State v. Varela

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Before Judges Parrillo and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-02-0275.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM

Tried by a jury, defendant Victor Varela was found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1, and second-degree robbery of Renzo Silva, N.J.S.A. 2C:15-1. He was sentenced to an aggregate term of seven years subject to the eighty-five percent period of parole ineligibility imposed under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, and we affirm.

Defendant was acquitted of the robbery of another individual, Cesar Condori.

According to the State's proofs, at around 11:30 p.m. on August 14, 2010, Condori and his friend Silva were pushing a bike along Roselle Avenue in Newark en route to Condori's home on Park Avenue. As they reached the intersection with Sixth Avenue, they saw defendant and two other men on the corner. Condori, who sold ice cream in the area, recognized defendant from the neighborhood and had given him money and ice cream on several occasions when Condori encountered him on the street.

From a distance of about nine to twelve feet, one of the men with defendant asked the pair for a dollar. Condori refused to give him any money and, together with Silva, stepped back. Defendant and his cohorts then began assaulting Silva. As defendant was going through Silva's pockets, the other two men stood behind Condori, who had gotten off his bicycle to help his friend. Before he could assist Silva, Condori was punched in the jaw by one of the men with defendant, holding some type of "iron thing." Condori heard the sound of his bones breaking and his mouth was bleeding.

As Condori fled, the man who attacked him chased him on Condori's bike, while defendant followed on foot. The assaulter yelled out "get him," and another group of men standing on the corner grabbed Condori. Defendant and the other man took Condori's phone, wallet and $230 in cash, and rode away on the bike. During the attack, Condori recognized defendant's voice and tattoo. His friend Silva had earlier seen the men take Condori's bike and chase Condori, but by the time Silva arrived, defendant and the other two men were leaving the scene with Condori's bike. Silva assisted Condori in walking home. Condori was then taken to the hospital, where his jaw was wired shut for about six weeks.

While in the hospital, Condori told police the robber whom he recognized from the neighborhood was twenty-five years old, 5'8" tall and 160 pounds, with black hair, and wore a black shirt and blue jeans. Defendant is 6'1" tall, 245 pounds and thirty-seven years old. Upon Condori's discharge, on August 25, 2010, Newark Police Detective Gerardo Rodriguez drove both Condori and Silva to the police station to view photos of possible suspects. En route in an unmarked police vehicle, Officer Rodriguez drove on Park Avenue, between Fifth and Sixth Streets, where Condori said he had earlier seen one of his attackers. While driving in the area, both Condori and Silva pointed out defendant as one of the men who robbed them. According to Officer Rodriguez, both victims were adamant in their identification. Defendant was then arrested by a marked patrol unit in the area. At trial, Condori and Silva identified defendant as one of the three men who attacked them and who searched Silva's pockets.

On appeal, defendant raises the following issues:

I. TESTIMONY CONCERNING PRIOR ENCOUNTERS BETWEEN CESAR CONDORI AND DEFENDANT PREJUDICED DEFENDANT'S RIGHT TO A FAIR TRIAL (RAISED BELOW IN PART AND NOT RAISED BELOW IN PART).
II. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE DETECTIVE RODRIGUEZ IMPROPERLY "BOLSTERED" THE IDENTIFICATIONS OF DEFENDANT MADE BY CESAR CONDORI AND RENZO SILVA (NOT RAISED BELOW).
III. THE PROSECUTOR IMPROPERLY INTRODUCED THE CONCEPT OF DEFENDANT'S "GUILT OR INNOCENCE" INTO HIS SUMMATION (NOT RAISED BELOW).
IV. DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S JURY CHARGE ON WITNESS IDENTIFICATION WAS INADEQUATE.
V. THE 7 YEAR BASE CUSTODIAL SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR ROBBERY ON COUNT THREE WAS MANIFESTLY EXCESSIVE.

