State v. Figueroa
| Docket Number | A-2589-19 |
| Decision Date | 06 July 2023 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. IVAN FIGUEROA, Defendant-Appellant. |
| Court | New Jersey Superior Court — 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.
Submitted April 19, 2023
On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 1908-1328.
Joseph E. Krakora, Public Defender, attorney for appellant (Frank M Gennaro, Designated Counsel, on the brief).
Yolanda Ciccone, Middlesex County Prosecutor, attorney for respondent (David M. Liston, Assistant Prosecutor, of counsel and on the brief).
Before Judges Vernoia and Firko.
A jury convicted defendant Ivan Figueroa of two counts of second-degree burglary, two counts of third-degree aggravated assault, fourth-degree aggravated assault, terroristic threats, unlawful possession of a weapon, possession of a weapon for unlawful purposes, and certain persons not to have weapons. The court imposed an aggregate twenty-six-year sentence, eighteen years of which is subject to the requirements of the No Early Release Act (NERA), N.J.S.A 2C:43-7.2. Defendant appeals from his judgment of conviction and his sentence. Having considered the record presented, the parties' arguments, and the guiding legal principles, we affirm defendant's convictions and sentence, and remand for the limited purpose of correcting errors in the judgment of conviction.
The charges against defendant arise from a December 21, 2007 incident at the second-floor apartment defendant's former girlfriend, D.P., shared with her mother, X.D.; brother, O.P.; and another tenant, J.P.S.[1] On May 13, 2008, a grand jury returned an indictment charging defendant with the following seven offenses: second-degree burglary, N.J.S.A. 2C:18-2; third-degree aggravated assault with a deadly weapon of D.P., N.J.S.A. 2C:12-1(b)(2); third-degree aggravated assault with a deadly weapon of X.D., N.J.S.A. 2C:12-1(b)(2); fourth-degree aggravated assault by pointing a firearm at D.P., N.J.S.A. 2C:12-1(b)(4); fourth-degree aggravated assault by pointing a firearm at J.P.S., N.J.S.A. 2C:12-1(b)(4); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun with a purpose to use it unlawfully, N.J.S.A. 2C:39-4(a).
Defendant left New Jersey following the incident and was arrested in Florida more than eight years later in August 2016. Defendant was extradited to New Jersey in November 2016. The court subsequently scheduled defendant's trial for September 10, 2019.
Two weeks before defendant's scheduled trial, a grand jury returned a superseding indictment charging defendant with the following twelve offenses arising from the December 21, 2007 incident: second-degree burglary, N.J.S.A. 2C:18-2(a) and N.J.S.A. 2C:18-2(b)(1) (count one); second-degree burglary, N.J.S.A. 2C:18-2(a) and N.J.S.A. 2C:18-2(b)(2) (count two); second-degree aggravated assault by causing or attempting to cause serious bodily injury to D.P., N.J.S.A. 2C:12-1(b)(1) (count three); second-degree aggravated assault by causing or attempting to cause serious bodily injury to X.D., N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated assault by causing or attempting to cause bodily injury to D.P. with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count five); third-degree aggravated assault by causing or attempting to cause bodily injury to X.D. with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count six); fourth-degree aggravated assault by pointing a firearm at or in the direction of D.P. with a deadly weapon, N.J.S.A. 2C:12-1(b)(4) (count seven); fourth-degree aggravated assault by pointing a firearm at or in the direction of J.P.S., N.J.S.A. 2C:12-1(b)(4) (count eight); third-degree terroristic threats upon D.P., N.J.S.A. 2C:12-3(a) (count nine); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1) (count ten)[2]; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eleven); and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1) (count twelve).[3] In the superseding indictment, the burglary, assault, and possession of a weapon for unlawful purpose charges included an allegation defendant's commission of the charged offenses also violated N.J.S.A. 2C:43-6.4(e). In pertinent part, the statute provides that individuals who commit certain specified offenses, including second-degree burglary, aggravated assault under N.J.S.A. 2C:12-1(b), and second-degree weapons offenses under N.J.S.A. 2C:39-4, "shall be sentenced to an extended term of imprisonment as set forth in N.J.S.A. 2C:43-7."
Defendant moved to dismiss the superseding indictment, arguing the State sought and obtained the indictment in a vindictive response to defendant's requests for the criminal records of the State's trial witnesses and because defendant rejected the State's plea offer and opted to proceed to trial. After hearing argument, the trial court found defendant failed to demonstrate the superseding indictment was the product of any vindictiveness. The court also noted the superseding indictment was not founded on new information and defendant did not argue the charges in the superseding indictment required a change in trial strategy or additional preparation time. The court denied defendant's motion and the matter proceeded to trial before a jury on September 24, 2019.
The trial evidence showed defendant was seventeen-year-old D.P.'s boyfriend and roommate until their "short" relationship concluded just prior to the December 21, 2007 incident. D.P. ended the relationship and returned to live with her mother, X.D.; twenty-two-year-old brother, O.P.; and J.P.S. X.D. forbade defendant from visiting her home.
Defendant's sister, Veronica Perez, testified defendant stayed overnight in her apartment sometime in December 2007. The next day, he borrowed her car. Rather than return the car, however, he called in the "[e]arly morning" to tell her "he wasn't coming back" because "he got into a fight with his girlfriend. "Perez called the police to report both the theft of her car and the alleged fight.
X.D. testified that at about 6:00 a.m. on December 21, 2007, an intruder entered her house with a gun and proceeded to her second-floor apartment. X.D. rose from her bed to investigate and went to the locked entry door to the apartment. The intruder "slammed" the door "very hard," causing it to break in, knocking X.D. down, and ripping two toenails from her feet. X.D. identified defendant as the intruder and explained she knew him from D.P.'s prior dating relationship with him.
According to X.D., after defendant entered the apartment, he "pointed" the gun at O.P. before seeking out D.P., who was preparing for work. X.D. explained that when D.P. saw defendant, D.P. ran to her bedroom but defendant followed her, "threw her . . . on the floor," and struck her "[b]etween five and seven times" in the head with the butt of a gun.
X.D. testified she then "threw [her]self" onto defendant to wrestle the gun from him while O.P. went "into shock." According to X.D., defendant then hit her twice with the gun, which "broke [her] head and . . . shoulder."
Defendant also pointed the gun at D.P. as she "remained lying on the floor," unmoving. X.D. acknowledged defendant "didn't pull the trigger" of the gun, and she did not hear gunfire. However, she saw cartridges discharge from the gun as she wrestled with defendant. O.P. called the police while X.D. tended to D.P.'s injuries.
J.P.S. testified he "woke up to yelling and screaming" during the incident and left his bedroom to find "a melee . . . going on." He left X.D.'s home to find help. When he returned, he passed a man with "a gun in his hand" on the staircase. Although "it was pitch dark," J.P.S. testified he "could see the shape of a gun in [the man's] hand," and the man "pointed the gun at" him as the man descended the staircase.
Woodbridge Township Police Department Detective Dean Janowski testified that at "7:40 a.m." on December 21, 2007, he was dispatched to X.D.'s home and spoke with X.D. and D.P. Detective Janowski testified X.D. and D.P. were bleeding from the tops of their heads and "had blood on their clothing." He also explained J.P.S. and O.P. were present in X.D.'s home. On cross-examination, Janowski testified he was not "aware of anybody who . . . collect[ed] . . . evidence from the scene."
According to X.D., she and D.P. each received "about ten stitches" to their heads following the incident. X.D. further testified she and D.P. left New Jersey by the end of December 2007: X.D. went to North Carolina, and D.P. went to Mexico. O.P. was later deported to Mexico. X.D. testified she did not know D.P.'s whereabouts but also said she knew D.P. was "sick right now" and she knew how to contact D.P.
New Jersey State Police Detective James Hearne testified defendant does not have "a permit to purchase a handgun" or "a firearm purchase or identification card." On cross-examination, Hearne testified he did not "interview any witnesses" and his investigation included a search for firearm permits for defendant in "the State of New Jersey."
The defense rested without presenting any witnesses. As noted the jury found defendant guilty of two counts of second-degree burglary, two counts of third-degree aggravated assault, fourth-degree aggravated assault, third-degree terroristic threats, third-degree unlawful possession of a weapon, second-degree possession of a weapon for unlawful purposes, and second-degree certain persons not to...
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