Opinion
DOCKET NO. A-3360-13T3
08-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JULIO R. FLORES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Espinosa, St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-04-0847. Joseph E. Krakora, Public Defender, attorney for appellant (Amira Scurato, Assistant Deputy Public Defender, of counsel and on the brief). John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant was convicted of third-degree burglary, N.J.S.A. 2C:18-2 (count one); second-degree disturbing human remains, N.J.S.A. 2C:22-1(a) (count two); and third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(1) (count three), offenses committed after he murdered his former girlfriend, J.C., and dismembered her body in the Bronx. He appeals from his convictions and sentence. We affirm his convictions and remand to the trial court for reconsideration of whether consecutive sentences were appropriate for these offenses.
I.
At trial, two stipulations were read to the jury: (1) Julio Flores killed and dismembered J.C. in the Bronx, and (2) Julio Flores is currently serving a sentence in New York for murder.
On September 14, 2008, the day after the murder, defendant placed the dismembered body in his van and drove to an unoccupied residence in Teaneck that a friend allegedly told him was a "good place to put a body." The property was an investment property under contract for sale. Shortly before 4:00 p.m. that day, Cristino Villorio, one of the owners of the property, and his wife arrived to check on the house as it had gone through final inspection two days earlier. Villorio testified he saw a van parked in the driveway and a stranger, identified as defendant, walking around. Villorio asked what he was doing there. Defendant said he was "doing some molding work." Villorio challenged him and defendant replied, "[a] guy from Brooklyn send me." Villorio testified:
I curse at the guy and I say, "No, you're not doing this."
So the guy tell me, "There's a body in the house, in the basement." And I panicked and I tell my wife, "Call 911." So my wife did call 911.
Villorio stated defendant tried to move around and he stopped him, saying, "You're not going anywhere."
At the time, Lieutenant Tanya Balser of the Teaneck Police Department was a sergeant and the first officer to respond to the scene. She observed defendant, "covered in gray dust" that appeared to be "concrete dust." After speaking to the Villorios, she asked defendant for identification. They walked to his van for him to retrieve it, and when they stopped at the van, defendant turned to her and calmly stated, "I killed somebody yesterday." He told her further that he had killed his girlfriend in the Bronx and, pointing, he said the body was in the house. Villorio corroborated that he heard this conversation.
The doors to the van were open, revealing assorted construction debris and black garbage bags. In the basement, there was a storage bin and a couple of spackle buckets filled with cement that was starting to dry. Balser testified that a small basement window was broken and appeared to be the entry point for the house. She tested the keys in defendant's possession in the locks of the doors; none of them fit.
Defendant was arrested and transported to Teaneck Police Headquarters, where he provided a statement admitting to the murder and dismembering of J.C.
Detective John Accardi of the Bergen County Prosecutor's Office arrived to search the scene. He was advised J.C.'s remains were hidden in the basement of the house and was assigned the task of locating her remains. He located a Rubbermaid container in the basement with a garden hose running water on it. He explained that running water would slow the curing of the cement. Accardi also testified that there was an electric circular saw, work clogs, and lumber in the basement. The Rubbermaid container was too heavy for Accardi to move on his own. After some difficulty, the officers were able to cut away the sides of the container and hammer away at the concrete until they located what was "obvious[ly] . . . a shoulder and the arm of an adult." They also recovered a number of white spackle buckets filled with concrete that were hidden in black construction bags under the stairs. Accardi stated the buckets were very heavy and it took a "couple of" them to drag the buckets out of the basement. Detective James Brazofsky of the Bergen County Prosecutor's Office testified that they estimated the weight of the Rubbermaid container as over three hundred pounds and that it was too heavy for three of the officers to carry out.
The concrete in the buckets was broken apart with sledge hammers at the Medical Examiner's Office. The large Rubbermaid container and the five buckets were found to contain a female head, a right foot, parts of human legs, and a female torso with arms attached.
Accardi also testified regarding his search of other areas at the residence. In the garage, there were empty cement bags and a wheel barrow "that someone had been mixing cement in, that was beginning to dry. Some of it was still wet but it was beginning to dry around the edges." A garden hose was stretched down into the basement. Accardi found an open box of black bags in the van that were the same as those used to wrap the body and six gallon bottles of Poland Spring water, which he presumed was used to mix the cement. There were also sixty-pound bags of concrete, all of which were empty.
Defendant testified he went to sleep after murdering J.C. When he woke up, he "was only thinking about what [he] was going to do with the body" and he decided to take the body and put it in his van. When asked whether the body "was in parts," defendant replied, "I really don't remember that part because not even I myself knew what it was I was doing." When asked further where the body was dismembered and put into buckets, defendant testified:
Q. I'm asking at what location did you do this?
A. I know that everything I did was in the Bronx. I know that it's possible that the part that was in the bucket, I mean the large container, it's possible that that was the part that I finished here in the concrete.
