STATE OF NEW JERSEY v. DAVID CORREA
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4485-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID CORREA, a/k/a ALEX
MALDONADO, ALEX SANTANA,
DAVID MALDNALDO, and RAYMOND
CASTRO,
Defendant-Appellant.
______________________________
Submitted May 8, 2018 – Decided May 18, 2018
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
14-01-0021.
Joseph E. Krakora, Public Defender, attorney
for appellant (Alicia J. Hubbard, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Sarah C. Hunt, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant appeals from convictions for second-degree
attempted kidnapping,
N.J.S.A. 2C:5-1 and
N.J.S.A. 2C:13-1(b)(1);
second-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(1); third-
degree aggravated assault with a deadly weapon,
N.J.S.A. 2C:12-
1(b)(2); and third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-4(d). We affirm the convictions, but remand for
further findings and re-sentencing on the consecutive sentences.
On appeal, defendant argues:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
DISCOVERY MOTIONS BECAUSE THERE WAS A
REASONABLE PROBABILITY THAT THE MATERIALS
SOUGHT WOULD LEAD TO RELEVANT EVIDENCE. (U.S.
CONST. AMENDS. V, VI AND XIV; N.J. CONST.
(1947) Art. I, PARS. 1,
9 AND 10).
POINT II
THE NEED FOR LESSER-INCLUDED-OFFENSE
INSTRUCTIONS ON ATTEMPTED CRIMINAL RESTRAINT
AND FALSE IMPRISONMENT WAS CLEARLY INDICATED
BY THE RECORD. (U.S. CONST. AMENDS. V, VI AND
XIV; N.J. CONST. (1947) ART. I, PARS. 1,
9 AND
10) (Not raised below).
POINT III
JUST AS A JURY INSTRUCTION ON POSSESSION OF A
WEAPON FOR AN UNLAWFUL PURPOSE MUST SPECIFY
THE UNLAWFUL PURPOSE, [AN ATTEMPTED]
KIDNAPPING INSTRUCTION SHOULD SPECIFY THE
UNLAWFUL PURPOSE OF THE CONFINEMENT OR
REMOVAL; A FAILURE TO DO SO IN THE INSTANT
CASE WAS PLAIN ERROR. (U.S. CONST. AMENDS. V,
VI AND XIV; N.J. CONST. (1947) ART. I, PARS.
1,
9 AND 10) (Not Raised Below).
2 A-4485-15T4
POINT IV
THE TRIAL COURT ERRED TO THE DEFENDANT'S
PREJUDICE BY FAILING TO PROVIDE THE JURY WITH
THE MODEL INSTRUCTION ABOUT HOW TO CONSIDER
UNRECORDED STATEMENTS ALLEGEDLY MADE BY THE
DEFENDANT. (U.S. CONST. AMENDS. V, VI, XIV;
N.J. CONST. (1947) Art. I, PARS. 1, 9, and 10)
(Not Raised Below).
POINT V
THE CONVICTIONS MUST BE REVERSED BECAUSE THE
TRIAL JUDGE FAILED TO INSTRUCT THE JURY TO
CONSIDER ALL OF THE FACTORS SET FORTH IN STATE
V. HENDERSON[1] AND STATE V. CROMEDY,[2]
SPECIFICALLY RACIAL DIFFERENCES BETWEEN THE
WITNESS AND THE ACCUSED, WHEN ASSESSING THE
WITNESSES' IDENTIFICATION TESTIMONY. (U.S.
CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947)
Art. I, PARS. 1, 9, and 10) (Not Raised Below).
POINT VI
THE TRIAL [COURT] IMPROPERLY GAVE THE
INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE
DEFENDANT'S CONSENT, THEREBY DENYING HIM A
FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND
XIV; N.J. CONST. (1947) ART. I, PARS. 1,
9 AND
10) (Not Raised Below).
POINT VII
THE SENTENCING COURT ERRED IN ORDERING THAT
THE SENTENCES FOR THE ATTEMPTED KIDNAPPING AND
AGGRAVATED ASSAULT CONVICTIONS BE SERVED
CONSECUTIVELY.
We consider defendant's arguments – with the exception of Points
I and VII – for plain error because he raised the contentions for
the first time. And we conclude defendant's argument in Point V
1
State v. Henderson,
208 N.J. 208 (2011).
2
State v. Cromedy,
158 N.J. 112 (1999).
3 A-4485-15T4
is without sufficient merit to warrant discussion in a written
opinion, R. 2:11-3(e)(2), because the victim dated defendant,
worked with him for approximately thirteen years before dating,
and knew him for a substantial period of time.
