STATE OF NEW JERSEY v. JAMES J. GALLICHIO

NOT FOR PUBLICATION WITHOUT THE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.

JAMES J. GALLICHIO,

Defendant-Appellant.

________________________________

October 6, 2016

Submitted January 11, 2016 Decided

Before Judges Carroll and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-00179.

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

AndrewC. Carey,Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, Jr., J.A.D.

Defendant James J. Gallichio appeals from his conviction for first-degree armed robbery, N.J.S.A. 2C:15-1, and his sentence to a fifteen-year prison term subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant argues

POINT I

THE FAILURE TO CHARGE THE PURPOSEFUL MENTAL STATE REQUIREMENT AS TO THE SIMULATION OF A WEAPON ELEMENT OF FIRST-DEGREE ROBBERY AS INDICATED IN THE MODEL JURY CHARGE WAS PLAIN ERROR HERE BECAUSE IF THE JURY BELIEVED DEFEDANT'S VERSION OF THE FACTS, WHICH WAS THAT THE TOY GUN MAY HAVE BEEN ACCIDENTALLY EXPOSED DURING THE THEFT, THE CHARGE DID NOT MAKE IT CLEAR THAT THE JURY SHOULD HAVE ACQUITTED DEFENDANT OF FIRST-DEGREE ROBBERY. U.S. [Const. amend.] XIV; N.J. [Const. art.] I, 1. (Not Raised Below).

POINT II

THE FAILURE TO GIVE THE CLAWANS[1] CHARGE REQUESTED BY DEFENDANT AND ALLOW DEFENDANT TO ARGUE TO THE JURY THAT THE STATE FAILED TO PRESENT AN IMPORTANT WITNESS WAS HARMFUL ERROR. U.S. [Const. amend.] VI [AND] XIV; N.J. [Const. art.] I, 1, 10.

POINT III

THE PROSECUTOR'S MISCONDUCT DENIED DEFENDANT A FAIR TRIAL. U.S. [Const. amend.] XIV; N.J. [Const. art.] I, 1 (Not Raised Below).

POINT IV

The SENTENCE WAS EXCESSIVE. U.S. [Const. amends.] VIII [AND] XIV; N.J. [Const. art.] I, 1, 12.

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

I.

The crucial issue at trial was whether defendant used a toy gun when he confronted and took money from East Brunswick gas station employee, K.F.2 K.F. testified that, at approximately 8:00 p.m. on November 21, 2010, he had just pumped gas for a customer and went inside the gas station to put $800 into a safe. Before he could place the money in the safe, K.F. stated that he was confronted by a man, later identified as defendant, wearing a black ski mask, standing two feet away from him, pointing a gun at his chest, and asking for the money that was in his hand. K.F., a recent immigrant to this country from Egypt, testified that he was afraid he was going to be killed and gave the money to defendant. According to K.F., defendant then grabbed his shirt and directed him into the station's darkened mechanic shop. Defendant left the gas station, leaving K.F. in the shop. Thinking that the station owner would accuse him of taking the money, K.F. chased after defendant. While yelling at defendant in his native Arabic language, K.F. noticed defendant dropped money on the ground.

Off-duty East Brunswick police officer Agnieszka Garncarz testified that moments after she saw K.F. pursuing defendant, she heard a radio report that a robbery had just occurred at the gas station. Garncarz followed K.F. and defendant, and after seeing defendant go into a wooded area, she hurried after him and tackled him. Shortly thereafter, back-up officers arrived and arrested defendant.

Police found the money that defendant stole from the gas station, as well as a small toy gun with electrical tape around the cylinder, in the woods where defendant was caught. When K.F. was later questioned at the police station with the aid of the gas station owner's interpretation, he stated that the confiscated toy gun looked like the one used by defendant in the robbery.

Defendant testified that he did not use the toy gun during the incident. He claimed the toy gun was in his front pants pocket but was never pulled out. Yet, he had acknowledged when questioned at the police station following his arrest that K.F. could have seen the toy gun protruding from his pocket. Defendant also maintained that he never threatened K.F., but merely told him: "give me the money. Nothing will happen. Something to that effect. I am not going to hurt you." Defendant stated that he did not use any force to take the money and that he grabbed it when K.F. backed away from the counter. After grabbing the money defendant claims that he left. He denied putting K.F. in the mechanic shop.

During summation, the State objected to defense counsel's comments regarding the State's decision not to call K.F.'s employer as a witness since the employer served as K.F.'s interpreter at the police station. After the trial judge excused the jury, defense counsel responded to the judge's inquiry, stating that he was requesting a Clawans charge to inform the jury that it could draw an adverse inference that the employer's testimony would have been adverse to the State had he testified. The judge denied the request on the basis that defense counsel failed to provide proper notification to the court and to the State that he was seeking the charge in advance of his summation remarks.

Also during closing, defense counsel argued that K.F. was trying to be a hero by chasing defendant after defendant took the money. In his closing remarks, the prosecutor referred to K.F. as a "hero" because despite being fearful of his life when defendant put what K.F. thought was a gun to his chest, K.F.'s decision to chase defendant led to defendant's arrest. There was no objection to either comment.

The jury returned a verdict finding defendant guilty of first-degree armed robbery. At sentencing, the judge rejected defendant's request for a minimum ten-year NERA sentence. In imposing a mid-range sentence of fifteen years, the judge made reference to the fear defendant caused to the victim and to defendant's criminal history. Almost seven months before the robbery, defendant was convicted of third-degree official misconduct, causing him to forfeit his position as a state corrections officer. He was placed on probation, and at the time of the robbery he had a pending charge for violation of probation. This appeal followed.

II.

In Point I, defendant contends for the first time on appeal that the judge failed to provide the jury with proper jury instructions thereby warranting reversal of his conviction. Specifically, he argues that since the issue of whether defendant purposefully simulated a weapon was the central dispute at trial, the judge erred by omitting the purposeful mental state requirement in the jury charge on the simulated weapon element.

We are mindful of some well-settled principles. "'[A]ppropriate and proper charges to a jury are essential for a fair trial.'" State v. Collier, 90 N.J. 117, 122 (1982) (quoting State v. Green, 86 N.J. 281, 287 (1981)). A defendant is entitled to "an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998) (citation omitted), aff'd, 158 N.J. 149, 150 (1999). However, where a "defendant did not object to the jury instructions at trial, we must apply the plain error standard." State v. Burns, 192 N.J. 312, 341 (2007) (citing R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005)). With regard to a jury charge,

plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant 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."

[Ibid. (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

An "error in a jury instruction that is 'crucial to the jury's deliberations on the guilt of a criminal defendant' is a 'poor candidate[] for rehabilitation' under the plain error theory." Ibid. (quoting Jordan, supra, 147 N.J. at 422). Nevertheless, any such error is to be considered "in light of 'the totality of the entire charge, not in isolation.'" Ibid. (quoting State v. Chapland, 187 N.J. 275, 289 (2006)). Moreover, "any alleged error also must be evaluated in light of the overall strength of the State's case." Ibid. (citation omitted).

Defendant relies upon State v. Nero, 195 N.J. 397, 408 (2008), where our Supreme Court held that,

in respect of a robbery threatening the immediate use of a deadly weapon by simulation, the robbery statute, by its own terms and by the application of common logic, requires that the simulation of a deadly weapon be done "purposely." That is, that "[a] person acts purposely with respect to the nature of his conduct or a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result[;]" that "[a] person acts purposely with respect to attendant circumstances if he is aware of the existence of such circumstances or he believes or hopes that they exist[;]" and that "'[w]ith purpose,' 'designed,' 'with design' or equivalent terms have the same meaning." N.J.S.A. 2C:2-2(b)(1).

Applying these principles to this case, we conclude that there was no plain error. The judge's instructions satisfied the Nero requirement that the jury was directed to consider whether defendant's use of the toy gun was meant to convey fear or was a threat of serious bodily injury.

When instructing the jury, the judge gave the Model Jury Charge (Criminal), "Robbery in the First Degree (N.J.S.A. 2C:15-1)" (2011). The judge defined the purposeful mental state needed to find defendant guilty, and explained that it is a crime of the first degree if the actor is armed with, or uses, or threatens, the immediate use of a deadly weapon. The next day, based upon the jury's request, the judge recharged on armed robbery, robbery, and theft.3 When reiterating the model charge on first-degree armed robbery, the judge, after defining deadly weapon, explained that to simulate a weapon

means to assume the outward quality or appearance of often with the intent to deceive. It's a feigned, pretended act, usually to mislead or deceive.

The State does not have to prove that the defendant actually possessed a real, deadly weapon. Rather, the State must prove beyond a reasonable doubt that the defendant led the victim to reasonably believe by words, or conduct, or gestures that he possessed such a deadly weapon.

The State must prove beyond a reasonable doubt that defendant not only threatened the immediate use of a deadly weapon, but it must also prove beyond a reasonable [doubt] that the defendant engaged in conduct or gestures which would lead a reasonable person to believe that he possessed a deadly weapon.

Thus, this element may be proved by evidence of an unequivocal or unambiguous simulation of a weapon, or by . . . an equivocal or ambiguous gesture, coupled with threatening words, that completes the victim's impression of a deadly weapon.

So, . . . [a]n unequivocal or unambiguous simulation means that the defendant's acts or gestures are a clear and unmistakable effort to simulate a weapon.

The judge then acknowledged that the State contended that,

defendant pointed an imitation firearm at the victim's chest, ordered him to hand over the money, and forced him into the service bay while holding the imitation firearm.

You may determine whether the State has proven beyond a reasonable doubt that the combination of words and conduct or words and gestures created a reasonable belief in the victim to believe that the defendant possessed a deadly weapon, capable of causing death or serious bodily injury.

Guided by these instructions, the jury found credible K.F.'s testimony that defendant purposefully pointed an imitation gun that K.F. reasonably believed was a real weapon when defendant demanded that K.F. give him the gas station's cash. In doing so, the jury did not believe defendant's assertion that the toy gun was never pointed at K.F. or shown to convey fear of K.F.'s personal welfare.

We next address defendant's claim in Point II that the judge erred by not giving a Clawans charge due to the State's decision not to call K.F.'s employer to testify. There is no merit to this argument.

In Clawans, the Court upheld the notion that a party's failure to produce a witness at trial may give rise to an inference that the witness' testimony would have been unfavorable to that party. State v. Clawans, 38 N.J. 162, 170 (1962). In State v. Hill, the Court explained that a trial judge may provide an adverse inference charge after considering and making findings based on the following circumstances

(1) that the uncalled witness is peculiarly within the control or power of only the one party, or that there is a special relationship between the party and the witness or the party has superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) that the witness is available to that party both practically and physically; (3) that the testimony of the uncalled witness will elucidate relevant and critical facts in issue[;] and (4) that such testimony appears to be superior to that already utilized in respect to the fact to be proven.

[State v. Hill, 199 N.J. 545, 561 (2009) (quoting State v. Hickman, 204 N.J. Super. 409, 414 (App. Div. 1985), certif. denied, 103 N.J. 495 (1986)).]

Procedurally, the party seeking the charge should provide notice before making argument to the jury.

The better practice [] is for party seeking to obtain a charge encompassing such an inference to advise the trial judge and counsel out of the presence of the jury, at the close of his opponent's case, of his intent to so request and demonstrating the names or classes of available persons not called and the reasons for the conclusion that they have superior knowledge of the facts. This would accord the party accused of nonproduction the opportunity of either calling the designated witness or demonstrating to the court by argument or proof the reason for the failure to call. Depending upon the particular circumstances thus disclosed, the trial court may determine that the failure to call the witness raises no inference, or an unfavorable one, and hence whether any reference in the summation or a charge is warranted.

[Clawans, supra, 38 N.J. at 172.]

Here, defendant did not notify the court nor the State prior to arguing in summation that the State failed to call K.F.'s employer as a witness. In fact, it took the State's objection and the court's inquiry to clarify that defendant was seeking an adverse inference, for the employer's non-testimony. Nevertheless, on its merits, a Clawans charge was not warranted for several reasons. There was no evidence that the employer was in the sole control of the State, or that he had a special relationship with the State. The State had disclosed his name to defendant, but defendant chose not to exercise the option to call him as a witness. Given that the witness did not see the robbery, and only served as an interpreter for K.F. at the police station, there is some doubt that he could provide any relevant and critical evidence.

We also find no merit to defendant's contention that the prosecutor's closing remark that K.F. was a hero was an inflammatory and emotional appeal to divert the jury's attention from the evidence, thereby constituting misconduct. Because defendant did not raise this issue before the trial judge, we review it for plain error. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971). We will reverse on the basis of an unchallenged error only if it was "clearly capable of producing an unjust result[.]" Macon, supra, 57 N.J. at 337. To reverse for plain error, we must determine that there is a real possibility that the error led to an unjust result, that is, "one sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Id. at 336.

Furthermore, to warrant reversal, "'the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007) (quoting State v. Smith, 167 N.J. 158, 181-82 (2001), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008)). One factor to consider is whether there was a proper and timely objection to the comment, State v. Jackson, 211 N.J.394, 409 (2012), because the lack of any objection indicates defense counsel "perceived no prejudice." State v. Smith, 212 N.J.365, 407 (2012), cert. denied, ____ U.S.____, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).

It is improper for a prosecutor to convey his or her personal opinion to a jury. State v. Michaels, 264 N.J. Super. 579, 640 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). When a prosecutor injects his own personal opinion as to the credibility of a witness, this may constitute prosecutorial error. See State v. Farrell, 61 N.J. 99, 105 (1972).

Here, the prosecutor's comment did not suggest that the jury should believe K.F.'s testimony because he was a hero. Rather, the reference was a direct rebuke to defense counsel's closing comment that K.F. tried to be a hero by following defendant after K.F. was allegedly robbed at gunpoint. Thus, defense counsel saw no need to object. Accordingly, the prosecutor's comment did not constitute any error, let alone plain error.

Lastly, defendant contends that his sentence was excessive because no one was seriously injured and his use of a toy gun demonstrated that he "neither caused nor threatened serious harm" (mitigating factor one), N.J.S.A. 2C:44-1(b)(1). Defendant also contends that the judge should have considered the excessive hardship to his family (mitigating factor eleven), N.J.S.A. 2C:44-1(b)(11).

On appeal, a sentence should be affirmed if the sentencing court identified and balanced the aggravating and mitigating factors, and their existence is grounded in sufficient credible evidence in the record. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence should only be modified if the application of the facts to the law "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984). The reviewing court is not permitted to substitute its own judgment for that of the sentencing court but rather must determine whether, on the basis of the evidence, "no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).

In this case, the sentence is within our sentencing guidelines and does not shock the conscience. Therefore, we shall not second-guess and disturb the trial court's findings. See State v. Bieniek, 200 N.J. 601, 608-09 (2010); State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

Affirmed.

1 State v. Clawans, 38 N.J. 162 (1962).

2 We use the victim's initials to protect his identity.

3 For reasons that are unclear, the record includes two transcripts, identified as T5 (Part I) and T6 (Part II), of the recharge that took place on January 13, 2012. The transcripts were transcribed by two different individuals, and reflect slight, but immaterial differences. We cite to T5.