Opinion
DOCKET NO. A-4218-13T2
03-26-2015
STATE OF NEW JERSEY, Plaintiff-Appellant/Cross-Respondent, v. ROBERTO C. TANCO-BRITO, Defendant-Respondent/Cross-Appellant.
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant/cross-respondent (Lynne G. Seborowski, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Jacob V. Hudnut, attorney for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fasciale, Hoffman and Whipple. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-09-1695. Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for appellant/cross-respondent (Lynne G. Seborowski, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief). Jacob V. Hudnut, attorney for respondent/cross-appellant. PER CURIAM
The State appeals from a May 9, 2014 order waiving the mandatory minimum incarceration requirement of the Graves Act, N.J.S.A. 2C:43-6, and downgrading defendant's conviction from second-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5b, to a third-degree offense for sentencing purposes. Defendant cross-appeals from the second-degree unlawful possession of a weapon conviction. We affirm on both appeals.
I.
We discern the following facts adduced from the evidence at the jury trial. The victim and his brother, M.P., (collectively the "brothers"), visited a car dealership and auto repair facility. A verbal altercation ensued between the owner of the dealership (the "owner") and the victim over whether the brothers could see their vehicle. Defendant grabbed a baseball bat and began "waiving it around asking if there [were] any problems." M.P. pulled the bat out of defendant's hand and defendant ran inside an office. Defendant reappeared with a handgun (the "gun"), pointed the gun at the victim, and asked, "Do we have a problem now?"
The brothers left the scene and the victim called the police. Officers responded and recovered the gun from the owner's son (the "son"). The brothers identified defendant to the police as the person who pointed the gun. The police then arrested defendant.
A grand jury indicted defendant for second-degree unlawful possession of a weapon (Count One), N.J.S.A. 2C:39-5b; fourth-degree unlawful possession of a weapon (Count Two), N.J.S.A. 2C:39-5d; second-degree possession of a weapon for an unlawful purpose (Count Three), N.J.S.A. 2C:39-4a; third-degree possession of a weapon for an unlawful purpose (Count Four), N.J.S.A. 2C:39-4d; fourth-degree aggravated assault (Count Five), N.J.S.A. 2C:12-1b(4); and third-degree aggravated assault (Count Six), N.J.S.A. 2C:12-1b(2).
The jury found defendant guilty on Count One, and acquitted him on the remaining counts. Defendant moved for a new trial or a judgment notwithstanding the verdict (JNOV), which the trial judge denied.
Defendant requested, and the State rejected, a waiver of a mandatory minimum sentence ordinarily imposed under the Graves Act. Defendant then petitioned the Assignment Judge, Peter F. Bariso, Jr., requested a hearing, and asserted that the State acted arbitrarily by denying the request.
Judge Bariso conducted a hearing, determined that the State's decision was "arbitrary and capricious," and he released defendant pending sentencing. At the sentencing hearing, Judge Bariso downgraded defendant's conviction from a second-degree offense to a third-degree offense, placed defendant on probation for three years, and granted the State's request for a stay pending appeal.
On appeal, the State raises the following points
[POINT] I.
The Assignment Judge erred in granting Defendant's application for a post-trial
waiver of the Graves Act mandatory minimum period of parole ineligibility.
a. The Assignment Judge misinterpreted [N. J.S.A.] 2C:43-6.2.
b. The Assignment Judge erred in his application of the "interest of justice" standard.
i. The Assignment Judge erred in finding that the facts and circumstances of this case lend itself to a downgrading of the offense.
ii. The Assignment Judge failed to find any compelling reasons warranting a downgrade of the sentence, as there are none.
iii. The Assignment Judge failed to find any further compelling reasons warranting a downgrade of this sentence, which calls for an enhanced penalty.
iv. The Assignment Judge failed to properly detail how he exercised his discretion in downgrading the sentence.
c. The Assignment Judge failed to find that the prosecutor acted arbitrary and capricious, and instead substituted his judgment for that of the prosecutor.
d. The Assignment Judge erred in ordering a sentence of probation with sixty days in the county jail as a condition.
[POINT] II.
