Opinion
DOCKET NO. A-2437-10T1
05-17-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. PABLO GUZMAN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (M. Virginia Barta, Designated Counsel, on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Lisa.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-11-2237.
Joseph E. Krakora, Public Defender, attorney for appellant (M. Virginia Barta, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Pablo Guzman appeals from his conviction by a jury on assault and weapons charges after he brandished a kitchen knife outside a liquor store in Long Branch and threatened two people with the knife. We affirm.
I.
In November 2009, a grand jury in Monmouth County indicted defendant on two counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); two counts of third-degree aggravated assault with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); and one count each of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and fourth-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(a). Defendant stood trial on the charges in July 2010. The jury found him guilty of two counts of aggravated assault committed against one of the victims and all the weapons offenses as charged in the indictment. It found defendant not guilty of aggravated assault against the second victim but guilty on two counts of simple assault as lesser-included offenses, N.J.S.A. 2C:12-1(a)(1) and (3).
On September 17, 2010, the trial court granted the State's motion for a mandatory extended term sentence because defendant had previously been convicted of aggravated assault with a weapon. After appropriate mergers of counts, the court sentenced defendant to fifteen years imprisonment on the extended term aggravated assault charge, eighty-five percent of which must be served before eligibility for parole pursuant to the No Early Release Act, N.J.S.A. 2C:4 3-7.2. The court imposed concurrent sentences of imprisonment on all the remaining charges.
On appeal, defendant raises the following arguments:
POINT I
THE TRIAL JUDGE IMPROPERLY CHARGED THE JURY ON A THEORY OF AGGRAVATED ASSAULT THAT DID NOT APPLY TO THE FACTS OF THIS CASE. THE ERRONEOUS CHARGE CLEARLY HAD THE CAPACITY TO CONFUSE AND MISLEAD THE JURY AND REQUIRES REVERSAL OF DEFENDANT'S SIMPLE AND
AGGRAVATED ASSAULT CONVICTIONS. U.S. CONST. Amend. XIV; N.J. CONST. (1947) Art. I, pars. 1, 9, 10 (Not Raised Below).
POINT II
DEFENDANT'S FIFTEEN YEAR EXTENDED TERM SENTENCE WITH 85% PAROLE INELIGIBILITY SHOULD BE REDUCED BECAUSE THE LACK OF ANY INJURY TO THE VICTIMS AND OTHER CIRCUMSTANCES SURROUNDING THIS INCIDENT MITIGATE THE SERIOUSNESS OF THIS AGGRAVATED ASSAULT.
Although the trial court should not have utilized parts of the model jury charge on aggravated assault that were inapplicable to the evidence in this case, the jury instructions as a whole did not have the capacity to produce an unjust result and, thus, were not plain error. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997); State v. Jordan, 147 N.J. 409, 422 (1997). Nor do we find any abuse of the court's discretionary authority in imposing a fifteen-year sentence of imprisonment.
II.
Four witnesses testified at defendant's trial: the two victims of the knife incident, the police officer who arrested defendant, and defendant himself. The prosecution's evidence presented the following version of the incident.
On the evening of July 20, 2009, a woman was standing outside a liquor store in Long Branch after purchasing beer. Her boyfriend had gone back into the store while she waited for him outside and smoked a cigarette. Defendant approached the woman and solicited her to have sex. She had seen defendant previously in town but did not know him personally. The woman told defendant to stop and warned that her husband was in the store. At that point, her boyfriend came back outside and asked whether there was a problem.
Seeing the boyfriend, defendant took a large kitchen knife from behind his back and began bobbing and weaving while repeating something that sounded like "come on, come on, come on." He waved the knife in the air, threatening to use it against both the man and the woman. He approached within six to eight feet of them, coming closer to the man than the woman. He never actually touched either one, and neither was injured during the incident.
The woman called 911 on her cell phone, as defendant went toward the man. The man hurried into the store and closed the door behind him, which defendant then struck with the knife as he was swinging it at the man.
While on her cell phone with the police, the woman said the word "policia" to defendant. Defendant then walked away, still holding the large knife. The victims followed at a distance, and the woman continued to give information to the police on her cell phone about defendant's location. The male victim picked up a brick for protection in case defendant came toward them again. Defendant went into a grocery store. The victims followed inside, and then they saw police officers. They pointed out defendant to the police.
Long Branch Police Officer Tracy Polk was dispatched to the grocery store at about 7:00 p.m. As Polk entered the store, a number of customers pointed him toward one of the aisles, where he saw defendant holding a large butcher knife. The victims were at the other end of the aisle and told Polk "that's him."
Defendant was not waving the knife when Polk entered the aisle, but the officer un-holstered his gun and ordered defendant to drop the knife. Defendant did not comply. Polk repeated the command several times. Polk then tripped defendant, causing him to fall and to drop the knife. Defendant did not resist being handcuffed.
At the trial, Polk identified the knife defendant was holding in the grocery store — a large butcher knife with an eight inch steel blade. It had blue tape wrapped around its handle, which Polk described as a common way to add friction to a handle and increase the efficiency of a knife as a weapon.
Defendant testified in his own defense through an interpreter. He was born in El Salvador and had been in the United States for twenty-two years. He was fifty-two years old. He had picked up the knife at about 2:00 p.m. that day from a construction site where he was working. He wanted to use it in his kitchen for cooking purposes. He placed the tape on the knife handle to repair it. From the work site, he went to a restaurant and stayed there until approximately 7:00 p.m. that evening. Although he drank at the restaurant, he was not drunk.
He testified that, behind the liquor store, the woman solicited him for sex, as she had done in the past. He believed her to be a prostitute. She told defendant that her husband was in the liquor store, meaning that he would have to talk to her husband to arrange a sexual encounter. The man then came out of the store and loudly said "sex" to him, but not the "price." Defendant was not then in the frame of mind to engage a prostitute. He came to believe that the man and woman were going to mug him because he had been robbed in the past in similar circumstances. He produced the knife from his back and immediately ran away, never attacking either the man or the woman. He was sixty to eighty feet away from them when the incident occurred.
Defendant testified that he wielded the knife for two reasons: because he needed to protect himself and because the point was uncomfortable against his back. He testified he did not call the police when he feared he would be mugged because his eyesight is poor and he was not sure he would be able to see the numbers on his phone. He ran to the grocery store and entered it to wait for the police. On direct examination, he revealed to the jury that he had been convicted of felony crimes three times in the 1990's.
On cross-examination, defendant was unable to remember the location of the construction site where he found the knife. He said he had hidden it in a bush near that site for approximately four weeks before going to retrieve it on the date of the incident. While at the restaurant that day, he had hidden the knife in a trash can in the restroom, and then retrieved it before leaving.
Defendant admitted the man and woman had not threatened him outside the liquor store and neither one was holding a weapon. He perceived a threat because: "I've been robbed seven times by the Black race, and three times they've put a woman on me, a woman to start giving me therapy, and then the next thing I know they've come from behind and they've knocked me out and taken my money." He testified he did not ask anyone to call the police upon entering the grocery store because he assumed the police would come. He said it was not "scandalous" for him to be holding the butcher knife in the grocery store because:
It's normal among Hispanics. We know how to handle something like this. We don't know why. Because we carry something like this, it's not so scandalous. . . . What I'm saying is that what [people in the grocery store] were looking at was not abnormal. They knew the problem was not with them, that it was with the other people.
Defendant also testified that when he entered the grocery store he remained by the door and did not go down any aisles. When he saw the police car, he went outside. An officer then drew his gun and told him to drop the knife and get on the ground, which he did immediately. He testified he threw himself to the ground — the officer did not trip him.
By means of specific questions on a verdict form, the jury found defendant guilty of aggravated assault upon the male victim by attempting to cause him serious bodily injury and by attempting to cause him bodily injury with a deadly weapon (second- and third-degree aggravated assault). The jury found defendant not guilty of similar charges as to the female victim but guilty of simple assault upon her by attempting to cause her bodily injury and "by physical menace" (disorderly persons offenses). As previously stated, the jury also found defendant guilty of the weapons charges.