Q. Did you start the large part in the Bronx?
THE INTERPRETER: The interpreter requests clarification.
Q. The large part of the body that was in the large container in the Bronx?
A. I have no idea where I started.
Q. Exactly what did you do as far as the concrete is concerned in New Jersey?
A. Here I remember that I put it in the container and I put water in it.
Q. And then what did you do with that?
A. I remember that it occurred to me to put her under the steps. I don't know why.
Defendant gave inconsistent testimony as to where he mixed the cement that encased J.C.'s body. When asked on cross-examination whether he mixed cement in his apartment in the Bronx, defendant replied, "I did all of that in New York." However, he also said he did not put the body in cement in New York. As for mixing the cement, he stated, "I remember that I used that cement and I mixed it but I can't say, I don't remember that all that cement was in Teaneck." When the prosecutor asked defendant if it was true that he put her body under the stairs "to hide her body and keep it from being discovered," defendant replied, "I confess that, that [is so.]"
The trial judge denied defendant's request for a charge on the lesser-included offense contained in N.J.S.A. 2C:22-1(b), and provided a charge on N.J.S.A. 2C:22-1(a), which included the following:
Count two of the indictment charges the defendant with the crime of disturbing, desecrating human remains. The statute on which this count of the indictment is based reads in pertinent part: A person commits an offense if he unlawfully disturbs or moves or conceals human remains.
In order for you to find the defendant guilty of the offense, the State must prove each of the following elements beyond a reasonable doubt: One, that the defendant unlawfully disturbed or moved or concealed human remains. Two, that the defendant acted knowingly.
The first element the State must prove beyond a reasonable doubt is that the defendant unlawfully disturbed or moved or concealed human remains.
. . . .
The State must prove beyond a reasonable doubt that the acts of disturbing or moving or concealing human remains were not done in accordance with law.
During deliberations, the jury asked, "[i]f a person begins concealing and moving human remains in one state and ends it in another is it one consecutive or continuous act or two separate concealment and moving acts because of the two different states?" After consulting with counsel, the trial judge gave the following response:
[T]o answer your question it would be the latter, that there are separate moving and separate concealment acts. So . . . you are only to be concerned with the alleged acts in Teaneck, New Jersey.
Defense counsel did not object to this instruction. To the contrary, counsel stated, "I totally agree with what you just said, the way you just phrased it."
Defendant was convicted on all counts.
The trial judge imposed an aggregate sentence of twenty years with a ten-year period of parole ineligibility. She sentenced defendant on count one to five years imprisonment with two and one-half years parole ineligibility; on count two to a consecutive ten years imprisonment with five years parole ineligibility; and on count three to a consecutive five years imprisonment with two and one-half years parole ineligibility. She also imposed the required monetary penalties.
Defendant raises the following arguments in his appeal:
POINT I
THE TRIAL JUDGE FAILED TO CHARGE THE LESSER-INCLUDED OFFENSE OF N.J.S.A. 2C:22-1b OF FAILING TO DISPOSE OF HUMAN REMAINS IN A MANNER REQUIRED BY LAW.
POINT II
AS THE OFFENSES INVOLVING THE HUMAN REMAINS WERE COMPLETED IN NEW YORK, FAILURE TO SUBMIT THE JURISDICTIONAL QUESTION TO THE JURY WAS PLAIN ERROR. (NOT RAISED BELOW).
POINT III
THE SENTENCING COURT VIOLATED THE PRINCIPLES OF STATE V. YARBOUGH IN SENTENCING MR. FLORES TO CONSECUTIVE TERMS.
100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
After reviewing these arguments in light of the record and applicable legal principles, we conclude that the arguments in Points I and II lack merit and that a remand is necessary for the trial judge to reconsider whether consecutive sentences are appropriate pursuant to the principles set forth in State v. Yarbough.
II.
Defendant first argues the trial court erred in refusing his request to instruct the jury on the lesser included offense of N.J.S.A. 2C:22-1(b), which provides that a person who "purposely or knowingly fails to dispose of human remains in a manner required by law" is guilty of a third-degree offense. He also argues the judge's response to the jury question constituted plain error.
Defendant contends the jury's question illustrates that the jury was considering that the desecration was completed in New York and that the acts defendant committed in New Jersey were confined to "disposing" of the remains. Defendant contends that this "completely usurped the jury's function" and may have "led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). We disagree.
The indictment charged that defendant "did unlawfully disturb and/or move and/or conceal the human remains of [J.C.]; contrary to the provisions of N.J.S.A. 2C:22-1a . . . ."
