STATE OF NEW JERSEY VS. ROGELIO LOPEZ (15-10-1291, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )


Menu:
  •                                       RECORD IMPOUNDED
    NOT FOR PUBLICATION WITHOUT THE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-1428-16T2
    STATE OF NEW JERSEY,
    Plaintiff-Respondent,
    v.
    ROGELIO LOPEZ,
    Defendant-Appellant.
    ______________________________
    Submitted January 14, 2019 – Decided January 30, 2019
    Before Judges Haas and Mitterhoff.
    On appeal from Superior Court of New Jersey, Law
    Division, Bergen County, Indictment No. 15-10-1291.
    Joseph E. Krakora, Public Defender, attorney for
    appellant (James K. Smith, Jr., Assistant Deputy Public
    Defender, of counsel and on the brief).
    Gurbir S. Grewal, Attorney General, attorney for
    respondent (Ian C. Kennedy, Special Deputy Attorney
    General/Acting Assistant Prosecutor, on the brief).
    PER CURIAM
    Defendant Rogelio Lopez appeals from his conviction and sentence for
    three violations of conditions of Community Supervision for Life ("CSL"). We
    affirm defendant's conviction, but remand for the entry of an amended judgment
    of conviction reflecting fourth-degree offenses and the removal of Parole
    Supervision for Life ("PSL") component of the sentence to conform with the
    holding of State v. Hester, 
    233 N.J. 381
     (2018).
    On October 8, 2015, a Bergen County grand jury indicted defendant for
    three counts of third-degree violations of CSL conditions, N.J.S.A. 2C:43-
    6.4(d). The three CSL violations were failing to notify his parole officer of an
    arrest (count one), failing to notify his parole officer of being served with a
    temporary restraining order ("TRO") (count two), and failing to report to his
    parole officer as directed (count three). After defendant waived his right to a
    jury trial, the Honorable James J. Guida, J.S.C., presided over a bench trial on
    June 17, 2016.
    At trial, the parties stipulated that defendant was on CSL as a result of a
    2004 conviction and was required to follow the rules and regulations of CSL.
    On December 11, 2008, defendant signed a CSL certificate. The conditions in
    the CSL certificate included the following: (1) notify your parole officer upon
    A-1428-16T2
    2
    any arrest; (2) immediately notify your parole officer if served with a TRO; and
    (3) report to your parole officer as instructed.
    The State presented three witnesses: Bergenfield Police Officer Jorge
    Candia, Bergenfield Detective Kevin Doheny, and Parole Officer John Kowal.
    The State's witnesses testified to the following facts.
    On June 15, 2015, Officer Candia interviewed a woman who had come to
    the police station. Based on the woman's complaints, Candia prepared an arrest
    warrant charging defendant with simple assault. Additionally, Candia advised
    the woman that she could apply for a restraining order. That same day, the
    woman applied for a restraining order before the Hackensack Municipal Court.
    After preparing the warrant, Candia called defendant. Candia advised
    defendant that a warrant had been issued charging defendant with simple assault
    and asked defendant to come to the Bergenfield Police Department. Defendant
    went to the police station the same day around noon. Defendant was arrested
    and released on bail.
    Detective Doheny saw defendant while he being processed at the police
    department. Doheny worked as the Megan's Law Officer for the department,
    which required that he meet with all registered sex offenders who reside in
    Bergenfield. Doheny was familiar with defendant as one of the registrants.
    A-1428-16T2
    3
    Defendant called out to Doheny and told him that "due to an incident," he needed
    to file a change of address for his Megan's Law registration.
    Doheny immediately began filling out address-change paperwork with
    defendant and forwarded the paperwork to the Englewood Police Department
    and the Bergen County Prosecutor's Office. Doheny did not notify defendant's
    CSL parole supervisor of the address change or incident and did not tell
    defendant that he would notify his CSL parole supervisor. Additionally, at 3:18
    p.m. that day, defendant left a voicemail message for his CSL parole officer,
    John Kowal, indicating that he had relocated to Englewood, but did not explain
    why he had moved to Englewood.
    Parole Officer Kowal did not listen to the message until 7:45 a.m. the next
    day, June 16. After listening to the message, Kowal called defendant and asked
    him if he was moving with his current girlfriend and if there were any new
    arrests or domestic violence issues. Defendant stated that he was not moving
    with his girlfriend, but that there were not any arrests or domestic violence
    issues.
    Shortly after the phone conversation, Kowal received an automatic email
    notification from the New Jersey State Police system that defendant was
    arrested.   After receiving the arrest report from the Bergenfield Police
    A-1428-16T2
    4
    Department and discussing the case with his supervisor, Kowal called defendant
    and requested that he come to the parole office the following day, June 17, with
    proof of his Meagan's Law registration and a pay stub. Defendant requested that
    he be permitted to report at 8:30 a.m. that day so that he would not miss work,
    and Kowal agreed that they could meet at that time. Kowal did not indicate to
    defendant that he was aware of the arrest during this conversation.
    Additionally, on June 16, Officer Candia called defendant and asked him
    to return to the police department. Defendant returned to the police department
    at 6:54 p.m., and Candia served the TRO on defendant.
    On June 17, defendant did not arrive at the parole office at 8:30 a.m. as
    scheduled. Instead, he called Kowal shortly after 8:30 a.m. and stated that he
    would not be reporting to the parole office on that day, because he needed to go
    to the Department of Motor Vehicles to reinstate his driver's license, run some
    errands, and go to work. Kowal advised defendant that he needed to report to
    the parole office as a condition of parole, but defendant responded that he was
    not going to report at that time but might report later if he had time.
    Defendant did not report to the parole office on June 17. Kowal reviewed
    the case with his sergeant, and they decided to charge defendant with violati ons
    A-1428-16T2
    5
    of CSL conditions. A warrant for defendant's arrest was issued the next day.
    Defendant was arrested seven days later.
    Defendant testified on his own behalf, detailing a slightly different
    chronology of events. He testified that the police responded to a residence in
    Bergenfield at approximately 12:45 a.m. on June 15, but that he was not arrested.
    Defendant gathered his belongings from the residence and left the residence at
    7:30 a.m. the next morning to move out from the residence. After leaving the
    residence, he received a phone call from Officer Candia advising that a warrant
    had been issued for his arrest. He then proceeded to the police station, where
    he was processed and released on bail.          While at the police department,
    defendant flagged down Officer Doheny and filled out the paperwork to change
    his address for his Megan's Law registration.
    After leaving the Bergenfield Police Department, defendant traveled to
    the Englewood Police Department, where he registered as a sex offender using
    his new address. The Englewood officer indicated that she had received all the
    information from Detective Doheny. Defendant testified that when he left a
    voicemail for Parole Officer Kowal later the day to report his address change,
    he did not mention that he had been arrested because he was not aware he was
    required to do so.
    A-1428-16T2
    6
    Defendant testified that he only spoke to Kowal on the phone one time
    prior to being arrested. On June 16, Kowal returned defendant's voicemail and
    confirmed that defendant had changed his Megan's Law registration. According
    to defendant, Kowal cursed at defendant and threatened to put out a warrant for
    his arrest if he did not report to the parole office immediately. Defendant
    responded that he could not report at that time, because he had already missed a
    day of work and needed to reinstate his driver's license in order to hold a job.
    According to defendant, Kowal did not ask any questions about domestic
    violence incidents or arrests during this conversation.       Defendant did not
    understand why he had to come to the parole office because he was unaware that
    he had broken any laws or had violated conditions of his CSL. Defendant did
    not mention the Bergenfield arrest because he "assumed that [Kowal] already
    had the – they already knew what had transpired based on the whole process of
    me getting arrested, changing the address, and the communication I had with
    different officers."
    On cross-examination, defendant acknowledged that he had been
    previously convicted of violations of CSL conditions two times, on March 5,
    2010 and November 28, 2012 respectively.          Despite the two convictions,
    A-1428-16T2
    7
    defendant stated that he had not reviewed the CSL conditions since 2008 when
    he signed the CSL certificate.