As to Point I, we reject defendant's contention that the
judge erred by denying his discovery request for the victim's
psychological treatment records.
Before trial, and without notifying the victim, defense
counsel requested the State turn over the victim's mental health
records reflecting diagnoses and medication. The State objected
and contended that such documentation was irrelevant, and that the
records otherwise did not suggest the victim was unable to recall
the events in question. And the State maintains that defendant
knew, because of his long-term relationship with her, about the
victim's diagnosis and prescribed medication for depression.
The judge did not deny the discovery request outright.
Instead, he reviewed the documentation in camera, which is part
of the record on appeal. During oral argument before the judge,
the assistant prosecutor emphasized that defendant knew the victim
had been taking medication for depression, and stated that the
victim had been depressed because her mother died. The assistant
prosecutor also remarked that the in camera records reflected as
much. Defense counsel added that he believed the victim suffered
4 A-4485-15T4
from bipolar disorder, but he was unsure whether the records
reflected that diagnosis.
After reviewing the records in camera, the judge denied
without prejudice defendant's request for the records. The judge
stated, "I just don't find that providing these records in any
fashion would lead to anything that's relevant." He permitted
defense counsel to re-make the request if warranted, which never
occurred. The judge further determined that defendant had failed
to demonstrate any basis for the records, which were protected by
the psychologist-patient and physician-patient privileges.
At trial, the victim testified on multiple days. Defense
counsel cross-examined her extensively, but never raised the
subject of the victim's mental health. Specifically, he did not
question the victim about her depression, medication, or alleged
bipolar condition. Defense counsel requested the records because
he suspected the victim suffered from a cognitive disorder that
affected her ability to recall the events that led to the
convictions. Even though defense counsel extensively questioned
the victim about the facts of this case, there was no cross-
examination on her purported inability to recall the facts due to
her alleged mental health condition.
"We accord substantial deference to a trial court's issuance
of a discovery order and will not interfere with such an order
5 A-4485-15T4
absent an abuse of discretion;" however, we accord no deference
to the trial court's interpretation of the meaning or scope of a
court rule. State v. Hernandez,
225 N.J. 451, 461 (2016). We
"generally defer to a trial court's resolution of a discovery
matter, provided its determination is not so wide of the mark or
is not 'based on a mistaken understanding of the applicable law.'"
State ex rel A.B.,
219 N.J. 542, 554 (2014) (quoting Pomerantz
Paper Corp. v. New Cmty. Corp.,
207 N.J. 344, 371 (2011)). Against
this standard, we see no error, let alone an abuse of discretion.
Next, we reject defendant's argument that the judge committed
plain error by failing to charge false imprisonment and attempted
criminal restraint as purported lesser-included offenses for
kidnapping.
Defense counsel specifically requested that the judge not
charge the offense of criminal restraint, which under the facts
of this case is not a lesser-included offense to kidnapping. Even
if there was error, which is not the case, "except in the most
extreme cases[,] trial errors originating with defense counsel
will not present grounds for reversal on appeal." State v. Berry,
140 N.J. 280, 302-03 (1995). Failing to give the charge would be
the result of "invited error." And, "[u]nder that settled
principle of law, trial errors that were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are
6 A-4485-15T4
not a basis for reversal on appeal." State v. Bailey,
231 N.J.
474, 490 (2018) (quoting State v. A.R.,
213 N.J. 542, 561 (2013)).3
Defense counsel did not request the false-imprisonment
charge, or object to its absence. More importantly, false
imprisonment is not a lesser-included offense of attempted
kidnapping. False imprisonment requires the State prove defendant
restrained the victim and that the restraint was unlawful.
N.J.S.A. 2C:13-3. Here, the indictment charged defendant with
attempted kidnapping based on unlawful removal, not actual
unlawful confinement. Unlawful restraint is an element not
required to prove attempted kidnapping, and therefore it is not a
lesser-included offense under the facts of this case.
But even if it were a lesser-included offense, the judge was
not required to give the charge because it was not clearly
indicated by the evidence. Judges have an independent duty to sua
sponte charge a lesser-included offense "only where the facts in
evidence clearly indicate the appropriateness of that charge."
State v. Alexander, ___ N.J. ___, ___ (2018) (slip op. at 12)
(quoting State v. Savage,
172 N.J. 374, 397 (2002)). A judge is
3
We emphasize that even if there had been no invited error,
attempted criminal restraint requires proof that the unlawful
restraint was attempted under "circumstances exposing [the victim]
to risk of serious bodily injury."
N.J.S.A. 2C:13-2(a). Such a
requirement is unnecessary to establish attempted kidnapping.
7 A-4485-15T4
not obligated to "scour the statutes," id. at 13 (quoting State
v. Brent,
137 N.J. 107, 118 (1994)), or "meticulously sift through
the entire record," ibid. (quoting State v. Funderburg,
225 N.J.
66, 81 (2016)), to determine if the "clearly indicated" standard
has been met. Instead, the evidence must "jump[] off the page"
to require the sua sponte charge. Ibid. (alteration in original)
(quoting State v. Denofa,
187 N.J. 24, 42 (2006)).
The facts here show that defendant attempted to remove the
victim by dragging her to a vehicle. The facts do not "clearly
indicate" that he actually restrained the victim. In fact, at the
charge conference, defense counsel acknowledged that "there is no
indication about confinement." Thus, there is no error, let alone
plain error.
Defendant contends for the first time that the judge gave a
flawed attempted-kidnapping charge. He argues the judge should
have instructed the jury on the specific crime defendant had the
purpose to commit in attempting to kidnap the victim.
Consequently, he argues the failure to give this added instruction
constitutes plain error.
Defense counsel acknowledges that the judge used the model
jury charge. Because defense counsel did not object, we must
determine whether the charge was "clearly capable of producing an
unjust result." R. 2:10-2. The failure to object to a jury
8 A-4485-15T4
instruction creates "a presumption that the charge was not error
and was unlikely to prejudice the defendant's case." State v.
Singleton,
211 N.J. 157, 182 (2012). Under the plain error
standard, reversal of a defendant's conviction is required if
there was error "sufficient to raise a reasonable doubt as to
whether [it] led the jury to a result it otherwise might not have
reached." State v. Macon,
57 N.J. 325, 336 (1971).
In reviewing the adequacy of the judge's charge to the jury,
we consider the charge as a whole in determining whether it was
prejudicial. See State v. Figueroa,
190 N.J. 219, 246 (2007)
(citing State v. Wilbely,
63 N.J. 420, 422 (1973)). "Appropriate
and proper charges to a jury are essential for a fair trial."
State v. Green,
86 N.J. 281, 287 (1981).
Here, there was nothing clearly capable of producing an unjust
result about the judge's charge to the jury. The charge tracked
the model jury charges. Model jury charges are often helpful to
trial courts performing this important function. See Mogull v.
CB Commercial Real Estate Grp., Inc.,
162 N.J. 449, 466 (2000)
(holding that instructions given in accordance with model charges,
or which closely track model charges, are generally not considered
erroneous).
Furthermore, the kidnapping statute identifies the unlawful
purpose that will sustain a conviction. Here, the judge instructed
9 A-4485-15T4
the jury that to convict defendant of attempted kidnapping, it
must find that he had the purpose to facilitate commission of a
crime or flight therefrom, or harm or terrorize the victim. The
overwhelming evidence showed that defendant struck the victim on
the head with a bat, and then continued to assault her as he
dragged her toward a parked vehicle. In this vein, the evidence
demonstrated that defendant attempted to remove the victim with
the purpose to facilitate commission of a crime or flight
therefrom, or harm or terrorize the victim. Accordingly, we see
no error.
Next, defendant asserts that the judge erred in failing to
charge the jury with the model jury instruction on statements of
defendant. Defendant contends that the judge erred when he failed
to charge the jury in accordance with State v. Kociolek,
23 N.J.
400 (1957). The Kociolek charge pertains to the reliability of
an inculpatory statement made by a defendant to any witness. Id.
at 421. Defendant contends for the first time that his statement
to the victim that he attacked her because she "ratted [him] out"
warrants the specific instruction.
In Kociolek, the Court held that when a defendant's oral
statements have been introduced against him, the trial court must
instruct the jury that it "'should receive, weigh and consider
such evidence with caution,' in view of the generally recognized
10 A-4485-15T4
risk of inaccuracy and error in communication and recollection of
verbal utterances and misconstruction by the hearer." Ibid. The
Kociolek charge should be given whether or not specifically
requested by a defendant, but the failure to give this charge is
not plain error per se. State v. Jordan,
147 N.J. 409, 428 (1997)
(holding it would be "a rare case where failure to give a Kociolek
charge alone is sufficient to constitute reversible error"). This
is not that rare case.
We have held that "[w]here such a charge has not been given,
its absence must be viewed within the factual context of the case
and the charge as a whole to determine whether its omission was
capable of producing an unjust result." State v. Crumb,
307 N.J.
Super. 204, 251 (App. Div. 1997) (finding "no reported case in
which a failure to include a Kociolek charge has been regarded as
plain error"). Given the judge's extensive credibility
instructions, at the outset and close of trial, as well as defense
counsel's thorough cross-examination of the victim, we conclude
that the judge placed the issue of the reliability of defendant's
statement to the victim "thoroughly and sufficiently . . . before
the jury." State v. Feaster,
156 N.J. 1, 73 (1998). We find no
error.
Defendant did not testify at trial. As a result, the judge
read to the jury the election-not-to-testify charge. Defense
11 A-4485-15T4
counsel did not object, but he did not request the judge give the
charge. But immediately before the final charge conference, the
judge discussed defendant's election not to testify with counsel
and defendant. Although defendant understood that the judge
planned to give the charge, and without any objection, he now
argues for the first time that he has been prejudiced.
If a defendant elects not to testify, the judge should
directly inquire of counsel whether to give a specific "no negative
inference" jury charge. State v. Cusumano,
369 N.J. Super. 305,
314 (App. Div. 2004). "Failure to address these issues, however,
is not legal error when defendant, as here, was represented by
counsel." Ibid. Although the judge should have inquired of
counsel whether defendant wished the court to give the "no negative
inference" instruction before doing so, we are satisfied that this
error was harmless.
The judge merged the weapons conviction with the conviction
for third-degree aggravated assault with a deadly weapon. But he
imposed an eight-year prison term, subject to the No Early Release
Act (NERA),
N.J.S.A. 2C:43-7.2, on the second-degree aggravated
assault conviction consecutive to an eight-year prison term,
subject to the NERA, on the second-degree attempted kidnapping
conviction.
12 A-4485-15T4
Defendant argues that the judge erred by imposing these
consecutive sentences, and that he "failed to properly explain
[his] reasons" for sentencing defendant accordingly. Defendant
asserts that even if the crimes had separate objectives – which
the verdict sheet did not reflect – then consecutive sentences are
still not required. Defendant emphasizes that these two
convictions, which have different elements, do not justify
consecutive sentences. Instead, he argues that the judge must
consider all of the Yarbough4 factors, which defendant contends
the judge did not do.
Under
N.J.S.A. 2C:44-5, a sentencing court has the sole
discretion to impose consecutive or concurrent sentences. The
relevant criteria were set out in State v. Yarbough,
100 N.J. 627,
643-44 (1985):
(1) there can be no free crimes in a system
for which the punishment shall fit the crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;
(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:
(a) the crimes and their objectives
were predominantly independent of
each other;
4
State v. Yarbough,
100 N.J. 627 (1985).
13 A-4485-15T4
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate places,
rather than being committed so
closely in time and place as to
indicate a single period of aberrant
behavior;
(d) any of the crimes involved
multiple victims;
(e) the convictions for which the
sentences are to be imposed are
numerous;
(4) there should be no double counting of
aggravating factors; [and]
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense.
In exercising discretion when sentencing, the factfinder must
always apply correct legal principles. State v. Roth,
95 N.J.
334, 363-64 (1984). A judge must state his or her reasons for the
sentence imposed, R. 3:21-4(g), and those reasons must be in the
judgment, R. 3:21-5. "When a sentencing court properly evaluates
the Yarbough factors in light of the record, the court's decision
will not normally be disturbed on appeal." State v. Miller,
205 N.J. 109, 129 (2011). Nonetheless, "if the court does not explain
why consecutive sentences are warranted, a remand is ordinarily
needed for the judge to place reasons on the record." Ibid.
14 A-4485-15T4
Defendant argues that the record is devoid of any evidence
that the assault was "predominantly independent" of the attempted
kidnapping offense. Defendant asserts that even under the State's
theory, and testimony from the victim, the assault was part of the
attempted kidnapping. And that – especially because the verdict
sheet does not reflect otherwise – there is no evidence showing a
separate objective for the commission of these crimes. Instead,
defendant argues the crimes were committed at the same time, the
same place, and against the same victim.
We agree with defendant that the judge did not fully explain
his reasons for the imposition of the consecutive nature of the
sentences. We therefore remand and direct the judge to re-sentence
defendant on the attempted kidnapping and aggravated assault
convictions after making further Yarbough findings.
Affirmed as to the convictions; remanded for resentencing in
accordance with this opinion. We do not retain jurisdiction.
15 A-4485-15T4
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