Opinion
DOCKET NO. A-2098-12T1 DOCKET NO. A-2163-12T1 DOCKET NO. A-3331-12T1
05-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JHON YEBES, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. PEDRO DOMINGUEZ, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. JORGE RODRIGUEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Yebes in A-2098-12 (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief). Appellant Jhon Yebes filed a pro se supplemental brief in A-2098-12. Joseph E. Krakora, Public Defender, attorney for appellant Dominguez in A-2163-12 (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Rodriguez in A-3331-12 (Gilbert G. Miller, Designated Counsel, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Accurso. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-01-0003. Joseph E. Krakora, Public Defender, attorney for appellant Yebes in A-2098-12 (Stephen W. Kirsch, Assistant Deputy Public Defender, on the brief). Appellant Jhon Yebes filed a pro se supplemental brief in A-2098-12. Joseph E. Krakora, Public Defender, attorney for appellant Dominguez in A-2163-12 (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Rodriguez in A-3331-12 (Gilbert G. Miller, Designated Counsel, of counsel and on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Sarah E. Ross, Deputy Attorney General, of counsel and on the briefs). PER CURIAM
Defendants Jhon Yebes, Pedro Dominguez and Jorge Rodriguez appeal their multiple convictions for first-degree armed robbery based on evidence they held-up two individuals at knifepoint. In their separate appeals, defendants argue, among other things, that the trial judge erred: in prematurely terminating a Wade hearing; in allowing prosecutorial misconduct during summations; and in imposing consecutive sentences. We reject their arguments and affirm, with the exception that we remand for resentencing of Rodriguez and for correction of Yebes's judgment of conviction.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The record reveals that late on the night of August 21, 2010, cousins Adam and Marvin Juarez were leaving an Elizabeth bar when approached by a group of four Hispanic males in a well-lit area. Adam later testified that "[o]ne of them put a knife to me on the right side," and took his cell phone and $40 in cash; he also testified that the men who approached him also "grabbed [his] cousin." Marvin similarly testified that "one of them grabbed my hand and put a knife to my neck," while another "went through [his] pockets and took" his house and car keys, approximately $60 in cash, and bank and identification cards. Marvin corroborated Adam's testimony, stating that while he was being robbed, he was aware "they were grabbing [Adam] too." Both Adam and Marvin testified that after they were robbed, the four individuals "told us that if we went to the police or did something the next time they . . . were going to kill us." The four then walked off in a group.
Defendants were quickly apprehended near the scene of the crime; a fourth suspect fled. A search of Rodriguez uncovered a cell phone and a set of keys belonging to the victims, and a search of Yebes yielded a folding knife.
Within a half hour of the crimes, the Juarez cousins were driven in a marked patrol car to a nearby parking lot to identify the three detained suspects. When the patrol car containing the victims arrived, Dominguez, Rodriguez, and Yebes were surrounded by four police officers; Yebes was handcuffed. Upon viewing the suspects, the victims quickly identified defendants as their attackers. Each defendant was then brought forward by a uniformed officer where, illuminated by patrol car spotlights, they were individually observed by the victims from a distance of approximately twenty feet. While each suspect stood with his hands behind his back, Officer Belon asked the victims, who remained in the back of the patrol car, if the person brought forward was one of their robbers. The victims affirmatively identified the three suspects and explained the role each played in the robberies. Thereafter, the victims were driven to the police station where they provided handwritten Spanish-language accounts of the robbery.
Following a single jury trial involving all charges against all three, defendants were convicted of: two counts of first-degree armed robbery, N.J.S.A. 2C:15-1; one count of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); and one count of fourth-degree possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d).
All defendants were sentenced on October 5, 2012. The trial judge merged their weapons convictions into the robbery convictions and imposed on each defendant consecutive terms on the robbery convictions; Dominguez received fifteen- and thirteen-year prison terms, Rodriguez received two fifteen-year prison terms, and Yebes received seventeen- and fifteen-year prison terms. All prison terms on these robbery convictions were subject to eighty-five-percent parole disqualifiers pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendants separately appeal their convictions, posing many of the same arguments. Accordingly, we now consolidate these appeals and dispose of them by way of this single opinion. To be precise, Yebes argues:
I. IN SUMMATION, THE ASSISTANT PROSECUTOR INAPPROPRIATELY DREW ATTENTION TO THE DEFENDANT'S SILENCE AT OR NEAR THE TIME OF HIS ARREST, AND THEN, AFTER BEING REPRIMANDED BY THE COURT, DID IT AGAIN, ALL IN AN IMPROPER, DAMAGING ATTEMPT TO CONVINCE THE JURY NOT TO GIVE CREDENCE TO DEFENDANT'S TESTIMONY (Partially Raised Below).
II. THE TRIAL JUDGE IMPROPERLY GAVE THE JURY WRITTEN INSTRUCTIONS THAT DID NOT INCLUDE THE DETAILED INSTRUCTION ON IDENTIFICATION - PLAIN ERROR IN A CASE WHERE
IDENTIFICATION WAS THE DEFENSE (Not Raised Below).In a pro se supplemental brief, Yebes also argues:
III. THE SENTENCES SHOULD NOT RUN CONSECUTIVELY.
I. WITNESSES DID NOT MENTION TO THE POLICE MAKING THREE SEPARATE OUT OF COURT IDENTIFICATIONS. OFFICERS DID NOT FOLLOW ATTORNEY GENERAL GUIDELINES, ON OUT OF COURT IDENTIFICATIONS. IDENTIFICATION OF DEFENDANT WAS SUGGESTIVE CAUSING MISIDENTIFICATION AND FALSE IMPRISONMENT. AND SUCH ERRORS DID NOT PROVIDE DEFENDANT A FAIR TRIAL WHICH HAS CAUSED DEPRIVATION OF RIGHTS BY VIOLATIONS OF HIS RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS PURSUANT TO U.S. CONST. AMEND V & XIV; AND VIOLATED HIS RIGHTS OF "LIFE AND LIBERTY" PURSUANT TO N.J. CONST. ARTICLE I. PAR. I (Not raised below).
II. THE TRIAL COURT FAILED TO ENTER AS EVIDENCE AN "EXHIBIT" FOR THE JURY VERDICT SHEET. SUCH ERRORS DID NOT PROVIDE DEFENDANT A FAIR TRIAL WHICH HAS CAUSED DEPRIVATION OF RIGHTS BY VIOLATIONS OF HIS RIGHTS OF DUE PROCESS AND EQUAL PROTECTION OF THE LAWS PURSUANT TO U.S. CONST. AMEND V & XIV; AND VIOLATED HIS RIGHTS OF "LIFE AND LIBERTY" PURSUANT TO N.J. CONST. ARTICLE I. PAR. 1 THE JURY VERDICT MUST BE VACATED (Not raised below).
III. APPELLANT WAS NOT INDICTED BY THE GRAND JURY, INDICTMENT IS CHALLENGED. NO CONSENT GIVEN BY DEFENDANT FOR INSTANT IMPOSITION OF SENTENCE. THE DISCRETIONARY SENTENCE IMPOSED, WAS NOT FOUND BY THE JURY, NO TIMELY FILED MOTION FOR EXTENDED TERM, NOR COURT INCORPORATED FINDINGS MADE. NO HEARING WAS HELD FOR ABILITY TO PAY FINES AND PENALTIES. NO PRIOR CONVICTION OF SIMILAR NATURE EXISTS TO JUSTIFY THE AGGRAVATING
FACTORS IMPOSED. CONVICTION MUST BE VACATED FOR LACK OF PROOF OF AGGRAVATING CIRCUMSTANCES THAT ADJUDICATED A CONVICTION ON THE BASIS OF MISTAKE OF FACT AND MISTAKE OF LAW IMPOSITION OF SUCH SENTENCE IS IN EXCESS OF THE SENTENCE AUTHORIZED BY LAW, AS IT WAS A GRAVES ACT CASE, CONVICTION WHICH IS AN EXPIRED SENTENCE, CAUSING FALSE IMPRISONMENT, BY DEPRIVATION OF RIGHTS PROVIDED BY U.S. CONST. AMEND VIII, XIC; N.J. CONST. ART. I, PAR. 1, 12 (Not raised below).
IV. DEFENDANT'S JUDGMENT SHOULD BE VACATED BECAUSE TRIAL COUNSEL INEFFECTIVELY REPRESENTED DEFENDANT, HAS VIOLATED DEFENDANT'S RIGHT UNDER U.S.[]CONST. AMEND VI AND XIV; N.J. CONST. ART. 1 AND 10 (Not raised below).
V. NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS, COMBINED WITH TRIAL COUNSEL'S OMISSIONS, DURESS, AND PREJUDICE, DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below).
The subheadings under this point have been removed for brevity's sake.
Dominguez argues:
I. THE JUDGE IMPROPERLY DETERMINED THAT THE WADE HEARING SHOULD BE ENDED BEFORE THE FIRST WITNESS FINISHED TESTIFYING BECAUSE THE JUDGE WAS NOT CONVINCED THAT THE IDENTIFICATIONS WERE UNRELIABLE.
A. The Judge Misunderstood The Standard For "Impermissible Suggestiveness" And Misapplied Evidence In Deciding The Reliability Of The Identification.
B. The Show-Up Here Was Overwhelmingly Suggestive And The Judge's Improper Termination Of
The Hearing Only Served To Veil That Fact.
C. The Judge Never Addressed The Failures To Record The Identification As Required By State v. Delgado.
II. IT WAS AN ABUSE OF DISCRETION FOR THE JUDGE TO PERMIT THE IN-COURT IDENTIFICATION OF DEFENDANT DOMINGUEZ DURING THE RE-DIRECT OF THE STATE'S WITNESS.
III. THE PROSECUTOR'S MISCONDUCT IN SEEKING TO INFLAME THE JURY, TESTIFYING TO BOLSTER HIS CASE AND DENIGRATING THE DEFENSE DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL (Partially Raised Below).
IV. IT WAS ERROR FOR THE JUDGE TO ALLOW, OVER DEFENSE COUNSEL'S OBJECTION, THE SPANISH LANGUAGE HANDWRITTEN ACCOUNTS OF MARVIN JUAREZ AND ADAM JUAREZ TO GO TO THE JURY.
V. DEFENDANT'S SENTENCE OF 28 YEARS WITH 23 TO BE SERVED WITHOUT PAROLE, EQUIVALENT TO THE SENTENCE FOR A PARTICULARLY BAD AGGRAVATED MANSLAUGHTER, WAS MANIFESTLY EXCESSIVE.
State v. Delgado, 188 N.J. 48 (2006).
Rodriguez argues:
I. DEFENDANT'S OUT-OF-COURT IDENTIFICATIONS SHOULD HAVE BEEN SUPPRESSED.
II. THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL (Partially Raised Below).
III. DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.
We find insufficient merit in all these arguments to warrant discussion in a written opinion, R. 2:11-3(e)(2), with the exception of defendants' arguments concerning: (1) the Wade hearing; (2) the in-court identification of Dominguez; (3) the prosecutor's remarks in summation; (4) defendants' sentences; (5) the jury instructions on identification; and (6) the submission to the jury of the victims' Spanish-language handwritten statements.
I
Dominguez and Rodriguez contend the trial judge improperly terminated the pre-trial Wade hearing before the first witness finished testifying. Specifically, following Officer Belon's testimony and cross-examination by each defense counsel, the judge ended the hearing and denied defendants' motions to suppress the out-of-court identifications. The judge found that the identification procedure was not "impermissibly suggestive" despite the fact that the victims made a group identification of defendants — with at least Yebes handcuffed — while they stood in a parking lot surrounded by police officers.
Under the dual-pronged pre-Henderson test applicable to this case, a trial judge must first consider whether the identification procedure employed was "impermissibly suggestive." State v. Madison, 109 N.J. 223, 232 (1988). If an identification procedure is so found, the judge must then determine, in light of the totality of the circumstances, whether the suggestive identification resulted in a "very substantial likelihood of irreparable misidentification." Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968). The second prong focuses on "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of [the witness's] prior description . . ., the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977); see also State v. Clausell, 121 N.J. 298, 326 (1990).
State v. Henderson, 208 N.J. 208, 287-88 (2011).
Here, the judge considered the "indicia of suggestibility" in the victims' identification under the first prong, "evidenced by the simultaneous identification process, evidenced by three people together, evidence[d] by one of them being in handcuffs, [and] evidence[d] by there being indicia that they were all being detained." Ultimately, however, the judge determined the procedure was not unduly suggestive, and denied the motion to suppress, stating that he was "satisfied that the [d]efense has not met its burden[,]" that there was "not such impermissive suggestibility that would cause [him to either] go any further" with the hearing or "suppress the identifications in this case."
The trial judge did, however, evaluate the reliability of the victims' identifications under the second prong, giving weight to the officer's testimony that the show-up occurred within thirty minutes of the offenses. Although recognizing Henderson was not controlling, the judge considered its precepts instructive, "tak[ing] notice of . . . Henderson [which states] that while a show-up identification is inherently suggestive, . . . there's a large percentage of reliability when the process takes place within two hours." See Henderson, supra, 208 N.J. at 260-61 ("cast[ing] doubt on the reliability of showups conducted more than two hours after an event, [as] present[ing] a heightened risk of misidentification"); State v. Wilkerson, 60 N.J. 452, 461 (1972) (upholding admissibility of one-on-one identification by witness that occurred within ninety minutes of initial observation). Ultimately, the judge concluded there was no evidence to suggest the identification was "anything . . . other than the product of [the victims'] own perceptions . . . made at the time of the crime."
The record provides abundant support for the trial judge's second-prong findings, to which we are obligated to defer. See State v. Robinson, 200 N.J. 1, 15 (2009). The victims made their identifications shortly after the robberies and, as suggested by the testimony of Officer Belon — which the trial judge found credible — without any undue pressure. Further, the initial description provided by the victims of their attackers matched the general description of the suspects detained. There is no evidence to suggest the victims identified defendants out of any exigency other than a desire to tell the truth. According to Officer Belon's testimony, upon viewing the suspects in the parking lot, the Juarez cousins "pretty much spontaneously" declared in Spanish, "that's them," and "[t]hey seemed a hundred percent sure" and "very adamant, very confident about their statements."
Rodriguez further argues the judge should not have exclusively relied on the testimony of Office Belon in admitting the out-of-court identification. He bases this on the judge's observation that Officer Belon's recollection of the incident was, at times, convenient — relying on the judge's comment that the officer would at times say "I'm not sure" but then later "volunteer information." The judge found, however, that the officer's testimony was generally credible.
In deferring to the judge's assessment of the evidence, we conclude he was entitled to terminate the Wade hearing at this juncture. There is no reason to assume a further presentation of evidence by the State would have weakened the State's contention that the identifications were reliable.
II
Dominguez argues that the judge abused his discretion in permitting an in-court identification of him during the redirect examination of Marvin Juarez. We disagree.
The scope of cross-examination and redirect examination is within the sound discretion of the trial judge, and we "will not interfere with such control unless clear error and prejudice are shown." State v. Martini, 131 N.J. 176, 263 (1993) (internal quotation marks omitted). At trial, cross-examination of Marvin Juarez sought to undermine his credibility and demonstrate he could not have properly identified the individuals who robbed him. Accordingly, it was well within the scope of redirect-examination for the prosecutor to rebut this by asking Marvin whether he recognized any of his attackers in the courtroom. We find no clear error or prejudice resulting from the trial judge permitting an in-court identification at this stage of the examination. Ibid.
III
We also find no prosecutorial misconduct during summations. Prosecutors are given considerable leeway when presenting "vigorous and forceful closing arguments to juries," State v. Frost, 158 N.J. 76, 82 (1999), so long as their "arguments are based on the facts of the case and reasonable inferences therefrom," State v. Smith, 167 N.J. 158, 178 (2001). Reversal on this ground is only warranted when the prosecutor's conduct was so "clearly and unmistakably improper" that it "substantially prejudiced [the] defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999).
Here, Dominguez and Rodriguez contest the prosecutor's: (1) emphasis on the violent nature of the crime; (2) suggestion that defense counsel called the victims "liars"; (3) disparagement of the motives of defense counsel; (4) expression of his own experience with alcohol; and (5) reference to the book, Blink, which discusses eyewitness identification. In addition, Yebes, who testified at trial, contends the prosecutor improperly commented on his silence at the time of arrest.
Malcolm Gladwell, Blink: The Power of Thinking Without Thinking (2005).
We find the prosecutor's summary remarks, for the most part, were responsive to the issues raised by defense counsel in his summation and a fair commentary on the evidence adduced at trial. We add only the following comments.
The prosecutor's commentary on eyewitness identification based on Blink, a book which was not introduced into evidence or otherwise referenced at any other point of the trial, was inappropriate. Defense counsel, however, failed to object to the prosecutor's statements, suggesting he did not believe these remarks were prejudicial. Timmendequas, supra, 161 N.J. at 576. Considering the substantial credible evidence in support of defendants' guilt, and the subsequent accurate instructions provided to the jury on identification, we cannot conclude the prosecutor's commentary about the impact of a non-evidential source may have led the jury to a result it otherwise might not have reached. Id. at 576-77; State v. Irving, 114 N.J. 427, 448 (1989).