III.
Defendant argues that the court erred in charging the jury on aggravated assault because the instructions included lengthy discussion of states of mind under the criminal statutes that had no relevance to this case. He contends the absence of any injury to the victims required that the jury find he had purposely attempted to cause bodily injury or serious bodily injury to the victims. He argues the jury could have been confused by the instructions and found him guilty based on a knowing or a reckless state of mind.
We agree with defendant that the absence of injury to either victim made parts of the aggravated assault statute, N.J.S.A. 2C:12-1(b)(1) and (2), charged in the first four counts of the indictment inapplicable. The indictment charged as alternatives attempt to cause injury and actually causing injury, but there was never any evidence that either victim had been injured.
Similarly, in its final instructions to the jury, the court referred to alternative forms of aggravated assault — that is, purposely or knowingly causing bodily injury or serious bodily injury to the victim, doing so recklessly "under circumstances manifesting extreme indifference to the value of human life," or attempting to cause bodily injury or serious bodily injury to the victim. The court should not have included the entirety of the model jury charge on aggravated assault, Model Jury Charge (Criminal), "Aggravated Assault — Serious Bodily Injury" (2012), because the references to actually causing injury did not apply. The only parts of the statute and the model jury charge that should have been read to the jury were those referring to an attempt to cause bodily injury or serious bodily injury, which required purposeful conduct. However, despite a lengthy charge conference pursuant to Rule 1:8-7(b), and an opportunity to object to the charge at sidebar after it was read to the jury, neither attorney objected to the model charge being given in its entirety.
In State v. Green, 318 N.J. Super. 361, 371 (App. Div. 1999), aff'd, 163 N.J. 140 (2000), we considered factual circumstances where the prosecution conceded that the defendant had not caused serious bodily injury but alleged he had attempted to do so. We stated: "In order to convict a defendant of attempted aggravated assault, the State must prove beyond a reasonable doubt . . . that defendant acted with the purpose of causing the result that is an element of aggravated assault, namely, serious bodily injury of another." Ibid. (citing N.J.S.A. 2C:5-1(a)(1) and (2); State v. Robinson, 136 N.J. 476, 484-85 (1994)). We held the trial court committed reversible error in that case because it did not limit the jury's consideration of the aggravated assault charge to an attempt to cause serious bodily injury rather than actually causing such injury. Id. at 372.
In Green, however, the defendant had actually injured the victim, but the injuries did not rise to the level of serious bodily injury as defined in N.J.S.A. 2C:11-1(b). Green, supra, 318 N.J. Super. at 368, 371. The jury could have been confused in its understanding of the alternative provisions of the aggravated assault statute. In this case, there was never any suggestion that defendant had actually injured either victim. It was clear from the evidence that neither the knife nor defendant ever touched either victim. The evidence was more straightforward than in Green, and the jury certainly realized that the prosecution was only alleging that defendant attempted to cause injury by brandishing and waving the butcher knife in the direction of the victims.
When reviewing an assertion of error in the jury charge, we review the charge as a whole and not only the parts that were inappropriate. State v. Torres, 183 N.J. 554, 564 (2005); State v. Savage, 172 N.J. 374, 387 (2002). Here, the court's instructions on attempt were clear and accurate on the state of mind that the prosecution must prove. The court instructed:
As I previously instructed you, the defendant can be found guilty if he or she either caused serious bodily injury to another or attempted to cause serious bodily injury to another, that the defendant purposely attempted to cause serious bodily injury to another. If you find beyond a reasonable doubt that the defendant attempted to cause serious bodily injury, it does not matter whether such injury actually resulted.In the following sentence of the instructions, the court repeated that "a person is guilty of an attempt" when, "acting purposely," he does something that is "a substantial step in the course of conduct planned to culminate in his or her commission of the crime." The court then defined "purposely," as it had previously in the instructions, in accordance with the language of the model jury charge. Additionally, by means of specific questions, the jury verdict form restricted the jury's consideration of the evidence to defendant's alleged attempt to cause bodily injury or serious bodily injury to a named victim.
[Emphasis added.]
The jury's verdict reflected its understanding of the instructions. The jury found defendant guilty of an attempt to cause serious bodily injury to the male victim but not the female victim. The evidence varied as to the two because defendant had approached the male victim more closely with the butcher knife and swung it at him, striking the door of the liquor store. He had remained a further distance from the female victim as he swung the knife in the air in her direction.
Moreover, the prosecution's evidence in this case was strong and not complicated. The victims testified that defendant pulled the large knife from behind his back and swung it toward them in the air as he appeared to mouth words implying he was ready and willing to use the knife against them. Defendant did not deny his use of the knife but claimed he did it in self-defense. His testimony was racked with inconsistency and illogical claims, such as why he had the knife that day, what he intended to use it for, why he had put tape on the handle, and where he kept the knife before the incident outside the liquor store. Moreover, he could not credibly explain his use of the knife when he admitted that no one had threatened him and there was no evidence that the victims were engaged in unlawful conduct or otherwise intended to do him harm. "Taken in context, there is no realistic likelihood that the jury would have focused on the clearly inapplicable theories" of defendant's unlawful conduct rather than the ones supported by the evidence. State v. Kornberger, 419 N.J. Super. 295, 304 (App. Div.), certif. denied, 208 N.J. 368 (2011).
As we have stated, defendant did not object to the court's reading of the entire model charge to the jury.
Our rules provide that a defendant waives the right to contest an instruction on appeal if he does not object to the instruction. R. 1:7-2. We may reverse on the basis of unchallenged error if we find error that was "clearly capable of producing an unjust result."Plain error in this context is "[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. (citing Jordan, supra, 147 N.J. at 422).
[Torres, supra, 183 N.J. at 564 (quoting R. 2:10-2)].
While we are critical of the court and the attorneys for including in the indictment and in the jury instructions references that did not apply in this case, we find no plain error capable of producing an unjust result.
IV.
Defendant challenges his fifteen-year sentence as excessive. He does not dispute that he was subject to an extended term sentence pursuant to N.J.S.A. 2C:43-7.1(b)(1) and -7(a)(3) because of his 1998 conviction for third-degree aggravated assault, which in turn had resulted in an extended term sentence of ten years imprisonment with five years of parole ineligibility because he had yet another conviction for third-degree aggravated assault in 1991. In addition, defendant's criminal record included a 1994 conviction for unlawful possession of a weapon and numerous other arrests and charges that were downgraded and addressed in municipal courts for simple assault, resisting arrest, weapons possession, disorderly conduct, and loitering.
Defendant argues that the aggravated assault he was convicted of committing in this case did not injure anyone and was of a minimal nature in comparison to other such offenses. He argues that mitigating factors one and two, N.J.S.A. 2C:44-1(b)(1) and (2), should have been applied, namely, that the crime did not cause serious harm and that he did not contemplate his conduct would cause serious harm. He also argues that the court double-counted aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk that defendant will commit another crime, and aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of his prior criminal record, because those factors already resulted in his extended term sentence. We reject these contentions.
Defendant's criminal record went substantially beyond the 1998 conviction that resulted in the extended term sentence. The sentencing court appropriately viewed the record as extensive and serious, and it also considered the factual context of the conviction in this case and defendant's disputed version of events. By its verdict, the jury rejected defendant's explanations, and the court was bound by that determination.
In State v. Bieniek, 200 N.J. 601, 608 (2010), the Supreme Court reaffirmed that the role of an appellate court is not to substitute its judgment about an appropriate sentence for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612. Here, the sentencing court appropriately found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(9), and no mitigating factors. The court considered whether it should impose consecutive sentences because the crimes were committed against more than one victim. To defendant's benefit, the court decided that consecutive sentences would not be imposed pursuant to the factors listed in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
We find no abuse of discretion or other reversible error in the court's sentencing decisions. See State v. Roth, 95 N.J. 334, 364-66 (1984).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION