NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3362-13T3
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, March 17, 2016
APPELLATE DIVISION v.
SANDRA ABRIL, a/k/a SANDRA JASMINE ABRIL, SANDRA BURGOS and SANDRA BURGESS,
Defendant-Appellant. __________________________________________
Submitted February 1, 2016 – Decided March 17, 2016
Before Judges Sabatino, Accurso and O'Connor.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 12-05-0816 and 12-05-0826.
Joseph E. Krakora, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Brian Shevlin, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
ACCURSO, J.A.D. Tried for attempted murder, defendant Sandra Abril was
convicted by a jury of the lesser-included charge of second-
degree aggravated assault, N.J.S.A. 2C:12-1b(1), and possession
of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.
Following the verdict, she pled guilty pursuant to a negotiated
agreement to a certain persons offense, N.J.S.A. 2C:39-7b. The
judge granted the State's motion for a mandatory extended term
and sentenced defendant to sixteen years in State prison for
aggravated assault subject to the periods of parole
ineligibility and supervision required by the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eight-year
term on the weapon conviction. The judge sentenced defendant to
a concurrent five-year term on the certain persons offense, with
five years of parole ineligibility, in accordance with the plea
agreement.
She raises the following arguments on appeal:
POINT I
THE TRIAL COURT ERRED PREJUDICIALLY BY FAILING TO BAR THE STATE FROM CROSS- EXAMINING DEFENDANT'S PROPOSED CHARACTER WITNESSES BY THE USE OF DEFENDANT'S PRIOR CONVICTION FOR MURDER. AT THE VERY LEAST, THE CONVICTION SHOULD HAVE BEEN SANITIZED TO PREVENT MENTION OF ANY FACTS OTHER THAN THE DEGREE OF THE PRIOR OFFENSES. (Partially Raised Below).
2 A-3362-13T3 POINT II
DEFENDANT'S CONVICTION AND SENTENCE ON COUNT FIVE OF THE INDICTMENT MUST BE MERGED INTO THE CONVICTION AND SENTENCE ON COUNT ONE. (Not Raised Below).
POINT III
DEFENDANT'S SENTENCES MUST BE VACATED AND THE CASE REMANDED FOR RESENTENCING.
A. The Imposition Of A Fifteen Year Parole Ineligibility Term On Count One Is Illegal Because N.J.S.A. 2C:43-7d Clearly Does Not Apply In This Case.
B. Defendant's Aggregate Sentence Is Manifestly Excessive and Unduly Punitive.
Having considered these arguments in light of the record
and existing law, we conclude the single alleged trial error, if
indeed it was error, was not clearly capable of producing an
unjust result. We agree with defendant, however, as does the
State, that her conviction on the weapon charge, for which she
received a concurrent eight-year term, should have been merged
into her conviction for second-degree aggravated assault. We
also agree the judgment of conviction must be corrected to
reflect the judge's imposition of a NERA term on the aggravated
assault conviction. Accordingly, we vacate the sentence and
remand for merger of those convictions for sentencing purposes
and correction of the judgment of conviction to reflect the
sentence imposed. We affirm in all other respects.
3 A-3362-13T3 The State presented the victim to explain his relationship
with defendant and the events leading up to her shooting him in
their apartment on the day after Christmas in 2011. According
to the victim, he and defendant were in a long-term romantic
relationship that had gone stale. They had lived together in
her apartment for four years. He had a long criminal record,
and although he worked as a forklift driver, he described
himself as a "functioning addict," regularly using both cocaine
and heroin. Defendant supported him. Although he claimed they
had "grown apart," he described himself as "stuck" in their
relationship because he had "burnt a lot of bridges" with his
family and was not able to live on his own financially.
The victim had started to secretly see another woman
several months before Christmas. It was not his first affair.
Defendant found out about the relationship when she found a
receipt in the pocket of his pants. Although they afterward
went through the motions of attempting to rekindle their
relationship, the victim did not stop seeing the other woman.
On the day after Christmas, the victim took defendant's
car, saying he had to go to work. He instead spent the day with
his paramour. When he returned home, the couple argued.
Defendant accused him of being "with that bitch" and demanded he
take off the chain defendant had given him for Christmas. The
4 A-3362-13T3 victim denied everything, walking away from defendant to go sit
on the couch and watch television.
