analogy of this Case to a Rape was Uncalled for and Calculated Only to Inflame the Passions of the Jury.

F. The Prosecutor Essentially Told the Jurors to Disregard the Judge's Instructions.

G. The Prosecutor Impermissibly Attempted to Shift the Burden of Proof Onto the Defendant.

H. The Cumulative Effect of the Prosecutor's Multiple Instances of Misconduct Deprived the Defendant of a Fair Trial.

POINT THREE

UNDER THE CIRCUMSTANCES OF THIS CASE, THE SENTENCE IMPOSED ON DEFENDANT WAS EXCESSIVE.

Having fully considered these arguments in light of the record and the applicable law, we affirm.

I.

Defendant initially argues that the judge at the retrial should have issued, sua sponte, an accomplice liability charge tracking the concepts set forth in State v. Bielkiewicz, 267 N.J. Super. 520 (App. Div. 1993). Bielkiewicz holds that, in certain instances, a jury should be instructed that the state of mind of an alleged accomplice may be less culpable than other persons participating in a crime, thereby raising the potential that the accomplice is only guilty of a lesser-included offense. Id. at 528; see also State v. Ingram, 196 N.J. 23, 28-29 (2008).

In our opinion remanding the case for a new trial, we noted "in passing" that on a retrial, the Bielkiewicz charge on accomplice liability "should be issued . . . particularly in light of . . . the possibility that the other cab passenger was the one who wielded the gun." State v. Machado, supra, slip op. at 21. Defendant construes this observation as an absolute mandate to issue the Bielkiewicz charge at a second trial, regardless of the proofs and the positions of counsel. He argues that it was incumbent upon the second judge to issue the charge, and the failure to do so entitles him to a third trial.

We reject defendant's claim of error on this issue. Significantly, defendant's counsel at the second trial unlike the first trial at which defense counsel did not raise or address the issue explicitly advised2 the court that he did not want a jury charge issued on lesser-included offenses. Defense counsel told the judge that "it's an all or nothing case" on identification. Defense counsel also agreed with the judge's observation that the defense strategy was such that either he was "guilty of everything or guilty of nothing."

In addition, we note that at the second trial, the victim cab driver emphatically testified that he knew which passenger had pointed the gun at his head. The victim associated the use of a weapon primarily with defendant, and he remembered that it was defendant who disconnected the two-way radio in his taxi cab. As to the other passenger in the taxi cab, the victim remembered that he was wearing a mask and instructed him to close his eyes.

During closing arguments, defense counsel did not assert that the other passenger had been the one who had wielded the gun. Instead, counsel made a broader attack on the victim's ability to identify defendant as being involved in the episode at all.

Under these circumstances, there was no error, much less plain error, flowing from the lack of a Bielkiewicz charge on accomplice liability at the second trial. Consistent with the defense's desired strategy, the judge issued the alternative version of the model accomplice liability charge that omits the lesser-included offense language under Bielkiewicz. Model Jury Charge (Criminal), "Liability for Another's Conduct, Accomplice, Charge One" (1995). Defendant cannot have it both ways.

Moreover, as the Supreme Court noted in State v. Maloney, 216 N.J. 91, 103 (2013), "[a]n instruction on accomplice liability is not needed when neither party's theory of the case suggests that defendant had a different mental state than that of a principal." That was the situation that the second trial judge confronted. She was not compelled by our passing observation from the first appeal to issue a charge that no one wanted, one which was inconsistent with the nature of the factual dispute and the advocacy presented at the retrial.

II.

Defendant next argues that he was deprived of a fair trial because of the prosecutor's inappropriate and prejudicial conduct at various times during the trial. In particular, he argues that that the prosecutor engaged in the following misconduct: (1) "impermissibly" vouching for the victim's credibility, (2) eliciting caller identification evidence that had been ruled inadmissible as a result of the first trial, (3) failing to lower his voice at sidebar, (4) nodding his agreement to the victim's testimony, (5) using an analogy to a rape case in summation, (6) "essentially" telling the jurors to disregard the judge's instructions, and (7) "impermissibly" trying to shift the burden of proof to defendant. Defendant further asserts that these instances had the effect of cumulative error, warranting reversal of his conviction and remand for a new trial.

We have carefully considered these allegations of misconduct in light of the trial record as a whole and find no basis for reversal. Under well-settled standards of appellate review of such claims, our task is to decide whether the alleged misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In making this assessment, we must consider "the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

The record shows that the retrial was a hotly contested case, one in which the credibility of the victim was the critical issue. Counsel each took strong adversarial positions, and the defense counsel's cross-examination of the victim was vigorous. In that combative context, the prosecutor must be afforded some leeway in presenting the State's proofs and arguments.

The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

Although the prosecutor should not have spoken so loudly at sidebar after being repeatedly cautioned to keep his voice down and should not have nodded in affirmation when the victim testified, such expressive conduct by a lawyer in the "heat of combat" does not signify that defendant was deprived of a fair trial. Nor do we detect any significant prejudice from the fleeting reference to caller identification when it was inadvertently alluded to during the victim's testimony.

We are equally satisfied that the prosecutor's summation was not unduly prejudicial and does not warrant a new trial. With only one exception, the summation points complained of by defendant were within the ambit of fair advocacy. That said, we do part company with the trial judge, insofar as she overruled defendant's objection to the prosecutor's analogy of the identification issues posed here in this robbery case to those that can arise in a rape case. Such an analogy is inapt and should not be repeated in future cases of this nature. However, that singular indiscretion did not have "a clear capacity to bring about an unjust result." State v. Johnson, 31 N.J. 489, 510 (1960), aff'd, 384 U.S. 719, 86 S. Ct. 1772, 16 L. Ed. 2d 882 (1966).

III.

As his final point, defendant contends that his thirteen-year sentence with a NERA parole disqualifier is excessive. This argument requires little discussion.

As the Supreme Court has recently reaffirmed, sentencing determinations are reviewed on appeal with a highly deferential standard. State v. Fuentes, 217 N.J. 57, 70 (2014). "The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). Once the trial court has balanced the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010). See also State v. Case, 220 N.J. 49, 65 (2014) (instructing that appellate courts may not substitute their judgment for that of the sentencing court, provided that the "aggravating and mitigating factors are identified [and] supported by competent, credible evidence in the record").

In sentencing defendant following the second jury's verdict, the court found significant the following aggravating factors: (1) the risk of re-offense (factor three), N.J.S.A. 2C:44-1(a)(3), (2) the extent of defendant's prior criminal record and the severity of those offenses (factor six), N.J.S.A. 2C:44-1(a)(6), and (3) the need for deterrence (factor nine), N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors.

The court appropriately pointed out several important considerations bearing on its sentencing analysis. First, the court noted that defendant had both a juvenile and criminal history. The court further noted that defendant "has failed to respond affirmatively to prior periods of probation and incarceration[,]" particularly because he "committed this offense while on probation[.]" In addition, the court explicitly recognized that it was imposing a sentence that was on the "lower end of the range[.]"

Defendant argues that aggravating factors three and nine are inapplicable, because of the likelihood that he would be deported, and thus not subject to the laws of this country, before the completion of his custodial sentence. This argument is clearly without merit. Indeed, it unduly discounts the possibilities that federal immigration authorities might not take prompt steps to deport defendant, or that he might illicitly gain re-entry into the United States after being deported. Moreover, as to factor nine, the need to deter others would not be negated just because this particular defendant may be deported.

In sum, the sentence imposed after the second trial, which essentially matched the sentence imposed after the first trial, was manifestly appropriate and by no means shocks our judicial conscience.

Affirmed.

1 The judge who presided over the first trial is now in a different trial division.

2 For reasons that are unclear, the trial judge apparently did not have the charge conference recorded, as called for under Rule 1:8-7(b). Instead, the judge and the attorneys had what the judge described as "a very lengthy discussion" in chambers earlier that day, and then went on the record to memorialize those discussions and address only an open dispute concerning the charge on identification. Although neither party contends that the failure to record the charge conference was prejudicial or of consequence here, we use this occasion to reinforce the importance of recording the charge conference, as called for by the Rule, to facilitate appellate review.