STATE OF NEW JERSEY VS. EMMANUEL HERNANDEZ (17-05-0282, HUDSON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: April 27, 2021
• Docket: A-3630-18
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3630-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EMMANUEL HERNANDEZ, a/k/a MANNY,

Defendant-Appellant. __________________________

Submitted February 8, 2021 – Decided April 27, 2021

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 17-05-0282.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Esther Suarez, Hudson County Prosecutor, attorney for respondent (Ednin D. Martinez, Assistant Prosecutor, on the brief).

PER CURIAM A jury convicted defendant Emmanuel Hernandez of the lesser-included

offenses of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), and third-

degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), as well as second-degree

eluding police, N.J.S.A. 2C:29-2(b), third-degree aggravated assault on a law

enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a), second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b)(1), and third-degree resisting

arrest, N.J.S.A. 2C:29-2(a)(3)(a). The jury acquitted defendant of two counts of

first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, and third-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-4(a)(1). The judge

sentenced defendant to a seven-year term of imprisonment subject to the No

Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the conviction for second-

degree aggravated assault; two concurrent five-year terms with forty-two-month

periods of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c),

for third-degree aggravated assault and second-degree unlawful possession of a

weapon; and concurrent sentences on the remaining convictions.

Defendant raises the following points on appeal:

POINT I

DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL BY THE TRIAL COURT'S FAILURE TO VOIR DIRE A JUROR ALLEGED TO BE

A-3630-18 2 SLEEPING DURING A CRUCIAL PORTION OF THE TRIAL. (NOT RAISED BELOW) 1

POINT II

DEFENDANT WAS DENIED A FAIR TRIAL BY THE ADMISSION OF TESTIMONY THAT DRUGS AND MONEY WERE FOUND IN THE SAME LOCATION AS HIS HANDGUN. (NOT RAISED BELOW)

POINT III

THE SEVEN-YEAR NERA SENTENCE SHOULD BE REDUCED TO A FIVE-YEAR NERA SENTENCE.

Considering the record and applicable legal standards, we affirm.

I.

On February 5, 2017, at around 1:45 a.m., a female driver saw a man,

whom she later identified as defendant, in a red Infiniti coupe with a Florida

license plate holding a handgun and screaming at women crossing the street.

Alerted by dispatch, North Bergen patrol officer Robert Garcia spotted a

matching vehicle in a QuickChek parking lot. On seeing defendant, Garcia drew

his weapon and asked defendant to show his hands. Defendant did not comply,

struck Garcia, broke free from his grip, got into his car, and attempted to drive

1 We omitted citations in the point headings to the United States and New Jersey Constitutions. A-3630-18 3 away, causing Garcia to again draw his weapon and strike the windows of

defendant's car with his baton. Defendant reversed the car, ran over Garcia's

foot, and drove away.

Police pursued defendant as he sped through traffic lights and drove in the

wrong traffic lanes. Eventually, defendant parked in front of a residence and

ran down a dark alleyway that led to the back of the building. Officers pursued

on foot. Upon entering the building, the officers saw muzzle flashes, heard

accompanying gunshots, and returned fired. They retreated, set up a secure

perimeter, and awaited the arrival of the Special Weapons and Tactics (SWAT)

team.

At around 3:20 a.m., the commander of the regional SWAT team took

over the scene, cleared the building of other residents, and discovered defendant

occupied the basement apartment. The SWAT team was in telephonic

communication with defendant, but, when defendant became uncooperative and

the conversations fruitless, the SWAT team shot tear gas into the apartment. In

addition, robots with video cameras were able to view defendant, who was

inside, pacing and holding a long gun, which police later discovered was a

shotgun with an extended barrel. Defendant surrendered approximately twelve

hours after the SWAT team's arrival.

A-3630-18 4 Detective Matthew Kickey of the Hudson County Prosecutor's Office

investigated the crime scene and recovered three shell casings near the exterior

basement door. They had been fired from defendant's .40 caliber handgun

recovered in the apartment. In addition to the handgun, police recovered a

shotgun, ammunition, and handgun magazines inside the apartment. Kickey

testified that in the bedroom closet he "recovered a firearm . . . some currency

and some CDS as well."

The jury heard a recording of defendant's phone conversation with the

SWAT team. In it, defendant contended that he had no intention to hurt anyone.

At trial, defendant asserted a diminished capacity defense and testified that he

suffered from post-traumatic stress disorder (PTSD) caused by various events in

his military service and post-military life.

Both the prosecutor and defendant presented expert testimony about

defendant's mental state at the time of the incident, and the State's expert opined

that defendant, although suffering from PTSD and in an emotional state, could

understand his actions and differentiate right from wrong. To the contrary, the

defense expert opined that defendant's mental condition dissociated him from

reality, with the parking lot incident triggering his behaviors.

A-3630-18 5 During the testimony from the State's expert, before he opined on

defendant's mental state, the judge interrupted and asked the jury, if "Juror No.

8, or somebody" needed a break to "keep everybody fresh and awake." Noting

that the testimony could be dry, the judge told jurors he would accommodate

anyone who needed a break, and that he would allow quick stretching or

standing. As the expert continued testifying regarding defendant's background,

the prosecutor interrupted, and at sidebar stated, "I have a little while more to

go . . . . I wonder if now would be a good time to take a break. There's a juror

coughing, somebody's falling asleep." The judge agreed to a break and excused

the jury. Defense counsel never objected to the judge's course, nor did he assert

that in fact any juror was sleeping during the testimony.

II.

We review a judge's control of the courtroom and any remedial action

taken regarding an inattentive juror under an abuse of discretion standard. State

v. Mohammed, 226 N.J. 71, 89 (2016). The Court has suggested judges employ

the following procedure:

Where the trial judge notices that a juror is inattentive, the judge will have broad discretion to determine the appropriate level of investigation and corrective action that must be taken. However, when a party alleges that a juror is inattentive, the trial judge should explain adequately on the record the judge's

A-3630-18 6 personal observations, if any, regarding the juror's attentiveness. A finding based on the trial court's personal observations that the juror was alert and attentive generally ends the inquiry and will be reviewed to determine whether the finding is adequately supported in the record. If the judge did not personally observe the juror, the judge should conduct an individual voir dire to determine if the juror was inattentive, and make appropriate findings.

[Ibid.]

In certain cases, a defendant's failure to object to an inattentive juror may very

well be a strategic decision that waives the issue of a competent jury. Id. at 86

(citing State v. Williams, 219 N.J. 89, 98 (2014)).

In State v. Scherzer, we found no abuse of discretion "when defense

counsel commented about a sleeping juror, the judge made several suggestions

as to possible corrective action, but defense counsel requested that nothing be

done." 301 N.J. Super. 363, 491 (App. Div. 1997). Here, the prosecutor

mentioned that a juror seemed to be falling asleep, but he never said the juror

was sleeping during the testimony. At the time, the State's expert was testifying.

Defense counsel never addressed the issue at all, perhaps for strategic reasons.

The judge took immediate corrective measures, to which defense counsel neither

objected nor asked to be supplemented. The judge did not mistakenly exercise

his discretion.

A-3630-18 7 III.

Defendant contends Detective Kickey's testimony that he "recovered . . .

some currency and some CDS as well," violated N.J.R.E. 404(b), which

generally prohibits the admission of uncharged criminal conduct. 2 Because

there was no objection, we review the admission of this evidence "for plain error,

only reversing if the error is 'clearly capable of producing an unjust result.'"

State v. Rose, 206 N.J. 141, 157 (2011) (quoting R. 2:10-2).

The State argues this evidence was admissible pursuant to the res gestae

exception to the hearsay rule; however, for a decade, New Jersey has not

recognized res gestae as an independent basis for admission of evidence. Id. at

182. We agree with defendant that permitting any evidence about the CDS

seized at defendant's apartment was error, but there was no objection, and the

reference was fleeting and never repeated. Given the overwhelming evidence

supporting defendant's conviction, the error, when "quantitatively assessed in

the context of other evidence . . . was harmless beyond a reasonable doubt."

State v. Camacho, 218 N.J. 533, 552 (2014) (quoting Arizona v. Fulminante,

499 U.S. 279, 307–08 (1991)).

2 Defendant was not indicted for possession of any controlled dangerous substance (CDS). A-3630-18 8 IV.

Lastly, defendant claims his sentence was excessive because "the

sentencing court abused its discretion" by making "no findings with respect to

aggravating factor nine, the need to deter," see N.J.S.A. 2C:44-1(a)(9), and by

not "giv[ing] extreme weight" to "mitigating factor four," substantial grounds

tending to excuse defendant's conduct. See N.J.S.A. 2C:44-1(b)(4). We review

sentencing determinations with deference and will not substitute our judgment

for that of the sentencing court. State v. Fuentes, 217 N.J. 57, 70 (2014) (citing

State v. O'Donnell, 117 N.J. 210, 215 (1989)). As the Court has said:

The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."

[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364–65 (1984)).]

"If [a] court determines when it []sentences [a] defendant that aggravating

factor nine applies, it should address both general and specific deterrence . . . ."

Id. at 81 (citing N.J.S.A. 2C:44-1(a)(9)). As to aggravating factor nine, which

the prosecutor requested the judge should find "to deter . . . defendant and

A-3630-18 9 others," the judge stated: "And number nine, the need to deter this defendant and

others from violating the law. I'm going to find that." Prior to that finding, the

judge expressed his concern that the situation defendant caused could have

rapidly turned worse, "[b]ecause we would have had a couple people dead and/or

injured, including probably people going into the QuickChek . . . . [Defendant]

might have been shot. Police officers might have been shot. There would have

been people injured . . . during the chase."

Additionally, as to mitigating factor four, the judge found that defendant's

case "would fit . . . that factor exactly" as "[defendant] did not establish the

defense of insanity, nor . . . diminished capacity[, b]ut . . . everybody agrees he

has a mental illness[,] PTSD." However, in rejecting defendant's request to be

sentenced one degree lower pursuant to N.J.S.A. 2C:44-1(f)(2), "based on all of

the foregoing, [he] [could not] find that the mitigating factors even outweigh the

aggravating factors, let alone that they substantially outweigh. And I'm not

clearly convinced in this matter." 3

3 When imposing a sentence for a first or second-degree crime, N.J.S.A. 2C:44- 1(f)(2) permits the judge to sentence a defendant "to a term appropriate to a crime of one degree lower than that of the crime for which the defendant was convicted," if "the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands." A-3630-18 10 The judge did not violate sentencing guidelines, there was competent and

credible evidence to support the aggravating and mitigating factors, and the

sentence does not shock the judicial conscience.

Affirmed.

A-3630-18 11