STATE OF NEW JERSEY VS. AMADO SANCHEZ (14-10-1240, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0736-16T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AMADO SANCHEZ,
Defendant-Appellant.
_______________________________
Submitted April 17, 2018 – Decided July 11, 2018
Before Judges Reisner and Hoffman.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Indictment No.
14-10-1240.
Joseph E. Krakora, Public Defender, attorney
for appellant (Molly O'Donnell Meng, Assistant
Deputy Public Defender, of counsel and on the
brief).
Angelo J. Onofri, Mercer County Prosecutor,
attorney for respondent (Mary E. Stevens,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Amado Sanchez appeals from his conviction for
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), third-
degree possession of a weapon for an unlawful purpose, N.J.S.A.
2C:39-4(d), and fourth-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(d). He also appeals from the sentence of seven
years in prison subject to the No Early Release Act, N.J.S.A.
2C:43-7.2.
The charges arose from a June 15, 2014 incident, in which
defendant allegedly cut the victim, Mr. Pajuada, on the arm with
a large knife. Pajuada and his former girlfriend Ms. Rodriguez1
testified about the incident, as did defendant. On this appeal,
defendant raises the following points of argument:
I. THE TRIAL COURT IMPROPERLY PRECLUDED
DEFENDANT FROM ELICITING TESTIMONY ABOUT THE
COMPLAINING WITNESS'S DISMISSED CHARGES AND
INADEQUATELY CHARGED THE JURY AS TO THE
PENDING CHARGES OF THE STATE'S OTHER
EYEWITNESS, DEPRIVING DEFENDANT OF HIS RIGHTS
TO CONFRONTATION, DUE PROCESS, AND A FAIR
TRIAL.
A. The Trial Court Improperly
Precluded Defendant From Eliciting
Testimony About Complaining Witness
Pajuada's Aggravated Assault
Charges For Stabbing A Man, Which
Were Dismissed Eight Weeks Before
Defendant's Trial.
1
The witnesses' first names are irrelevant to our opinion, and
we omit them to protect their privacy.
2 A-0736-16T4
B. The Trial Judge's Inadequate
Instruction Regarding Charges
Pending Against Rodriguez, The Only
Other Eyewitness, Unfairly
Neutralized The Effect Of That
Testimony. (Not raised below)
II. THE TRIAL COURT ERRED IN FAILING TO
INSTRUCT THE JURY ON SELF-DEFENSE, WHICH WAS
CLEARLY INDICATED BY TESTIMONY THAT THE
COMPLAINING WITNESS ACTED AS THE AGGRESSOR AND
BEAT DEFENDANT WITH A RAKE PRIOR TO THE
INTRODUCTION OF A KNIFE INTO THE FIGHT.
III. THE MATTER MUST BE REMANDED FOR
RESENTENCING BECAUSE THE TRIAL COURT FAILED
TO GIVE ANY REASONS SUPPORTED BY THE RECORD
FOR THE TWO AGGRAVATING FACTORS IT FOUND AND
FAILED TO TAKE INTO ACCOUNT RELEVANT
MITIGATING FACTORS THAT WERE SUPPORTED BY THE
RECORD.
After reviewing the record, we find no merit in any of those
contentions. We affirm the conviction and the sentence.
I
We summarize the most pertinent trial evidence, in light of
the issues raised. There was no dispute that someone cut Pajuada
on the arm. The wound severed an artery and required several
surgeries to repair. The issue was whether defendant, or someone
else, stabbed Pajuada.
According to Pajuada, at the time of the incident, he had
known defendant for several years, and the two of them did not get
along. In the early morning hours of June 15, 2014, Pajuada got
into a fight with defendant's cousin Luis. Pajuada testified that
3 A-0736-16T4
Luis had a broken bottle, and Pajuada punched him. However,
Pajuada was not injured in that fight. After the fight with Luis,
several other people confronted Pajuada, and during that
confrontation, defendant pulled out a large knife and tried to
stab Pajuada in the torso. Pajuada testified that defendant "was
stabbing me in the body, but I moved and so he got me in the arm."
After being injured, Pajuada chased defendant for a short distance,
before collapsing due to loss of blood. Pajuada testified that
on the night of the fight, he was unarmed.
Pajuada gave a statement to the police the day after the
assault, and another statement a month later. In both statements,
he identified defendant as the one who cut him. In a statement
to the police the day after the assault, Rodriguez also named
defendant as the assailant, and she showed the police a Facebook
photo of defendant on her cell phone.
Rodriguez testified that at the time of the incident, she had
known defendant for several years, and the two of them were
friends. She had been Pajuada's girlfriend, had a child with him,
and still had a friendly relationship with him. On the night of
June 15, 2014, she went to an "after hours" drinking house2 on
Ferry Street. Pajuada was already there. Defendant and Luis,
2
The house was also referred to as a "speakeasy."
