STATE OF NEW JERSEY v. JOSEPH R. RIOS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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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-1968-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOSEPH R. RIOS, a/k/a
JOSEPH R. MONTEZ, and
JOSEPH RICARDO RIOS,
Defendant-Appellant.
______________________________________
Submitted July 18, 2017 – Decided May 25, 2018
Before Judges Ostrer and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Burlington County, Indictment
No. 15-03-0210.
Jill R. Cohen, attorney for appellant.
Scott A. Coffina, Burlington County
Prosecutor, attorney for respondent (Alexis R.
Agre, Assistant Prosecutor, of counsel and on
the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Joseph R. Rios appeals his December 9, 2015 judgment
of conviction for hindering his prosecution by giving false
information that his name was Joseph R. Montez. We affirm.
I.
A grand jury indicted "Joseph R. Rios" and "Juan A. Ferrer,
Jr." with third-degree burglary,
N.J.S.A. 2C:18-2(a)(1); third-
degree attempted theft by unlawful taking,
N.J.S.A. 2C:5-1(a) and
N.J.S.A. 2C:20-3(a); third-degree resisting arrest by flight,
N.J.S.A. 2C:29-2(a)(2); and fourth-degree criminal mischief,
N.J.S.A. 2C:17-3(a)(1).1 The indictment also charged defendant
with third-degree hindering his own apprehension, prosecution,
conviction, or punishment by giving false information to a law
enforcement officer,
N.J.S.A. 2C:29-3(b)(4).
Defendant was tried for third-degree burglary, third-degree
attempted theft by unlawful taking, and an amended charge of
fourth-degree hindering.2 The State called four witnesses: the
resident of an apartment in the Borough of Palmyra; Palmyra
Sergeant Timothy Leusner; Cinnaminson Patrol Officer Garrett
1
Ferrer pled guilty to third-degree burglary and fourth-degree
resisting arrest by flight. We affirmed his judgment of
conviction. State v. Ferrer, No. A-2474-15 (App. Div. Aug. 21,
2017).
2
The charge of criminal mischief was dismissed by the prosecutor
before trial, and the charge of resisting arrest by flight was
dismissed by the court during trial.
2 A-1968-15T2
McLaverty; and Palmyra Detective Shawn Benedict. Their testimony
included the following facts.
In the pre-dawn hours of October 5, 2014, the Palmyra police
department received a 9-1-1 call from a person stating that his
residence was being burglarized by three males wearing masks, one
carrying a gun. He told the police he was in Philadelphia but
could see the burglary in progress using his home video
surveillance system, which was linked to his smartphone.3
Sergeant Leusner and Patrolman Michael Ludlow were dispatched
to the residence and arrived at 4:56 a.m. They stopped outside
to observe the situation. Leusner saw no one on the street, but
through the windows he could see flashlights moving around in the
residence. Leusner called dispatch asking for more officers
because there were suspects still inside the residence.
Ten to twelve officers from Palmyra and the surrounding
jurisdictions responded to Palmyra's "mutual aid call," and set
up a perimeter around the residence. Officer McLaverty was
stationed in front of the residence. He saw the front door open
and two males run out. Officers, including McLaverty, yelled for
the males to "freeze" and "stop," but the males ignored the
commands.
3
The police were not able to recover any video from the system.
3 A-1968-15T2
Officer McLaverty lost sight of one male, but never lost
sight of the second male, who ran past him wearing dark clothing
and a ski mask. McLaverty chased the second male as he ran away
from the residence through a parking lot, around other houses, and
over a fence. The male was halfway over a second fence when
McLaverty caught up and tackled him to the ground. McLaverty
handcuffed the male but did not question him, get his name, or see
his face enough to recognize him. A patrol vehicle arrived and
McLaverty placed the male in the vehicle.
The resident returned to his residence and saw a police
officer holding a masked man on his neighbor's lawn. Sergeant
Leusner did not see the males leave the residence, but he saw a
"shadow" running with an officer in pursuit. Later, he heard a
report that two suspects were in custody. He returned to the
Palmyra police station and saw the two individuals who had been
taken into custody, including defendant, whom he described as "Mr.
Rios" and identified in court. Leusner signed a complaint-warrant
"for Mr. Rios."
Palmyra Detective Benedict came to the station to interview
"the two subjects that they had in custody at the time." The jury
4 A-1968-15T2
saw a portion of the video of Benedict's interview of defendant.4
The transcript states the interview began:
Q. You can just grab a seat right there.
What's um . . . what's your full name?
A. Joseph.
Q. Joseph?
A. Yeah.
Q. Okay.
A. Montez.
Q. What is it?
A. MONTEZ.
Q. You got a middle initial or anything like
that?
A. R.
Q. R? What's your date of birth?
Defendant gave a date of birth, address, and cell phone number.5
After the video was played, the prosecutor asked Detective
Benedict if he had "recognize[d] the individual shown on the
4
The video could not be located by the time the case was on
appeal, but a transcript was provided at our request.
5
Benedict then gave defendant his rights under Miranda v. Arizona,
384 U.S. 436 (1966). Defendant said he was not willing to talk,
and the interview ended. It appears this portion of the interview
was edited out before the video was played to the jury.
5 A-1968-15T2
screen," and Benedict responded "Joseph Rios." Benedict testified
that on the tape he asked defendant for his name and he responded
"Montos, Joseph Montos."6 The prosecutor then asked Benedict to
point out "Mr. Rios" in court, and Benedict identified defendant.
Detective Benedict testified that after the interview he went
back to the scene to take photographs. He found alarm systems
ripped off the wall with the wires cut, a still-lit flashlight in
a sink, cabinets and drawers open, and a pillowcase stuffed with
valuables laying on the floor. An Audi vehicle with the keys
inside was discovered around the corner from the residence. When
the prosecutor asked Benedict to identify a photo of the vehicle,
Benedict replied: "It's the Audi vehicle of Mr. Rios."
The State introduced photographs of the Audi, the residence,
and the neighborhood, and then rested. Defense counsel made a
motion for a directed verdict of acquittal, which the court denied.
The defense did not present evidence.
The jury acquitted defendant of burglary and attempted theft,
but convicted him of hindering. Defense counsel made motions for
a new trial and a judgment of acquittal, which the court denied.
On December 4, 2015, defendant was sentenced to 364 days in jail,
6
We assume "Montos" was a mis-transcription of "Montez."
6 A-1968-15T2
fines, and penalties. The court declined a stay, and we denied
bail pending appeal.
Defendant appeals, arguing these points:
I. THERE IS NO EVIDENCE IN THE RECORD THAT
THE DEFENDANT JOSEPH RIOS IS NOT ALSO KNOWN
AS JOSEPH MONTEZ.
II. THERE IS NO EVIDENCE THAT JOSEPH RIOS
INTENDED TO GIVE FALSE INFORMATION TO THE
POLICE WITH PURPOSE TO HINDER HIS OWN
APPREHENSION OR PROSECUTION FOR THE CRIME OF
BURGLARY, A THIRD-DEGREE CRIME.
III. THE JURY VERDICT SHEET SHOULD HAVE
INCLUDED THE DEGREE OF THE CRIME OR OFFENSE
TO WHICH THE SECTION APPLIES AND FAILURE OF
THE VERDICT SHEET TO SPECIFY THE DEGREE OF THE
CRIME MAKES THE GREATEST DEGREE OF THIS CRIME
A DISORDERLY PERSON'S OFFENSE.
II.
Defendant's first two points challenge the sufficiency of
evidence. We must hew to our standard of review. Appellate courts
"review the record de novo in assessing whether the State presented
sufficient evidence to defeat an acquittal motion". State v.
Dekowski,
218 N.J. 596, 608 (2014). The "well-established standard
for determining the sufficiency of the evidence," State v. Wilder,
193 N.J. 398, 406 (2008), was set forth in State v. Reyes,
50 N.J.
454, 459 (1967):
whether, 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
7 A-1968-15T2
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.
A defendant is guilty of hindering if he gave "false
information to a law enforcement officer" "with purpose to hinder
his own detention, apprehension, investigation, prosecution,
conviction or punishment for an offense."
N.J.S.A. 2C:29-3(b),
(b)(4).
A.
Defendant first argues that there was insufficient evidence
that he gave a false name. Detective Benedict testified, and the
transcript of the video confirmed, that when he interviewed
defendant, defendant identified himself as Joseph R. Montez. The
jury could reasonably infer that giving that name to the detective
was "giv[ing] false information to a law enforcement officer" if
there was evidence defendant's name was Joseph Rios.
N.J.S.A.
2C:29-3(b)(4).
There was some testimony that defendant's name was Joseph
Rios. Sergeant Leusner identified defendant as one of the
individuals taken into custody, stated "with Mr. Rios I had just
minor contact," and prepared a complaint-warrant "for Mr. Rios."
Detective Benedict testified the person shown in the video of the
8 A-1968-15T2
interview was "Joseph Rios" and "Mr. Rios," and identified
defendant as the person he interviewed as "Mr. Rios."
Detective Benedict also testified he recognized a photo as
depicting "the Audi vehicle of Mr. Rios."7 However, when the
prosecutor asked Benedict if he made efforts to ascertain who the
registered owner of the Audi was, Benedict responded "I didn't,
another officer did."
We are concerned that this brief testimony by Sergeant Leusner
and Detective Benedict was the only evidence before the jury that
defendant's name was Rios. There was no evidence before the jury
showing why Benedict and Leusner believed defendant was named
Rios, or why Benedict believed the Audi was owned by Rios. During
deliberations, the jury asked: "Was a name given prior to
interview?" and "Were fingerprints taken prior to interview?"
However, "[i]n deciding whether a judgment of acquittal is
warranted, the court 'is not concerned with the worth, nature or
extent (beyond a scintilla) of the evidence, but only with its
7
Defense counsel objected there was no evidence the car belonged
to "Joseph Rios." The trial court told the prosecutor it might
permit Detective Benedict's testimony if he could make a factual
connection, but if not it would sustain the objection. The
prosecutor told the court that the discovery included documents
for the trade-in of a Honda for the Audi by Joseph Rios, the
registration, and a photo of the VIN number which they researched,
and that Benedict's report said it was learned the Audi was
registered to Joseph Rios. The prosecutor said he would ask what
efforts were made to identify the owner of the Audi.
9 A-1968-15T2
existence, viewed most favorably to the State[.]'" State v.
Zembreski,
445 N.J. Super. 412, 431 (App. Div. 2016) (quoting
State v. Kluber,
130 N.J. Super. 336, 342 (App. Div. 1974) (citing
Dolson v. Anastasia,
55 N.J. 2, 5 (1969))); see Perez v.
Professionally Green, LLC,
215 N.J. 388, 407 (2013). The officers'
testimony provided the jury with more than a scintilla of evidence
it could and did credit to find defendant's name was Rios.
Indeed, it was not really contested that defendant's name was
Rios. In her opening to the jury, defendant's counsel identified
defendant as "Mr. Rios sitting there on trial," consistently
referred to defendant as "Mr. Rios," discussed his arrest near
"Mr. Rios's car," and asked the jury to "find Mr. Rios not guilty."
In her summation to the jury, she referred to defendant as "Joseph
Rios" and "Mr. Rios." She stated "[t]he only thing we really know
for sure in this case is that Joseph Rios was in the area" because,
"number one, I conceded it, I told you that; and, number two, his
car was there; and three, he was obviously taken in for
questioning." "The only thing we know about the questioning is
that although I've called him Joseph Rios and other people have
called him Joseph Rios, when he was apprehended in that case or
10 A-1968-15T2
taken into custody, he gave the name of Joseph R. Montez" for
unknown reasons.8
Given the testimony that defendant's name was Rios, the jury
could reasonably infer that he gave the false information that his
name was "Montez" for the purpose of hindering his own prosecution,
conviction, or punishment. Defendant had been arrested and taken
to the police station, and was being questioned by a police
detective. In those circumstances, as the trial court found, "it
was a permissible inference for a jury to conclude that he gave a
false name" in the hope of making his prosecution or conviction
harder, or his sentence lower.9
Defense counsel argued to the jury: "I think you can tell
that Mr. Rios is of Hispanic descent and I think everyone knows
that . . . they have three names, they have their mother's name,
8
Further, when the trial court questioned defendant out of the
jury's presence to determine whether he wanted to testify, he was
sworn in as "Joseph Rios," responded to questions and instructions
addressed to "Mr. Rios," and did not contest that the numerous
prior burglary convictions of "Mr. Rios" were his convictions. At
sentencing, defendant similarly responded to "Mr. Rios" and
explained details of a prior conviction of "Mr. Rios." Because
these facts were unknown to the jury, they are not evidence, but
they place defendant's claim in context.
