NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6124-05T26124-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent

v.

DIEGO VALLEJO,

Defendant-Appellant.

________________________________________________________________

Argued January 7, 2008 - Decided

Before Judges S.L. Reisner, Gilroy and Baxter.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-08-1084.

Joseph J. Benedict argued the cause for appellant (Benedict and Altman, attorneys; Mr. Benedict and Philip Nettl, on the brief).

Nancy A. Hulett, Assistant Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Hulett, on the brief).

PER CURIAM

Defendant Diego Vallejo appeals from his conviction following a trial by jury, on charges of (1) first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) (count one); (2) second-degree robbery, N.J.S.A. 2C:15-1 (count two); (3) and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count four). Sitting as the trier of fact, the judge found defendant guilty of simple assault, N.J.S.A. 2C:12-1(a), a disorderly persons offense, after the State amended the aggravated assault charge in count three to simple assault.

On June 21, 2006, the judge sentenced defendant to fifteen years imprisonment on the kidnapping count, subject to the No Early Release Act, five years on the robbery count, three years on the terroristic threats count, and six months on the simple assault, all concurrent to each other. Appropriate fines and penalties were imposed.

On appeal, defendant presents the following arguments:

I. THE VERDICT ON COUNT ONE (KIDNAPPING) WAS AGAINST THE WEIGHT OF THE EVIDENCE.

II. THE VERDICT ON COUNT TWO (ROBBERY) WAS AGAINST THE WEIGHT OF THE EVIDENCE.

III. THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO ADEQUATELY INSTRUCT THE JURY TO DISREGARD EVIDENCE OF PRIOR BAD ACTS.

IV. THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE VICTIM'S RECANTATION.

V. DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.

A. Trial counsel failed to interview and call witnesses who had information that would have significantly helped defendant.

B. Trial counsel failed to prepare for trial, based on an unreasonable reliance on defendant's promises that the victim would not appear.

C. Trial counsel was ineffective for failing to object to improper questioning that solicited improper testimony regarding a domestic violence final restraining order.

We disagree with the arguments defendant presents in Points I through IV, preserve the issue defendant raises in Point V for post-conviction review, and affirm.

I.

At the time of the events that were the subject of this trial, defendant and Miryam Vera were involved in a romantic relationship and were living together at defendant's parent's home in North Brunswick. Defendant and Vera were also first cousins, and Vera's immediate family strongly disapproved of her relationship with defendant.

On May 20, 2005, Vera left work at approximately 11:30 p.m. She wanted to surprise defendant, so she went to his place of employment to pick him up. When defendant was not there, Vera became upset. Vera drove around for an hour, contemplating whether to end their relationship. Defendant eventually called Vera and told her he was home, after which Vera drove to the house. She arrived at approximately 12:30 a.m., went straight to their bedroom, and the two began to argue.

Vera did not initially make any attempts to leave the room after defendant locked the door; however, when she eventually attempted to leave, defendant physically prevented her from doing so. Vera testified that defendant grabbed her and shoved her on the bed, hit her on the back of the head and in between her legs, and threatened that he would cut her face if she left him. At one point, Vera had to use the bathroom, but defendant would not let her leave the room, so Vera was forced to urinate in a bucket. She testified that she was crying the entire time and that although defendant's parents heard her screaming, all they did was come to the bedroom door to instruct her to calm down.

Even though she desperately wanted to leave, Vera instead went to sleep because she "figured [she would] just let things calm down" and maybe she would be able to leave the next day. Vera slept on the bed and defendant slept on the floor. When Vera awoke at approximately 1:30 p.m., she tried to leave the room, but defendant again prevented her from doing so by blocking the door. When she started to pack her belongings, defendant kept unpacking them. She also testified that defendant then pushed her against the closet, yanked her arm, and screamed at her.

Defendant's father heard the screaming and repeatedly asked his son to open the door. When defendant finally opened the door, Vera ran across the hallway to defendant's parents' room and called her mother, Rosario Juarez, for help. Vera testified that her mother knew something was wrong because Vera and defendant had had "incidents before."

Juarez testified that at approximately 2:30 p.m. she arrived at the home. Juarez immediately went upstairs to the bedroom and repeatedly asked defendant to open the door. When defendant refused to let Vera out, Juarez threatened to call the police if defendant did not open the door. Because defendant did not comply, Juarez went outside and called 9-1-1.

At this point during the testimony, the State played the

9-1-1 tape, and Juarez verified that it was her voice on the tape. The 9-1-1 tape included the following exchange between Juarez and the dispatcher:

Dispatcher: Has anything like this happened

before, or no?

Caller: Oh . . . many times, and she's the

one always taking that sh*t about

him [sic]. I don't know why. She's thirty-two years old and he's only twenty-five.

The State then moved to admit Juarez's testimony of the phone conversation between Juarez and Vera as an excited utterance, pursuant to N.J.R.E. 803(c)(2). The court admitted the conversation for the limited purpose of indicating that defendant was hitting Vera.

Shortly thereafter, according to Vera's testimony, defendant "yanked" Vera's purse from her hand and ran out of the bedroom with it. Vera then went downstairs to her mother and North Brunswick police officer Paul Braconi who had since arrived. She explained to Braconi that defendant had run away with her purse. The officer questioned defendant, who denied taking it. Eventually, defendant's grandmother found the purse in the backyard and returned it to Vera.

Braconi testified that in his presence defendant grabbed Vera and told her "she could not leave." Braconi explained that later Vera provided police with a formal statement and police took pictures of her bruises. The bedroom, according to Braconi, was in a state of disarray: items were knocked over, there was a lap top computer on the floor, a "mattress-type thing tossed off to the side," and a bucket. Braconi observed abrasions on Vera's arms, which he believed to be caused by defendant.

On cross-examination, defense counsel asked Braconi, "was [Juarez] encouraging you to arrest her nephew?" Braconi responded, "she was claiming that he had beaten her up in the past and things of that nature."

During Vera's testimony, there were two occasions when she referenced a prior alleged incident of violence that the court had previously excluded in a hearing outside the jury's presence. The first time, Vera stated during direct examination, "Okay, I got confused when you said May. I thought it was the incident in East Brunswick. All right, this one is the one that happened in New Brunswick." The second time was during Vera's description of her telephone call to her mother, when Vera testified her mother knew "something was wrong because we've had incidents before." At that point, the assistant prosecutor interrupted her and stated, "Okay, stop right there." Later on, however, the State asked Vera, "and as a result of this did you get a restraining order against defendant?" Vera responded, "yes, and it was finalized." At the time these statements were made, defense counsel did not object.

After the State rested, defendant moved for a judgment of acquittal on the kidnapping charge, arguing that the State had not met its burden of proof. The court denied the motion.

During the charge conference, the judge acknowledged the need for a curative instruction concerning the testimony about the prior alleged incidents, and said that he would give a curative instruction the next day. Neither side proposed any language for that instruction. During the jury charge, the judge issued a curative instruction directing the jury not to consider any testimony that had described events occurring before or after the day in question. On December 14, 2005, the jury returned the verdict we have described.

On December 22, 2005, defendant moved for a new trial, arguing that the guilty verdict on the kidnapping charge was against the weight of the evidence. He based that motion on evidence Vera provided after the trial. See R. 3:20-2. Specifically, on December 30, 2005, Vera went to defense counsel's office and provided a written statement that she had not been "truthful" at trial.

On May 25-26, 2006, the trial judge conducted a hearing on defendant's motion for a new trial. During that hearing, Vera recanted her trial testimony, stating under oath that she had lied to the jury because she was angry at defendant. Specifically, Vera testified that (1) defendant did not hit her or kidnap her during the incident at issue; (2) she was still in a relationship with defendant during trial and the present motion hearing; and 3) the bruising that she sustained from the alleged incident was exaggerated because she was anemic and her skin bruised easily.

At the conclusion of the testimony, defendant argued that Vera's testimony during trial was not credible and that a new trial was warranted. Defense counsel further stated:

Judge, it is just such a serious matter. That the result is just such a manifest injustice. It really is . . . . And, Judge, if this ever becomes a PCR, I think I will be ineffective.

I didn't expect Miss Vera to show up. Judge, I just threw the first 14 people in the box. I may have used one or two challenges. But I made a big mistake. I know we're not in that type of proceeding. Just for the record, Judge, I was convinced she was not going to appear. But for the very strong efforts of the Office of the Prosecutor, I'm not condemning them in any way, this matter would have been dismissed after the jury was sworn, in my opinion. Because I was shocked when she was produced.

On May 26, 2006, the judge denied defendant's motion for a new trial based on newly discovered evidence because the judge found that Vera's recantation was not credible. The judge commented that he "did not believe a word she said." The judge provided no further explanation about Vera's credibility or the other issues raised.

II.

We begin by analyzing Point I, in which defendant argues that the kidnapping verdict was against the weight of the evidence.

On appeal, we apply the same standard the trial court did when it evaluated the motion for a new trial. State v. Moffa, 42 N.J. 258, 263 (1964). At the close of the State's case, the court must grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. The court must deny the motion if viewing "the State's evidence in its entirety" and giving the State the benefit of all reasonable inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. D.A., 191 N.J. 158, 163 (2007).

Defendant argues that he should be acquitted on count one, first-degree kidnapping, because the State did not meet its burden of proving him guilty beyond a reasonable doubt. N.J.S.A. 2C:13-1(b) provides that a person is guilty of kidnapping if:

he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter; [or]

(2) To inflict bodily injury on or to terrorize the victim or another;

. . . .

Confinement is "unlawful" if it was "accomplished by force, threat or deception." N.J.S.A. 2C:13-1(d).

Defendant first argues that the State failed to prove beyond a reasonable doubt that any bodily injury he inflicted occurred while Vera was unlawfully confined. In particular, he maintains that, according to Vera's testimony, there were two parts to the night: "the first part, where they were arguing and she was free to come and go; and the second part, where he prevented her from leaving." Defendant further argues:

Ms. Vera was never asked when the situation escalated from argument to confinement.

She testified that he hit her twice—once in the back of the head, and once in between her legs. But she was never asked if this occurred before or after he allegedly locked her in the room.

The implication from defendant's argument is that Vera was only "unlawfully confined" when she was locked in the bedroom. Defendant's position fails to acknowledge that defendant also threatened Vera and physically restrained her from leaving, even when the bedroom door was unlocked, either of which constitute unlawful confinement under N.J.S.A. 2C:13-1(d). Even though it is unclear when the door was locked, the record is clear that defendant unlawfully confined Vera throughout the entire time period by threatening her and physically restraining her from leaving. The following testimony is illustrative:

Q Now, Miriam if you could explain to the jurors what happened once you got inside the bedroom?

A We were arguing, just kept arguing and then he was yelling. I don't know.

Q And in this argument did you leave the bedroom?

A The first time, yeah, just going in the bathroom and came back and we were still arguing and then from there I didn't come back out.

Q And why didn't you come back out?

A Cause he wouldn't let me leave.

Q And what did he do to prevent you from leaving?

A He locked the door and I didn't want to cause any problems in the house so I kind of just tried to stick it out and argued and stayed in the room.

Q Now, Miriam, did you inform the defendant that you wanted to get out of the room?

A I wanted to leave, I wanted to leave, and he wouldn't let me leave.

Q Did you make any attempts to get out of the room?

A In the beginning [of] the argument, no, it was just said, and then eventually he said I could leave, but then he wouldn't let me leave.

Q And what would he do to prevent you?

A Just kept holding me.

Q Can you describe for us how he was holding you?

A Just, just grabbing me, pulling me, just grabbing me and pulling me.

Q And where on your body was he grabbing and pulling you?

A He was grabbing my arm and just kept pushing me back on the bed.

Q Now, you say that the door was locked, is that correct?

A Yes.

In addition, Vera testified that after she awoke at 1:30 p.m., she tried to leave the room again, but defendant prevented her from doing so. When she started packing her bag, defendant blocked the door, screamed at her and pushed her around. Specifically, Vera stated: "he pushed me against the closet and just yanking my arm, just screaming." Vera further testified that defendant threatened her while she was in the room.

The incident lasted more than thirteen hours, from 12:30 a.m. to 2:00 p.m. Regardless of whether the door was locked, the record demonstrates that defendant physically restrained Vera from leaving the room and threatened to cut her face if she left. Both constitute unlawful confinement because confinement is unlawful when accompanied by "force" or "threat." N.J.S.A. 2C:13-1(d).

Next, defendant argues that even if he hit Vera while he unlawfully confined her, his purpose in confining her was not to cause bodily injury or terrorize her, as required by N.J.S.A. 2C:13-1(b)(2), but instead to prevent her from terminating their relationship. That argument lacks merit. Defendant's ultimate purpose may have been to prevent Vera from terminating their relationship, but a reasonable jury could have found that defendant also had the purpose of inflicting bodily injury or terrorizing her, or both, to accomplish his ultimate purpose. In other words, the jury could reasonably have determined that defendant confined Vera for the purposes of threatening, assaulting and terrorizing her, in order to prevent her from ending the relationship. In addition, nothing in the statute limits the purpose requirement to one purpose only.

Based on this evidence, with all reasonable inferences given to the State, as required by D.A., supra, 191 N.J. at 163, we conclude that a reasonable jury could have found that defendant had the purpose of inflicting injury or terrorizing Vera, or both, when he unlawfully confined her. Accordingly, we reject the argument defendant presents in Point I.

III.

In point II, defendant maintains that the verdict on the robbery count was also against the weight of the evidence. Only if a defendant has filed a motion for a new trial is he permitted to argue on appeal that the verdict was against the weight of the evidence. R. 2:10-1. Defendant asserts he filed a motion for acquittal for the robbery charge as part of his motion for a new trial, and thus claims he is allowed to raise this issue on appeal, pursuant to Rule 2:10-1. The record, however, does not support this claim. Defendant's appendix contains a copy of the brief he filed in the Law Division in support of his motion for a new trial. In that brief, he challenges only the kidnapping conviction, not the robbery conviction. Consequently, defendant is not entitled to raise this issue on appeal, and we decline to address it.

IV.

In Point III, defendant alleges that the trial court committed plain error by failing to adequately instruct the jury to disregard evidence of prior bad acts. He argues that the following statements before the jury about prior incidents of misconduct were highly prejudicial and warranted a limiting instruction that was sufficiently clear and specific to negate the prejudice the testimony created: Vera's comment that "we've had incidents before"; Juarez's statement in the 9-1-1 tape that "this has happened before . . . many times"; and Officer Braconi's non-responsive answer on cross-examination in which he stated that Juarez "was claiming that [defendant] had beaten her up in the past and things of that nature." Both parties and the court acknowledged that a curative instruction was necessary because of these statements. The judge had already ruled during the N.J.R.E. 404(b) hearing that the prior incidents of misconduct in this case were inadmissible.

In the jury charge, the judge gave the following curative instruction:

During the course of the trial, also, things were blurted out that have nothing to do with this case. You can't use any of that blurted out information because that's not part of this case. Do you understand what I am saying? It's what you heard from the witness stand. Both parties have a right for you to consider only that which was dealt with in this courtroom relating to an incident that happened on May 21st, 2005 in North Brunswick. Nothing before this, nothing after this.

Defense counsel did not object to this instruction.

Defendant argues that although the judge gave a "limiting instruction," it was "vague at best, and inadequate." The court, according to defendant, never specifically told the jury that it could not presume that defendant committed the crimes that were the subject of the trial merely because he had engaged in similar conduct before.

When inadmissible evidence "comes to the attention of the jury," it is within the discretion of the trial court to either issue a curative instruction or grant a mistrial. State v. Winter, 96 N.J. 640, 646-47 (1984). "The adequacy of a curative instruction necessarily focuses on the capacity of the offending evidence to lead to a verdict that could not otherwise be justly reached." Id. at 647. Even in the context of an error of constitutional magnitude, the Court has stated that "not 'any' possibility can be enough for a rerun of the trial. The possibility must be real, one sufficient to raise a