I

Defendant challenges Condori's reference to giving him ice cream and a dollar on occasion as impermissible other crimes evidence barred under N.J.R.E. 404(b). He cites to the following colloquy between Condori and the prosecutor in support of this claim:

Q: Okay. Did the defendant know you by name, the defendant ever talk to you by name?
A: Not by name, but he would know me as an ice man, because I sell ice cream.
Q: Okay. And what would he call you?
A: Ice man, like that.
Q: Okay. Did you ever sell ice cream to defendant?
A: Well, no, not that — that he — that I sold him ice cream exactly, but I think I had invited him sometimes to — for ice cream.
Q: Okay. And what do you mean by that? Explain.

MS. INTERPRETER: Oh, okay.

A: I had just given him ice cream.
Q: Okay. So, you did give him ice cream?
A: Yes.
Q: So, you would share your ice cream with him?
A: Well, not always, because I think a few times only I saw him.
Q: Okay. And how many times did this take place? How many times did you give him ice cream?
A: Well, sometimes it wasn't just simply ice cream. Sometimes he would ask me for a dollar when he saw me.
Q: Okay. On how many occasions did this take place? How many times did this happen?
A: Approximately three, four times.
Q: Okay. And did you have a conversation with the defendant during these interactions?
A: After everything happened?
Q: No, no. You said that you shared ice cream with defendant and he asked for a dollar. When this happened did you talk with him, did you conversate (sic) with him?
A: Yes.

No objection was voiced at the time and for good reason since Condori's testimony did not consist of "other crimes" evidence. Rather, it simply explained the extent of Condori's prior relationship or contact with defendant, which was highly relevant to the victim-witness's ability to identify defendant as his assailant and robber, a key issue at trial.

Defendant's real challenge on this point, however, is to the prosecutor's characterization of their encounters in the following passage from his summation:

Up to that point, Cesar indicates he knows what's going on. He knows the defendant. He indicated that he's from the neighborhood, he asks me for money from time to time, he's bigger so I give him ice cream, that's how I deal with the situation.

When counsel objected, the prosecutor, outside the jury's presence, explained:

Your Honor, I'm merely trying to articulate what the witness stated. In no way am I suggesting that the defendant is outside on the corner threatening people or beating them up and collecting a toll as they pass by, but the witness did indicate that the defendant had asked for money in the past. And as a response, he offered him ice cream.
. . .
I never stated specifically that there was a threat made, but when that information was elicited from the witness, he did indicate that the guy asked him for money and he gave him ice cream.
When I'm running a business, I'm not giving away free stuff to guys just because I'm a nice guy, it doesn't work that way. I interpreted it as that he's giving him money (sic) — sorry, giving him ice cream as a way of dealing with this guy asking for money. That's all I'm saying.
A few moments ago, I indicated that the victim, Cesar was asked by the defendant for money and he gave him ice cream. And I also indicated that the defendant's bigger and that's how he dealt with the situation.
I'm in no way implying that the defendant threatened Cesar in the past, but what I am saying is that when I'm running a business I don't give away free stuff, Okay?

After the trial judge instructed the prosecutor to clarify for the jury that defendant never threatened Condori in the past, the prosecutor dutifully complied, and informed the jury: No further objection was voiced.

Although perhaps inartfully stated, the prosecutor's correction conveyed the key remedial point, namely that defendant did not threaten Condori in the past. In fact, the prosecutor's further discussion about the past encounters between defendant and Condori emphasized their rather benign nature:

So, he didn't say, oh, as he crossed the street, I know him. He saw him from across the street and he knew him. They crossed the street. And again, as I stated before, he crossed the street and he wasn't scared, because he know[s] the guy. Who would cross the street at midnight with three guys, one the size of the defendant, standing there if he didn't know them?

Thus, instead of implying fear and apprehension on Condori's part, the prosecutor's comments merely explained why Condori walked toward defendant and his confederates late at night. At most, the prosecutor's challenged comment may have implied that Condori gave defendant ice cream and a dollar on occasion to simply shoo him away from his ice cream stand. Examined in their full contextual setting, the prosecutor's remarks constituted fair commentary on the evidence and were not unduly prejudicial. State v. Smith, 167 N.J. 158, 178 (2001); State v. Johnson, 31 N.J. 489, 510 (1960). Indeed, the jury acquitted defendant of the robbery of Condori.

II

Defendant next complains that Detective Rodriguez improperly bolstered the victims' identifications of defendant by characterizing the pair as "adamant." Once again, defendant voiced no objection. On the contrary, defense utilized this theme in both her cross-examination of Detective Rodriguez and summation to demonstrate the dubiousness of the officer's theory that adamancy trumps accuracy in making an identification, and to criticize the lack of any photo identification in this case. Counsel attacked the victims' identification thus:

[Detective Rodriguez] said to you [] he had no concern or ever, he never has any concern when there's a vast discrepancy between an identification given of a suspect if the person is adamant. He said . . . if the victim is adamant, and his words were, that overrides everything.
Ladies and gentlemen, I ask you, does that comport with your everyday life
experience, do you know that to be correct? I submit to you, if you think about it, you will realize that it is absolutely 100 percent wrong.
There is no correlation between the level of someone's certainty and the level of their accuracy. If you think back to your own everyday experiences, I'm confident that you can come up with multiple examples of times that either yourself or someone that you knew was absolutely certain of something, turned out they were wrong. You can be 100 percent certain and 100 percent wrong.
. . . .
I'm am sure each of you can come [up] with examples that are a lot more important, but the identification of someone who has committed a crime is far, far, far more important.
. . . .
[B]ut as judges of the facts, you can't simply, as Detective Rodriguez tell you, you can't simply wash everything away because somebody is adamant.
You have to look deeper. You have to look at whether what they are saying matches prior things that were said, does it match what somebody else said, is there any physical evidence to support it, is there anything to support the fact that [defendant] was the man who committed this crime.

As these passages demonstrate, defense counsel herself found no prejudice to defendant from Officer Rodriguez's singular comment and actually used the witness's remark to defendant's advantage. Accordingly, there was no error, much less plain error, in characterizing the victims as "adamant" in their identifications.

III

Defendant also criticizes for the first time on appeal the prosecutor's lone reference to "guilt or innocence," as somehow reducing the State's burden of proof. We disagree. This innocuous, passing remark by the prosecutor held no capacity whatsoever to confuse, mislead or harm defendant, especially in light of the trial judge's comprehensive instructions to the jury concerning the State's burden of proving all elements of the offenses charged beyond a reasonable doubt.

IV

Defendant next challenges the jury charge on identification because the judge edited the proposed instruction offered by defense counsel, which purported to be consistent with State v. Henderson, 208 N.J. 208 (2011). Despite the fact that the Henderson ruling would not be effective until "thirty days from the date [the Supreme] Court approves new model jury charges on eyewitness identification[,]" id. at 302, the trial judge nevertheless gave the proposed instructions, with minor modifications. These consisted of deleting the following two sentences: "Eyewitness mistakes have long been and continue to be the leading cause of wrongful convictions[,]" and "Indeed an eyewitness's confidence in his or her identification is a weak predictor of the accuracy of his or her identification."

Plaintiff now argues these deletions deprived him of a fair trial. We disagree. The new model jury charge on identification, published on September 4, 2012, simply does not contain language to the effect that eyewitness mistakes have long been the leading cause of wrongful convictions. See Model Jury Charges (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2012). And although the new charge recognizes that "a witness's level of confidence, standing alone, may not be an indication of the reliability of the identification[,]" ibid., defendant's proposed language that "an eyewitness's confidence in his or her identification is a weak predictor of [its] accuracy," is actually in conflict with the model charge and, as such, is inappropriate for inclusion within the jury charge.

Defendant is entitled only to a charge that is accurate and fair, not to one in his own words. State v. Thompson, 59 N.J. 396, 411 (1971). Here, the charge was neither ambiguous nor misleading, but rather properly informed of the controlling legal principles. We discern no error in its rendition.

V

Lastly, defendant contends his mid-range sentence was excessive. We disagree.

In imposing the aggregate seven-year term subject to NERA, the court found four aggravating factors: the gravity and seriousness of the harm inflicted upon the victim, N.J.S.A. 2C:44-1(a)(2); the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); defendant's prior record, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors. These findings are supported by competent, credible evidence and the resultant sentence does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 363-65 (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