9
For example, defendant could have believed giving the name
"Montez" might prevent the police and prosecutor from connecting
him either with the car found around the corner from the
burglarized residence, or with his prior criminal record of
burglaries.
11 A-1968-15T2
they have their birth name." However, no evidence to that effect
was before the jury. Even if defendant had testified that "Joseph
R. Montez" stood for "Joseph Rios Montez," the jury would not have
been required to believe him. "In reviewing such motions, a court
'may not consider any evidence adduced by the defense in
determining if the State had met its burden as to all elements of
the crime charged.'" State v. Samuels,
189 N.J. 236, 245 (2007)
(citation omitted). Thus, the State's evidence defendant's name
was Joseph Rios was sufficient to establish that fact.
B.
Second, defendant argues the State failed to introduce
sufficient evidence that he knew he was being charged with the
third-degree crime of burglary. "Hindering ranges from a
disorderly persons offense to a third-degree offense, depending
on the degree of the offense the defendant seeks to avoid." State
v. D.A.,
191 N.J. 158, 170 (2007).
[T]he offense . . . is a crime of the third
degree if the conduct which the actor knows
has been charged or is liable to be charged
against him would constitute a crime of the
second degree or greater. The offense is a
crime of the fourth degree if such conduct
would constitute a crime of the third degree.
Otherwise it is a disorderly persons offense.
[N.J.S.A. 2C:29-3(b).]
12 A-1968-15T2
The burglary here was a third-degree offense.
N.J.S.A. 2C:18-
2(a)(1), (b). Thus, defendant was properly convicted of fourth-
degree hindering if there was evidence showing defendant's
knowledge at the time of the interview that "the conduct" for
which he was "charged or is liable to be charged" would constitute
burglary.
N.J.S.A. 2C:29-3(b). There was evidence from which the
jury could reasonably draw a chain of inferences leading to that
conclusion.
First, there was the testimony from the resident watching the
burglary using his home security camera, from Sergeant Leusner
about seeing the flashlights through the windows, and from
Detective Benedict detailing the condition of the residence,
including the dropped flashlight and discarded pillowcase full of
valuables. That constituted ample evidence the residence was
being burglarized by two or three persons. Second, Officer
McLaverty testified two males ran from the residence and ignored
the officers' commands to stop, and that the second male was
wearing a mask, ran to escape from the officer, jumped a fence,
and tried to jump another. That supported a reasonable inference
the second male was one of the burglars. Third, McLaverty's
testimony he arrested that male and put him in a patrol vehicle,
and the resident's testimony he saw another male arrested on the
residence's front lawn, supported the testimony of Leusner and
13 A-1968-15T2
Benedict that defendant was one of two males arrested for the
burglary.
Thus, the evidence supported a reasonable inference defendant
had been burglarizing the residence. In denying defendant's motion
for a directed verdict on the burglary charge, the trial court
noted that it "hardly ever had a case with more evidence that
there's a burglary going on," and that "the jury can make that
reasonable inference that the person that McLaverty tackled is the
one [Detective] Benedict interviewed."
That remains true though the jury ultimately acquitted
defendant of burglary under the "proof beyond a reasonable doubt"
standard. "Inferences need not be established beyond a reasonable
doubt." State v. Tindell,
417 N.J. Super. 530, 549 (App. Div.
2011). "[A] jury may draw an inference from a fact whenever it
is more probable than not that the inference is true; the veracity
of each inference need not be established beyond a reasonable
doubt in order for the jury to draw the inference." State v.
Kittrell,
145 N.J. 112, 131 (1996) (citation omitted).
As a result, it was a reasonable inference defendant knew he
was liable to be charged with burglary. Defendant notes Detective
Benedict did not tell him he was being questioned for burglary,
or the degree of the offense. However, it is sufficient if there
was "conduct which the actor knows . . . is liable to be charged
14 A-1968-15T2
against him."
N.J.S.A. 2C:29-3(b). Nothing in the hindering
statute requires a defendant to know not only the conduct but also
the degree of the offense. Such a requirement would make the
statute inapplicable unless the defendant was well-versed in the
law or well-informed by the arresting officers. That would defeat
one of the purposes of the statute: to prohibit hindering even
before "apprehension," ibid., and indeed "at any point prior to a
defendant forming a belief that an official action has been or is
about to be instituted." D.A.,
191 N.J. at 169.
Defendant stresses that the jury chose not to convict him of
burglary. However, "
N.J.S.A. 2C:29-3(b)(4) 'does not require that
defendant actually be charged with an offense or that a conviction
be successful' for a defendant to be criminally liable for
hindering an investigation or prosecution for committing the
underlying offense in order to be guilty." State v. Young,
448 N.J. Super. 206, 222 (App. Div. 2017). "Regardless of whether
defendant actually committed the offense for which he was under
investigation at the time he spoke to police, he violated the
statute by giving a false statement to the police during the course
of their investigation." Id. at 223.
C.
The State's evidence on defendant's name and his connection
to the burglary was less a road to conviction than stepping stones,
15 A-1968-15T2
requiring inferential leaps where the State arguably could have
supplied direct evidence. Nonetheless, those inferences could be
reasonably drawn from the evidence. Thus, like the trial court,
we conclude that "'giving the State the benefit of all its
favorable testimony and all the favorable inferences drawn from
that testimony, a reasonable jury could find guilt [of hindering]
beyond a reasonable doubt.'" See Dekowski,
218 N.J. at 608
(citation omitted). "The evidence presented at trial required the
court to allow the jury to determine whether defendant was guilty
of the [hindering] offense. Once the jury made its determination,
the court did not commit any error . . . by not dismissing
defendant's conviction on the hindering charge." Young,
448 N.J.
Super. at 223.10
10
We note the trial court also denied defendant's motion for a new
trial claiming the verdict was against the weight of the evidence.
A trial court may not "set aside the verdict of the jury as against
the weight of the evidence unless, having given due regard to the
opportunity of the jury to pass upon the credibility of the
witnesses, it clearly and convincingly appears that there was a
manifest denial of justice under the law." R. 3:20-1. The court
"conclude[d] that a reasonable jury would have been able, with
this evidence, to conclude that [defendant] met the elements of
hindering, [including] that [he] knew that [he] might be charged
with burglary."
"The trial court's ruling on such a motion shall not be
reversed unless it clearly appears that there was a miscarriage
of justice under the law." R. 2:10-1. "There is no 'miscarriage
of justice' when '"any trier of fact could rationally have found
beyond a reasonable doubt that the essential elements of the crime
16 A-1968-15T2
III.
Defendant next argues the verdict sheet should have specified
the degree of the offense whose "detention, apprehension,
investigation, prosecution, conviction or punishment" he was
accused of hindering (the hindered offense).
N.J.S.A. 2C:29-3(b).
However, at the charge conference, the trial court discussed the
jury instructions and the verdict sheet and asked counsel if there
were "[a]ny issues with anything related to the jury charge
instructions in any way?" Defense counsel replied "No." It was
not until sentencing that defendant first claimed the verdict
sheet was erroneous.
Because "[d]efense counsel did not object to the charge or
the verdict sheet," "the issue arises as a matter of plain error
under Rule 2:10-2." State v. Harvey,
151 N.J. 117, 153 (1997).
Defendant must show that any error or omission in the verdict
sheet was "of such a nature as to have been clearly capable of
were present."'" State v. Jackson,
211 N.J. 394, 413-14 (2012)
(citations omitted) (terming this "an extraordinarily lenient
standard of review"). "[T]he appellate court must weigh heavily
the trial court's 'views of credibility of witnesses, their
demeanor, and [its] general "feel of the case."'" State v. Carter,
91 N.J. 86, 96 (1982) (alterations in original) (citation omitted).
Even where "the State's evidence [i]s 'equivocal,' . . . a
reviewing court should not overturn the findings of a jury merely
because the court might have found otherwise if faced with the
same evidence." State v. Afanador,
134 N.J. 162, 178 (1993). In
any event, defendant does not appeal that ruling.
17 A-1968-15T2
producing an unjust result[.]'" State v. Galicia,
210 N.J. 364,
386 (2012) (quoting R. 2:10-2). Defendant has not carried his
burden to show such prejudice. See State v. Weston,
222 N.J. 277,
295 (2015).
The verdict sheet stated that defendant was charged with
burglary of a structure, attempted theft of property worth between
$500 and $75,000, and with hindering, but did not state the degree
of any offense or name the hindered offense. "[T]o facilitate the
determination of the grade of the offense," the verdict sheet
should have identified "the factual predicate for an enhanced
sentence," namely that the hindered offense was the charged
burglary. R. 3:19-1(b). A verdict sheet should "direct the jury's
attention to specific issues relating to the grade of the offense
in conjunction with a general verdict." Pressler & Verniero,
Current N.J. Court Rules, cmt. 2.1 on R. 3:19-1 (2018) (quoting
Report of the Criminal Practice Committee,
107 N.J.L.J. Index Page
441 (1981)).
However, defendant cannot show prejudice. As the trial court
found in denying a new trial, its jury instructions identified
burglary as the hindered offense. "When there is an error in a
verdict sheet but the trial court's charge has clarified the legal
standard for the jury to follow, the error may be deemed harmless,"
even if the verdict sheet omits an element of the crime. Galicia,
18 A-1968-15T2
210 N.J. at 387 (citing State v. Gandhi,
201 N.J. 161, 195-98
(2010)). "Where we conclude that the oral instructions of a court
were sufficient to convey an understanding of the elements to the
jury, and where we also find that the verdict sheet was not
misleading, any error in the verdict sheet can be regarded as
harmless." Gandhi,
201 N.J. at 197 (citing State v. Reese,
267 N.J. Super. 278, 287-89 (App. Div. 1993)).
The trial court's oral jury instructions set forth the
elements of third-degree burglary and fourth-degree hindering,
without stating the degrees.11 The instructions informed the jury
that one of "the essential elements" of hindering was "the
defendant knew that he could or might be charged with burglary."
The court then stated: "The first element that the State must
prove beyond a reasonable doubt is that the defendant must have
known that he could or might be charged or was liable to be charged
with burglary." After describing the second element, giving false
information to a law enforcement official, the court stated: "The
third element that the State must prove beyond a reasonable doubt
11
The written jury instructions may have specified the degree.
The trial court stated that "right in the instruction when you
turn to the page on burglary it says count one, burglary, in the
third degree." However, we decline to rely on this statement
because the written instructions were not provided to us, and
because the court instructed the jury "do not rely on the
subheadings in the written instructions."
19 A-1968-15T2
is that the defendant acted with the purpose of hindering his
detention, apprehension, investigation, prosecution, conviction
or punishment for burglary."
The trial court's instruction followed the model jury charge,
including by inserting "burglary" where the model jury charge
instructs the hindered "(offense)" should be inserted. Model Jury
Charge (Criminal), "Hindering One's Own Apprehension or
Prosecution (N.J.S.A. 2C:29-3b)" [Model Hindering Charge] at 1
(revised May 12, 2014). Thus, the court "submitted to the jury"
the hindered "offense," "along with definitions of the elements"
of the burglary offense. Id. at 1 & n.1.
As discussed above, the hindering statute does not require
defendant to know the degree of the hindered offense but only "the
conduct" which with he might be charged.
N.J.S.A. 2C:29-3(b).
Similarly, it was sufficient that the jury knew the hindered
offense without spelling out its degree. "The grading of the
offense is dependent upon a defendant's conduct and the nature of
the underlying charge." Young,
448 N.J. Super. at 223 n.12.
Importantly, defendant was only charged with hindering
"burglary." While burglary can be a second-degree crime in
specified circumstances not charged here, "[o]therwise burglary
is a crime of the third degree."
N.J.S.A. 2C:18-2(b). As
defendant was charged with hindering the lowest degree of burglary,
20 A-1968-15T2
there was no "issue regarding what degree of crime defendant knew
that [defendant] had been or would likely be charged with [which]
must be submitted to the jury." Model Hindering Charge at 1 n.1.
Thus, the "oral instructions of [the] court were sufficient
to convey an understanding of the elements [of fourth-degree
hindering] to the jury," Gandhi,
201 N.J. at 197, because they
told the jury it could not convict defendant of hindering unless
it found the hindered offense was burglary, which is a third-
degree crime.
Moreover, "the verdict sheet was not misleading." Ibid. It
stated: "Defendant Joseph R. Rios is charged that on or about
October 5, 2014 in Palmyra Borough, he did with purpose to hinder
his own apprehension, prosecution, conviction, or punishment, give
false information to a law enforcement officer," and asked the
jury to indicate whether it found him guilty or not guilty.
Nothing in the verdict sheet contradicted the trial court's
instructions that the jury had to find that defendant knew "that
he could or might be charged or was liable to be charged with
burglary," and that he acted to hinder his apprehension,
prosecution, conviction or punishment "for burglary." Cf.
Galicia,
210 N.J. at 387 (finding prejudice where the verdict
sheet told the jury not to consider passion/provocation
manslaughter and the jury had no written copy of the oral
21 A-1968-15T2
instructions); State v. Reed,
249 N.J. Super. 41, 50 (App. Div.
1991) (finding prejudice where the verdict sheet gave the jury no
opportunity to find passion/provocation manslaughter), aff'd in
part & rev'd in part on other grounds,
133 N.J. 237 (1993).
Further, the trial court provided the jurors with written
copies of its instructions to guide them in the jury room. See
Reese,
267 N.J. Super. at 289 (finding concerns about the verdict
sheet were "dissipated by the fact that the judge's instructions
as to the law were also reduced to writing and in the jury room").
The court also instructed the verdict sheet was "not evidence" and
was just "to be used to report your verdict." See Model Jury
Charge (Criminal), "Criminal Final Charge Part 4" (Deliberations
to Jury Questions) (revised January 14, 2013). The court added
the verdict sheet "just" lists the three charges and "simply asks
what your answer to those would be, guilty or not guilty." See
Reese,
267 N.J. Super. at 287 (finding no error where "the judge
intended to focus the jury's attention on the verdict sheet for
the recordation of its verdict, not for the sequence of its
deliberations or the elements of the offense").
Moreover, the trial court "encouraged the jury to present any
questions of law arising during deliberation to the court for
clarification." See Gandhi,
201 N.J. at 197-98. Finally, "[t]he
record does not provide any basis on which we could reasonably
22 A-1968-15T2
conclude that the jury did not understand the instruction on"
hindering and burglary. Id. at 197.
Therefore, under Gandhi, "any error in the verdict sheet can
be regarded as harmless." Id. at 197-98 ("hold[ing] that the
verdict sheet's failure to use the [statutory] word 'repeatedly'
with reference to the course of stalking conduct" . . . did not
constitute reversible error"). Defendant has certainly failed to
show plain error. See State v. Vasquez,
265 N.J. Super. 528, 547
(App. Div. 1993).
For similar reasons, we reject defendant's claim under
Apprendi v. New Jersey,
530 U.S. 466 (2000). In Apprendi, the
United States Supreme Court invalidated a New Jersey statute that
effectively "turn[ed] a second-degree offense into a first-degree
offense" based on a judicial finding of motive. Id. at 494. The
Court held that "[o]ther than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond
a reasonable doubt." Id. at 490.
Here, the jury was instructed it could find defendant guilty
only if it found he knew "that he could or might be charged or was
liable to be charged with burglary," and that he acted to hinder
his apprehension, prosecution, conviction or punishment "for
burglary." Because the hindered offense of burglary as a matter
23 A-1968-15T2
of law was a third-degree offense,
N.J.S.A. 2C:18-2(b), the jury
by its guilty verdict found every fact which determined that
defendant's hindering conviction was a fourth-degree offense with
a statutory maximum sentence of eighteen months.
N.J.S.A. 2C:29-
3(b);
N.J.S.A. 2C:43-6(a)(4).12
We also reject defendant's claim that the trial court sua
sponte should have charged the jury with the lesser-included
offense of disorderly-person hindering. Disorderly-person
hindering could only apply if the hindered offense was fourth-
degree offense or less, and burglary was a third-degree offense.
Defendant has not identified a lesser hindered offense that was
"'clearly indicated'" by the record. State v. Alexander, __ N.J.
__, __ (2018) (slip op. at 12) (citation omitted). "The 'clearly
indicated' standard does not require trial courts either to 'scour
the statutes' . . . , or '"to meticulously sift through the entire
record'" to find a lesser-included offense, and no lesser hindered
offense "'jump[s] off the page'" here. Id. at __ (slip op. at 13)
(citation omitted).
Affirmed.
12
Although burglary can be a second-degree offense under certain
circumstances, N.J.S.A. 2C:18-2(b)(1)-(2), those circumstances
were not charged here, only third-degree burglary was charged, and
his sentence of 364 days was not "greater than that allowed by the
jury verdict" for fourth-degree hindering. See State v. Natale,
184 N.J. 458, 482 (2005).
24 A-1968-15T2
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