STATE OF NEW JERSEY v. DAVID VASQUEZ (2010)

Defendant appeals from his sentence and convictions on three counts of second-degree sexual assault, N.J.S.A. 2C:14-2a(4).   We affirm.

The victim in this case was seventeen year old J.P. On the evening of November 30, 2005, she went sightseeing and shopping with two friends in New York City. She returned to New Jersey by train.   At approximately 12:30 a.m., she was waiting near a train station in Newark for a friend to pick her up when a man she subsequently identified as defendant pulled up and asked if she needed a ride.   She declined.   Defendant pulled out a gun, ordered her to get into the car and threatened to shoot her if she did not comply.   J.P. got in the car.

Defendant ordered J.P. to bend down in the car so that she would not see anything and kept a gun to her head while he drove.   He claimed that he only wanted her money.   J.P. gave him her purse and told him to take everything she had and just leave her alone.   She tried to lift her head once but defendant threatened, “Don't try to be super girl because you're going to be super dead.”

When defendant stopped the car, the area appeared to be an abandoned industrial site that J.P. did not recognize.   Defendant ordered J.P. to take off her boots and clothes and then to get into the back seat and lie down.   J.P. testified that defendant got into the back seat, orally and vaginally penetrated her and touched her breasts.   During the sexual assault, defendant asked J.P. numerous times if she liked it and to kiss and hug him.   J.P. testified that defendant then ordered her out of the car and anally penetrated her in front of the car.   Again, he asked her if she liked it and to kiss him while he was sexually assaulting her.   Defendant then told J.P. to get back into the car and allowed her to put her clothes back on.

Defendant's mood changed in the car.   He apologized to J.P. and asked her where she lived.   But when J.P. asked him to drop her off on Washington Avenue, his mood changed again and he said, “You got to tell me where you live because, if you ever say anything to anyone, I'm going to kill you and your family.   Where is your house?”   J.P. then told defendant where she lived.

Defendant apologized again, saying, “I'm sorry.   I've never done this before.   I think the devil got inside of me.”   But, again, he threatened J.P., “But if you say something, I'm going to kill you and I'm going to kill your family.   Don't say anything to nobody.”   J.P. said, “I forgive you.   God forgives you.”   Defendant grabbed her purse and her cell phone and dialed his cell phone from her phone.   Then he returned her things and watched her go into her house to confirm that he knew where she lived.

J.P. did not want to trouble her mother, S.R., but S.R. could tell that something was wrong.   J.P. was crying and appeared very nervous and very scared.   Her make-up was runny and her hair was undone.   When S.R. questioned her, J.P. kept saying that nothing happened and she should not worry.   But when J.P. took off her jacket, S.R. could see that she was not wearing a bra.   S.R. questioned her further and J.P. finally told her, “Mom, I was raped.”

S.R. asked who had raped her and J.P. replied that she did not know him;  that he had gotten her in his car and that was why she was late.   J.P. resisted when S.R. said they had to call the police, telling S.R. about defendant's threat to kill her.   But S.R. went ahead and called the police.

Before the police arrived, J.P.'s cell phone rang.   S.R. picked up the phone and J.P. said, “No, Mom. It's him.”   She explained that defendant had taken her phone and put its number into his phone.   S.R. observed that the call was from an unpublished number.   When she answered the call, the other party hung up.

Officers from Belleville and Newark responded to J.P.'s home.   J.P. described her assailant as a white, Hispanic male between twenty and thirty years old, approximately 5'9” tall and 170 pounds.   She described his car as an old, white, four-door Oldsmobile with two red boxing gloves by the mirror.   The officers took both J.P. and S.R. to the hospital, where she was treated and submitted to a sexual assault examination.

After she was treated, Detectives Anthony Iemmello and Elizabeth Martinez of the Newark Police Department drove J.P. around to see if she could recognize the place where she had been attacked but she was unable to do so.   As they were driving, J.P. received a phone call and told the police, “It's him.”   Detective Iemmello told her to answer the phone and ask defendant his name, what he was wearing and where he lived.   Defendant replied that his name was Ricky;  he lived in Kearny and was a truck driver.   He apologized again, “I think the devil possessed me ․ I don't know what was wrong with me ․ I've never done it before.”   He asked J.P. if she had told anyone.   She said, “No.” Defendant then said that she was a very pretty girl;  that he liked her and wanted to make it up to her and take her out on a date.   Detective Iemmello coached J.P. on how to respond to defendant without arousing his suspicion that she had contacted the police.   She asked defendant questions that Detective Iemmello wrote down for her and agreed to meet him.   Defendant told her that the gun and the car he was driving belonged to his cousin.

When J.P. returned home, she received a voice mail message from defendant and additional calls.   J.P. and S.R. returned to the police department, where S.R. authorized the consensual interception of phone conversations between J.P. and defendant.   The recorded conversations were played for the jury at trial.

In the conversations, J.P. and defendant agreed to meet at Rita's Italian Ice in Belleville.   Police officers arrested defendant when he arrived at that location.   A police detective who went to defendant's home thereafter observed a white four-door Oldsmobile with red boxing gloves hanging from the rear view mirror parked in front of the house.   A purple sock belonging to J.P. was found in the rear seat of the car.

J.P. identified defendant's photograph from a photographic array and identified him in court.   She testified that she was 100% certain that he was the person who ordered her into his car at gunpoint and assaulted her.

The records for J.P.'s cell phone revealed eight incoming calls from defendant's phone and no calls from her phone to his.

After his arrest, the police obtained a buccal sample from defendant and delivered it to the New Jersey State Laboratory for comparison with evidence taken from J.P. during the sexual assault examination.   Vaginal, cervical and anal samples taken from J.P. tested positive for sperm.   DNA analysis of the vaginal and cervical swabs taken from J.P. and her underwear resulted in an identification of defendant as the source of the major DNA profile present.

Defendant was indicted on the following charges:  kidnapping, N.J.S.A. 2C:13-1b(1) (count one);  three counts of aggravated sexual assault during the course of a kidnapping, N.J.S.A. 2C:14-2a(3) (counts two, three, and four);  three counts of aggravated sexual assault while armed with a weapon, N.J.S.A. 2C:14-2a(4) (counts five, six and seven);  three counts of sexual assault using physical force or coercion, N.J.S.A. 2C:14-2c(1) (counts eight, nine and ten);  aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (count eleven);  criminal coercion, N.J.S.A. 2C:13-5 (count twelve);  terroristic threats, N.J.S.A. 2C:12-3a (count thirteen);  unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count fourteen);  possession of a firearm with an unlawful purpose, N.J.S.A. 2C:39-4a (count fifteen);  possession of a defaced firearm, N.J.S.A. 2C:39-3d (count sixteen);  possession of hollow point bullets, N.J.S.A. 2C:39-3f (count seventeen).   Counts sixteen and seventeen were severed prior to trial.

Defendant did not testify or present any evidence.

Defendant was convicted of three counts of second-degree sexual assault (counts eight, nine and ten) and acquitted of the remaining counts.   He was sentenced on each of the counts to concurrent terms of eight years subject to an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), Megan's Law requirements, N.J.S.A. 2C:7-2(b)(2), parole supervision for life, N.J.S.A. 2C:43-6.4, and appropriate penalties and fines.

In this appeal, defendant presents the following issues:

POINT I

THE TRIAL COURT ERRED IN ITS TREATMENT OF SEVERAL EVIDENTIARY ISSUES (NOT RAISED BELOW).

A. THE VICTIM'S MOTHER'S TESTIMONY WAS HEARSAY AND SHOULD NOT HAVE BEEN ADMITTED.

B. THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS COUNT 13.

C. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO ADMIT D-2 INTO EVIDENCE.

POINT II

THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE TRIAL COURT'S INSTRUCTIONS AS A WHOLE WERE IN ERROR (NOT RAISED BELOW).

POINT IV

THE COURT ERRED BY NOT ASKING THE DEFENDANT WHETHER HE WANTED TO TESTIFY, INFORMING HIM OF HIS RIGHT TO TESTIFY, AND WHETHER HE CHOSE TO HAVE THE ELECTION NOT TO TESTIFY CHARGE READ TO THE JURY (NOT RAISED BELOW).

POINT V

THE TRIAL COURT ERRED BY ALLOWING CERTAIN PROSECUTORIAL REMARKS WHICH WERE IMPROPER (NOT RAISED BELOW).

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED;  THE AGGRAVATING AND MITIGATING FACTORS WERE NOT PROPERLY ADDRESSED BY THE COURT WHICH WAS ERRONEOUS.

In a supplemental brief, defendant argued that the trial court committed error by allowing the results of the intercepted telephone calls into evidence, an issue that was not raised below.

After carefully reviewing the record and briefs of counsel, we are satisfied that none of these arguments have merit and that the argument presented in Point II lacks sufficient merit to warrant discussion in a written opinion.   R. 2:11-3(e)(2).

The arguments presented in Points I, III, IV, IV and in the supplemental brief were not raised below.  “The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves.”  State v. Robinson, 200 N.J. 1, 19 (2009).   Because this issue is raised for the first time on appeal, our review is limited to “a search for plain error, Rule 2:10-2[.]”  State v. Nesbitt, 185 N.J. 504, 516 (2006).

In Point I ¹ and in his supplemental brief, defendant challenges various evidentiary rulings, none of which were objected to at trial.

“[T]he trial judge is accorded broad discretion in determining whether or not to admit evidence alleged to be relevant and has, as well, broad discretion in determining that even relevant evidence should be excluded if its probative value is outweighed by undue prejudice or undue delay.”  State v. E.B., 348 N.J.Super. 336, 344 (App.Div.), certif. denied, 174 N.J. 192 (2002).   See N.J.R.E. 403.   See also State v. McDougald, 120 N.J. 523, 577-78 (1990).   Therefore, we afford substantial deference to the trial judge's discretion on evidentiary rulings unless it is a clear error of judgment or so wide of the mark that a manifest denial of justice results.   See, e.g., State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, 488 U.S. 1017, 109 S.Ct. 813, 102 L. Ed.2d 803 (1989);  State v. Carter, 91 N.J. 86, 106 (1982);  State v. Swint, 328 N.J.Super. 236, 253 (App.Div.), certif. denied, 165 N.J. 492 (2000).

Defendant argues that the trial court erred in admitting the testimony of J.P.'s mother and the intercepted telephone conversations and in denying his request for the admission of J.P.'s cell phone log.   We are satisfied that these arguments lack sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.

Defendant argues that the fresh complaint exception to the hearsay rule, see State v. Hill, 121 N.J. 150, 163 (1990), did not apply to S.R.'s testimony because J.P.'s statements to S.R. lacked sufficient spontaneity and voluntariness.   To qualify as fresh complaint evidence, “the victim's statements to someone she would ordinarily turn to for support must have been made within a reasonable time after the alleged assault and must have been spontaneous and voluntary.”  Ibid. However, “fresh complaints” may also be admissible when “made in response to general, or non-coercive, questioning.”   Id. at 167, 170.

J.P. testified that defendant first approached her at approximately 12:30 a.m. She arrived at home after the assault approximately one hour later.   Her mother testified that J.P. was crying, very nervous and very scared.   Her makeup was runny;  her hair and clothing “undone.”   S.R. was immediately concerned and asked J.P. what happened but J.P. told S.R. that nothing happened and not to worry.   S.R. testified that when she saw that J.P. did not have her bra, she “told her that I was a friend;  that she should tell me what happened.”   When S.R. said that she was going to call the police, J.P. told her mother that she had been raped.   We are satisfied that this statement, made within one hour of the assaults, was voluntary and not made in response to coercive questioning and further, that the trial court did not abuse its discretion in admitting this testimony as fresh complaint evidence.

In Points III and IV, defendant argues that the court committed plain error in its instructions to the jury.   The standard for plain error in 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.”  State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)) (alteration in original).

One of the errors alleged concerns defendant's election not to testify.²  The court did not ask him whether he wanted the jury charged regarding his right to remain silent before providing the jury with that instruction.   Although it is preferable that a defendant be given the choice as to whether the instruction is given, the defendant does not have a “constitutional right to resist the instruction.”  State v. McNeil, 164 N.J.Super. 27, 31 (App.Div.1978), certif. denied, 79 N.J. 497 (1979).   See Lakeside v. Oregon, 435 U.S. 333, 98 S.Ct. 1091, 55 L. Ed.2d 319 (1978) (holding that a jury charge on the defendant's right not to testify, given over his objection, was not a violation of his Fifth Amendment rights).   As Justice Stewart stated, “It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.”  Lakeside, supra, 435 U.S. at 339, 98 S.Ct. at 1095, 55 L. Ed.2d at 325.

It is undisputed that the charge given was a correct statement of the law.   Aside from identifying the court's failure to question defendant as error, defendant has proffered only a conclusory statement that this error was capable of producing an unjust result.   He has failed to identify any factual or rational basis to support that conclusion.   We are satisfied that the instruction on the defendant's election not to testify did not have the capacity to lead to an unjust result.

During deliberations, the jury submitted the following question to the court:  “please define aggravated assault.”   Observing that the defendant was not charged with aggravated assault, the judge asked the jury if it wanted him to read the elements of aggravated sexual assault.   The jurors' response was that they wanted those elements read back to them.   The court read the aggravated sexual assault charge to the jury and noted that the charge applied to counts two, three and four of the indictment.   Defendant was acquitted on those counts.   Defendant has not identified any aspect of the charge given in response to the jury's question that was incorrect or that would “cause[ ] the jury to believe that they had to find Mr. Vasquez guilty of something regardless of the evidence.”   The court did not commit error, let alone plain error, in its response to the jury question.

In Point V, defendant argues as plain error that remarks made by the prosecutor during summation denied him of his right to a fair trial.   The remarks complained of consisted of the following:

Why should you believe the victim in this case?   She came here, she was right there before all of you.   You saw her demeanor.   Was that the demeanor, two-and-a-half years later, of someone who had consensual sex in December of 2005 with him?   No. That is the demeanor of someone who was raped by him.   Who, when she walked into the room, immediately started crying and could barely contain herself to tell you the most humiliating, degrading things.   She had to come here and say that in front of 20-- at least 20 people.   Why? Why? Because it happened, that's why.

Defense counsel's failure to object to these comments deprived the court of any opportunity to take curative action.   See State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001).   In this case, it is reasonable to conclude that the failure to object also reflected defense counsel's belief that the remarks were not prejudicial at the time they were made, see ibid., because the comments were responsive to defense counsel's repeated attacks upon J.P.'s credibility in his own summation.   See United States v. Young, 470 U.S. 1, 12, 105 S.Ct. 1038, 1045, 84 L. Ed.2d 1, 11 (1985) (in reviewing prosecutor's comments in summation, the court must consider defense's “opening salvo”);  State v. Munoz, 340 N.J.Super. 204, 216 (App.Div.2001) (prosecutor may respond to defense so long as she stays within the evidence at trial).

Defense counsel began by arguing that J.P. was not truthful in stating that defendant called his phone from hers and stating, “The State's case, I suggest to you, begins with that lie, ends with that and other lies and as a result of those and other questions in this case, there's not just a reasonable doubt;  this case is immersed in doubt.”

The prosecutor's comments, arguing that the jury should find J.P. credible based upon their opportunity to observe her demeanor in the courtroom, were responsive to the defense summation and did not stray beyond the evidence.   See State v. Farrell, 61 N.J. 99, 102 (1972).   These comments were not clearly capable of producing an unjust result, and, therefore, did not constitute plain error.

In Point VI, defendant challenges his sentence as manifestly excessive.

Our standard of review is one of deference.  “[A]s long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record[,]” the sentence imposed by the trial court should be affirmed.  State v. O'Donnell, 117 N.J. 210, 215 (1989).   To be accorded such deference, the sentencing court is required to “identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence.”  Ibid.;  State v. M.A., 402 N.J.Super. 353, 370 (App.Div.2008);  see also N.J.S.A. 2C:43-2(e);  R. 3:21-4(g).  Although the judge has discretion as to the weight to be given to each factor, the judge lacks discretion to decline to “take into account a mitigating factor that is fully supported by the evidence,” but “must [include such factor as] part of the deliberative process.”  State v. Dalziel, 182 N.J. 494, 504-05 (2005).

Defendant does not challenge the court's findings as to the applicable aggravating and mitigating factors ³ but, instead, argues that the court erred in weighing those factors in finding that the aggravating factors outweighed any mitigating factors.   There is, however, no grounds for us to disturb the sentence because the court's findings were adequately supported by the evidence and its application of the facts to the law is not “such a clear error of judgment that it shocks the judicial conscience.”  O'Donnell, supra, 117 N.J. at 215-16.   Defendant also argues that the court should have, sua sponte, imposed a sentence one degree lower than the second-degree offenses for which he was convicted.   The facts here, however, did not present compelling reasons for such a downgrade.   See State v. Megargel, 143 N.J. 484, 505 (1996).

Affirmed.

FOOTNOTES

FN1. Defendant also argues in Point I that the court erred in denying his motion to dismiss count thirteen.   This argument is moot because defendant was acquitted on that count..  FN1. Defendant also argues in Point I that the court erred in denying his motion to dismiss count thirteen.   This argument is moot because defendant was acquitted on that count.

FN2. Defendant also contends, for the first time on appeal, that it was his desire to testify at his trial and that the court erred in failing to question him directly regarding that choice.   Defendant has identified no evidence in the record to support that assertion..  FN2. Defendant also contends, for the first time on appeal, that it was his desire to testify at his trial and that the court erred in failing to question him directly regarding that choice.   Defendant has identified no evidence in the record to support that assertion.

FN3. In this case, the factors listed in the Judgment of Conviction and identified in the court's statements at sentencing differ.   Where there is a disparity between a trial court's oral opinion and the contents of a judgment of conviction, the court's oral opinion controls.  State v. Vazquez, 374 N.J.Super. 252, 270 (App.Div.2005);  State v. Pohlabel, 40 N.J.Super. 416, 423 (App.Div.1956).   Therefore, the court here found the following aggravating factors:  N.J.S.A. 2C:44-1a(1) (nature and circumstances of offense);  N.J.S.A. 2C:44-1a(2) (gravity and seriousness of harm inflicted on the victim);  and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others), and the following mitigating factors:  N.J.S.A. 2C:44-1b(7) (no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time);  and N.J.S.A. 2C:44-1b(11) (excessive hardship)..  FN3. In this case, the factors listed in the Judgment of Conviction and identified in the court's statements at sentencing differ.   Where there is a disparity between a trial court's oral opinion and the contents of a judgment of conviction, the court's oral opinion controls.  State v. Vazquez, 374 N.J.Super. 252, 270 (App.Div.2005);  State v. Pohlabel, 40 N.J.Super. 416, 423 (App.Div.1956).   Therefore, the court here found the following aggravating factors:  N.J.S.A. 2C:44-1a(1) (nature and circumstances of offense);  N.J.S.A. 2C:44-1a(2) (gravity and seriousness of harm inflicted on the victim);  and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others), and the following mitigating factors:  N.J.S.A. 2C:44-1b(7) (no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time);  and N.J.S.A. 2C:44-1b(11) (excessive hardship).

PER CURIAM