State v. Gonzalez

• Decision Date: 02 March 1988
• Citation: 223 N.J.Super. 377,538 A.2d 1261
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Michael GONZALEZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 377

223 N.J.Super. 377

538 A.2d 1261

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

Superior Court of New Jersey Appellate Division.

Argued Feb. 2, 1988.

Decided March 2, 1988.

Peter M. Jacques, Asst. Deputy Public Defender, for defendant-appellant (Alfred A. Slocum, Public Defender, attorney; Peter M. Jacques, of counsel and on the brief)

Gary H. Schlyen, Sp. Deputy Atty. Gen., Acting Sr. Asst. Prosecutor, for plaintiff-respondent (John P. Goceljak, Sp. Deputy Atty. Gen.-in-charge, Acting Passaic County Prosecutor, attorney; Gary H. Schlyen, of counsel and on the brief).

Before Judges DEIGHAN and LANDAU.

The opinion of the court was delivered by

LANDAU, J.A.D.

Michael Gonzalez appeals following his conviction on a charge of first degree robbery in violation of N.J.S.A. 2C:15-1 following a jury trial.

Gonzalez, then aged 19, was sentenced under the Graves Act inasmuch as a sawed-off shotgun was employed in the robbery. He received a State Prison sentence of 15 years with a mandatory five year parole ineligibility.

On appeal he urges:

I. THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY DENYING THE DEFENDANT HIS CONSTITUTIONAL RIGHT TO TESTIFY.

II. THE TRIAL JUDGE FAILED TO APPLY A BALANCING TEST BEFORE PRECLUDING THE DEFENDANT'S ALIBI TESTIMONY FOR NONCOMPLIANCE WITH THE ALIBI-NOTICE RULE THEREBY REQUIRING REVERSAL AND REMAND FOR A NEW TRIAL.

III. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A FAIR TRIAL.

IV. DEFENDANT'S SENTENCE VIOLATED THE CRIMINAL CODE'S POLICY OF SENTENCING PARITY AND MUST BE REDUCED.

The State's witnesses presented varying versions of the robbery. The victim testified that at about 5:00 a.m. on August 25, 1984, a car pulled up beside his at a Paterson intersection and a female asked him for directions. He pulled over to the side and as he spoke to the woman, a man in the rear seat of the other car pointed a shotgun at him and demanded his money. Another man was seen in the driver's seat. He was unable to identify any of those persons. The victim testified that he "eased out" and ran from his car leaving the motor on, keys in the ignition. Upon reaching a nearby taxi stand, he arranged for the police to be summoned. When the victim returned to the robbery scene with the police, he found that his car was missing.

Codefendant Santiago, who entered into a plea bargain on the same indictment, testified for the State that he was in Paterson with Gonzalez and codefendant Anna Rodriguez during the early morning hours of August 25 when Rodriguez, who had a sawed-off shotgun with her, suggested that they rob someone.

Santiago was to handle the gun, Gonzalez was to be the lookout and Rodriguez would pose as a prostitute in order to pick up a likely victim so that they could steal his car. According to Santiago, Rodriguez left and returned after a while riding in the passenger seat of the victim's car. As it pulled into a parking lot, Santiago pointed the shotgun at the driver through the passenger side and told him to get out and leave the car keys. The victim ran from the car. Santiago denied that he demanded money. Gonzalez then joined the two from his post as lookout and the three went back to New York City where they slept. On the following day, August 26, New York police arrested Gonzalez and Santiago, who were found sleeping in a car.

Rodriguez' version of the incident was that Gonzalez picked her up at her house in New York on August 24, and together the two travelled by bus to Paterson to visit Gonzalez' brother. Not finding him at home, the two went to a nearby school yard where they met Santiago and others. According to Rodriguez, Gonzalez and she went back to the brother's house where Gonzalez showed her a shotgun. Thereafter, Santiago arrived at the house and the three returned to the school yard, Gonzalez carrying the shotgun inside his belt, covered by his jacket.

Rodriguez testified that it was Gonzalez' idea that she serve as a decoy. She stated that she refused and that Santiago then took the gun from Gonzalez. She stated that she was later asked to assist so that they could stick up somebody but she again refused. She testified that she left the pair at about 1:00 a.m. on August 25, and that as she was walking in Paterson while crying and drinking a hot chocolate, the victim drove up and asked if she needed help. When she entered the car, he offered her money in return for oral sex. Ultimately, she responded that it would cost him more than the amount proffered. The victim pulled into an alley, whereupon Santiago pointed a shotgun through the window from the passenger side towards the victim, who fled. Gonzalez then appeared, and the three drove in the victim's car to Rodriguez' house in New Gonzalez took the stand and testified that he was not in Paterson at the time of the offense, and indeed had not been in Paterson since June or July because of an incident on a New York bound bus when he was arrested on what he said were false charges. He denied ever having seen Anna Rodriguez until the trial, and also denied ever having met Santiago until the morning of August 26 when he took a ride in a car driven by someone named Hector Sanchez. According to Gonzalez, he noticed a shotgun shell while he was in the back seat and was told that he could keep it, so he put the shell in his pocket as a souvenir. He testified that he inquired several times to learn what the item was, but inconsistently stated later that he was familiar with shotguns and shotgun shells because of a relative who hunted.

York. Santiago and Rodriguez went in. Later in the day, she said they were observed by New York Police while she was at the wheel of the victim's car. Gonzalez and Santiago were pushing it as it was out of gas. However, they ran away and left her there. When the police learned the car was stolen Rodriguez was arrested.

At one point on direct examination, defendant testified that he was not in Paterson when the crime occurred adding in response to his attorney's question that he "was home in New York" at the time. The prosecutor's R. 3-11 motion (absence of prior notice of alibi) was partially sustained. The trial judge instructed the jury to disregard defendant's statement that he was in New York but did not disturb his testimony that he was not then in Paterson and had not then known the codefendants.

Immediately prior to the trial, in response to standard inquiry by the trial judge, Gonzalez' attorney had specifically represented that there would be no alibi defense. Thus, the Gonzalez "home in New York" statement came without notice and after the State's case was completed.

During the State's case, New York City police officers testified that they came upon Rodriguez at the wheel of an automobile

being pushed by three or four youths in the Bronx about 9:30 p.m. on August 25, 1984. As police approached, the young men disappeared into a crowd. Rodriguez was questioned and when she was unable to produce ownership papers or to indicate the name of the owner, a computer search revealed that the car was stolen. It belonged to the Paterson victim. Rodriguez told the New York City police that Santiago instigated the pickup strategy and carried the shotgun. On the following day other New York City police found Gonzalez and Santiago asleep in another car, live shotgun rounds in the pockets of each man.

THE ALIBI

Gonzalez contends that the trial judge's instruction to disregard the "home in New York" alibi was an unconstitutional deprivation of his right to testify and an improper exercise of discretion. Our conclusion, limited to the facts of this case, is that the limited preclusionary ruling was both constitutional and well within appropriate discretionary limits.

R. 3:11-1 ¹ continues in effect a policy first adopted by statute in 1934 as R.S. 2:190-7, the purpose of which was "to do Here, we have considered Gonzalez' argument that his alibi was of particular importance to him because of the inability of the victim to identify any of his assailants and the differences in the factual version of the crime evident in the testimony of the State's witnesses.

away with the existing unfairness in criminal trials of a surprise alibi ..." See Pressler, Current N.J. Court Rules, Comment R. 3:11-1. As observed in State v. Baldwin, 47 N.J. 379, 388, 221 A.2d 199 (1966), cert. den. 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed.2d 442 (1966) the rule does not compel a disclosure by the defendant, but merely advances the time of making a disclosure he will rely on at trial, thus "avoiding surprise at trial by sudden introduction of a factual claim which cannot be investigated unless the trial is recessed to that end."

We have also considered however, the fact that Gonzelez' attorney, in his presence, represented that there would be no alibi testimony immediately prior to trial, during a pretrial inquiry routinely conducted precisely to anticipate and avoid what has been referred to as "trial by ambush." ^{2 2} The pretrial run-through is a last ditch effort, as it were, to carry out the purposes of R. 3:11-1 and 2 in a reasonable way, before jeopardy may attach.

Gonzalez testified without objection that he was not in Paterson at the time of the offense, and indeed had not been in Paterson where his brother lives, since a June or July arrest incident on a bus. He also testified that he did not know either codefendant until well after the crime. Only his then unsubstantiated ³ The above factors, i.e., defendant's apparently deliberate withholding of his alleged location at the time of the offense, and the harmless effect of the preclusion on this record, are among the appropriate considerations which we set forth in State v. Francis, 128 N.J.Super. 346, 320 A.2d 173 (App.Div.1974). There Judge (now Justice) Handler recommended a "balancing test" for preclusion. Factors to be...