We also find no reversible error in the prosecutor's argument concerning a discrepancy between the parties' pre-trial stipulation — that "someone" sold Rodriguez a cell phone prior to defendants' apprehension — and Yebes's trial testimony, in which he asserted a "black man" approached Rodriguez and sold him the cell phone. A timely and effective curative instruction was immediately provided following the offending comment. See State v. Scherzer, 301 N.J. Super. 363, 441 (App. Div.), certif. denied, 151 N.J. 466 (1997). Although the prosecutor once again returned to this argument in his closing, we cannot conclude, in light of the curative instruction previously provided and defense counsel's failure to object to the second offending comment, that this constituted reversible error. Irving, supra, 114 N.J. at 447.
IV
We turn now to defendants' sentences. Defendants Dominguez, Rodriguez and Yebes each object to the imposition of consecutive sentences on their two armed robbery convictions, arguing the aggregate sentences of twenty-eight, thirty, and thirty-two years, respectively, are manifestly excessive. We conclude that the trial judge's reasons for imposing consecutive sentences were sufficiently articulated and supported by the evidence established at trial. See State v. Miller, 205 N.J. 109, 129-30 (2011); State v. Bieniek, 200 N.J. 601, 612 (2010). We remand only with respect to the consecutive fifteen-year prison terms to which Rodriguez was sentenced, so the judge may reconsider these terms in light of the fifth Yarbough criterion.
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).
In reviewing a sentence, our goal is to ensure the sentencing guidelines were not violated, determine that findings of aggravating and mitigating factors are based on competent, credible evidence, and decide whether application of the guidelines makes a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984); see also Miller, supra, 205 N.J. at 129.
Each prison term imposed on each defendant (the greatest being a seventeen-year term given to Yebes and the smallest a thirteen-year term given to Dominguez) fell at or near the mid-range for first-degree offenses. See N.J.S.A. 2C:43-6(a)(1); N.J.S.A. 2C:44-1(f)(1)(b). Further, the imposition of these sentences is supported by the judge's consideration of aggravating and mitigating factors. At issue is whether consecutive sentences were warranted in light of all the relevant circumstances.
The trial judge identified aggravating factors three and nine, N.J.S.A. 2C:44-1(a)(3) and (9), and no mitigating factors for defendants Dominguez and Rodriguez. Further, although the trial judge did not address the presence of aggravating or mitigating factors during the actual sentencing of defendant Yebes, the judgment reveals that aggravating favors three and nine, and no mitigating factors, were found.
Our criminal code does not, as a general matter, specify when prison terms should run concurrently or consecutively. N.J.S.A. 2C:44-5(a) simply states that "multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." To assist courts in making this determination, the Yarbough Court articulated criteria for considering whether concurrent or consecutive terms are appropriate:
(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 object-tives 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
This analysis must "focus . . . on the fairness of the overall sentence, and the sentencing court should set forth in detail its reasons for concluding that a particular sentence is warranted." State v. Miller, 108 N.J. 112, 122 (1987).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; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[100 N.J. at 643-44.]
In 1993, the Legislature amended N.J.S.A. 2C:44-5(a) to provide "[t]here shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses," thereby eliminating the sixth Yarbough criterion. See L. 1993, c. 223, § 1.
Here, in concluding the Yarbough factors warranted imposition of consecutive sentences, the trial judge stated:
There are no free crimes. These were multiple crimes of violence. And this was not — and in terms of whether there were different location[s], a different time, this was not four people coming into a store. And while there was concert of action, this was two defendants attacking Adam Juarez and two defendants attacking Marvin Juarez. It was two on one in each case. This wasn't four on two, this was two separate concerted events. I think that they are separated by time and by place. That may be infinitesimal but I think that there is a separation here. So I think that — I don't have any problem with arguing the fact that this occurred contemporaneously, based upon the way it occurred. And I would also like to point out that in addition to the knife being held to one victim's jaw and another to his right side, there was also threats made when they left the scene. There were threats in which the victims were told, I will stab you if you call the police. I have no problem whatsoever in finding that . . . under the precepts of Yarbough, consecutive sentences are in order.
These findings were placed on the record in the proceedings concerning Dominguez and represented the judge's most detailed rationale for imposing consecutive sentences. The findings were then iterated in shorter form during the sentencing of Rodriguez, and incorporated by reference during the sentencing of Yebes.
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This analysis, which is "separately stated in the sentencing decision," appropriately considers the sentencing criteria articulated in Yarbough, supra, 100 N.J. at 643-44. After acknowledging that "[t]here are no free crimes," the trial judge addressed factors under criterion three. He noted that in addition to physical violence, "there w[ere] also threats made when [defendants] left the scene," concluding these events constituted "multiple crimes of violence" involving multiple victims.
The judge further determined under the third criterion that the attacks on Marvin and Adam Juarez were "separated by time and by place." Although we note, as did the trial judge, that the two attacks seemingly "occurred contemporaneously," we defer to his finding that this separation, however small, favored consecutive sentences.
Regardless of whether the temporal and spatial proximity of the crimes militates in favor of consecutive sentences, however, we recognize that "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences," because "the five 'facts relating to the crimes' contained in Yarbough's third guideline should be applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427-28 (2001); see also State v. Perry, 124 N.J. 128, 177 (1991) (affirming imposition of consecutive sentences where four of the five Yarbough factors weighed in favor of concurrent sentences). Thus, it was well within the judge's discretion to impose consecutive sentences. And, because the aggregate sentences imposed by the trial judge do not "shock[] the judicial conscious," Roth, supra, 95 N.J. at 363-64, we affirm.
Despite the conclusion we have reached regarding the consecutive terms imposed on all defendants, we nevertheless remand for reconsideration of the consecutive fifteen-year prison terms imposed on Rodriguez because the judge did not appear to consider the fifth Yarbough criterion in that regard. 100 N.J. at 644 (stating "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense"); see also Miller, supra, 108 N.J. at 122 (stating "[w]here 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, especially where the second offense did not pose an additional risk to the victim").
Based on the trial judge's evaluation of the attack, which he distinguished from "four people coming into a store," but instead characterized as "two defendants attacking Adam Juarez and two defendants attacking Marvin Juarez[,] [i]t was two on one in each case," equal punishment for both crimes appears not to be warranted. The judge's evaluation of the attack, by necessity, suggests each defendant possessed greater culpability with respect to only one of the victims, and did not pose an additional risk to the second victim. Accordingly, we remand for further consideration of the sentence imposed on Rodriguez, in keeping with the dictates of Yarbough, and direct that a lesser prison term be imposed on one of the robbery convictions.
We also remand for correction of the judgment of conviction entered with respect to Yebes. The trial judge's reasoning in Yebes's case, which incorporated findings expressed during Rodriguez's sentencing, for which Yebes was present, supports the imposition of consecutive prison terms for Yebes. But the judgment of conviction in that case incorrectly states that the court imposed concurrent instead of consecutive terms. We remand for a correction of that judgment.
V
Yebes contends that the trial judge erred in providing the jury with written instructions on the substantive elements of the offenses charged but failing to include written instructions on identification. It is well-settled that correct jury instructions are critical to preserving a defendant's right to a fair trial, and that incomplete or incorrect instructions are grounds for reversal. State v. Rhett, 127 N.J. 3, 5-7 (1992); State v. Martin, 119 N.J. 2, 15 (1990).
Here, although the judge did not hand the jury written instructions on identification, he correctly charged the jury on the subject. Further, defense counsel failed to object that a written copy was not turned over to the jury, suggesting counsel did not believe the judge was overemphasizing the substantive elements of the crimes to the detriment of the defense. We conclude that the potential for injustice from this oversight was not "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
VI
Dominguez also argues the judge erred in allowing the victims' Spanish-language handwritten statements to enter the jury room, suggesting a risk jurors might independently translate the statement rather than relying on the English translation provided. We find no merit in this argument. The parties agreed to admit both the Spanish and English versions of the victims' statements into evidence. These statements were then referenced multiple times during trial and read into the record by the victims themselves. Defendant's contention that jurors might conduct their own translations of the statements is founded on mere speculation and does not constitute sufficient grounds for reversal. See State v. Wilder, 193 N.J. 398, 416 (2008).
The judgments of conviction in these matters are affirmed in all respects, except that we remand in A-3331-12, for resentencing of Rodriguez for the reasons expressed in Section IV of this opinion, and we remand in A-2098-12, for correction of the judgment of conviction of Yebes.
Affirmed in part; remanded in part. 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