The Assignment Judge erred in finding mitigating factors [three, five, seven, eight, nine, ten, and eleven].
On his cross-appeal, defendant raises the following points:
POINT [I]
THE TRIAL JUDGE ERRED WHEN HER HONOR DID NOT GRANT THE RELIEF REQUESTED IN PARTS C - E BELOW TOWARD THE SOLE CONVICTED COUNT BECAUSE [DEFENDANT] WAS AT HIS PLACE OF BUSINESS[ ]AND BECAUSE [DEFENDANT] ACTED IN SELF-DEFENSE.
PART A: THE PLACE OF BUSINESS EXCEPTION. SUBPART 1: [N.J.S.A] 2C:39-6E CODIFIES A "PLACE OF BUSINESS" TO UNLAWFUL POSSESSION OF A WEAPON.
SUBPART 2: [N. J.S.A] 2C:39-6E SHOULD HAVE BEEN APPLIED TOWARD COUNT [ONE] OF THE INDICTMENT BECAUSE [DEFENDANT] WAS AT THIS PLACE OF BUSINESS DURING THE ENTIRE INCIDENT.
PART B: UNDER [STATE V. HARMON] 104 [N. J.] 189 (1986).
SUBPART 1: UNDER STATE V. HARMON, 104 [N. J.] 189 (1986), A SELF-DEFENSE JURY INSTRUCTION MAY BE GIVEN TOWARD UNLAWFUL POSSESSION OF A WEAPON.
SUBPART 2: A [HARMON] CHARGE SHOULD HAVE BEEN GIVEN TOWARD COUNT [ONE] OF THE INDICTMENT.
PART C: THE TRIAL JUDGE ERRED WHEN HER HONOR DID NOT ENTER A [JNOV] UNDER [R.] 3:18-2 AS TO COUNT [ONE] OF INDICTMENT [13-09-1695].
PART D: THE TRIAL JUDGE ERRED WHEN HER HONOR DID NOT DISMISS COUNT [ONE] OF INDICTMENT [13-09-1695] UNDER [R.] 3:10-2(D).
PART E: THE TRIAL JUDGE ERRED WHEN HER HONOR DID NOT GRANT A NEW TRIAL AS TO COUNT
[ONE] OF INDICTMENT [13-09-1695] UNDER [R.] 3:20-1.
Judge Bariso was not the trial judge.
--------
II.
We begin by addressing the State's appeal. The State primarily contends that the Assignment Judge erred in granting defendant's motion for a Graves Act waiver because the judge misapplied the plain language of the statute. We disagree, affirm substantially for the reasons set forth in Judge Bariso's cogent and well-reasoned oral opinion, and add the following remarks.
The Graves Act requires a mandatory term of imprisonment for individuals convicted of various firearm-related crimes, including unlawful possession of a weapon. N.J.S.A. 2C:43-6c. The Act specifically requires that "[t]he term of imprisonment shall include the imposition of a minimum term" which "shall be fixed at one-half of the sentence imposed by the court or [forty-two] months, whichever is greater[.]" Ibid. The Graves Act, however, contains an "'escape valve' to the mandatory sentence requirements . . . ." State v. Alvarez, 246 N.J. Super. 137, 139 (App. Div. 1991). This "escape valve" provides that:
On a motion by the prosecutor made to the [A]ssignment [J]udge that the imposition of a mandatory minimum term of imprisonment under [the Graves Act] for a defendant who has not previously been convicted of an offense under [the Graves Act], . . . does
not serve the interests of justice, the [A]ssignment [J]udge shall place the defendant on probation pursuant to paragraph (2) of subsection b. of N.J.S.A. 2C:43-2 or reduce to one year the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole. The sentencing court may also refer a case of a defendant who has not previously been convicted of an offense under that subsection to the [A]ssignment [J]udge, with the approval of the prosecutor, if the sentencing court believes that the interests of justice would not be served by the imposition of a mandatory minimum term.
[N. J.S.A. 2C:43-6.2.]
Should the prosecutor decide not to approve the use of the "escape valve," a defendant may move "'before the [A]ssignment [J]udge or designated judge . . . for a . . . hearing as to whether the prosecutor's rejection or refusal is grossly arbitrary or capricious or a patent abuse of discretion.'" Alvarez, supra, 246 N.J. Super. at 147 (quoting State v. Cengiz, 241 N.J. Super. 482, 497-98 (App. Div.), certif. denied, 122 N.J. 402 (1990)). A defendant "must make a showing of arbitrariness constituting an unconstitutional discrimination or denial of equal protection constituting a 'manifest injustice,'" and the Assignment Judge must determine if a hearing is warranted "in the interests of justice." Id. at 148-49 (citation and internal quotation marks omitted); see also State v. Watson, 346 N.J. Super. 521, 534-35 (App. Div. 2002) (concluding that Alvarez is not "out-of-date"), certif. denied, 176 N.J. 278 (2003).
The interest of justice standard requires the court to consider whether "the sentence reflect[s] the Legislature's intention" because "the severity of the crime [is] the most single important factor in the sentencing process." State v. Megargel, 143 N.J. 484, 500 (1996). The court "must consider the nature of and the relevant circumstances pertaining to the offense[,]" including "facts personal to the defendant" such as the "defendant's role in the incident to determine the need to deter him from further crimes and the corresponding need to protect the public from him." Id. at 500-01. The judge must identify "any reasons, compelling or otherwise," as to why the interest of justice standard applies. Id. at 503.
Judge Bariso determined that
[t]he escape valve of the Graves Act permits the [A]ssignment [J]udge to reduce the mandatory minimum sentence of Graves [a]cts only when it does not serve the interest of justice.
. . . .
In this particular situation it did not appear . . . that the defendant . . . [left] home with the intention to commit a crime. And the fact[s] which led to the possession of the gun are somewhat disputed. But it appears that the factors that led to the possession of the gun was the bat being taken away by one of the . . . brothers.
. . . .
[D]efendant [has] no prior criminal history, except for an unrelated drug possession charge on which he awaits sentencing. . . . [Defendant] was only convicted of one Graves Act offense, possession of a handgun without a permit[.] More significantly, [defendant] was acquitted of all Graves Act offenses that require a [m]ens [r]ea in which harm to a person or property was contemplated or should've been known . . . . Instead [defendant] was only convicted of . . . [a] possessory or regulatory offense that does not require a [m]ens [r]ea[,] possession of a handgun without a permit. . . .
. . . .
The legislature intended through the mandatory minimum penalties of the Graves Act to deter persons from using firearms in the commission of crimes. Here [defendant], a defendant with no prior criminal history aside from a separate drug possession offense, did not commit any offense against persons or property while unlawfully possessing [the gun]. Instead, he merely possessed it.
Therefore, [defendant's] conviction on this possessory offense falls outside of the legislative intent for the mandatory minimum imprisonment under the Graves Act. . . .
[Defendant] was acquitted of all charges based on any testimony contending that he pointed the [gun] at the . . . brothers or intended to use the handgun to harm another person.
Judge Bariso also relied upon our decision in State v. Mello, 297 N.J. Super. 452, 467-68 (App. Div. 1997), which affirmed the defendant's conviction for possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, but remanded the case for the defendant to seek a Graves Act waiver because defendant "led a law abiding life" and the crime "while very serious, appeared aberrational." We noted in Mello that because of these factors, "within the constellation of Graves Act cases, this may be one deserving of some leniency." Id. at 468. Judge Bariso found Mello to
be instructive because it demonstrates that even under circumstances somewhat more serious than those of [defendant], the Graves Act waiver [may] be applied. . . . With Mello . . . in mind, it is apparent that . . . the State may be treating [defendant] differently than it treats other person[s] or classes of persons similarly situated. [Defendant] should be afforded the same leniency that the [c]ourt in Mello indicated that the defendant there might be deserving of.
The State's argument that Judge Bariso misinterpreted the statute is not compelling. As noted in Alvarez and Watson, a defendant can move before the Assignment Judge under the "escape valve" when the prosecution denies the request. This is precisely what happened here. Judge Bariso utilized the proper standard to review the motion and concluded the State's decision was indeed arbitrary and capricious.
III.
The State's contention that Judge Bariso erred in downgrading defendant's sentence from a second-degree offense to a third-degree offense is also unpersuasive.
N.J.S.A. 2C:44-1f(2) governs the downgrading of offenses and provides that:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.
Our Supreme Court "cautioned that a downgrade decision under this provision should be limited to cases in which a defendant can provide 'compelling reasons' for the downgrade." State v. Lake, 408 N.J. Super. 313, 325 (App. Div. 2009) (quoting Megargel, supra, 143 N.J. at 501-02). Moreover, the "interest of justice prong must be 'in addition to, and separate from' the mitigating factors which substantially outweigh the aggravating factors . . . ." Id. at 325-26 (quoting Megargel, supra, 143 N.J. at 502). The "severity of the crime remains the single most important factor in considering whether the interest of justice demands a downgrade," and if "the surrounding circumstances of an offense make it very similar to a lower degree offense," a downgrade may be appropriate. Id. at 326.
Here, Judge Bariso found that the mitigating factors substantially outweighed the aggravating factors, and independently determined that defendant satisfied the interest of justice prong. He stated that
[i]n applying the interest of justice standard . . . there are compelling reasons to downgrade [defendant's] sentence. First, as mentioned above [defendant's] criminal history solely consists of a minor drug possession charge and does not demonstrate a discernable propensity for violence, especially with firearms. Therefore, his unlawful possession of a handgun seems out of character. Accordingly, there appears to this [c]ourt to be a lesser need to deter [defendant] from further crimes to protect the public from. Thus the [c]ourt finds that the need for deterrence is somewhat neutralized in this matter.
Moreover, a lesser sentence [should have] a sufficient deterring effect on [defendant] as he has little experience with the criminal justice system, is gainfully employed, and has a depend[e]nt that relies upon him, so that he will consider the consequences of his actions when around firearms. Second, in applying the interest of justice standard, the severity of the crime remains the single most important factor in considering whether the interest of justice demands a downgrade. . . . The crime committed, while serious[,] seems aberrational . . . . And although classified as a second[-]degree crime, in this particular set of circumstances relates to a lesser degree offense as it is a regulatory violation.
[I]n applying the aggravating factors of [N.J.S.A.] 2C:41-1[,] only one aggravating factor applies here, the need for deterring defendant and others from violating the law. Five mitigating factors of [N. J.S.A.] 2C:41-1, however, apply. The victim of defendant's conduct induced or facilitated its commission; defendant has led a law abiding life for a substantial period of time before the commission of the present offense; defendant's conduct was the result of circumstances unlikely to reoccur; the character and attitude of defendant indicate that he is unlikely to commit another offense; and defendant is likely to respond affirmatively to probationary treatment . . . .
As a result the mitigating factors vastly outweigh the aggravating factors[.]
The State's argument that there are no compelling reasons to downgrade the sentence is belied by the record. Judge Bariso found multiple compelling reasons to downgrade the offense, including that the nature and severity of the crime in this case was a regulatory offense not in connection with any other crimes. Moreover, Judge Bariso made this determination independently of the mitigating factors which substantially outweighed the single aggravating factor found.
IV.
The State finally contends that Judge Bariso erred in finding mitigating factor three (defendant acted under strong provocation); five (the victim induced or facilitated the commission of the offense); seven (defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the offense); eight (conduct was the result of circumstances unlikely to recur); nine (the character and attitude of the defendant indicate that he is unlikely to commit another offense); ten (defendant is particularly likely to respond affirmatively to probationary treatment); and eleven (imprisonment of the defendant would entail excessive hardship to himself or his dependents). We disagree.
Our review of a finding of aggravating or mitigating factors is limited and subject to a "deferential standard of review." State v. Lawless, 214 N.J. 594, 606 (2013). We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] [the] aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
Here, there is competent credible evidence in the record to support Judge Bariso's decision to find the cited mitigating factors. Judge Bariso found that defendant intervened when he witnessed the owner arguing with the brothers, and that M.P. grabbed the bat from defendant. The judge further found that defendant generally lived a law-abiding life, except for the one ten-year-old drug possession charge, and that the circumstances were unlikely to reoccur as this was an isolated event. Moreover, Judge Bariso found that defendant was gainfully employed, lived with and supported his child and the child's mother, and that he is "essentially taking care of the household."
V.
Although defendant requests that we consider his cross-appeal only if we reverse Judge Bariso's rulings, we conclude that defendant's cross-appeal is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following remarks.
First, the trial judge did not err in denying the JNOV motion.
Rule 3:18-1 provides that
[a]t the close of the State's case or after the evidence of all parties has been closed, the court shall, on defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction. A defendant may offer evidence after denial of a motion for judgment of acquittal made at the close of the State's case without having reserved the right.Rule 3:18-2 allows the defendant to make a motion to set aside a guilty verdict "[i]f the jury returns a verdict of guilty or is discharged without having returned a verdict . . . even if not earlier made pursuant to [Rule] 3:18-1."
When reviewing a decision on a motion made under Rule 3:18-2, this court applies the same standard as if reviewing a decision on a Rule 3:18-1 motion. State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). We give the State the benefit of all reasonable inferences and must decide whether "a reasonable jury could find guilt . . . beyond a reasonable doubt." State v. Sugar, 240 N.J. Super. 148, 152-53 (App. Div.) (citation and internal quotation marks omitted), certif. denied, 122 N.J. 187 (1990). Unlike a Rule 3:18-1 motion, in which a reviewing court only considers the State's proofs, a reviewing court may consider "the entire record" when reviewing a decision on a Rule 3:18-2 motion. Id. at 153.
Here, the trial judge determined that "the testimony of the . . . brothers, the officer and the physical evidence - and giving the State the benefit of all its favorable testimony and reasonable inferences . . . this court cannot reasonably conclude that the verdict was against the weight of the evidence which resulted in a manifest injustice under the law." A reasonable jury could determine that defendant had the gun in his possession at some point, and the undisputed evidence shows that defendant did not have a permit for the gun.
Defendant's argument that he was allowed to have the gun in his possession under the place of business exception to N.J.S.A. 2C:39-6 is unconvincing. N.J.S.A. 2C:39-6(e) states that a person may keep or carry "about his place of business . . . any firearm" or transport that firearm between "his residence or place of business" provided that the firearm is transported in a proper manner. However, defendant cannot invoke this provision because he was not transporting the gun and he was not the owner of the place of business. See State v. Valentine, 124 N.J. Super. 425, 427 (App. Div. 1973) (holding that a non-proprietary manager of an establishment cannot possess a weapon at a place of business because it is not the manager's property).
Defendant's argument that the trial judge should have dismissed Count One similarly fails. Rule 3:10-2(d) provides that "[t]he defense that the indictment or accusation fails to charge an offense . . . may only be raised . . . before trial[,] or within [ten] days after a verdict of guilty . . ., or on appeal." Dismissal of an indictment should not occur unless the indictment is "palpably defective." State v. N.J. Trade Waste Ass'n., 96 N.J. 8, 19 (1984) (citation and internal quotation marks omitted). Here, there is nothing defective about the indictment.
Finally, we reject defendant's assertion raised for the first time on appeal that the jury was not properly instructed on self-defense, therefore a new trial is warranted.
It is undisputed that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The trial judge must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. Id. at 287-88. The charge must be read as a whole to determine whether there was any error. State v. Adams, 194 N.J. 186, 207 (2008). When a defendant fails to object to a jury instruction at trial, an appellate court can only reverse if there was error "'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).
Here, the jury was charged on self-defense related to the possession of a firearm for an unlawful purpose offense, but not as to unlawful possession of a firearm. Not only did defense counsel fail to object, but defense counsel agreed with the trial judge that "self-defense does not apply to that count of the indictment" and that he would not "make that application."
Defendant's reliance on Harmon, supra, 104 N.J. at 208 is equally flawed because in that case the Court found that the "policies embodied in our gun control laws . . . would not allow self[-]defense as an excuse or justification to a charge of unlawful possession under a regulatory offense when a person arms himself prior to a danger becoming imminent." (Emphasis added). Therefore, the jury could not be charged on self-defense regarding the unlawful possession charge since this was a regulatory offense.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION