State v. Gonzalez

• Decision Date: 19 October 2018
• Docket Number: DOCKET NO. A-0066-16T2
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN GONZALEZ, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN GONZALEZ, Defendant-Appellant.

DOCKET NO. A-0066-16T2

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued September 12, 2018

October 19, 2018

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Yannotti, Gilson, and Natali.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-02-0503.

Stephen P. Hunter, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Stephen P. Hunter, of counsel and on the briefs).

Adam D. Klein, Deputy Attorney General, argued the cause for respondent (Gurbir S. Grewal, Attorney General, attorney; Adam D. Klein, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant John Gonzalez and co-defendant Steven Alicea were charged with numerous crimes related to two incidents that took place on the same day. The first incident involved a robbery and murder, and the second involved a home invasion, robbery, and aggravated sexual assaults. Defendant and Alicea were tried separately.¹

A jury found defendant not guilty of murder, but guilty of numerous other crimes, including first-degree armed robbery, N.J.S.A. 2C:15-1, and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3). Defendant was sentenced to an aggregate prison term of forty-one years with just over thirty-two years of parole ineligibility. He appeals his convictions and sentence. We affirm.

I.

The two incidents that gave rise to defendant's convictions occurred on September 30, 2011, when defendant was sixteen years old. There were three victims: L.B. was robbed and murdered; G.T. was robbed; and B.C. was robbedand sexually assaulted.² At trial, G.T., B.C., and other witnesses testified. Defendant also testified.

On September 30, 2011, C.B., a friend of L.B., had made arrangements to meet her at his home. Anticipating her arrival, C.B. was looking out a window on the second floor of his house. In the evening, he saw L.B. arrive in a white van. C.B. then saw three Hispanic men in hooded sweatshirts approach the van. He noted that one of the men's sweatshirts had a cartoon character's face on the front. One of the men went to the driver's side of the van and the other two men went to the passenger's side.

L.B. exited the van and began walking towards C.B.'s door. C.B. left the window and walked downstairs to open the door for L.B. Before he opened the door, he heard L.B. say: "I don't have anything," and "stay away from me[.]" He then heard gunshots. C.B. went back upstairs, looked out the window, and saw L.B. sitting on his front steps. A few minutes later, he saw another woman he knew as "Cookie" come around the street corner, approach L.B., and he heard L.B. tell Cookie "they shot me." Cookie called 911.

That same night, G.T. was at his home, which was located less than two blocks from where L.B. was shot. G.T. was over eighty years old at the time, and B.C., his former caretaker and friend, was living with him.

Just after 11 p.m., G.T. and B.C. heard bangs on their door. G.T. opened the door and observed three men on the sidewalk. G.T. asked the men if they had been banging on his door. The men said no and G.T. returned inside the house. Immediately thereafter, G.T. and B.C. heard more banging on the door. G.T. opened the door for a second time, and the three men then entered the home, two of whom had guns and one of whom was pointing a gun at G.T. The men demanded money from G.T. The men then told B.C. to take her clothes off and forced her to perform oral sex on G.T. Thereafter, B.C. was forced to perform oral sex on the three men and each of the men raped her vaginally and anally. When B.C. tried to resist the assaults, she was punched and hit with a gun.

While at the home, the men searched for and took various items, including watches, keys, a cell phone, a camera kit, coins, and a chain. The men also threatened G.T. and B.C. throughout the time that they were at the home. Eventually, the men left the home. G.T. then called the police.

The police arrived shortly thereafter and began to search the area for the suspects. Police officers saw three men who began to run when the officersstopped to question them. The officers pursued and eventually apprehended defendant and Alicea. The third suspect, escaped and apparently has not been located.

While pursuing defendant, an officer saw defendant discard a blue sweatshirt that was later recovered. Inside the sweatshirt, the police found a handgun. When defendant was searched incident to his arrest, the police found two watches and a chain belonging to B.C. and G.T. After being arrested, defendant was taken to G.T.'s home and G.T. identified defendant as one of the men involved in the robbery and sexual assaults.

In the meantime, B.C. was taken to the hospital and evaluated by a sexual assault nurse examiner (SANE nurse). During the examination, B.C. described the sequence of events leading up to the sexual assaults and what the suspects looked like. After her examination, B.C. was taken to the police station where she identified defendant in a photo array.

Following defendant's arrest, he was read his Miranda³ rights and agreed to give a statement. Thereafter, he admitted to being at the scenes of the murder and home invasion. He also acknowledged that he had been wearing a bluehooded sweatshirt and that he had been carrying a gun. Prior to trial, defendant moved to suppress his statement, but the court denied that motion.

Although a juvenile when the crimes were committed, defendant was tried as an adult. The trial was conducted during six days in January 2016. As noted, G.T., B.C., and numerous other witnesses testified at trial. Defendant also testified. Defendant told the jury that he was selling drugs in Camden on September 30, 2011. He acknowledged wearing a blue "Cookie Monster" sweatshirt and having a gun when he met up with Alicea and the third suspect, who he referred to as "D.J." He also acknowledged walking up to a white van to sell drugs. During the sale, he heard yelling and then gunshots from the other side of the van. He started to run and followed Alicea and D.J. Alicea told defendant: "I shot that bitch, because she didn't want to give me nothing." Defendant claimed, however, that he did not know that Alicea and D.J. were planning to rob anyone.

Defendant then related that he and his two companions ran until they reached G.T.'s home. Alicea told defendant that the woman who lived there owed him money. Defendant explained that when he went into the home, he was frightened about what had happened down the street and he wanted "a little hideaway" from the police. Defendant denied having anything to do with thecrimes committed at the home. He acknowledged, however, that he saw Alicea put a gun in G.T.'s mouth and he saw Alicea and D.J. sexually assault B.C.

After hearing the evidence, the jury convicted defendant of eleven crimes: second-degree burglary, N.J.S.A. 2C:18-2; first-degree armed robbery, N.J.S.A. 2C:15-1; first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree conspiracy to commit sexual assault, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:14-2(a)(3); various weapon offenses; and felony murder. The trial court, however, vacated the conviction for felony murder.

At sentencing, a number of defendant's convictions were merged and, as noted earlier, he was sentenced to an aggregate prison term of forty-one years with just over thirty-two years of parole ineligibility. Specifically, defendant was sentenced to fifteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for first-degree robbery; eighteen years in prison subject to NERA for first-degree aggravated sexual assault; and eight years in prison with four years of parole ineligibility for second-degree unlawful possession of a weapon. Those sentences were to be served consecutively, and his remaining sentences were to run concurrent to those sentences. Defendantwas also sentenced to parole supervision, including parole supervision for life, restrictions under Megan's Law, N.J.S.A. 2C:7-1 to -23, and restrictions under Nicole's Law, N.J.S.A. 2C:14-12 and N.J.S.A. 2C:44-8.

II.

On appeal, defendant makes five arguments. His counsel makes four arguments, which counsel articulates as follows:

POINT I - THE TRIAL COURT'S FAILURE TO CHARGE TRESPASS AS A LESSER-INCLUDED OFFENSE OF BURGLARY WAS PLAIN ERROR BECAUSE THE DEFENDANT'S TESTIMONY CLEARLY INDICATED A NON-CRIMINAL PURPOSE FOR ENTERING [G.T.'s] HOME.

POINT II - THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY THAT DEFENDANT COULD BE FOUND GUILTY OF A LESSER OFFENSE AS AN ACCOMPLICE, ON THE BASIS OF HIS OWN MENTAL STATE, EVEN IF THE CODEFENDANT, THE GUNMAN, HAD THE MENTAL STATE FOR ARMED ROBBERY, DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT III - THE TRIAL COURT COMMITTED PLAIN ERROR IN ALLOWING THE SEXUAL ASSAULT NURSE EXAMINER TO PRESENT DETAILED TESTIMONY REGARDING THE ALLEGED ASSAULT, WHICH WAS HEARSAY UNDER THE MEDICAL EXCEPTION RULE, AND IMPROPERLY BOLSTERED [B.C.'s] CREDIBILITY.

POINT IV - DEFENDANT'S SENTENCE OF FORTY- [ONE] YEARS IN PRISON WITH MORE THAN THIRTY-TWO YEARS OF PAROLE DISQUALIFICATION, IMPOSED UPON HIM FOR CRIMES COMMITTED WHILE A JUVENILE, VIOLATED THE EIGHTH AMENDMENT AND ARTICLE ONE, PARAGRAPH TWELVE OF THE NEW JERSEY CONSTITUTION BECAUSE THE SENTENCE WAS IMPOSED WITHOUT CONSIDERATION OF HIS AGE AT THE TIME OF THE CRIME. THEREFORE, THE SENTENCE IS ILLEGAL,

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