State of New Jersey v. Sandra Abril

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3362-13T3

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, March 17, 2016

APPELLATE DIVISION
v.

SANDRA ABRIL, a/k/a SANDRA JASMINE
ABRIL, SANDRA BURGOS and SANDRA BURGESS,

Defendant-Appellant.
__________________________________________

Submitted February 1, 2016 – Decided March 17, 2016

Before Judges Sabatino, Accurso and
O'Connor.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 12-05-0816 and 12-05-0826.

Joseph E. Krakora, Public Defender, attorney
for appellant (Mark H. Friedman, Assistant
Deputy Public Defender, of counsel and on
the brief).

Andrew C. Carey, Middlesex County
Prosecutor, attorney for respondent (Brian
Shevlin, Assistant Prosecutor, of counsel
and on the brief).

The opinion of the court was delivered by

ACCURSO, J.A.D.
 Tried for attempted murder, defendant Sandra Abril was

convicted by a jury of the lesser-included charge of second-

degree aggravated assault, N.J.S.A. 2C:12-1b(1), and possession

of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a.

Following the verdict, she pled guilty pursuant to a negotiated

agreement to a certain persons offense, N.J.S.A. 2C:39-7b. The

judge granted the State's motion for a mandatory extended term

and sentenced defendant to sixteen years in State prison for

aggravated assault subject to the periods of parole

ineligibility and supervision required by the No Early Release

Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eight-year

term on the weapon conviction. The judge sentenced defendant to

a concurrent five-year term on the certain persons offense, with

five years of parole ineligibility, in accordance with the plea

agreement.

She raises the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED PREJUDICIALLY BY
FAILING TO BAR THE STATE FROM CROSS-
EXAMINING DEFENDANT'S PROPOSED CHARACTER
WITNESSES BY THE USE OF DEFENDANT'S PRIOR
CONVICTION FOR MURDER. AT THE VERY LEAST,
THE CONVICTION SHOULD HAVE BEEN SANITIZED TO
PREVENT MENTION OF ANY FACTS OTHER THAN THE
DEGREE OF THE PRIOR OFFENSES. (Partially
Raised Below).

2 A-3362-13T3
 POINT II

DEFENDANT'S CONVICTION AND SENTENCE ON COUNT
FIVE OF THE INDICTMENT MUST BE MERGED INTO
THE CONVICTION AND SENTENCE ON COUNT ONE.
(Not Raised Below).

POINT III

DEFENDANT'S SENTENCES MUST BE VACATED AND
THE CASE REMANDED FOR RESENTENCING.

A. The Imposition Of A Fifteen Year Parole
Ineligibility Term On Count One Is Illegal
Because N.J.S.A. 2C:43-7d Clearly Does Not
Apply In This Case.

B. Defendant's Aggregate Sentence Is
Manifestly Excessive and Unduly Punitive.

Having considered these arguments in light of the record

and existing law, we conclude the single alleged trial error, if

indeed it was error, was not clearly capable of producing an

unjust result. We agree with defendant, however, as does the

State, that her conviction on the weapon charge, for which she

received a concurrent eight-year term, should have been merged

into her conviction for second-degree aggravated assault. We

also agree the judgment of conviction must be corrected to

reflect the judge's imposition of a NERA term on the aggravated

assault conviction. Accordingly, we vacate the sentence and

remand for merger of those convictions for sentencing purposes

and correction of the judgment of conviction to reflect the

sentence imposed. We affirm in all other respects.

3 A-3362-13T3
 The State presented the victim to explain his relationship

with defendant and the events leading up to her shooting him in

their apartment on the day after Christmas in 2011. According

to the victim, he and defendant were in a long-term romantic

relationship that had gone stale. They had lived together in

her apartment for four years. He had a long criminal record,

and although he worked as a forklift driver, he described

himself as a "functioning addict," regularly using both cocaine

and heroin. Defendant supported him. Although he claimed they

had "grown apart," he described himself as "stuck" in their

relationship because he had "burnt a lot of bridges" with his

family and was not able to live on his own financially.

The victim had started to secretly see another woman

several months before Christmas. It was not his first affair.

Defendant found out about the relationship when she found a

receipt in the pocket of his pants. Although they afterward

went through the motions of attempting to rekindle their

relationship, the victim did not stop seeing the other woman.

On the day after Christmas, the victim took defendant's

car, saying he had to go to work. He instead spent the day with

his paramour. When he returned home, the couple argued.

Defendant accused him of being "with that bitch" and demanded he

take off the chain defendant had given him for Christmas. The

4 A-3362-13T3
victim denied everything, walking away from defendant to go sit

on the couch and watch television.

According to the victim, defendant stood between him and

the television and pointed a gun at him while continuing to

harangue him about the other woman. At some point, defendant

"clicked the gun" and a bullet fell out. He said, "you clicking

guns on me now? I'm outta here. I'm gone," and walked toward

the bedroom to get his coat. He claimed defendant then shot him

in the back, refused to call him an ambulance and instead put

her hand over his mouth, saying "no ambulance." The victim

claimed he pulled himself to the door and as he struggled with

the locks, defendant stabbed him and snatched the chain from his

neck.

The victim managed to get himself down the three flights of

stairs, where he collapsed in front of the building. When

police arrived and asked him what happened, he only got out his

apartment number. When police went to the apartment, they found

defendant and her niece, who lived on another floor of the

building. The women were carrying luggage and a cat carrier and

appeared to be in the process of leaving. Police detained both

women and took them in for questioning. Defendant gave consent

to search her apartment, where police found blood, a spent .38

shell casing, as well as a black bag with several .38 rounds,

5 A-3362-13T3
but no gun and no knife. They also found a .38 caliber

cartridge in the rear of the apartment building near a dumpster.

A shirt defendant was wearing had the victim's blood on a

sleeve. Police seized the shirt but released defendant without

charging her.

At the scene, two women came forward to report seeing two

Hispanic males get into a taxi and take off as the victim lay

bleeding on the sidewalk. The police did not pursue this lead

because the next day, the victim identified defendant as the

person who shot him.

Defendant did not testify. She maintained she did not

shoot the victim. Her theory at trial was that police had not

undertaken a thorough investigation and had failed to pursue

viable leads, most notably the two Hispanic men seen fleeing the

area, after the victim accused defendant of the crime. She

contended the victim's story made almost no sense and contained

significant factual errors, chief among them his continued

insistence that he was shot in the back, although all medical

evidence confirmed a gunshot wound to his chest. Defendant also

emphasized the failure of investigators to locate the gun or a

knife, and the improbability of her being able to dispose of

those weapons in the few minutes between the shooting and

officers arriving in her apartment. She maintained the victim's

6 A-3362-13T3
story was incomprehensible because he was likely too "high" to

know what had happened to him or to be able to report it

accurately.

In the only issue defendant raises regarding her

conviction, she claims the trial court erred in a mid-trial

ruling relating to character witnesses she wished to call.

Defendant's counsel sought to call character witnesses who would

testify defendant was "a hard-working person that is responsible

and dependable" and trustworthy. When the court asked whether

those traits were in issue in the trial, counsel expressed the

view that "when you're . . . on trial for attempted murder . . .

everything is at issue." The assistant prosecutor, although

expressing the view that none of those traits was at issue,

asserted he should be allowed to ask any character witnesses

whether they knew defendant had been convicted of murdering her

husband, for which she received a thirty-year prison term in

1982.

When the judge prodded defense counsel again about the

purpose of the proffered testimony, counsel replied she wanted

the jury to see "there are people that think well of

[defendant], and that are rooting for her." The judge, although

stating it is "not the purpose of [a] character witness to show

that she's got people on her side," did not exclude the

7 A-3362-13T3
evidence. He instead ruled defendant would not be barred from

calling character witnesses, but advised, "if you introduce the

testimony . . . , I think it would be permissible for the State

to make inquiries [of] those witnesses as to their knowledge of

your client's conviction for murder." In light of the court's

ruling, defendant did not call any character witnesses.

Defendant now argues that ruling was in error, and it

deprived her of a fair trial. We disagree.1

Although N.J.R.E. 404(a)(1) allows a defendant in a

criminal trial to offer evidence of her good character to show

she was unlikely to have committed the crimes charged, the Rule

requires that the character trait evinced by the evidence must

be one "pertinent" to the issues in the case. See State v.

Baluch, 341 N.J. Super. 141, 164-68, 194 (App. Div.) (holding

trial court correctly refused to instruct the jury to consider

testimony of defendant's friends and co-workers that she was a

hard-working nurse, devoted wife and good mother, when such

traits were "wholly irrelevant to any pertinent character trait

1
We note the State has not argued this decision is not
reviewable because defendant chose not to call the character
witnesses. Cf. State v. Whitehead, 104 N.J. 353, 361-62 (1986)
(holding a defendant need not testify at trial to preserve his
right to appeal the trial court's determination that the
defendant's prior convictions could be used to impeach him if he
testified, declining to follow Luce v. United States, 469 U.S.
38, 42, 105 S. Ct. 460, 464, 83 L. Ed. 2d 443, 448 (1984)). We
thus assume, without deciding, that the issue was preserved.

8 A-3362-13T3
tending to show that she had no propensity to abuse household

help"), certif. denied, 170 N.J. 89 (2001). Defendant's

character for being hard-working, responsible, dependable and

trustworthy revealed nothing about whether she was capable of

shooting a cheating boyfriend and thus was likely inadmissible.

See State v. Mahoney, 188 N.J. 359, 373, cert. denied, 549 U.S.

995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006).

Assuming for purposes of the analysis that the testimony of

the proposed character witnesses related to a pertinent trait of

defendant's character, thus making it admissible, we see no

reason to have barred the prosecution from cross-examining the

witnesses regarding the basis for their opinions as to

defendant's character. The law is well settled that a criminal

defendant putting in evidence of a pertinent trait of good

character allows the prosecution to counter with evidence of her

bad character as to the same trait. N.J.R.E. 404(a)(1); State

v. Hunt, 115 N.J. 330, 369 (1989) (noting the general rule "that

the prosecutor may not offer evidence of the defendant's

character to support an inference about the defendant's conduct

on a specific occasion unless the defendant has first produced

evidence of good character").

Although the adoption of former Evidence Rule 47 ended the

ability of a prosecutor to impeach the credibility of a

9 A-3362-13T3
defendant's character witness by inquiring into the witness's

knowledge of alleged criminal misconduct not evidenced by a

criminal conviction, neither its successor, N.J.R.E. 405, nor

N.J.R.E. 607, prohibits such impeachment when the inquiry is

limited to the witness's knowledge of a defendant's criminal

convictions. See State v. LaPorte, 62 N.J. 312, 319-20 (1973);

see also Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, comment 5 on N.J.R.E. 607 (2015) ("N.J.R.E. 608 places

limitations on impairment of the credibility of a defendant's

character witness in a criminal proceeding. Inquiry may not be

made into the witness's knowledge of the defendant's alleged

criminal conduct which is not evidenced by a criminal

conviction."). We thus reject defendant's argument that her

proposed character witnesses could not have been impeached by

the prosecutor inquiring into their knowledge of defendant's

prior criminal conviction, subject, of course, to the trial

judge's determination that its probative value was not

substantially outweighed by the risk of undue prejudice or any

of the other N.J.R.E. 403 factors. See State v. Steensen, 35

N.J. Super. 103, 106-09 (App. Div. 1955).

Defendant did not raise to the trial court her alternate

argument that the judge should have sanitized her prior murder

conviction if it was to be used in cross-examining her character

10 A-3362-13T3
witnesses. See State v. Brunson, 132 N.J. 377, 391-92 (1993);

cf. State v. Balthrop, 92 N.J. 542, 544-46 (1983) (addressing

sanitization of prior convictions of witnesses for the

prosecution); see also N.J.R.E. 404(b), 609. Accordingly, we

review her claim under a plain error standard. See R. 2:10-2;

State v. Angoy, 329 N.J. Super. 79, 88 (App. Div.), certif.

denied, 165 N.J. 138 (2000).

First, we note the prosecutor stated on the record that he

would treat the murder conviction on cross-examination of the

character witnesses "as if we had a Sands[2] hearing, and . . .

not specify the charge." Second, in subsequently considering

whether the conviction could be used against defendant if she

elected to testify, the court determined the murder conviction

was not so remote as to be excluded under a Sands analysis. It

did, however, sanitize the conviction in accordance with

Brunson, by limiting the prosecution to eliciting only the

degree of the crime and prohibiting questions as to the nature

of the crime or the length of her sentence. Accordingly, we are

not convinced that had defendant expressed a desire to have the

conviction sanitized for purposes of the cross-examination, the

trial court would not have obliged her by entering a similar

ruling.

2
State v. Sands, 76 N.J. 127, 144 (1978).

11 A-3362-13T3
 Although no published appellate decision has addressed

sanitization in this circumstance,3 we are mindful that "[t]he

Sands holding reflects [the Supreme] Court's concern about

severe and unfair prejudice to a defendant from prior-conviction

evidence," and the discretion the Court has reposed in the trial

court to ameliorate undue prejudice by resort to a sanitization

remedy. State v. Hamilton, 193 N.J. 255, 264-68 (2008); see

also N.J.R.E. 403, 404(b) and 609; State v. Gillispie, 208 N.J.

59, 92 (2011). Accordingly, we hold sanitization of defendant's

prior murder conviction would have been appropriate before the

prosecutor was allowed to ask defendant's character witnesses

about their knowledge of the conviction. Because, however, a

defendant may waive the protection afforded by sanitization,

Brunson, supra, 132 N.J. at 392, we decline to find the trial

court's failure to sua sponte suggest sanitization in the

context of impeachment of a character witness automatically

constitutes reversible error. See State v. Whittle, 52 N.J.

407, 410-11 (1968); cf. State v. Williams, 219 N.J. 89, 98-99

(2014), cert. denied, ___ U.S. ___, 135 S. Ct. 1537, 191 L. Ed.

2d 565 (2015) (discussing difficulty of considering

3
But see State v. Campbell, 212 N.J. Super. 322 (Law Div. 1986),
for a trial court undertaking a Sands analysis in the context of
reputation testimony offered by a character witness for the
defendant.

12 A-3362-13T3
Confrontation Clause claim, which a defendant may choose to

waive for strategic purposes, under plain error standard). In

no event could we find the failure to have done so here clearly

capable of producing an unjust result given this record. See

State v. Macon, 57 N.J. 325, 335 (1971).

We turn next to defendant's claims regarding her sentence.

We agree with defendant, as does the State, that her conviction

for unlawful possession of a weapon should have been merged with

her conviction for aggravated assault. See State v. Diaz, 144

N.J. 628, 636 (1996) ("When the only unlawful purpose in

possessing the gun is to use it to commit the substantive

offense, merger is required."). A remand is in order to correct

that error.

We reject her claim that her sentence is excessive and the

parole disqualifier illegal. Because defendant had a prior

conviction for murder using a firearm, she was subject to a

mandatory extended term upon her conviction for second-degree

aggravated assault while using a firearm. See N.J.S.A. 2C:44-

3d. Accordingly, defendant could lawfully be sentenced within a

range of between five and twenty years. See N.J.S.A. 2C:43-

7a(3); State v. Pierce, 188 N.J. 155, 169 (2006) ("the range of

sentences, available for imposition, starts at the minimum of

the ordinary-term range and ends at the maximum of the extended-

13 A-3362-13T3
term range"). Defendant's sixteen-year term plainly falls

within the statutory range.

Although defendant maintains the court imposed an illegal

minimum term of fifteen years, the sentencing transcript belies

her claim. The court stated clearly on the record that

defendant's sixteen-year term was subject to NERA, and thus that

she must serve eighty-five percent before becoming eligible for

parole. The judgment of conviction, however, states defendant

is to serve a minimum term of fifteen years during which she is

ineligible for parole pursuant to N.J.S.A. 2C:43-7d. That

statute addresses minimum terms for crimes committed with a

machine gun or assault firearm pursuant to N.J.S.A. 2C:43-6g,

and thus the reference is clearly an error.

In the event of a discrepancy between the court's oral

pronouncement of sentence and the sentence described in the

judgment of conviction, the sentencing transcript controls and a

corrective judgment is to be entered. State v. Rivers, 252 N.J.

Super. 142, 147 n.1 (App. Div. 1991). Accordingly, a remand is

also required to conform the judgment of conviction to the

minimum term sentence the court imposed. As the judgment of

conviction likewise erroneously notes a finding of aggravating

factor one, which the sentencing transcript confirms the court

14 A-3362-13T3
explicitly did not find, the judgment must be corrected for that

error as well.

We reject defendant's claim that her sentence is excessive.

Defendant was convicted of murdering her husband in 1982 and

sentenced to a maximum term of thirty years. Within three years

of her release from State prison, she was convicted of stabbing

her then boyfriend with a knife, for which she received a five-

year probationary term.4 The shooting resulting in this

conviction followed within six years. We are satisfied the

judge's findings and balancing of the aggravating and mitigating

factors are supported by adequate evidence in the record, and

the sentence is neither inconsistent with sentencing provisions

of the Code of Criminal Justice nor shocking to the judicial

conscience. See State v. Fuentes, 217 N.J. 57, 70 (2014); State

v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J.

165, 180-81 (2009).

We affirm defendant's conviction and remand her sentence

for merger of her conviction for unlawful possession of a weapon

with her conviction for aggravated assault and correction of the

4
This conviction was not included in the Sands analysis at trial
because of some confusion surrounding its disposition. The
prosecutor mistakenly believed it had been downgraded to a
disorderly persons offense. See State v. Parker, 216 N.J. 408,
423 (2014) (noting only indictable offenses which are the
subject of valid convictions may be used for purposes of
impeachment).

15 A-3362-13T3
judgment of conviction to reflect the sentence imposed in

accordance with this opinion. We affirm the sentence in all

other respects. We do not retain jurisdiction.

Affirmed, and remanded for entry of an amended judgment.

16 A-3362-13T3