STATE OF NEW JERSEY VS. STEVEN CONTRERAS(10-11-1628, MIDDLESEX COUNTY AND STATEWIDE) ( 2017 )


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  •                         NOT FOR PUBLICATION WITHOUT THE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-4343-13T4
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    STEVEN CONTRERAS,
    Defendant-Appellant.
    ____________________________________
    Argued October 31, 2016 – Decided August 7, 2017
    Before Judges Nugent and Haas.
    On appeal from Superior Court of New Jersey,
    Law Division, Middlesex County, Indictment No.
    10-11-1628.
    Alan D. Bowman argued the cause for appellant.
    Jason M. Boudwin, Assistant Prosecutor, argued
    the cause for respondent (Andrew C. Carey,
    Middlesex County Prosecutor, attorney; Mr.
    Boudwin, of counsel and on the brief).
    PER CURIAM
    Defendant Steven Contreras appeals from an April 3, 2014
    judgment of conviction for three counts of aggravated assault,
    various conspiratorial offenses, and one count each of riot and
    hindering prosecution.          On appeal, defendant raises the following
    arguments:
    POINT I
    APPELLANT SHOULD HAVE BEEN PERMITTED TO
    WITHDRAW THE GUILTY PLEA ENTERED HEREIN.
    (PARTIALLY RAISED BELOW)
    POINT II
    THE PLEA TO CONSPIRACY TO COMMIT AGGRAVATED
    ASSAULT CONSTITUTED AN IMPROPER AMENDMENT OF
    THE INDICTMENT. (NOT RAISED BELOW)
    POINT III
    THE SENTENCE IMPOSED IS EXCESSIVE AND UNDULY
    PUNITIVE.
    For the reasons that follow, we affirm.
    On    July   1,   2010,    police       charged    defendant     in   juvenile
    delinquency complaints with offenses that, if committed by an
    adult, would constitute murder, aggravated assault, conspiracy,
    and   criminal     mischief.        Two   months        later,   the   matter     was
    transferred to the Law Division, Criminal Part.
    On November 3, 2010, a Middlesex County Grand Jury charged
    defendant and three co-defendants in a multi-count indictment with
    second-degree conspiracy to commit aggravated assault, N.J.S.A.
    2C:5-2     and   N.J.S.A.   2C:12-1(b)(1)        (count     one);    fourth-degree
    conspiracy to commit riot, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:33-1
    (count two); second-degree aggravated assault, N.J.S.A. 2C:12-
    2                                  A-4343-13T4
    1(b)(1) (counts three, six, and seven); third-degree criminal
    mischief,    N.J.S.A.   2C:17-3(a)(1)      (count   four);      first-degree
    murder, N.J.S.A. 2C:11-3(a)(1) and (2) (count five); fourth-degree
    riot,    N.J.S.A.    2C:33-1(a)   (count     eight);   and      third-degree
    hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a) (counts
    nine and ten).       Following the indictment, defendant moved to
    suppress his statements to police.         The court denied the motion.
    The charges against defendant were severed, and he was tried before
    a jury in April 2012.
    The    State   presented   the   following   proofs   at   defendant's
    trial.   On June 25, 2010, at approximately 11:00 p.m., the victim,
    his wife, and their two adolescent children went for a walk around
    their neighborhood.     Near the end of their walk, they noticed four
    teenagers, who appeared to be seventeen or eighteen years old,
    following them.     The victim told his family to ignore them.            One
    of the teenagers came very close to the family, tapped the victim
    on the shoulder, and said, "hey, man, I want to ask you something."
    When the victim turned around, the teenager punched him in the
    head, causing him to stagger.         The attacker punched the victim in
    the head three or four more times, as the other teenagers encircled
    the victim's family.       The victim's wife watched as one of the
    teenagers began to punch her older son in the head.          The teenagers
    also began striking the victim's younger son.          The teenagers then
    3                             A-4343-13T4
    took turns striking the victim's sons as the victim lay on the
    grass.    One of the teenagers kicked him in the head.
    Eventually, the teenagers fled the scene, returned to their
    car, and drove away.       An anesthesiologist who lived nearby came
    to the scene to assist the family.         When he arrived, he observed
    the victim's body was drooping, his breathing was shallow, and he
    spoke    in   short,   incomprehensible    slurs.      Emergency    medical
    technicians arrived and transported the victim to the Raritan Bay
    Medical Center.        Medical personnel diagnosed the victim with a
    "hemorrhagic stroke"; his brain was bleeding.                The victim was
    transferred to the Robert Wood Johnson Trauma Center where he was
    pronounced dead three days after the attack.           The cause of death
    was blunt force trauma to the head.
    The victim's older son recognized one of the assailants as
    co-defendant Julian C. Daley, a classmate from school.               Police
    questioned Daley at his residence.        He denied any knowledge of the
    assault.      Daley claimed he was at a fast-food restaurant with his
    friends, co-defendant Christopher Conway and "Steve."
    Police interviewed co-defendant Conway at his residence.
    Conway   initially     denied   any   knowledge   of   the   incident,   but
    eventually admitted there had been a "big fight" that night.
    Conway identified "Steve" as defendant, claiming he was present
    4                             A-4343-13T4
    during the attack.        Conway denied that either he or defendant took
    part in the actual attack.
    The    police     next   interviewed      defendant.1        According      to
    defendant, on the evening of the incident, he and the co-defendants
    were    drinking     malt     liquor.      After    stopping   at    a   fast-food
    restaurant     at    approximately       11:00   p.m.,   defendant       drove   his
    friends around for some time.              While doing so, another car cut
    them off.       A road-rage incident ensued.             During the incident,
    defendant pursued the other car; the occupants of the vehicles
    stopped, exited, and engaged in a heated exchange; defendant
    pursued the other car a second time; a co-defendant threw something
    at the other car, shattering the hood; and defendant pursued the
    car again, but it got away.
    Following the road-rage incident, the co-defendants were
    "heated up," and co-defendant Daley suggested they "go find some
    kids    and   fuck     them   up."      Defendant   drove    everyone     into   the
    neighborhood where the victim and his family were taking a walk.
    When the assailants saw the victim's family, they decided to fight
    them.    Defendant remained in his car with the lights off while the
    co-defendants        attacked   the     victim   and   his   family.       The   co-
    1
    Audio recordings of defendant's interviews with law enforcement
    were played during the trial.
    5                                 A-4343-13T4
    defendants returned to the car and defendant drove off.                        Everyone
    agreed not to speak about the incident.
    In the days following the incident, defendants tried to
    coordinate their version of the incident in the event police tried
    to speak with them.          Further investigation revealed that defendant
    and some of the co-defendants had selectively deleted cellular
    text messages and call logs to each other around the date of the
    incident.           Defendant     also    admitted     that    co-defendant       Daley
    instructed him to delete their text message conversations.
    At the trial's conclusion, the jury found defendant guilty
    of    the       lesser-included    offense      of   third-degree       conspiracy     to
    commit aggravated assault (count one); fourth-degree conspiracy
    to commit riot (count two); three counts of the lesser-included
    offenses of third-degree aggravated assault (counts three, six,
    and    seven);       fourth-degree       riot   (count    eight);   and       hindering
    apprehension (count nine).               The jury found defendant not guilty
    of    the       remaining   offenses,     including      murder   and    the    lesser-
    included offense of aggravated manslaughter, but was unable to
    reach       a    verdict    on   the   lesser-included        offense    of    reckless
    manslaughter (count five).               The matter was returned to the trial
    calendar for retrial on the latter charge.
    At a status conference held on June 20, 2012, defendant
    rejected the State's plea offer of a four-year prison term subject
    6                                   A-4343-13T4
    to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA), in exchange
    for his guilty plea to reckless manslaughter.    At that time, the
    court had the following exchange with defendant:
    The court: Mr. Contreras, I want you to sit.
    I want you to pay really, really close
    attention. What you do is entirely up to you.
    Do you understand that, young man?
    Defendant: Yes.
    . . . .
    The court: You sat through a trial and you
    knew pretty much what the evidence is going
    to be. You never know what a jury is going
    to do.    You sat through the trial.     You
    probably still have a copy of the model jury
    charge.
    Defendant: Yes.
    The court: And if you recall that charge
    simply says conspiracy agreement, reckless act
    cause of death. Think long and hard what a
    jury is going to do if that's the only charge
    in front of them, okay? Because if they come
    back and they convict you it's 85% [sic]
    offense and I can tell you that there’s a
    presumption of incarceration and you will be
    going to State Prison absent some highly
    unusual circumstances.    I don't see any in
    this case. Do you understand that?
    Defendant: Yes, sir.
    The court: I am not telling you to take [the]
    State's plea offer. I’m not. But the plea
    offer the State is offering you is no more
    than four . . . . Is it a flat four?
    The State: [NERA] would still apply but it
    would be the third degree range.
    7                          A-4343-13T4
    The court: Now, a four, three and a half years,
    it's not close to 15 or 20. Do you understand
    that?
    Defendant: Yes, sir.
    The court: And what you do is your life.
    Certainly you should talk to your family.
    Make sure the decision you make you think is
    best for you. You have every right to get in
    front of a jury again, okay?
    Defendant: Yes, sir.
    The court: But I don’t want to hear any
    complaint if a jury comes back other than some
    manner you would like. You have pretty clear
    testimony that you drove, dropped them off,
    drove them away, and that the kids were
    looking for a brawl, beat somebody up
    . . . [a]nd somebody was hit. Somebody died.
    Now, again, I can't tell you what a jury is
    going to do. It sounds kind of reckless to
    me at a minimum and that’s all that’s
    necessary for guilt. You decide, young man,
    what you want to do. All I'm advising you, I
    want to make sure you understand it, it would
    not shock me if they came back differently
    than they came back the last time.      Again,
    don't rely on what I’m saying. You sat through
    the trial.    Talk to your lawyer.    Make an
    intelligent informed decision. Whatever that
    is I'll accept it. Do you understand me?
    Defendant: Yes, sir.
    The matter was then re-listed for trial, but it was not re-
    tried.   On November 27, 2012, defendant pleaded guilty to an
    amended charge of conspiracy to commit aggravated assault and
    agreed to testify truthfully at the co-defendants' trial.         In
    8                          A-4343-13T4
    exchange, the State agreed to recommend a four-year prison term
    subject to NERA to run concurrent to any sentence imposed on the
    offenses the jury convicted him of committing.                   The State also
    agreed to consider lowering its recommended four-year prison term
    to   a    three-year   sentence   subject      to   NERA   and   to     dismiss   an
    outstanding juvenile complaint.             Finally, the State agreed to
    recommend treating defendant as a youthful offender, allowing him
    to go to a juvenile facility rather than state prison.                             If
    defendant     failed    to   cooperate    in    accordance       with    the    plea
    agreement, the State would be relieved of making its sentencing
    recommendations,       in    which   case      defendant     would       face     the
    possibility of a maximum sentence.
    At the November 27 plea hearing, defense counsel advised
    defendant that by pleading guilty to a second-degree crime, he
    could face either a ten-year prison sentence with five years of
    parole ineligibility, a seven-year sentence with three and a half
    years of parole ineligibility, or face a term set by the court
    where he must serve eight-five percent of the sentence before
    becoming eligible for parole.            Defense counsel further advised
    defendant his guilty plea would not require imposition of a
    mandatory sentence, but the sentence would be subject to NERA.
    Defendant   acknowledged    that   his     attorney     explained        the
    consequences of NERA.        Further, defendant acknowledge the State's
    9                                    A-4343-13T4
    agreement    and   that   his   failure   to    cooperate   under   the    plea
    agreement could subject him to the maximum custodial sentence.
    Defendant said he understood the difficulty of withdrawing from
    his guilty plea once the court accepted it, and he admitted several
    times that his plea was not the product of any threats, promises,
    or coercion.
    Trial of co-defendants Christian M. Tinli and Cash Q. Johnson
    commenced on August 6, 2013.2             Defendant reneged on his plea
    agreement.     Defendant    testified      he   never   conspired   with   co-
    defendants Tinli and Johnson.       Defendant also testified Tinli and
    Johnson conspired with no one on the date of the incident.                 Co-
    defendants Tinli and Johnson were convicted of one count of simple
    assault and acquitted of all other charges.
    Following the jury verdict, the State moved for specific
    performance of the plea agreement, seeking to be relieved of its
    sentencing recommendation on the basis that defendant did not
    testify truthfully.       Defendant opposed the motion and moved to
    withdraw from the plea agreement.               In support of his motion,
    defendant argued the court "bullied him into pleading guilty" at
    the June 2012 status conference, claimed he was never made aware
    2
    Co-defendants Daley and Christopher Conway pleaded guilty to
    second-degree conspiracy to commit aggravated assault and first-
    degree manslaughter.
    10                                A-4343-13T4
    of his maximum custodial sentence, and contended his guilty plea
    violated his protection against double jeopardy.
    The   court     granted      the        State's   motion   for    specific
    performance, finding defendant had breached the plea agreement by
    failing to testify truthfully at his co-defendants' trial.                       The
    court determined defendant's testimony at trial was inconsistent
    with the statements he previously made to law enforcement.                      Such
    conduct left the court "overwhelmingly convinced" that defendant
    acted deliberately to help the co-defendants so as to lessen their
    involvement in the conspiracy.
    The court denied defendant's motion to vacate or withdraw his
    guilty plea, ruling that his plea contained a sufficient factual
    basis and that defendant waived his double jeopardy defense.
    Additionally, the court found unpersuasive defendant's argument
    that he did not understand his potential maximum sentence and that
    the court had coerced him into pleading guilty at the June 2012
    status conference.       The court also concluded defendant had not
    satisfied the factors for plea withdrawal as set forth in State
    v. Slater, 
    198 N.J. 145
    (2009).
    Following     the   denial    of    defendant's      motion,     the     court
    sentenced defendant to the following custodial terms.                  On count
    five, conspiracy to commit second-degree aggravated assault, the
    court sentenced defendant to an eight-year custodial term subject
    11                                  A-4343-13T4
    to NERA, the sentence to run consecutive to a three-year sentence
    imposed on count three, the lesser-included offense of third-
    degree aggravated assault.        On counts six and seven, the lesser-
    included offenses of third-degree aggravated assault, the court
    imposed three-year custodial terms to run concurrently with each
    other but consecutive to count three.             On count eight, riot, the
    court imposed a one-year custodial term concurrent to all other
    counts.      Finally, the court imposed an eighteen-month custodial
    term on count nine, hindering prosecution, to run consecutive to
    counts three, six, and seven, but concurrent with count eight.
    The   court   found   aggravating   factor    one,    N.J.S.A.    2C:44-
    1(a)(1), "the nature and circumstances of the offense, and the
    role   of    the   actor   therein,   including    whether   or   not   it   was
    committed in an especially heinous, cruel, or depraved manner."
    The court next found aggravating factor two, N.J.S.A. 2C:44-
    1(a)(2), "the gravity and seriousness of the harm inflicted on the
    victim, including whether or not the defendant knew or reasonably
    should have known that the victim of the offense was particularly
    vulnerable or incapable of resistance . . . ."               The judge found
    this factor because of the "particularly heinous" nature of the
    harm inflicted on the victim which resulted in death.               The court
    also found aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the
    need for deterring defendant and others from violating the law,
    12                                A-4343-13T4
    because of the intolerable nature of the offense.                Additionally,
    the court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3),
    the risk that defendant will commit another offense, because of
    defendant's lack of candor while testifying at his co-defendants'
    trial.     The court did not give this factor significant weight.
    Lastly, the court found aggravating factor eight, N.J.S.A. 2C:44-
    1(a)(8), which states, in part, that defendant committed an offense
    against a law enforcement officer in the performance of his duties.
    The court gave this factor some weight as a result of defendant's
    conviction for hindering apprehension or prosecution.
    The court found only mitigating factor seven, N.J.S.A. 2C:44-
    1(b)(7), defendant's lack of criminal record, because he had no
    prior history of criminal activity.
    On   appeal,   defendant     first   argues      he   "should   have   been
    permitted to withdraw the guilty plea entered herein."                 He claims
    the   statements     the   trial   court   made   at    a   status    conference
    misstated the law concerning reckless manslaughter. Specifically,
    he asserts "the court misstated . . . that a retrial would involve
    presentation to the jury of a charge that 'simply says conspiracy
    agreement, reckless act causing death.'"            Emphasizing this point,
    as well as the court's statement to defendant to "think long and
    hard what a jury is going to do if that's the only charge in front
    of them," defendant insists his plea was coerced.                 In addition,
    13                                  A-4343-13T4
    for the first time on appeal, defendant raises an argument that
    the trial court's acceptance of the jury's partial verdict and
    intent to retry defendant on reckless manslaughter violated the
    constitutional protection against double jeopardy.
    Defendant's arguments are without sufficient merit to warrant
    discussion.       R.    2:11-3(e)(2).       We   add   these   comments     only.
    Defendant's contention he was misled by comments the trial court
    made during a status conference is premised on a partial statement
    the court made, which defendant takes entirely out of context.
    Defendant overlooks the court's reference to defendant having sat
    through trial, having a copy of the model jury charges, and
    therefore     knowing     the   content     of   the    charge   on   reckless
    manslaughter.     Considered in context, the court was doing nothing
    more than pointing out a possibility defendant could be convicted
    even if he did not participate in the actual beating of the victim.
    In addition, the court repeatedly told defendant it was his
    decision to accept or reject the plea offer.             Defendant heeded the
    advice and rejected the offer.              Five months later, when jury
    selection for the retrial was scheduled to begin, the parties
    negotiated    a   new   plea    agreement   that   was    more   favorable       to
    defendant.    The plea colloquy leaves no doubt defendant was fully
    informed of every material aspect of the new plea agreement and
    voluntarily entered his plea.
    14                                   A-4343-13T4
    Defendant's double jeopardy argument is also devoid of merit.
    Generally, "'double jeopardy . . . do[es] not prohibit retrial of
    a defendant when a prior prosecution for the same offense has
    ended in mistrial attributable to the inability of the jury to
    agree on a verdict,' because 'the jeopardy to which the defendant
    is exposed is considered a continuation of original jeopardy,
    which was not terminated by the mistrial.'"   State v. Johnson, 
    436 N.J. Super. 406
    , 421 (App. Div. 2014) (alterations in original)
    (quoting State v. Abbati, 
    99 N.J. 418
    , 425-26 (1985)).   Defendant
    has pointed to nothing in the record to suggest either that the
    mistrial in his case was granted for any reason other than the
    jury's inability to reach a verdict, or that the trial court's
    decision to declare a mistrial was inappropriate.
    Having considered defendant's remaining arguments in view of
    the record and applicable legal principles, we find no basis for
    concluding the trial court abused its discretion when it denied
    defendant's application to withdraw his guilty plea.      State v.
    Munroe, 
    210 N.J. 429
    , 442 (2012) (citing 
    Slater, supra
    , 198 N.J.
    at 145).
    In his second point, defendant argues for the first time on
    appeal his plea to conspiracy to commit aggravated assault, as
    amended from reckless manslaughter, must be vacated because the
    amended charge was not a lesser-included offense.   The trial court
    15                           A-4343-13T4
    amended the charge to facilitate the parties' plea agreement.                       We
    find no plain error in the court doing so.                 R. 2:10-2.
    Generally,     "[i]n    the   absence      of    a    valid   waiver,        the
    submission to the jury of an offense which is not a lesser
    included offense violates a defendant's state constitutional right
    not to be tried except upon the presentment or indictment of a
    grand jury."      State v. Battle, 
    256 N.J. Super. 268
    , 281 (App.
    Div.) (citations omitted), certif. denied, 
    130 N.J. 393
    (1992).
    Although   a    defendant    generally    must     waive      the   right     to    an
    indictment in writing, State v. Ciuffreda, 
    127 N.J. 73
    , 79 (1992),
    there are circumstances in which oral consent will suffice.                        See
    
    id. at 82.
        We deem this to be such a circumstance.
    Here,     defendant    explicitly    agreed      to    plead   to   a    lesser
    offense, and thus to an amended charge.               By doing so, he reduced
    his potential prison sentence to four years subject to NERA.                        In
    addition, defendant pleaded guilty to the conspiratorial offense
    because he believed such a conviction would be easier to expunge.
    Under those circumstances, defendant's guilty plea to conspiracy
    to commit aggravated assault — an offense for which he had not
    been indicted — was not clearly capable of producing an unjust
    result.
    Defendant argues in his final point that his sentence is
    excessive and unduly punitive.        Our review of the record reveals
    16                                      A-4343-13T4
    both that the court's findings of aggravating and mitigating
    factors are supported by the record and that the court followed
    the sentencing guidelines in New Jersey's Code of Criminal Justice.
    The sentence does not "shock the judicial conscience" in light of
    the facts of the case.   State v. Roth, 
    95 N.J. 334
    , 364-65 (1984).
    Accordingly, we find no basis for reversing the trial court's
    sentencing discretion.
    Affirmed.
    17                          A-4343-13T4