STATE OF NEW JERSEY v. HECTOR MEJIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HECTOR MEJIA,

Defendant-Appellant.

_____________________________

January 9, 2017

Submitted November 3, 2016 Decided

Before Judges O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-04-0349.

Joseph E. Krakora, Public Defender, attorney for appellant (Louis H. Miron, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Hector Mejia, appeals from a November 19, 2013 conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3). We affirm.

On November 22, 2011, at approximately 7:30 p.m., J.R. was traveling from the Elizabeth train station after picking up his wife, Y.R.1 While stopped at a traffic light, defendant pulled up along the left hand side of J.R.'s car and asked him to pull over. Defendant had loaned money to J.R., but J.R. had not repaid defendant. Realizing defendant was angry, J.R. asked defendant if the two could speak at his restaurant a few blocks away, but as the light turned green, defendant pulled in front of J.R.'s car and got out. J.R. exited his vehicle and began walking towards defendant when he saw defendant reach across his body and pull a black pistol from his waist.

Defendant pointed the pistol at the ground and fired. J.R. heard a loud explosion and felt pain in his arm. J.R. did not know if he was struck by a bullet or hit with a rock. The skin on his hand looked "popped up" and was bleeding. Defendant got back into his car and drove away. J.R. managed to get back in his car and drive a few blocks away, as Y.R. called the police and reported the incident. J.R. and Y.R. returned to the scene where they met the police. J.R. was taken to the hospital where he was given Motrin and was released. He did not need stitches for the wound and required no follow-up medical treatment. In the course of investigating the incident, the police searched defendant's apartment and his vehicle, but never recovered a weapon.

In April 2012, defendant was indicted for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(3) (count three); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1) (count four).2

The jury trial began on September 24, 2013. J.R. testified about the encounter with defendant. He did not believe defendant wanted to kill him but only intended to scare him or make a statement. No photographs of J.R.'s hand or the clothes he was wearing that night were submitted into evidence. Initially, J.R. had not provided the police with a statement, as he feared being labeled a "snitch." He later gave a statement to police. Y.R. testified she had been in J.R.'s car during the incident and demonstrated for the jury how defendant pulled a gun, pointed it and shot. She testified J.R had blood on his hand but said he was fine. Two police witnesses also testified about their investigation of the incident.

On September 26, 2013, the jury found defendant guilty on the three remaining counts. Defendant filed a motion for a judgment of acquittal and the State filed a motion for an extended term, both of which were denied on November 15, 2013.

At sentencing, the court merged count three with count two, and defendant was sentenced to an aggregate term of six years with three years of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6c. This appeal followed.

On appeal, defendant raises the following issues

POINT I.

THERE WAS INSUFFICIENT EVIDENCE IN THE RECORD TO SUPPORT THE JURY'S VERDICT THAT MEJIA CAUSED THE VICTIM'S ALLEGED INJURIES.

POINT II.

MEJIA'S SENTENCE WAS EXCESSIVE AND UNFAIR.

I.

Defendant argues the trial judge erred by denying his motion for judgment of acquittal because the evidence was insufficient for a jury to find that J.R.'s injury was caused by defendant's conduct. We disagree.

To set aside a verdict, we must find there is a clear and convincing belief "there was a manifest denial of justice under the law." State v. Sims, 65 N.J. 359, 373-74 (1974) (citing Dolson v. Anastasia, 55 N.J. 2, 7-9 (1969)); R. 2:10-1. The verdict must stand if we find "any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982). We must strongly weigh the trial court's "views of credibility of witnesses, their demeanor, and [its] general 'feel of the case.'" Ibid. (quoting Sims, supra, 65 N.J. at 373). The Court in State v. Brown, 80 N.J. 587, 591 (1979), found the appropriate test when challenging the sufficiency of the evidence is

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

Defendant argues the State did not prove beyond a reasonable doubt he caused J.R.'s injuries. Pursuant to N.J.S.A. 2C:2-3(a) "[c]onduct is the cause of a result when: (1) it is an antecedent but for which the result in question would not have occurred; and (2) the relationship between conduct and result satisfies any additional casual requirements imposed by the code or by the law defined by the offense." A defendant's conduct is found to be the cause of the event under the "but-for" test when, "the event would not have occurred without that conduct." State v. Martin, 119 N.J. 2, 11 (1990). A review of the trial record pursuant to this standard supports the conclusion the State proved beyond a reasonable doubt defendant was the cause of J.R.'s injury.