According to the victim, defendant stood between him and
the television and pointed a gun at him while continuing to
harangue him about the other woman. At some point, defendant
"clicked the gun" and a bullet fell out. He said, "you clicking
guns on me now? I'm outta here. I'm gone," and walked toward
the bedroom to get his coat. He claimed defendant then shot him
in the back, refused to call him an ambulance and instead put
her hand over his mouth, saying "no ambulance." The victim
claimed he pulled himself to the door and as he struggled with
the locks, defendant stabbed him and snatched the chain from his
neck.
The victim managed to get himself down the three flights of
stairs, where he collapsed in front of the building. When
police arrived and asked him what happened, he only got out his
apartment number. When police went to the apartment, they found
defendant and her niece, who lived on another floor of the
building. The women were carrying luggage and a cat carrier and
appeared to be in the process of leaving. Police detained both
women and took them in for questioning. Defendant gave consent
to search her apartment, where police found blood, a spent .38
shell casing, as well as a black bag with several .38 rounds,
5 A-3362-13T3 but no gun and no knife. They also found a .38 caliber
cartridge in the rear of the apartment building near a dumpster.
A shirt defendant was wearing had the victim's blood on a
sleeve. Police seized the shirt but released defendant without
charging her.
At the scene, two women came forward to report seeing two
Hispanic males get into a taxi and take off as the victim lay
bleeding on the sidewalk. The police did not pursue this lead
because the next day, the victim identified defendant as the
person who shot him.
Defendant did not testify. She maintained she did not
shoot the victim. Her theory at trial was that police had not
undertaken a thorough investigation and had failed to pursue
viable leads, most notably the two Hispanic men seen fleeing the
area, after the victim accused defendant of the crime. She
contended the victim's story made almost no sense and contained
significant factual errors, chief among them his continued
insistence that he was shot in the back, although all medical
evidence confirmed a gunshot wound to his chest. Defendant also
emphasized the failure of investigators to locate the gun or a
knife, and the improbability of her being able to dispose of
those weapons in the few minutes between the shooting and
officers arriving in her apartment. She maintained the victim's
6 A-3362-13T3 story was incomprehensible because he was likely too "high" to
know what had happened to him or to be able to report it
accurately.
In the only issue defendant raises regarding her
conviction, she claims the trial court erred in a mid-trial
ruling relating to character witnesses she wished to call.
Defendant's counsel sought to call character witnesses who would
testify defendant was "a hard-working person that is responsible
and dependable" and trustworthy. When the court asked whether
those traits were in issue in the trial, counsel expressed the
view that "when you're . . . on trial for attempted murder . . .
everything is at issue." The assistant prosecutor, although
expressing the view that none of those traits was at issue,
asserted he should be allowed to ask any character witnesses
whether they knew defendant had been convicted of murdering her
husband, for which she received a thirty-year prison term in
1982.
When the judge prodded defense counsel again about the
purpose of the proffered testimony, counsel replied she wanted
the jury to see "there are people that think well of
[defendant], and that are rooting for her." The judge, although
stating it is "not the purpose of [a] character witness to show
that she's got people on her side," did not exclude the
7 A-3362-13T3 evidence. He instead ruled defendant would not be barred from
calling character witnesses, but advised, "if you introduce the
testimony . . . , I think it would be permissible for the State
to make inquiries [of] those witnesses as to their knowledge of
your client's conviction for murder." In light of the court's
ruling, defendant did not call any character witnesses.
Defendant now argues that ruling was in error, and it
deprived her of a fair trial. We disagree.1
Although N.J.R.E. 404(a)(1) allows a defendant in a
criminal trial to offer evidence of her good character to show
she was unlikely to have committed the crimes charged, the Rule
requires that the character trait evinced by the evidence must
be one "pertinent" to the issues in the case. See State v.
Baluch, 341 N.J. Super. 141, 164-68, 194 (App. Div.) (holding
trial court correctly refused to instruct the jury to consider
testimony of defendant's friends and co-workers that she was a
hard-working nurse, devoted wife and good mother, when such
traits were "wholly irrelevant to any pertinent character trait
1 We note the State has not argued this decision is not reviewable because defendant chose not to call the character witnesses. Cf. State v. Whitehead, 104 N.J. 353, 361-62 (1986) (holding a defendant need not testify at trial to preserve his right to appeal the trial court's determination that the defendant's prior convictions could be used to impeach him if he testified, declining to follow Luce v. United States, 469 U.S. 38, 42, 105 S. Ct. 460, 464, 83 L. Ed. 2d 443, 448 (1984)). We thus assume, without deciding, that the issue was preserved.
