STATE OF NEW JERSEY VS. GERALD J. POHIDA (04-04-0497, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-5525-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GERALD J. POHIDA,
a/k/a JERRY POHIDA,
Defendant-Appellant.
_______________________
Submitted November 17, 2020 — Decided December 4, 2020
Before Judges Yannotti and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 04-04-
0497.
Michael R. Shulman, attorney for appellant.
Gurbir S. Grewal, Attorney General, attorney for
respondent (Valeria Dominguez, Deputy Attorney
General, of counsel and on the brief).
PER CURIAM
Defendant Gerald Pohida appeals from a June 7, 2019 order denying his
motion to correct an illegal sentence. We affirm.
A jury found defendant guilty of two counts of first-degree kidnapping,
N.J.S.A. 2C:13-1(b); two counts of second-degree sexual assault, N.J.S.A.
2C:14-2(c); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); two
counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a);
and first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a). The trial court
sentenced defendant to an aggregate term of thirty years of imprisonment, with
a twenty-five-year period of parole ineligibility.
We recounted the salient facts addressing defendant's appeal from the
judgment of conviction as follows:
In October 2003, a local police department
received information that L.M., a thirteen-year-old
female, was having an inappropriate relationship with
defendant, who was forty-one years old at the time. The
police investigated the allegations, and . . . L.M. said
that she first began to communicate with defendant in
2002 over the internet and had engaged in sexual
activity with him on various dates from June 2003
through October 2003.
At trial, L.M. testified that . . . defendant picked
up L.M. in his automobile. They drove around for a
half hour and L.M. performed oral sex upon defendant.
Thereafter, defendant drove L.M. to a garage where he
instructed her to get on her knees and perform oral sex
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upon him. On three subsequent occasions, L.M.
performed oral sex upon defendant.
Thereafter, defendant wanted to meet some of her
friends. L.M. brought A.S., her friend and classmate,
to meet defendant. A.S. was twelve years old at the
time. Defendant took them for a drive in his car. L.M.
performed oral sex upon defendant while he drove.
L.M. and A.S. then switched seats and A.S. performed
oral sex upon defendant.
L.M. testified that she and defendant had their
final meeting in October 2003. Defendant picked up
L.M. at school. She was wearing her school uniform.
Defendant drove her to the home of Jim Dalian
(Dalian), an individual with whom they had
communicated on the internet. L.M. performed oral sex
upon both men, and Dalian performed oral sex on her.
A.S. also testified. She said that she met
defendant through L.M. and communicated with him
several times over the internet. . . . A.S. testified that,
after defendant picked them up in his car, she and L.M.
performed oral sex upon defendant.
....
. . . [D]efendant was questioned by the police and he
responded to their questions. Defendant admitted
meeting L.M. but denied that they ever engaged in any
sexual activity. [The investigating officer] also
testified that the search of defendant's car revealed
several items, including directions to Dalian's house
and a stained towel. Tests performed by the New Jersey
State Police revealed that the towel contained
defendant's semen.
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Dalian testified that he "met" L.M. on the
internet. Dalian pled guilty to second-degree sexual
assault and he had been sentenced to six years of
incarceration. Dalian was incarcerated at the time of
the trial. He stated that he communicated with
defendant on-line. Dalian said that defendant and L.M.
visited him in his apartment in October 2003, and L.M.
was wearing a "kind of a school uniform[.]" L.M. undid
her bra and Dalian touched her breasts. According to
Dalian, defendant asked him if he would like L.M. to
perform oral sex upon him. Dalian agreed and L.M.
performed oral sex "for a little bit." L.M. also
performed oral sex upon defendant, while Dalian
performed oral sex upon L.M.
Defendant testified on his own behalf. Defendant
admitted that he communicated with L.M. over the
internet. . . . Defendant further testified that they met
in person on several occasions. Defendant denied that
he and L.M. had an inappropriate relationship. He said
that he had not engaged in sexual acts with L.M. or A.S.
Defendant stated that he only met A.S. on one occasion,
when he picked L.M. up from school, and A.S. never
entered his car. He also denied that he met Dalian prior
to the trial.
Defendant additionally testified about the towel
that the police found in his car. He said that he had a
hereditary condition that made it painful for him to
urinate or ejaculate. He stated that he would use the
towel in his car to relieve some of the pain he felt due
to this condition.
[State v. Pohida, No. A-6266-05 (App. Div. Feb. 10,
2009) (slip op. at 2-5).]
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Defendant's initial appeal challenged the admissibility of his statement to
police, L.M.'s statement to police, the State's conduct during its opening and
summation, the trial court's evidentiary ruling relating to defendant's medical
records, an issue relating to juror conduct, and defendant's exclusion from the
courtroom during argument of a motion. Id. at 6-8. We affirmed defendant's
convictions and sentences on direct appeal. Id. at 36.
Defendant then filed a petition for post-conviction relief (PCR), alleging
ineffective assistance of trial counsel regarding the issues he raised on appeal.
State v. Pohida, No. A-2408-11 (App. Div. Sept. 30, 2013) (slip op. at 6). The
PCR court denied the petition and we affirmed in part, reversed in part, and
remanded for an evidentiary hearing. Id. at 17. On remand, the PCR court
denied relief and we affirmed. State v. Pohida, No. A-0868-15 (App. Div. Apr.
10, 2018) (slip op. at 1), certif. denied, 236 N.J. 383 (2019).
This appeal concerns defendant's motion to correct what he claims is an
illegal sentence. Judge Dennis V. Nieves heard the motion and summarized
defendant's argument as follows:
[T]hat the trial court's instructions to the jury failed to
state that in order to find . . . defendant guilty of first[-
]degree kidnapping, the jury must find that . . .
defendant knowingly harmed . . . L.M. . . . . The jury
was also not read the full definition of "harm" to
include that emotional or psychological harm must be
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substantial or enduring. The defense contends that if
the jury had received the adequate instructions, they
would not have found . . . defendant guilty of first[-
]degree kidnapping, therefore . . . defendant must be
awarded a new trial.
The judge noted the model jury charge for first-degree kidnapping had
been updated since defendant's trial to include a definition of harm, but
concluded as follows:
Even if the jury was presented with the updated charge,
it is unlikely that the jury would have rendered a
different verdict. . . .
. . . Taken in its entirety, the jury was instructed that in
order to find the defendant guilty of first[-]degree
kidnapping, the State must prove beyond a reasonable
doubt that the victim was removed a substantial
distance from the vicinity where she was found and the
victim was harmed. That harm being sexual assault on
a victim under the age of [sixteen]. The jury was told
"[t]he burden is on the State to prove beyond a
reasonable doubt that the victim was either harmed or
not released in a safe place prior to the defendant's
apprehension. Unless you find that the State has carried
this burden you must find defendant not guilty of
kidnapping in the first[-]degree." The updated
instruction that includes the sentence expanding upon
the types of harm encompassed in the term "harm"
would not have aided the jury during deliberations,
because psychological and emotional harm were not
presented for the jury's consideration.
The judge denied the motion.
Defendant raises the following arguments on appeal:
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POINT I. THE TRIAL COURT ERRED IN DENYING
DEFENDANT'S MOTION TO CORRECT THE
ILLEGAL SENTENCE, IMPROPERLY RELIED
UPON THE STATE'S CONTENTION OF "PER-SE"
HARM WITH REGARD TO THE FIRST-DEGREE
KIDNAPPING CHARGE[.]
POINT II. THE TRIAL COURT, GUIDED BY STATE
V. CASILLA[1], HAS THE AUTHORITY TO
RESENTENCE [DEFENDANT] TO KIDNAPPING IN
THE SECOND-DEGREE RANGE (Not Raised
Below).
POINT III. [DEFENDANT'S] CONVICTION
CANNOT BE JUSTIFIED BASED UPON THE
UNCHARGED ELEMENTS OF N.J.S.A.[ ]2C:13-1(C)
(Not Raised Below).
"A truly illegal sentence can be corrected at any time." State v. Zuber,
442 N.J. Super. 611, 617 (App. Div. 2015), rev'd on other grounds, 227 N.J. 422
(2017) (internal citations and quotations omitted). "A sentence is illegal if it . . .
is 'not imposed in accordance with law,' . . . ." State v. Locane, 454 N.J. Super.
98, 117 (App. Div. 2018) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)).
"Whether [a] defendant's sentence is unconstitutional is an issue of law subject
to de novo review." Zuber, 442 N.J. Super. at 618 (citing State v. Pomianek,
221 N.J. 66, 80 (2015)).
1
362 N.J. Super. 554 (App. Div. 2003).
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When a defendant fails to object to an error regarding a jury charge, the
standard of review is for plain error. State v. Funderburg, 225 N.J. 66, 79
(2016). "Under that standard, [the court] disregard[s] any alleged error 'unless
it is of such a nature as to have been clearly capable of producing an unjust
result.'" Ibid. (quoting R. 2:10-2). "The possibility of an unjust result must be
'sufficient to raise reasonable doubt as to whether the error led the jury to a result
it otherwise might not have reached." State v. Ross, 229 N.J. 389, 407 (2017)
(quoting State v. Williams, 168 N.J. 323, 336 (2001)).
Having considered defendant's arguments and the entire record, we affirm
substantially for the reasons expressed in Judge Nieves' well-reasoned opinion.
We add the following comments.
Rule 3:22-4(a) states:
Any ground for relief not raised in the proceedings
resulting in the conviction, or in a post-conviction
proceeding brought and decided prior to the adoption
of this rule, or in any appeal taken in any such
proceedings is barred from assertion in a proceeding
under this rule unless the court motion or at the hearings
finds: (1) that the ground for relief not previously
asserted could not reasonably have been raised in any
prior proceeding; or (2) that enforcement of the bar to
preclude claims . . . would result in fundamental
injustice; or (3) that denial of relief would be contrary
to a new rule of constitutional law under either the
Constitution of the United States or the State of New
Jersey.
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A ground could not reasonably have been raised in a
prior proceeding only if defendant shows that the
factual predicate for that ground could not have been
discovered earlier through the exercise of reasonable
diligence.
As we noted in our recitation of the prior appellate history, defendant
never raised arguments relating to any aspect of the jury charges, which he raised
before Judge Nieves and now raises on this appeal. For these reasons, he is
procedurally barred from doing so by Rule 3:22-4.
Nevertheless, we are unconvinced defendant's arguments meet any of the
exceptions to Rule 3:22-4, that the jury charge constituted plain error, or that his
sentence was not imposed in accordance with the law. During summation,
defendant's counsel stated the following: "Mr. Pohida denies that the acts alleged
ever occurred. He denies kidnapping anybody. If anything take their own
testimony. We went for a short distance, short time, had no intention to harm.
He denies engaging in conduct that he's accused of." During the State's
summation, the prosecutor also addressed the harm element of the kidnapping
charge and stated: "The third and final element to consider with respect to
kidnapping is whether or not the defendant harmed the victim. Harm to the
victim can be physical or emotional. In this case the harm was the sexual assault
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itself and the emotional trauma that resulted from it." In charging the jury on
first-degree kidnapping, the trial judge addressed the harm element as follows:
A section of our statute provides that kidnapping
is a crime of the first[-]degree except that it is a crime
of the second[-]degree if the kidnapper releases the
victim unharmed and in a safe place prior to
apprehension. In this case the State alleges that the
defendant did not release the victim unharmed and in a
safe place prior to apprehension.
This now goes to the third element. The burden
is on the State to prove beyond a reasonable doubt that
the victim was either harmed or not released in a safe
place prior to the defendant's apprehension. Unless you
find that the State has carried burden you must find the
defendant not guilty of kidnapping in the first[-]degree.
Relying on Casilla, defendant argues because the court failed to give a
definition of harm, it "did not give the jury the law to make proper findings on
the elements of the first-degree kidnapping." He further asserts "the law does
not recognize 'per-se' harm."
Casilla is inapposite. There, we reversed a defendant's conviction for
first-degree kidnapping because the trial court did not instruct the jury on the
element regarding the released unharmed portion of the charge. 362 N.J. Super.
at 566-67. Here, the record readily demonstrates the jury was advised the State
viewed the harm perpetrated as the sexual assaults on the minor victims, which
occurred during the kidnappings, and the trial judge's charge instructed the jury
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as to the State's burden to prove the harm as an element of the first-degree
kidnapping offense. As noted previously, defendant did not object to the jury
charge.
The harm component of the model jury charge was twice updated after
defendant's trial. Initially, the charge was revised to state: "The 'harm'
component can include physical, emotional or psychological harm." Model Jury
Charges (Criminal), "Kidnapping (N.J.S.A. 2C:13-1(a))" (rev. Feb. 5, 2007). It
currently provides as follows:
The "harm" component can include physical, emotional
or psychological harm. If the State is contending that
the victim suffered emotional or psychological harm, it
must prove that the victim suffered emotional or
psychological harm beyond that inherent in a
kidnapping. That is, it must prove that the victim
suffered substantial or enduring emotional or
psychological harm.
[Model Jury Charge (Criminal), "Kidnapping (N.J.S.A.
2C:13-1(a))" (rev. Oct. 6, 2014).]
As Judge Nieves noted, the revisions to the charge would not have affected
the outcome. The record clearly demonstrates the State did not allege emotional
or psychological harm as a result of the kidnapping itself, which were the thrust
of the revisions.
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Finally, under point three, defendant asserts the judge did not address
whether his conviction was justified under N.J.S.A. 2C:13-1(c)(2), second-
degree kidnapping, and argues he "was not put on notice that he must [defend]
himself against the State proving the elements in [N.J.S.A. 2C:13-1(c)(2)] to
avoid a conviction for first[-]degree kidnapping." Judge Nieves rejected this
argument because "the jury instructions were sufficient for [N.J.S.A. 2C:13-
1](c)(1), the provision under which . . . defendant was indicted."
Defendant's argument lacks merit. R. 2:11-3(e)(2). The jury charge
addressed the elements of both first- and second-degree kidnapping. Again,
defendant did not object to the charge or raise this argument on direct appeal or
in the PCR petition and appeal. The record readily demonstrates defendant was
properly sentenced as a first-degree offender.
Affirmed.
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