While there were inconsistencies between J.R. and Y.R.'s testimony concerning the distance between defendant and J.R., both observed defendant pull out a gun and fire it downward. It may be unclear whether J.R.'s injury was the result of a ricocheted bullet or some other item, such as a small stone, nonetheless, a reasonable jury could have determined but for defendant's firing the handgun, J.R. would not have been injured. The State's inability to recover a weapon or shell casings from the scene goes to credibility of the witnesses' testimony but is not sufficient to demonstrate a clear and convincing manifest injustice has occurred.

Defendant also argues his trial counsel was ineffective for failing to move for judgment at the conclusion of the State's case and for stipulating to the admissibility of J.R.'s hospital records when no testimony was elicited relating to the records.3 We do not consider trial counsel's failure to move for judgment at the conclusion of the State's case to warrant a determination of ineffective assistance. Defendant has not shown counsel's stipulation to the admission of the hospital records warrants a finding of "errors so serious that counsel was not functioning as the 'counsel' guaranteed by the Sixth Amendment." Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 657, 693 (1984); State v. Fritz, 105 N.J. 42, 52 (1987). Moreover, defendant has not shown he was prejudiced by the deficient performance, Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693, or that counsel's performance fell below an objective standard of reasonableness, State v. Chung, 210 N.J. Super. 427, 434 (App. Div. 1986). Defendant has not demonstrated that had trial counsel made the motion for judgment, the motion would have been granted.

A trial judge, in determining whether a motion for judgment at the conclusion of the State's evidence should be granted, must decide if, "giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, supra, 50 N.J. at 458-59. Based on these arguments, defendant has presented no reason requiring us to disturb the jury verdict.

II.

Defendant also argues the trial court failed to consider mitigating factors at sentencing, rendering defendant's sentence unfair and excessive. We disagree.

Appellate review of a criminal sentence is limited and deferential. State v. Bolvito, 217 N.J. 221, 228 (2014). We reverse a trial court's sentence only upon a clear showing of an abuse of discretion, such as when "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not 'based upon competent credible evidence in the record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s] the judicial conscience.'" Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). We discern no abuse of discretion here. The trial judge did not violate the sentencing guidelines, and the trial judge's findings with regard to the mitigating and aggravating factors were based upon competent credible evidence in the record. See Roth, supra, 95 N.J. at 363.

Applying the sentencing guidelines, the trial court found aggravating factors three, a strong risk that defendant will commit another crime; six, the extent of defendant's record and the seriousness of the instant offenses; and nine, the need to deter defendant and others from violating the law. The trial court also found mitigating factor eleven, the imprisonment of defendant will entail excessive hardship to himself and his dependents. After considering all evidence in the record, the trial court found the aggravating factors outweighed the mitigating factor. The trial judge sentenced defendant to the low end of the second-degree range, six years and the mandatory parole ineligibility term of three years, pursuant to N.J.S.A. 2C:43-6(c), the Graves Act, for count one, and imposed concurrent terms for two second-degree offenses. We do not consider the application of the guidelines to the facts before us to shock the judicial conscience.

Affirmed.

1 We refer to the victim and his wife by their initials to protect their identity.

2 The State subsequently dismissed count four.

3 Defendant concedes this claim is better suited for a petition for post-conviction relief but argues he would likely be released from incarceration before a petition would be filed. It is the general policy of our court to not hear ineffective-assistance of counsel claims on direct appeal, as these claims involve evidence typically outside the record. State v. Castagna, 187 N.J. 293, 313 (2006) (citing State v. Preciose, 129 N.J. 451, 460 (1992)). However, "when the trial itself provides an adequately developed record upon which to evaluate defendant's claims," we may consider the issue on direct appeal. Ibid.