4 A-0736-16T4
whom Rodriguez described as a "young boy," arrived a
few minutes later. Someone told Rodriguez that Luis had a knife,
and she took it away from him and hid it.
According to Rodriguez, defendant got into an argument with
Pajuada, and the two men and Luis went outside the house. Once
outside, Luis and Pajuada got into a physical confrontation. Luis
had a broken bottle in his hand, but Rodriguez grabbed it from
him. Pajuada pushed Luis down, and defendant yelled at Pajuada
to leave his cousin alone. Rodriguez admitted that Pajuada then
challenged defendant to "fight like a man."
Shortly thereafter, defendant pulled out a large knife and
started brandishing it at Pajuada. Rodriguez tried to intervene
but Pajuada pushed her out of the way. According to Rodriguez,
Pajuada was unarmed at first, but grabbed a rake after defendant
pulled out the knife. She testified that defendant had a clear
path to leave the scene and could have walked away from the fight,
as she was begging him to do, but he did not. After defendant
"stabbed" Pajuada, defendant ran away, and Pajuada ran after him
until he collapsed, bleeding. Rodriguez ran after Pajuada, and
tried to stop the bleeding with a tourniquet. When the police
arrived, Rodriguez told them defendant stabbed Pajuada. She
repeated that statement later at the police station.
5 A-0736-16T4
In his trial testimony, defendant implicitly blamed his
cousin Luis for injuring Pajuada. Defendant stated that he was
at the Ferry Street house with Luis at around 3:40 a.m. on June
15, 2014. Pajuada was there, too, and got into an argument with
Luis. Pajuada and Luis went outside, but defendant remained in
the house "talking to a friend." A few minutes later, defendant
and the friend went out the kitchen door to smoke a cigarette.
Defendant testified that, after stepping outside, he saw that
Pajuada and Luis were having a fight. Luis had a bottle in his
hand and Pajuada had "a jack knife." They were both bleeding.
According to defendant, Pajuada pushed Luis to the ground.
Defendant walked over and lifted Luis up and told him to run,
because Pajuada had a knife. Luis started running away, with
Pajuada chasing him. Defendant walked away from the scene.
Defendant denied having a weapon, and said he did not know how
Pajuada "got injured."
II
Defendant contends that the trial court erred in precluding
the defense from cross-examining Pajuada about a 2011 assault
charge, which the State dismissed about eight weeks before
defendant's 2016 trial began. At an in limine hearing prior to
the trial, the prosecutor represented to the court that the State
dismissed the charge because her office could not "get in contact
6 A-0736-16T4
with the victim." The defense did not question that
representation. The defense also conceded that the prosecutor's
office had told Pajuada that the assault charge against him had
no connection to the charges against defendant. In other words,
the State did not offer Pajuada a deal to dismiss the charge
against him in return for his truthful testimony against defendant.
The trial judge concluded that, under the circumstances, the
fact that Pajuada previously faced an assault charge, which had
been dismissed, admittedly with no deal, was not probative as to
his credibility as a witness in this case. The judge further
reasoned that, as a crime victim, Pajuada had the right to testify,
without being questioned about irrelevant, dismissed charges.
As the Supreme Court recently reaffirmed in State v. Bass,
224 N.J. 285 (2016), ordinarily, a witness's pending or resolved
criminal charges are appropriate subjects for cross-examination,
to show possible bias. Id. at 304-05.
[T]he case law envisions that a trial court
will undertake a careful evaluation of a
defendant's claim that a witness is biased.
The nature of the witness's alleged offense,
and the sentencing exposure that he or she
confronts by virtue of that offense, is a
significant factor. If a witness faces a
pending investigation or unresolved charges
when he or she gives a statement to law
enforcement, cooperates with the prosecution
in preparation for trial, or testifies on the
State's behalf, that investigation or charge
is an appropriate subject for cross-
7 A-0736-16T4
examination. The trial court should also
review the terms of the witness's plea
agreement.
[Id. at 305.]
In the circumstances of this case, we agree with the trial
judge that the prior, dismissed charge was not probative as to
Pajuada's credibility. Pajuada had told essentially the same
story since the night of the assault, when he was interviewed in
the hospital. There is no evidence that he changed his story to
incriminate defendant, after the State dropped the charges.
Further, the defense did not question the prosecutor's explanation
that the State dropped the charges because the victim could not
be found, and there was no plea deal. Under those circumstances,
Pajuada was not beholden to the State at the time of defendant's
trial, and the State had nothing to hold over him, as it would if
Pajuada were on probation or had promised to give testimony in
exchange for dismissal of the charges.