    In an oral opinion, Judge Guida found defendant guilty beyond a
    reasonable doubt on all three counts. Judge Guida determined that Parole
    Officer Kowal's testimony was credible, but that defendant's testimony "was
    incredible and . . . discredited by the evidence." Specifically, Judge Guida
    discredited defendant's testimony that he had not reviewed the conditions of
    CSL after his two previous convictions for violations of his CSL and that he
    only had one conversation with Parole Officer Kowal on June 16.
    Judge Guida found that defendant knowingly violated conditions of CSL
    by failing to notify his CSL officer of his arrest, failing to notify the CSL officer
    of the TRO on June 16, and failing to report to the parole office on June 17 as
    directed.   Judge Guida also found that defendant's assumption that Parole
    Officer Kowal already knew about his arrest and the TRO did not constitute
    good cause for failing to affirmatively disclose the arrest and the TRO.
    Similarly, Judge Guida concluded that defendant's concerns about losing his job
    if he did not immediately reinstate his driver's license did not rise to the level of
    good cause excusing defendant's failure to report to the parole office.
    A-1428-16T2
    8
    Consequently, Judge Guida found that the State had proven the elements of all
    three counts beyond a reasonable doubt.
    On August 19, 2016, Judge Guida sentenced defendant to a four-year term
    of incarceration on each count, with the sentences to run concurrently with each
    other. Judge Guida rejected defendant's argument that sentencing him as a third-
    degree offender rather than a fourth-degree offender, based on the Legislature's
    2014 amendment to N.J.S.A. 2C:43-6.4, L. 2013, c. 214, § 4 (effective July 1,
    2014), violated the Ex Post Facto Clauses of the United States and New Jersey
    Constitutions. 1 On December 1, 2016, Judge Guida filed an amended judgment
    of conviction indicating that defendant was also sentenced to Parole Supervision
    for Life ("PSL").
    Defendant appealed his conviction and sentence. 2 On appeal, defendant
    raises the following points for our review:
    1
    U.S. Const. art. I, § 10, cl. 1 ("No State shall . . . pass any . . . ex post facto
    Law[.]"); N.J. Const. art. IV, § 7, ¶ 3 ("The Legislature shall not pass any . . . ex
    post facto law[.]").
    2
    By order dated January 26, 2017, we stayed all appeals involving claims of
    alleged violations of the Ex Post Facto clauses of the United States and New
    Jersey constitutions in which defendants were sentenced to CSL or PSL pending
    the New Jersey Supreme Court's resolution of State v. Hester, 
    449 N.J. Super. 314
     (App. Div. 2017), aff'd 
    233 N.J. 381
     (2018). On September 15, 2017, we
    granted defendant's motion to partially lift the stay and consider defendant's
    A-1428-16T2
    9
    POINT I
    A JUDGMENT OF ACQUITTAL SHOULD HAVE
    BEEN ENTERED ON ALL THREE COUNTS
    BECAUSE THE STATE FAILED TO PROVE THAT
    DEFENDANT DID NOT HAVE GOOD CAUSE TO
    FAIL TO COMPLY WITH THE CONDITIONS OF
    HIS COMMUNITY SUPERVISION FOR LIFE.
    A. Because Defendant Correctly Assumed That The
    Various Law Enforcement Officers Were In Contact
    With One Another, And Were Aware Of His Arrest And
    The TRO, The State Failed To Prove That He Did Not
    Have Good Cause For Not Directly Informing Officer
    Kowal Of Those Facts. As Such, An Acquittal Should
    Have Been Entered On Counts One And Two.
    B. Defendant Had Good Cause Not To Report To The
    Parole Office On June 17th Because The
    Uncontradicted Testimony Was That Doing So May
    Have Cost Him His Job. As Such, An Acquittal Also
    Should Have Been Entered On Count Three.
    POINT II
    THE    DEFENDANT'S    CONVICTION    AND
    SENTENCE FOR THIRD-DEGREE VIOLATION OF
    HIS CSL CONDITIONS VIOLATED THE EX POST
    FACTO CLAUSES OF THE FEDERAL AND STATE
    CONSTITUTIONS.