8 A-3362-13T3 tending to show that she had no propensity to abuse household
help"), certif. denied, 170 N.J. 89 (2001). Defendant's
character for being hard-working, responsible, dependable and
trustworthy revealed nothing about whether she was capable of
shooting a cheating boyfriend and thus was likely inadmissible.
See State v. Mahoney, 188 N.J. 359, 373, cert. denied, 549 U.S.
995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006).
Assuming for purposes of the analysis that the testimony of
the proposed character witnesses related to a pertinent trait of
defendant's character, thus making it admissible, we see no
reason to have barred the prosecution from cross-examining the
witnesses regarding the basis for their opinions as to
defendant's character. The law is well settled that a criminal
defendant putting in evidence of a pertinent trait of good
character allows the prosecution to counter with evidence of her
bad character as to the same trait. N.J.R.E. 404(a)(1); State
v. Hunt, 115 N.J. 330, 369 (1989) (noting the general rule "that
the prosecutor may not offer evidence of the defendant's
character to support an inference about the defendant's conduct
on a specific occasion unless the defendant has first produced
evidence of good character").
Although the adoption of former Evidence Rule 47 ended the
ability of a prosecutor to impeach the credibility of a
9 A-3362-13T3 defendant's character witness by inquiring into the witness's
knowledge of alleged criminal misconduct not evidenced by a
criminal conviction, neither its successor, N.J.R.E. 405, nor
N.J.R.E. 607, prohibits such impeachment when the inquiry is
limited to the witness's knowledge of a defendant's criminal
convictions. See State v. LaPorte, 62 N.J. 312, 319-20 (1973);
see also Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 5 on N.J.R.E. 607 (2015) ("N.J.R.E. 608 places
limitations on impairment of the credibility of a defendant's
character witness in a criminal proceeding. Inquiry may not be
made into the witness's knowledge of the defendant's alleged
criminal conduct which is not evidenced by a criminal
conviction."). We thus reject defendant's argument that her
proposed character witnesses could not have been impeached by
the prosecutor inquiring into their knowledge of defendant's
prior criminal conviction, subject, of course, to the trial
judge's determination that its probative value was not
substantially outweighed by the risk of undue prejudice or any
of the other N.J.R.E. 403 factors. See State v. Steensen, 35
N.J. Super. 103, 106-09 (App. Div. 1955).
Defendant did not raise to the trial court her alternate
argument that the judge should have sanitized her prior murder
conviction if it was to be used in cross-examining her character
10 A-3362-13T3 witnesses. See State v. Brunson, 132 N.J. 377, 391-92 (1993);
cf. State v. Balthrop, 92 N.J. 542, 544-46 (1983) (addressing
sanitization of prior convictions of witnesses for the
prosecution); see also N.J.R.E. 404(b), 609. Accordingly, we
review her claim under a plain error standard. See R. 2:10-2;
State v. Angoy, 329 N.J. Super. 79, 88 (App. Div.), certif.
denied, 165 N.J. 138 (2000).
First, we note the prosecutor stated on the record that he
would treat the murder conviction on cross-examination of the
character witnesses "as if we had a Sands[2] hearing, and . . .
not specify the charge." Second, in subsequently considering
whether the conviction could be used against defendant if she
elected to testify, the court determined the murder conviction
was not so remote as to be excluded under a Sands analysis. It
did, however, sanitize the conviction in accordance with
Brunson, by limiting the prosecution to eliciting only the
degree of the crime and prohibiting questions as to the nature
of the crime or the length of her sentence. Accordingly, we are
not convinced that had defendant expressed a desire to have the
conviction sanitized for purposes of the cross-examination, the
trial court would not have obliged her by entering a similar
ruling.
2 State v. Sands, 76 N.J. 127, 144 (1978).
11 A-3362-13T3 Although no published appellate decision has addressed
sanitization in this circumstance,3 we are mindful that "[t]he
Sands holding reflects [the Supreme] Court's concern about
severe and unfair prejudice to a defendant from prior-conviction
evidence," and the discretion the Court has reposed in the trial
court to ameliorate undue prejudice by resort to a sanitization
remedy. State v. Hamilton, 193 N.J. 255, 264-68 (2008); see
also N.J.R.E. 403, 404(b) and 609; State v. Gillispie, 208 N.J.
59, 92 (2011). Accordingly, we hold sanitization of defendant's
prior murder conviction would have been appropriate before the
prosecutor was allowed to ask defendant's character witnesses
about their knowledge of the conviction. Because, however, a
defendant may waive the protection afforded by sanitization,
Brunson, supra, 132 N.J. at 392, we decline to find the trial
court's failure to sua sponte suggest sanitization in the
context of impeachment of a character witness automatically
constitutes reversible error. See State v. Whittle, 52 N.J.
407, 410-11 (1968); cf. State v. Williams, 219 N.J. 89, 98-99
(2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed.
2d 565 (2015) (discussing difficulty of considering
3 But see State v. Campbell, 212 N.J. Super. 322 (Law Div. 1986), for a trial court undertaking a Sands analysis in the context of reputation testimony offered by a character witness for the defendant.
12 A-3362-13T3 Confrontation Clause claim, which a defendant may choose to
waive for strategic purposes, under plain error standard). In
no event could we find the failure to have done so here clearly
capable of producing an unjust result given this record. See
State v. Macon, 57 N.J. 325, 335 (1971).
We turn next to defendant's claims regarding her sentence.
We agree with defendant, as does the State, that her conviction
for unlawful possession of a weapon should have been merged with
her conviction for aggravated assault. See State v. Diaz, 144
N.J. 628, 636 (1996) ("When the only unlawful purpose in
possessing the gun is to use it to commit the substantive
offense, merger is required."). A remand is in order to correct
that error.
We reject her claim that her sentence is excessive and the
parole disqualifier illegal. Because defendant had a prior
conviction for murder using a firearm, she was subject to a
mandatory extended term upon her conviction for second-degree
aggravated assault while using a firearm. See N.J.S.A. 2C:44-
3d. Accordingly, defendant could lawfully be sentenced within a
range of between five and twenty years. See N.J.S.A. 2C:43-
7a(3); State v. Pierce, 188 N.J. 155, 169 (2006) ("the range of
sentences, available for imposition, starts at the minimum of
the ordinary-term range and ends at the maximum of the extended-
13 A-3362-13T3 term range"). Defendant's sixteen-year term plainly falls
within the statutory range.
Although defendant maintains the court imposed an illegal
minimum term of fifteen years, the sentencing transcript belies
her claim. The court stated clearly on the record that
defendant's sixteen-year term was subject to NERA, and thus that
she must serve eighty-five percent before becoming eligible for
parole. The judgment of conviction, however, states defendant
is to serve a minimum term of fifteen years during which she is
ineligible for parole pursuant to N.J.S.A. 2C:43-7d. That
statute addresses minimum terms for crimes committed with a
machine gun or assault firearm pursuant to N.J.S.A. 2C:43-6g,
and thus the reference is clearly an error.
In the event of a discrepancy between the court's oral
pronouncement of sentence and the sentence described in the
judgment of conviction, the sentencing transcript controls and a
corrective judgment is to be entered. State v. Rivers, 252 N.J.
Super. 142, 147 n.1 (App. Div. 1991). Accordingly, a remand is
also required to conform the judgment of conviction to the
minimum term sentence the court imposed. As the judgment of
conviction likewise erroneously notes a finding of aggravating
factor one, which the sentencing transcript confirms the court
14 A-3362-13T3 explicitly did not find, the judgment must be corrected for that
error as well.
We reject defendant's claim that her sentence is excessive.
Defendant was convicted of murdering her husband in 1982 and
sentenced to a maximum term of thirty years. Within three years
of her release from State prison, she was convicted of stabbing
her then boyfriend with a knife, for which she received a five-
year probationary term.4 The shooting resulting in this
conviction followed within six years. We are satisfied the
judge's findings and balancing of the aggravating and mitigating
factors are supported by adequate evidence in the record, and
the sentence is neither inconsistent with sentencing provisions
of the Code of Criminal Justice nor shocking to the judicial
conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State
v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J.
165, 180-81 (2009).
We affirm defendant's conviction and remand her sentence
for merger of her conviction for unlawful possession of a weapon
with her conviction for aggravated assault and correction of the
4 This conviction was not included in the Sands analysis at trial because of some confusion surrounding its disposition. The prosecutor mistakenly believed it had been downgraded to a disorderly persons offense. See State v. Parker, 216 N.J. 408, 423 (2014) (noting only indictable offenses which are the subject of valid convictions may be used for purposes of impeachment).
15 A-3362-13T3 judgment of conviction to reflect the sentence imposed in
accordance with this opinion. We affirm the sentence in all
other respects. We do not retain jurisdiction.
Affirmed, and remanded for entry of an amended judgment.
16 A-3362-13T3