N.J.S.A. 2C:22-1 states:
a. A person commits a crime of the second degree if he:
(1) Unlawfully disturbs, moves or conceals human remains;
(2) Unlawfully desecrates, damages or destroys human remains; or
(3) Commits an act of sexual penetration or sexual contact, as defined in [N. J.S.A.] 2C:14-1, upon human remains.
b. A person commits a crime of the third degree if he purposely or knowingly fails to dispose of human remains in a manner required by law.
An offense is a lesser-included offense when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.
[N. J.S.A. 2C:1-8(d).]
However, a trial court "shall not" charge a lesser included offense "unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). When a defendant requests a charge on a lesser-included offense, the trial court applies a two-prong test to determine if the charge should be given: "'whether an included offense charge is appropriate requires that (1) the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) there be a rational basis in the evidence to support a charge on that included offense.'" State v. Cassady, 198 N.J. 165, 178 (2009) (quoting State v. Thomas, 187 N.J. 119, 131 (2006)).
Significantly, "rational basis in the evidence" refers not only to the sufficiency of the evidence to support a conviction on the lesser included offense but also to the insufficiency of evidence to convict on the charged offense. As the Supreme Court has explained, the trial court's obligation to instruct on a lesser-included offense arises "when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004); see also State v. Brent, 137 N.J. 107, 117 (1994).
If the evidence in this case were limited to the manner in which defendant "disposed" of J.C.'s remains, there is arguably a rational basis for a conviction on the lesser-included offense. But the evidence is not so limited. The evidence, including defendant's own admissions, was that he concealed her remains under the stairs of the vacant house. Therefore, there was no rational basis to acquit him on the greater offense and his request that the lesser-included offense be charged was properly denied.
Defendant also challenges the trial judge's response to the jury question. As we have noted, counsel did not object to the instruction at trial and, in fact, expressly agreed with the judge's response. Because this issue was not presented to the trial judge, our review is limited to a search for plain error. R. 2:10-2. In light of the compelling evidence of defendant's guilt, the trial judge's response to the jury question plainly did not have the capacity to cause an unjust result.
III.
In Point II, defendant argues the trial judge committed plain error by failing to submit "the jurisdictional question" to the jury. Defendant concedes that that the burglary and hindering apprehension offenses occurred entirely in New Jersey. However, he contends the desecration of J.C.'s remains was completed in New York. Therefore, citing N.J.S.A. 2C:1-3(a), he argues he could only be convicted on count two if (1) his conduct in New York constituted an attempt to commit the offense of disturbing human remains or (2) his conduct in New Jersey constituted an attempt to commit an offense in New York that was also an offense in New Jersey. This argument lacks sufficient merit to warrant discussion in a written opinion, Rule 2:11-3(e)(2), beyond the following brief comments.
Although lack of jurisdiction may be raised at any time, Rule 3:10-2(e), a defendant should raise the issue as early in the proceedings as possible, giving the court and the prosecutor notice of his intention to raise the territorial dispute at trial. State v. Sumulikoski, 221 N.J. 93, 105 (2015) (citing State v. Denofa, 187 N.J. 24, 43 (2006)). Because territorial jurisdiction is not a material element of an offense, the issue is "never submitted to the jury unless there is some factual dispute concerning whether the crime occurred in this State." Denofa, supra, 187 N.J. at 41. When a defendant fails to request an instruction on jurisdiction, the court must charge on the issue only when a reasonable doubt about the location of the crime is clearly indicated in the record. Id. at 42.
Defendant admitted to bringing J.C.'s dismembered body to New Jersey in buckets, performing at least some part of the task of encasing her body parts in concrete here, and concealing the buckets containing her body parts under the stairs of the Teaneck house. It is undisputed that these acts occurred in New Jersey. We do not agree with defendant's implicit contention that these acts fail to establish "disturbing" the body in New Jersey. However, even viewing defendant's argument most indulgently, these acts plainly support a finding of guilt for "moving or concealing human remains" in New Jersey. Jurisdiction properly existed in New Jersey pursuant to N.J.S.A. 2C:1-3(a)(1) ("[A] person may be convicted under the law of this State of an offense committed by his own conduct . . . if (1) [e]ither the conduct which is an element of the offense or the result which is such an element occurs within this State . . . ."). Because there is no rational basis in the record for finding no territorial jurisdiction in New Jersey, the court was not obliged to charge the jury on jurisdiction.
IV.
The trial judge directed that the sentence imposed for each of defendant's convictions be consecutive to each other and to the sentence defendant is serving in New York. Defendant argues that the imposition of consecutive sentences was in derogation of the principles outlined in Yarbough, supra, 100 N.J. at 643-44, and that the judge failed to provide an adequate statement of reasons for imposing consecutive sentences as required by State v. Miller, 108 N.J. 112, 122 (1987) ("Where the offenses are closely related, it would ordinarily be inappropriate to sentence a defendant to the maximum term for each offense and also require that those sentences be served consecutively. . . ."). He also argues the trial judge made an improper comment which colored her calculation, stating she believed he "dismembered a body before."
The trial judge speculated that defendant's proficiency in dismembering a body suggested he had "dismembered a body before." Although inappropriate, this was but a passing comment and not a determinative factor in the reasons stated for the sentence.
N.J.S.A. 2C:44-5(a) provides for consecutive and concurrent sentences of imprisonment for offenders convicted of more than one offense. In Yarbough, the Court set forth the following standards to guide a sentencing court in deciding whether to impose consecutive or concurrent sentences:
The Legislature amended N.J.S.A. 2C:44-5a following Yarbough, eliminating a sixth guideline. L. 1993, c. 223 § 1. See also State v. Eisenman, 153 N.J. 462, 478-79 (1998). --------
(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;
(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;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense . . . .
[100 N.J. at 643-44 (footnote omitted).]
A sentencing court applies these factors qualitatively, not quantitatively. State v. Carey, 168 N.J. 413, 427 (2001). Thus, a court may impose consecutive sentences "even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28; see also State v. Swint, 328 N.J. Super. 236, 264 (App. Div.) (holding that concurrent sentences were not mandated even where the crimes were connected by a "unity of specific purpose," "were somewhat interdependent of one another," and were both committed in a short time frame), certif. denied, 165 N.J. 492 (2000). Crimes involving multiple victims suffering separate and distinct harm "represent especially suitable circumstances for the imposition of consecutive sentences." Carey, supra, 168 N.J. at 428.
The trial court must expressly state the reasons for imposing consecutive sentences or risk remand for resentencing. Miller, supra, 108 N.J. at 122. However, "where the facts and circumstances leave little doubt as to the propriety of the sentence imposed," and where "there is no showing that the sentence is 'clearly mistaken,'" the appellate court may affirm. State v. Jang, 359 N.J. Super. 85, 97-98 (App. Div.) (citation omitted) (affirming the trial court's sentence even though the judge did not "carefully articulate" the Yarbough factors), certif. denied, 177 N.J. 492 (2003).
Despite defendant's contention to the contrary, the trial judge did acknowledge the applicability of the Yarbough factors to the determination whether consecutive sentences should be imposed. The judge explained the acts were distinct from the murder in New York and also distinct from one another, relying heavily on the presence of separate victims. She reasoned that defendant's crimes "affected the lives of many people." She identified the Villorios as victims of the burglary. She found that, in addition to J.C.'s family, the Teaneck community was affected by the concealment of her remains in the house, that the house would forever be tainted by "the evil memory" he left in that home. Finally, she stated the community of Teaneck was victimized by defendant's hindering his own prosecution.
Although "ordinarily, separate crimes deserve separate punishment[,] the imposition of consecutive terms is not automatic but rather is informed by an exercise of judicial discretion that considers the factors outlined in Yarbough." State v. Sutton, 132 N.J. 471, 485 (1993) (citation omitted).
Yarbough encourages sentencing courts to consider whether "the crimes and their objectives were predominantly independent of each other," and whether "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." [Yarbough, supra 100 N.J.] at 644. In addition, in determining whether the terms should be concurrent or consecutive, the focus of the court should be on the fairness of the overall sentence.
[Sutton, supra, 132 N.J. at 485 (emphasis added).]
Clearly, the offenses committed in New Jersey were separate and distinct from the murder and dismemberment of J.C. However, we are constrained to conclude that the trial judge was mistaken in her assessment of the Yarbough factors as applied to the burglary, concealment of human remains, and hindering offenses committed in New Jersey. All three offenses were committed within a twenty-four hour period, if not concurrently. It is evident that defendant's motivation in committing all three offenses was to conceal the evidence of the murder he had committed in New York and that his objectives in committing the offenses were not "predominantly independent of each other." In light of the fact that defendant spontaneously confessed to the first law enforcement officer who arrived on the scene that he had concealed a body in the house, there was no appreciable effort to avoid apprehension beyond the act of concealing the body in the basement. While the Villorios stand apart as separate victims of the crime of burglary, the identification of the Teaneck community as a separate victim appears strained, a finding that blurs the difference between persons who are "affected" by the fact a crime was committed in their community and those who are direct victims of a crime. Finally, the sentence imposed on each of the convictions was the maximum term of incarceration available for the degree of the offense, suggesting the trial judge failed to exercise the restraint in sentencing urged by the Supreme Court when offenses are "closely related" and the additional offenses "did not pose an additional risk to the victim." Miller, supra, 108 N.J. at 122.
Defendant's remaining arguments regarding his sentence lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
We affirm defendant's convictions and remand his sentence to the trial court for reconsideration of the sentences imposed, including whether the sentences should be consecutive or concurrent. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION