State v. Gonzalez

723 A.2d 1278, 318 N.J. Super. 527
CourtNew Jersey Superior Court Appellate Division
DecidedMarch 2, 1999
StatusPublished
Cited by14 cases

This text of 723 A.2d 1278 (State v. Gonzalez) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gonzalez, 723 A.2d 1278, 318 N.J. Super. 527 (N.J. Ct. App. 1999).

Opinion

723 A.2d 1278 (1999)

STATE of New Jersey, Plaintiff-Respondent,
v.
Steven GONZALEZ, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted February 2, 1999.
Decided March 2, 1999.

Ivelisse Torres, Public Defender, for defendant-appellant (Steven W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Patricia A. Hurt, Essex County Prosecutor, for plaintiff-respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

Before Judges PRESSLER, KLEINER, and STEINBERG.

The opinion of the court was delivered by KLEINER, J.A.D.

Tried to a jury, defendant Steven Gonzalez was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (count one); first-degree robbery, N.J.S.A. 2C:15-1 (count two); reckless manslaughter as a lesser-included offense of first-degree murder, N.J.S.A. 2C:11-46(1) (count three); felony murder, N.J.S.A. 2C:11-3a(3) (count four); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count five), and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.[1]

At sentencing, the trial judge merged defendant's convictions on count six with defendant's conviction on count two. The judge then merged defendant's convictions on counts one, two, and three with defendant's conviction on count four. Defendant was sentenced to a custodial term of forty years with a thirty-year period of parole ineligibility *1279 on count four, and to a term of five years on count five to be served concurrently with the sentence imposed on count four. Appropriate statutory penalties were imposed.

On appeal, defendant raises two point of error:

POINT I

THE TRIAL JUDGE FAILED TO DEFINE THE ELEMENTS OF A CRIMINAL ATTEMPT IN HIS INSTRUCTION ON ROBBERY; THUS, DEFENDANT'S ROBBERY, CONSPIRACY AND FELONY MURDER CONVICTIONS MUST BE REVERSED BECAUSE THERE WAS NO JURY FINDING ON THE ELEMENTS OF ATTEMPT. (Not Raised Below)

POINT II

A CLAWANS CHARGE SHOULD NOT HAVE BEEN GIVEN TO THIS JURY WHEN THERE WERE CLEARLY LESS DRASTIC ALTERNATIVES.

We have carefully reviewed defendant's second point of error in light of the trial record, the arguments of counsel, and the applicable law and conclude that defendant's contention is clearly without merit. See R. 2:11-3(e)(1)(E).

As to defendant's first point, although defendant failed to raise any objection to the judge's charge at trial, we conclude that the charge as given to the jury on the counts of the indictment charging first-degree robbery and felony murder did not fully and adequately explain the standard of culpability for attempt and thus the error constitutes plain error. See R. 2:10-2; State v. Rhett, 127 N.J. 3, 5, 601 A.2d 689 (1992); State v. Martin, 119 N.J. 2, 15, 573 A.2d 1359 (1990). We are thus constrained to reverse defendant's conviction and to remand to the Law Division for a new trial.

I

A brief review of the evidence presented in the State's case will assist in explaining our ultimate conclusion.

On April 11, 1996, the Newark Police Department was notified that a man had been shot at 120 Clinton Avenue. Two officers were dispatched to investigate. They found the victim, Jose Figueroa, lying on a sidewalk, bleeding from an apparent gunshot wound and unable to respond to questions. Before the victim was transported to the hospital, his personal belongings, including a gold-colored watch, two rings, and $121, were turned over to one of the investigating police officers. Figueroa died the following morning without regaining consciousness.

During the ensuing investigation, the police were able to find several individuals who had some knowledge of the events preceding the shooting. Three of those individuals who were interviewed appeared as State's witnesses at trial: Fred Moore, Zora Stewart, and Rafael Ortiz.

Fred Moore informed the officers that while standing approximately thirty feet from the entrance to 86 Brunswick Avenue, he saw defendant and at least two other men approach that address with the victim. He was able to identify defendant, whom he had known for several years, and one of the other men with defendant as Raheem Sharif Williams, but was unable to identify any other person. He indicated defendant, one unidentified man, and the victim entered 86 Brunswick Avenue while Williams remained outside. Shortly thereafter he heard what he described as a "rumble" from within the building. He entered the vestibule of the building to investigate the noise that he had heard. As he entered the building, he heard two gunshots. Without making any other observation, he exited the building. He then saw defendant holding his stomach exit the building and leave the area. He also saw several other individuals exit the building and leave the area. Among those leaving the area was co-defendant Williams. During the course of the investigation, Moore identified defendant's photograph in an array presented to him by a detective. In a separate array he also identified the photograph of a woman.[2]

*1280 Zora Stewart, a resident of 86 Brunswick Avenue, heard a gunshot and observed from her second floor window the victim exit the building and walk in the direction of Clinton Avenue. As the victim left the Brunswick address, she observed him speak with a passing pedestrian and lift his shirt.[3] Thereafter, when she heard police sirens, she drove to Clinton Avenue where she saw the victim inside a police emergency vehicle. She informed the police that the shooting had occurred at 86 Brunswick Avenue.

Rafael Ortiz, a teenager who lived in the area, informed the police that on the morning of this crime defendant approached him and informed him that he intended to rob the "older guy" of his money, rings, and watch. Ortiz claimed that defendant asked him if he wanted to help commit the robbery. Ortiz declined. Ortiz observed defendant retrieve a gun from the waistband of a woman named Rashida. He indicated that he saw defendant and the "older man" enter 86 Brunswick Avenue, heard two gunshots, and saw defendant leave the building. He did not see the "older man" leave. Ortiz then identified defendant from a photographic array displayed to him by one of the investigating officers.

On June 5, 1996, defendant appeared at police headquarters intending to surrender on an outstanding bench warrant. Defendant, after being given Miranda[4] warnings gave an inculpatory statement. Defendant admitted that he was approached by Rashida Smith, who requested him to assist her and Raheem Williams in robbing the victim "because he was showing a lot of cash." Defendant further indicated that once he entered the apartment building with the victim a scuffle ensued. Defendant described the event as follows:

So I walked to the man and asked him in Spanish what he wanted.

He told me in Spanish that he wanted some coke, so I told him to follow me, and he followed me and Raheem and Rashida were behind me.

I took him to the little hallway in 86 Brunswick.

...

The man followed me into the hallway. Raheem and Rashida waited outside.

So when I said, do you have money to cop, he said yeah, he turned his back, I went behind him and grabbed him in a headlock.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State of New Jersey v. Rashad A. Zeigler
New Jersey Superior Court App Division, 2025
SMITH v. DAVIS
D. New Jersey, 2022
BLOUNT v. DAVIS
D. New Jersey, 2022
State v. Dehart
62 A.3d 327 (New Jersey Superior Court App Division, 2013)
State v. Belliard
999 A.2d 1212 (New Jersey Superior Court App Division, 2010)
State v. Hill
974 A.2d 403 (Supreme Court of New Jersey, 2009)
State v. Farrad
753 A.2d 648 (Supreme Court of New Jersey, 2000)
State v. Smith
731 A.2d 77 (New Jersey Superior Court App Division, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
723 A.2d 1278, 318 N.J. Super. 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gonzalez-njsuperctappdiv-1999.