Lastly, on this record, if there was error in precluding
defendant from eliciting evidence of the dismissed charge, the
error was harmless. See R. 2:10-2; Bass, 224 N.J. at 307-08.
For the first time on appeal, defendant also contends that
the judge gave an inadequate jury instruction, after allowing the
defense attorney to cross-examine Rodriguez about pending charges
against her. The charges were filed in 2016, and there was no
8 A-0736-16T4
evidence that the State had offered Rodriguez a plea deal or
otherwise suggested to her that she might get favorable treatment
if she testified against defendant. Nonetheless, the trial judge
properly allowed defense counsel to elicit from Rodriguez the fact
that she had been charged with assault by auto and two weapons
offenses, for which she could be sentenced to prison if convicted.
After Rodriguez gave that testimony, the judge gave the jury
a limiting instruction, telling them that they could only consider
the testimony as it bore on Rodriguez's credibility. He told them
they might consider whether someone who did not follow society's
rules might also be likely not to give truthful testimony, and
cautioned them that a person charged with a crime is nonetheless
entitled to a presumption of innocence. At the next break, the
judge specifically asked both attorneys if they had any objections
to the limiting instruction he had just given. Defense counsel
responded, "I have nothing, Your Honor."
In summation, defense counsel made the point that Rodriguez
was "currently being prosecuted by this prosecutor's office in a
different case" and "testified in favor of the State in order to
save herself." She argued that the jury could determine that
Rodriguez hoped that testifying "would help her receive favorable
treatment from the State in how they handle those charges." In
response, the prosecutor argued that Rodriguez had been telling
9 A-0736-16T4
the same consistent story "since the early hours of June 15,
[2014]."
In his final charge to the jury, the judge thoroughly
instructed the jury about how to consider the pending charges as
possible evidence of bias. He explained to the jury that they
could consider the pending charges against Rodriguez
only to the extent that you determine that it
has biased [her] in favor of the State, that
is to say if you believe that [] Rodriguez
testified as she did because of the charges,
and because she hoped that her testifying
would help her to receive favorable treatment
from the State in how they handled those
charges.
The judge also, correctly, told the jury not to consider the
"mere fact" of the pending charges as meaning that Rodriguez was
guilty of the charges, or that she was "less likely to comply with
our society's rules and, therefore, more likely to ignore the oath
requiring truthfulness." Rather the issue was whether the pending
charges influenced her to testify favorably to the State. There
were no objections to the charge.
Although the instructions the judge gave immediately after
Rodriguez testified were not on point, the judge corrected the
error in the final jury instructions. We find that the final
charge adequately conveyed to the jury the concepts discussed in
10 A-0736-16T4
Bass, and in the Model Charge on Testimony of a Cooperating
Witness. We find no plain error. R. 2:10-2.
III
Defendant next argues that the judge should have charged the
jury as to self-defense. The argument is without sufficient merit
to warrant discussion beyond these brief comments. R. 2:11-
3(e)(2).
Beginning with defense counsel's opening statement, and
continuing throughout the trial, the defense theory was that
defendant had nothing do to with the stabbing of Pajuada. At the
end of the testimony, the judge noted that a self-defense charge
would be inconsistent with the defense theory, but he gave defense
counsel until the next trial day to tell him whether she wanted a
self-defense charge. Defense counsel did not request a self-
defense charge, and giving due regard to the defense theory of the
case, the judge did not give the charge. Defense counsel did not
object to any aspect of the judge's final instructions. We find
no error, much less plain error, in the judge's course of action.
R. 2:10-2. In the context of this case, giving a self-defense
charge would have undermined the defense. See State v. Perry, 124
N.J. 128, 162-64 (1991); State v. Vasquez, 265 N.J. Super. 528,
550 (App. Div. 1993).
11 A-0736-16T4
IV
Finally, we address defendant's sentencing arguments. The
judge found aggravating factors three and nine but did not give
them any particular weight. See N.J.S.A. 2C:44-1(a)(3); N.J.S.A.
2C:44-1(a)(9). The judge also considered the particular
seriousness of the victim's injury, which required five surgeries.
The judge found mitigating factor seven, defendant's lack of any
prior criminal convictions. N.J.S.A. 2C:44-1(b)(7). The judge
considered all of the other mitigating factors defendant proposed
and explained why he found they did not apply. After considering
the factors he found, the judge imposed a seven-year term, which
was in the mid-range for a second-degree crime. See N.J.S.A.
2C:43-6(a)(2). We find no abuse of discretion in the sentence.
See State v. Case, 220 N.J. 49, 64-65 (2014); State v. Bolvito,
217 N.J. 221, 228 (2014). No further discussion of this point is
warranted. R. 2:11-3(e)(2).
Affirmed.
12 A-0736-16T4