Opinion
DOCKET NO. A-1167-12T1
06-25-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HECTOR L. LOPEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Waugh, Maven, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 08-08-0929. Joseph E. Krakora, Public Defender, attorney for appellant (Frank J. Pugliese, Assistant Deputy Public Defender, of counsel and on the brief). Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (Paula Jordao, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Hector Lopez appeals his convictions on two counts of second-degree robbery, N.J.S.A. 2C:15-1(a)(1), and third-degree receipt of stolen property, N.J.S.A. 2C:20-7(a). He also appeals the resulting aggregate sentence of incarceration for fifteen years with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. We affirm.
I.
We discern the following facts and procedural history from the record on appeal, including the trial testimony.
On March 2, 2008, Arturo Gaviria was employed as a store detective at the Stop and Shop grocery store in Morris Plains. At approximately 2:15 p.m., Gaviria observed a man, later identified as Lopez, standing near the battery and film display. As he continued to monitor Lopez for about three to five minutes, Gaviria observed Lopez "grabbing the items and putting them in the red basket." According to Gaviria, this was atypical conduct because shoppers "just don't grab anything and throw it in [their baskets]." He then observed Lopez leave the store without paying for the items in the basket.
Gaviria followed Lopez outside the store, held up his badge, and identified himself as "Stop and Shop Loss Prevention." As Lopez started to run away, Gaviria tried to stop him by grabbing him by his shirt. Lopez dropped the basket of merchandise and started hitting Gaviria. Lopez's shirt then ripped as he pulled away.
Lopez ran to a blue van and got into the driver's seat. Gaviria followed and, as Lopez attempted to start the van, Gaviria tried to stop him from putting the key in the ignition. Lopez reacted by punching Gaviria in the face and chest with a closed fist, which caused Gaviria's glasses to fall off and break.
Gaviria continued trying to get the keys away from Lopez, who then reached for a silver object from the driver side door compartment. According to Gaviria, Lopez tried to stab him. Gaviria heard a rip and noticed his jacket had been pulled down. When Lopez tried to stab Gaviria a second time, Gaviria observed a "little kitchen knife" in Lopez's hand. Gaviria "got scared," tripped, and fell back onto the ground. Lopez drove away.
When the police arrived, Gaviria described his assailant as a light-skinned Hispanic male with tattoos, who had driven away on Route 10 East in a blue minivan. Gaviria also told the police that Lopez had a "wooden knife" and had tried to stab him.
Gaviria was examined and treated by paramedics at the scene. A police officer informed him that the East Hanover police had stopped someone matching his description of the assailant. Gaviria was taken to the location of the stop. Lopez was standing about three car lengths away from Gaviria, who identified Lopez as the person who tried to stab him. He testified that Lopez was wearing the same clothes, including the torn shirt, and that he also recognized the tattoos. Gaviria was shown a knife, which he identified as the weapon used by Lopez.
In September 2009, Lopez was indicted and charged with two counts of first-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (a)(2) (counts one and two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); two counts of third-degree aggravated assault, N.J.S.A. 2C:12(b)(2) and (b)(7) (counts four and five); third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(d) (count six); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count seven); third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count eight); and, third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count nine).
Lopez filed a motion to suppress the motor vehicle stop and the evidence seized after the stop. Following an evidentiary hearing in June 2009, the judge denied Lopez's motion.
The jury trial began at the end of September and concluded in early October, for a total of six trial days. Gaviria testified to the facts outlined above. Morris Plains Officer Louis Damiano testified that he went to the Morris Plains Stop and Shop on the afternoon of March 2, 2008, to investigate a reported robbery. He was "waved down" by Gaviria, who told him that someone had just shoplifted and then assaulted him. Damiano described Gaviria as "out of breath, excited . . . [,] holding his stomach and his side and kind of pacing back and forth." He also observed "some debris in the parking lot" which he "guess[ed]" were "some of the items that were shoplifted." He saw someone picking the items up. Damiano testified to the information he received from Gaviria, including Gaviria's description of his assailant as a light-skinned Hispanic male, about five feet, nine inches tall, weighing about 180 pounds, and with several tattoos.
Damiano dispatched the information to headquarters, and was notified five to ten minutes later that East Hanover police had stopped a vehicle whose driver matched the description Gaviria provided. Damiano then waited with Gaviria so he could be examined by the paramedics. Officer Thomas McPartland testified concerning Gaviria's identification of Lopez once he was stopped by police in East Hanover.
Other witnesses testified for the State, but we need not recount their testimony.
Lopez elected not to testify. He presented one witness, a paramedic who treated Gaviria at the scene. She testified that her assessment revealed no signs of serious injury, but that she had given Gaviria an ice pack. She also testified that he declined the option of being taken to a hospital.
Lopez moved for dismissal of counts three, five, and eight, arguing that there had been no evidence of serious bodily injury (count three), significant bodily injury (count five), or terroristic threats (count eight) presented. The judge granted the motion as to count eight, but denied the motion as to the counts involving bodily injury. However, finding that there was no proof of actual serious or significant bodily injury, the judge decided that he would charge only attempt to cause serious or significant bodily injury.
On the first full day of deliberations, the jury asked that some testimony be read back and for clarification concerning the issue of second-degree robbery and bodily injury. After the read back, the judge re-delivered the charges relevant to the jury's question.
On the second day of deliberations, the judge received a verdict sheet from the jury. He noted that there appeared to be some confusion by the jurors as to the two counts of robbery. The jurors had checked off the guilty box for the robbery charges, but as to the use of a deadly weapon they indicated that they were not in agreement. They also checked the guilty box for the lesser included offense of theft in counts one and two, which they should have reached only if they found Lopez not guilty of robbery. The judge gave the jury further instructions and a new verdict sheet, and asked that they continue deliberations.
Later that day, the jury found Lopez guilty of two counts of second-degree robbery and one count of third-degree receiving stolen property. The jury reported itself "deadlocked" on all remaining charges, including whether Lopez purposely inflicted or attempted to cause serious bodily injury. Consequently, he was acquitted of first-degree robbery.
Lopez was sentenced on November 20. The trial judge granted the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3(a). On count one, second-degree robbery, the judge sentenced Lopez to incarceration for fifteen years, with an eighty-five percent period of parole ineligibility pursuant to NERA and a five-year term of parole supervision. On count nine, receiving stolen property, the judge sentenced Lopez to a concurrent term of three years. The remaining charges, counts three, four, five, six, and seven were dismissed.
Because the transcript of the sentencing was unavailable, we remanded the matter to the Law Division for reconstruction of the record. A different judge conducted the temporary remand hearing. --------
The judge put the following statement of reasons in the judgment of conviction:
This matter is before the Court for [sentencing] based upon a finding of guilty by a Morris County jury on two counts of robbery in the second degree and one count of receiving stolen property. The Court presided over the trial and is familiar with the charges, the testimony of the [witnesses] and took the verdict of the jury. This defendant is 36-years of age and has amassed thirteen prior indictable charges with six convictions. The Court has considered the applicable case law and relevant statute, and finds an extended term is appropriate. In determining where within the range that the sentence should fall, the Court has considered the criteria for imposing or withholding sentence and the real-time consequence of NERA which calls for defendant to serve 85% of any sentence imposed. The Court has also considered the contents of the Pre-Sentence Report, and the nature of the offense to which he has been charged. Aggravating factors (3) The risk that the defendant will commit another offense; and (9) The need for deterring the defendant and others from violating the law, which is a heavily weighed factor. The Court does not find any mitigating factors. The Court further finds that the stolen motor vehicle was used during the crime and does not find that a consecutive sentence is appropriate. (Counts 1 and 2 are merged).
This appeal followed.
II.
Lopez raises the following issues on appeal:
POINT I: ROBBERY, SPECIFICALLY THE USE OF FORCE IN "IMMEDIATE FLIGHT," WAS INSUFFICIENTLY PROVEN. ALTERNATIVELY, A
RECHARGE ON ROBBERY AND THEFT WAS CALLED FOR FOLLOWING THE JURY'S INITIAL RETURN OF AN INVALID VERDICT. U.S. CONST. AMENDS. XIV, VI; N.J. CONST. ART. I, PARAS. 1, 9, 10. (Not Raised Below).
