STATE OF NEW JERSEY v. JESUS DEJESUS
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4464-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JESUS DEJESUS, a/k/a JESUS T. FLORES,
JESUS DE JESUS, JESUS FLORES,
JESUS TORRES-FLORES, JESUS TORRES,
and JAMES DEJESUS,
Defendant-Appellant.
______________________________________________
Submitted March 19, 2018 – Decided May 24, 2018
Before Judges Messano and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment
Nos. 08-05-0724, 08-07-0924, and 12-09-0693.
Joseph E. Krakora, Public Defender, attorney
for appellant (Mark H. Friedman, Assistant
Deputy Public Defender, of counsel and on
the brief).
Camelia M. Valdes, Passaic County
Prosecutor, attorney for respondent (Robert
J. Wisse, Assistant Prosecutor, of counsel
and on the brief).
PER CURIAM
A jury convicted defendant Jesus DeJesus of first-degree
armed robbery,
N.J.S.A. 2C:15-1(a)(1), second-degree possession
of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a), and
third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-
5(b). In a bifurcated trial that immediately followed, the same
jury convicted defendant of second-degree certain persons not to
have weapons,
N.J.S.A. 2C:39-7(b). After appropriate mergers,
the judge imposed a twenty-year term of imprisonment, subject to
the No Early Release Act,
N.J.S.A. 2C:43-7.2, on the robbery
conviction and concurrent sentences on the remaining
convictions.
Before us, defendant raises the following points:
POINT I
THE TRIAL COURT'S REFUSAL TO PERMIT THE
DEFENSE TO IMPEACH STATE'S WITNESS JAMES
WOODMANCEY'S CREDIBILITY BY CONFRONTING HIM
WITH HIS 1996 CONVICTION FOR ROBBERY
DEPRIVED DEFENDANT OF A FAIR TRIAL AND DUE
PROCESS OF LAW.
POINT II
THE STATE'S ARGUMENT IN SUMMATION THAT
DEFENDANT SHOULD BE CONVICTED BECAUSE "IT'S
YOUR TURN, GET INVOLVED, CONVICT DEFENDANT
ON ALL CHARGES" CONSTITUTED PROSECUTORIAL
MISCONDUCT NECESSITATING REVERSAL. (NOT
RAISED BELOW)
POINT III
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
AND UNDULY PUNITIVE.
2 A-4464-15T4
We have considered these arguments in light of the record and
applicable legal standards. We affirm.
Briefly stated, the evidence at trial revealed that on the
afternoon of June 19, 2012, the victim was sitting on a sidewalk
bench in Paterson when a man approached, placed a gun to her
forehead and demanded she give him her purse or he would kill
her. The victim slapped the gun away, but the robber grabbed
the purse, dragging the victim as he did so onto the sidewalk
crowded with passersby. The victim fell to the ground, striking
her head, and the assailant fled with her purse.
Two people, J.W. and T.G., saw the incident and gave chase.1
They eventually caught and subdued the assailant until police
arrived. When apprehended, the victim's purse was still in
defendant's hands. Both J.W. and T.G. identified defendant in
court. A security guard found a pellet gun along the route
defendant used to flee from the scene of the robbery. Defendant
did not testify or call any witnesses.
Prior to testifying at trial, J.W. had been convicted of
crimes on two occasions. The parties agreed that J.W.'s March
2004 conviction for second- and third-degree crimes would be
admissible for impeachment purposes pursuant to N.J.R.E. 609.
1
We use initials to maintain the confidentiality of those
involved.
3 A-4464-15T4
However, the State sought to exclude a 1996 conviction, for
which J.W. was resentenced on apparently two occasions, most
recently in 2003. Defendant argued the 2004 conviction was an
"intervening conviction," N.J.R.E. 609(b)(2)(i), and should be
admitted.
Judge Sohail Mohammed concluded the 1996 conviction was
"presumptively . . . inadmissible" and carefully considered the
factors contained in N.J.R.E. 609(b), which provides:
Use of Prior Conviction Evidence After Ten
Years
(1) If, on the date the trial begins, more
than ten years have passed since the
witness's conviction for a crime or release
from confinement for it, whichever is later,
then evidence of the conviction is
admissible only if the court determines that
its probative value outweighs its
prejudicial effect, with the proponent of
that evidence having the burden of proof.
(2) In determining whether the evidence of
a conviction is admissible under Section
(b)(1) of this rule, the court may consider:
(i) whether there are intervening
convictions for crimes or
offenses, and if so, the number,
nature, and seriousness of those
crimes or offenses,
(ii) whether the conviction
involved a crime of dishonesty,
lack of veracity or fraud,
(iii) how remote the conviction
is in time,
(iv) the seriousness of the
crime.
4 A-4464-15T4
The judge excluded any evidence of the 1996 conviction. On
direct examination, the prosecutor asked J.W. about his 2004
convictions.
Before us, defendant contends the inability to impeach J.W.
about his 1996 conviction deprived defendant of a fair trial and
due process. The argument lacks sufficient merit to warrant
extensive discussion. R. 2:11-3(e)(2). We add only the
following.
We apply a deferential standard of review to the trial
court's decision to admit or exclude evidence of prior
convictions for impeachment purposes. State v. T.J.M.,
220 N.J.
220, 233-34 (2015). "The question is not whether we would have
made a different determination in the first instance." Id. at
234.
Here, the case was tried in November 2015, nearly twenty
years after the 1996 conviction and twelve years after J.W.'s
release. Thus, under N.J.R.E. 609(b)(1), evidence of that
conviction was admissible "only if the court determine[d] that
its probative value outweigh[ed] its prejudicial effect, with
[defendant] having the burden of proof." Judge Mohammed
considered the factors outlined in section (b)(2) of the Rule,
and ultimately decided the probative value of J.W.'s 1996
conviction did not outweigh its prejudice.
5 A-4464-15T4
We recognize, as defendant asserts, that "the potential
prejudice to the criminal defendant is fraught with more serious
consequences than those confronting a prosecution witness."
State v. Balthrop,
92 N.J. 542, 546 (1983) (construing prior
version of our evidence rules). However, "we cannot say that
the trial court's assessment of the probative value of the
conviction for impeachment purposes was so off the mark as to
have rendered defendant's trial unfair." T.J.M.,
220 N.J. at
234.
Defendant's argument in Point II, however, involves
comments by the assistant prosecutor in summation that, at the
outset, compel our sternest rebuke. As he completed his
remarks, the prosecutor drew the jurors' attention to J.W. and
T.G., "two Good Samaritans" who saw the robbery and chased
defendant. He then said:
And now . . . it's your turn to convict that
man for what he did on a sunny summer day in
Paterson.
I want to thank you for all of your
patience. This hasn't been long. On some
days it has. Don't be like those other
people, don't look away, don't hope somebody
else gets involved. It's your turn, get
involved, convict on all charges, ladies and
gentlemen. Thank you very much for all your
time.
6 A-4464-15T4
There was no objection. Defendant now argues these comments —
intended to inflame the jury and imply it was the jurors' "civic
duty" to convict — denied him a fair trial.
While prosecutors are entitled to zealously argue the
merits of the State's case, State v. Smith,
212 N.J. 365, 403
(2012), they occupy a special position in our system of criminal
justice. State v. Daniels,
182 N.J. 80, 96 (2004). "[A]
prosecutor must refrain from improper methods that result in a
wrongful conviction, and is obligated to use legitimate means to
bring about a just conviction." Ibid. (quoting State v. Smith,
167 N.J. 158, 177 (2001)).
In considering defendant's argument, we examine whether a
timely objection was made, whether the remarks were withdrawn,
or whether the judge acted promptly and provided appropriate
instructions. Smith,
212 N.J. at 403. "Our task is to consider
the fair import of the State's summation in its entirety."
State v. Jackson,
211 N.J. 394, 409 (2012) (citation omitted).
And, "[g]enerally, if no objection was made to the improper
remarks, the remarks will not be deemed prejudicial." State v.
R.B.,
183 N.J. 308, 333 (2005).
Finally, even if the prosecutor exceeds the bounds of
proper conduct, "[a] finding of prosecutorial misconduct does
not end a reviewing court's inquiry because, in order to justify
7 A-4464-15T4
reversal, the misconduct must have been 'so egregious that it
deprived the defendant of a fair trial.'" Smith,
167 N.J. at
181 (quoting State v. Frost,
158 N.J. 76, 83 (1999)).
We have far too often found it necessary to rebuke trial
prosecutors, and reverse convictions, because of improper
summation comments. See, e.g., State v. Rodriguez,
365 N.J.
Super. 38, 52 (App. Div. 2003) (prosecutor's "persistent
characterization in a pejorative context of the defense as an
'excuse'" and suggestion that "justice would [only] be done if
the jury found [the] defendant guilty"); State v. Hawk,
327 N.J.
Super. 276, 282-83 (App. Div. 2000) (prosecutor's invitation to
send the community "a message" by convicting the defendant and
holding him "accountable for his actions"); and State v. Goode,
278 N.J. Super. 85, 90 (App. Div. 1994) (suggesting the jury
could "do something" to "make a difference in [the] community"
by convicting the defendant).
Certainly, the prosecutor's comments in this case closely
mirror those in Goode. They were improper, and we strongly
condemn them. After literally decades of bringing trial
prosecutors to task, we expect they would have learned the
lessons from our prior holdings. Moreover, given the overall
strength of the State's case, it is indeed mystifying that the
prosecutor engaged in this rhetoric at all.
8 A-4464-15T4
However, unlike the circumstances we confronted in Goode,
278 N.J. Super. at 92, where the prosecutor's "repeated improper
comments . . . ran as a thread through th[e] trial, from opening
to summation," the comments here were fleeting and came at the
very end of an otherwise proper summation. They were not so
egregious as to have deprived defendant of a fair trial. Smith,
167 N.J. at 181.
Lastly, defendant argues his sentence was excessive.
Defendant takes issue with the judge's failure to find any
mitigating factors, even non-statutory mitigating factors, see
State v. Rice,
425 N.J. Super. 375, 381 (App. Div. 2012)
("Although our sentencing statute lists only thirteen mitigating
factors, we have recognized the court's ability to use non-
statutory mitigating factors in imposing a sentence."), despite
Judge Mohammed acknowledgement of defendant's remorse.
"Appellate review of sentencing is deferential, and
appellate courts are cautioned not to substitute their
judgment for those of our sentencing courts." State v. Case,
220 N.J. 49, 65 (2014) (citing State v. Lawless,
214 N.J. 594,
606 (2013)). Generally, we only determine whether:
(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
9 A-4464-15T4
the sentence clearly unreasonable so as to
shock the judicial conscience."
[State v. Fuentes,
217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth,
95 N.J. 334, 364-65, (1984)).]
In this case, the judge denied the State's motion to impose
an extended term of imprisonment on defendant as a persistent
offender. N.J.S.A. 2C:44-3(a). Judge Mohammed found
aggravating sentencing factors three, six and nine.
N.J.S.A.
2C:44-1(a)(3) (the risk of re-offense); (6) (the extent and
seriousness of defendant's prior record); and (9) (the need to
deter). Defense counsel essentially conceded these applied,
given the extent and growing seriousness of defendant's prior
criminal history, and he did not argue any of the mitigating
sentencing factors applied. See
N.J.S.A. 2C:44-1(b).
In his sentencing allocution, defendant repeatedly claimed
he was innocent, and the verdict was based on "emotions." He
told the judge any exculpatory evidence was "either unavailable
for one reason or another, or has been tainted by
investigators." Judge Mohammed did observe that defendant was
tearful during the sentencing and opined defendant's emotions
were "genuine" and he was remorseful. However, we find no
mistaken exercise of the judge's discretion in not crediting the
defendant's conduct at sentencing as a mitigating factor in the
10 A-4464-15T4
sentencing calculus. Nor does the overall sentence for this
brazenly violent crime shock our judicial conscience.
Affirmed.
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