    Our review of a judge's verdict following a bench trial is limited. State v.
    Miller, 
    449 N.J. Super. 460
    , 472 (App. Div. 2017), certif. granted, 
    234 N.J. 1
    claims on appeal that were unrelated to Ex Post Facto issues, but ordered that
    the case should not be calendared until the Supreme Court's resolution of Hester.
    A-1428-16T2
    10
    (2018). "The standard is not whether the verdict was against the weight of the
    evidence, but rather 'whether there is sufficient credible evidence in the record
    to support the judge's determination.'" 
    Ibid.
     (quoting State ex rel. R.V., 
    280 N.J. Super. 118
    , 121 (App. Div. 1995)). We must "give deference to those findings
    of the trial judge which are substantially influenced by [the] opportunity to hear
    and see the witnesses and to have the 'feel' of the case, which a reviewing court
    cannot enjoy." State v. Locurto, 
    157 N.J. 463
    , 471 (1999) (quoting State v.
    Johnson, 
    42 N.J. 146
    , 161 (1964)).
    "[T]he factual findings of the trial court are binding on appeal when
    supported by adequate, substantial, credible evidence." State ex rel. W.M., 
    364 N.J. Super. 155
    , 165 (App. Div. 2003). We, however, review conclusions of
    law de novo. State v. Hubbard, 
    222 N.J. 249
    , 263 (2015).
    We first address defendant's contention that a judgment of acquittal should
    have been entered on all three counts because he had good cause for each
    violation. N.J.S.A. 2C:43-6.4(d) provides: "A person who violates a condition
    of a special sentence of community supervision for life . . . without good cause
    is guilty of a crime[.]" On appeal, defendant does not challenge whether he was
    on CSL or knowingly violated the three conditions for which he was found guilty
    A-1428-16T2
    11
    of violating. Defendant only challenges the final element: that the violations
    were "without good cause."
    As "without good cause" is an element of the crime, it is the State's burden
    to prove the lack of good cause beyond a reasonable doubt.              See State v.
    Kiriakakis, 
    235 N.J. 420
    , 431 (2018) ("The United States Constitution
    guarantees the accused the right to trial by jury and places the burden on the
    State to prove every element of the offense beyond a reasonable doubt ."). In
    assessing whether defendant had good cause for any of the three violations
    alleged, the trial court applied the definition of "good cause" contained in the
    model jury charge: "Good cause is defined as a substantial reason that affords
    a legal excuse for the failure to abide by the condition." Model Jury Charge
    (Criminal), "Violation of a Condition of Parole Supervision for Life Fourth
    Degree (N.J.S.A. 2C:43-6.4(d))" (rev. January 1, 2014)). The Model Charge
    notes:
    The statute does not define good cause. It has been
    noted that "it is impossible to lay down a universal
    definition of good cause for disclosure and inspection,
    or an all-inclusive and definitive catalogue of all of the
    circumstances to be considered by a court in
    determining whether there is good cause." Ullmann v.
    Hartford Fire Ins. Co., 
    87 N.J. Super. 409
    , 414 (App.
    Div. 1965). Since the statute does not define good
    cause, the definition in this Model Jury Charge is
    adapted from the term’s use in cases involving the
    A-1428-16T2
    12
    opening of a default which would appear to be
    analogous to the conduct being proscribed by the
    alleged crime as it relates to a party’s actions as
    opposed to the attorney’s actions. See Nemeth v. Otis
    Elevator Co., 
    55 N.J. Super. 493
    , 497 (App. Div. 1959)
    ("Whenever the words 'good cause' appear in statutes or
    rules relating to the opening of defaults they mean (in
    the absence of other modifying or controlling words) a
    substantial reason that affords legal excuse for the
    default." ). See also R. 4:43.3.
    [Id. at 8 n. 17.]
    Although we have not previously interpreted the "good cause" standard in
    a criminal context, New Jersey courts have interpreted the term "good cause" in
    other contexts.   See Brady v. Bd. of Review, 
    152 N.J. 197
    , 214 (1997)
    ("Although 'good cause' is not statutorily defined [in the Unemployment
    Compensation Act], New Jersey courts have construed the phrase to mean cause
    sufficient to justify an employee's voluntarily leaving the ranks of the employed
    and joining the ranks of the unemployed." (internal quotation omitted));
    Templeton Arms v. Feins, 
    220 N.J. Super. 1
    , 21 (App. Div. 1987) ("The good
    cause standard, then, is flexible, taking its shape from the particular facts to
    which it is applied. Good cause is distinct from good faith, although good faith
    is relevant in evaluating good cause."). In this case, we find that the trial judge
    correctly applied the standard for "good cause" contained in the Model Jury
    Charge. See Estate of Kotsovska ex rel. Kotsovska v. Liebman, 
    221 N.J. 568
    ,
    A-1428-16T2
    13
    595 (2015) ("Generally speaking, the language contained in any model charge
    results from the considered discussion amongst experienced jurists and
    practitioners."); State v. R.B., 
    183 N.J. 308
    , 325 (2005) ("[I]nsofar as consistent
    with and modified to meet the facts adduced at trial, model jury charges should
    be followed and read in their entirety to the jury.").
    Accordingly,     giving   deference    to   the    trial   court's   credibility
    determinations and factual findings, we find that there is sufficient credible
    evidence in the record to prove beyond a reasonable doubt that defendant did
    not have good cause to violate the conditions of his CSL. As to count one and
    two, the trial court correctly concluded that defendant's belief that Parole Officer
    Kowal already knew about the arrest and TRO from other law enforcement
    officers did not constitute "a substantial reason that affords a legal excuse for
    the failure" to affirmatively disclose the arrest and TRO to Parole Officer Kowal.
    Similarly, as to count three, we agree with the trial judge that defendant's
    concerns about losing his job if he did not immediately reinstate his license do
    not rise to the level of good cause. As the trial judge noted, defendant did not
    make any follow-up phone calls or attempt to reschedule the meeting after he
    refused to report on June 17. Under the circumstances of this case, defendant's
    A-1428-16T2
    14
    concerns about losing his job are not "a substantial reason that affords a legal
    excuse for the failure" to report to his parole officer as instructed.
    We next address defendant's argument that his sentence as a third degree
    offender violates the Ex Post Facto Clauses of the United States and New Jersey
    Constitutions. The 2014 amendment to N.J.S.A. 2C:43-6.4, L. 2013, c. 214, §
    4 (effective July 1, 2014), increased the penalties for a violation of a CSL
    condition:
    Before the 2014 Amendment, a violation of the terms
    of CSL was punishable as a fourth-degree crime. See
    L. 1994, c. 130, § 2. The 2014 Amendment increased
    a CSL violation to a third-degree crime punishable by
    a presumptive term of imprisonment, and such a
    violation converted CSL to parole supervision for life
    (PSL). See N.J.S.A. 2C:43-6.4(a) and (d); see also L.
    2013, c. 214, § 4.
    [Hester, 233 N.J. at 385.]
    In Hester, the Court held that the retroactive application of the 2014
    amendment to N.J.S.A. 2C:43-6.4 to defendants who had been sentenced to CSL
    prior to the effective date of the amendment violated the Ex Post Facto Clauses
    of the United States and New Jersey Constitutions. Id. at 398. Accordingly, as
    defendant was sentenced to CSL prior to July 1, 2014, we remand for the entry
    of an amended judgment of conviction reflecting fourth-degree violations of
    CSL conditions and the removal of the PSL component of the sentence. See
    A-1428-16T2
    15
    State v. Perez, 
    220 N.J. 423
    , 443 (2015) (remanding for resentencing to correct
    Ex Post Facto violation).
    In summary, we affirm defendant's conviction. We remand for the entry
    of an amended judgment of conviction reflecting fourth-degree offenses and the
    removal of PSL component of the sentence. We do not retain jurisdiction.
    A-1428-16T2
    16