A. Force in "Immediate Flight" from a Theft Was Insufficiently Proven Because Lopez Had Abandoned the Stolen Items to the Store Employee Prior to His Resorting to Any Use of Force.
B. Alternatively, Once it Became Clear that the Jury was Confused by the Court's Initial Instructions on the Charges of Robbery and Theft, Defendant was Denied Due Process When the Court Failed to Instruct the Jury on the Elemental Differences Between Robbery and Theft, Specifically the Requirement that to Constitute Robbery the Theft and Force Must be Integral Parts of One Continuous Transaction. This Error was Compounded When the Court Instructed the Jurors to "Specifically Address" Only Counts One, Two and Eight.
POINT II: DEFENDANT SHOULD BE RESENTENCED BECAUSE THE COURT FAILED TO ACKNOWLEDGE MITIGATING FACTORS, WHICH LED TO THE IMPOSITION OF A SHOCKINGLY HIGH SENTENCE.
A.
We start our discussion with the issue of whether there was sufficient evidence that Lopez used or threatened to use force during "immediate flight after the attempt or commission" of theft within the meaning of N.J.S.A. 2C:15-1(a)(1) or (2). In essence, Lopez argues that, because the force was used after he dropped the items he sought to shoplift, there was no robbery under the language of the statute.
N.J.S.A. 2C:15-1(a) provides:
A person is guilty of robbery if, in the course of committing a theft, he:The Supreme Court has held that, whether an act occurs during "immediate flight" hinges upon whether the actor has reached a point of at least temporary safety or is in custody. State v. Mirault, 92 N.J. 492, 500-01 (1983). In those circumstances, the crime of robbery may be deemed to have been completed and subsequent use of force is not during "immediate flight." See id. at 501.
(1) Inflicts bodily injury or uses force upon another; or
(2) Threatens another with or purposely puts him in fear of immediate bodily injury[.]
. . . .
An act shall be deemed to be included in the phrase "in the course of committing a theft" if it occurs in an attempt to commit theft or in immediate flight after the attempt or commission.
We review this issue in the context of the trial testimony, giving the State the benefit of all favorable inferences. State v. Dekowski, 218 N.J. 596, 608 (2014). The record is clear that Lopez had not reached "a point of at least temporary safety" before he started hitting and later punching Gaviria. Gaviria testified that he chased Lopez and grabbed his shirt, at which time Lopez "kind of went back and started shuffling, moving around, and . . . his shirt started ripping." At that point, Lopez "[a]ll of a sudden started . . . hitting [Gaviria]." When asked what happened to the basket containing the store's property, Gaviria responded that, "when I grabbed him, when we were tugging, when we were moving, he kind of dropped everything on the [ground]." So, the basket was dropped just as or just after Gaviria had grabbed Lopez's shirt and it ripped. In other words, Lopez dropped the basket at the same time he was struggling with Gaviria and, at most, seconds before he started hitting Gaviria.
This is not a case in which Lopez dropped the merchandise as soon as Gaviria identified himself and the hitting and punching occurred later. Those were the facts in State v. Baker, 540 So. 2d 847 (Fla. Dist. Ct. App. 1989), on which Lopez relies. In that case, the defendant noticed that he was being followed by security guards, put down the merchandise he had taken, and ran away. Id. at 848. The defendant struggled and threatened the security guards only when they caught up with him. Ibid. The Florida intermediate appellate court found that the facts of the case did not satisfy "the statutory requirement that the force used be part of 'a continuous series of acts or events' involved with taking the property." Ibid.
In addition to the difference in operative facts between Baker and the case now before us, the applicable law is different. Our robbery statute applies to flight after a theft or an attempted theft, so continued possession of the stolen property during flight is not an element of the offense. Our Supreme Court has also interpreted our statute by looking to whether the defendant has reached a point of relative safety or been taken into custody. That is the determinative factor in deciding whether the use of force during immediate flight is "closely connected in point of time, place, and causal connection and are integral parts of one continuous transaction." Mirault, supra, 92 N.J. at 500.
In State v. Lopez, 187 N.J. 91, 98-99 (2006), the Court emphasized the extensiveness of the robbery statute's coverage by quoting from the Model Penal Code's commentaries. The commentaries state that "the core of the robbery offense is the combination of theft and the fact or threat of immediate injury," and that robbery "is committed if the required special circumstances [the threat of or actual injury] exist at any point from the beginning of an attempt to commit a theft through the end of the flight following its attempt or commission." Model Penal Code, § 222.1 Comments 1 and 2 (1980).
The Court added that
our statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force. That is why a person who has stolen goods and thereafter uses violence in flight is guilty of robbery--the intention to commit the theft generated the violence.As noted above, N.J.S.A. 2C:15-1 specifically refers to the use of force during "immediate flight" after the theft or the attempted theft. Significantly, the statutory language previously quoted provides that use of violence in the immediate flight from an attempted theft is second-degree robbery. As we observed above, there is nothing in the statutory language to suggest that the Legislature intended that maintaining or abandoning possession of the stolen property is a factor in determining whether the use of force was used during "immediate flight."
[Lopez, supra, 187 N.J. at 101.]
For the reasons stated, we find no merit in Lopez's argument that the facts were insufficient to support his conviction for second-degree robbery. We would reach the same conclusion even if the merchandise had been dropped when Gaviria identified himself or grabbed Lopez, but the force was not used until Gaviria caught up to Lopez at his van. When Lopez reached the van, he had still not reached a point of temporal safety. So, under Mirault, he was still engaged in immediate flight when he was attempting to start his van.
We have reviewed Lopez's alternate argument concerning the jury charge and the verdict sheet, neither of which were raised before the trial judge. We find them to be without merit and not warranting extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Normally, "a defendant waives the right to contest an instruction on appeal if he does not object to the instructions[, but] . . . an appellate court may reverse on the basis of unchallenged error if the court finds that the error was 'clearly capable of producing an unjust result.'" State v. Adams, 194 N.J. 186, 206-07 (2008) (quoting R. 2:10-2). Our Supreme Court has
explained that plain error in the context of a jury charge 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.""The charge to the jury must be read as a whole in determining whether there was any error." Ibid. Additionally, "[i]f the defendant does not object to the charge [or lack of charge] at the time it is given, there is 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).
[Id. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]
Defense counsel never objected to the initial charge or the verdict sheet, nor did he object to the judge's handling of the verdict sheet when it was first returned or the subsequent instruction to the jury to continue deliberations. Finally, no issue was raised before the trial judge when the final verdict was delivered, at which time the jury had not yet been dismissed and could have been questioned further. We find nothing in the record to suggest that any problems with the charges or the verdict sheet were "clearly capable of producing an unjust result."
B.
We now turn to the issues raised with respect to the sentence.
"[Our] review of sentencing decisions is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (alterations in original) (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364-65.
"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296-97 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)). Nevertheless, a trial judge need not "explicitly reject each and every mitigating factor argued by a defendant." State v. Bieniek, 200 N.J. 601, 609 (2010). However, "where mitigating factors are amply based in the record before the sentencing judge, they must be found." Dalziel, supra, 182 N.J. at 504. Only when credible record evidence suggests the existence of an aggravating or mitigating factor must the trial court consider it. Id. at 504-05.
Pursuant to N.J.S.A. 2C:44-3, upon request by the prosecutor, a judge may impose an extended term if he or she finds that the defendant is a persistent offender. See State v. Pierce, 188 N.J. 155, 168 (2006). The statute defines a persistent offender as
a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
[N. J.S.A. 2C:44-3(a).]
Our role is not to determine whether we would have imposed the same sentence, but only to determine whether the judge has appropriately exercised his sentencing discretion consistent with the applicable law and the record. Lopez was clearly eligible for an extended term based on his criminal record. The judge did not abuse his discretion in opting to impose one. The judge adequately explained his reasons for finding two aggravating factors, both of which were supported by the record. We find no facts in the record to support Lopez's assertion that the judge erred in failing to find mitigating factor eleven (imprisonment would cause excessive hardship to his three children), N.J.S.A. 2C:44-1(b)(11). That Lopez is the father of three children does not, in itself, compel a finding of hardship. The sentence, while at the higher end of the available range, cannot be characterized as excessive under the applicable case law.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION