On appeal from the Superior Court of New Jersey, Law Division, Union County.
Approved for Publication July 17, 1995.
Before Judges Michels, Stern and Humphreys. The opinion of the court was delivered by Michels, P.j.a.d.
The opinion of the court was delivered by: Michels
Tried to a jury, defendant Charles E. Hicks was found guilty of possession of heroin, a crime of the third degree, in violation of N.J.S.A. 2C:35-10a(1). The trial court committed defendant to the custody of the Commissioner of the Department of Corrections for five years, imposed a $1,000 Drug Enforcement Demand Reduction penalty, a $50 Forensic Laboratory fee and a $50 Violent Crimes Compensation Board penalty, and suspended defendant's driving privileges in New Jersey for six months. Defendant appeals.
Defendant seeks a reversal of his conviction and a remand for a new trial, contending that the trial court erred when, contrary to State v. Brunson, 132 N.J. 377, 625 A.2d 1085 (1993), it permitted the State to elicit the length of sentences imposed on his five prior convictions, all of which the State had elected to sanitize.
At a hearing pursuant to State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978), and Brunson, the State informed the trial court that if defendant elected to testify, it would attack his credibility by introducing his five prior convictions: (1) a January 1979 conviction for larceny from a person, for which he was sentenced to an indeterminate term; (2) a March 1979 conviction for theft by deception, for which he was sentenced to an indeterminate term; (3) an October 1982 conviction for second degree aggravated assault, for which he was sentenced to a ten-year term with a four-year period of parole ineligibility; (4) an October 1990 conviction for third degree possession of a controlled dangerous substance, for which he was sentenced to a five-year term; and (5) another October 1990 conviction (under separate indictment) for third degree distribution of a controlled dangerous substance within 1,000 feet of school property, for which he was sentenced to a five-year term with a two-year period of parole ineligibility. The State further notified the trial court that because the more recent convictions were "similar" to the charged offense, it would not refer to the nature of any of the convictions, and would instead limit that portion of its cross-examination to the dates and degrees of the convictions, and the sentences imposed.
Defendant objected, first contending that his prior convictions were inadmissible under Sands, since their probative value was substantially outweighed by their capacity for prejudice. Defendant, relying on Brunson and State v. Williams, 267 N.J. Super. 514, 631 A.2d 1285 (Law Div. 1993), contended further that if the convictions were admitted, the State should be precluded from referring to the sentences imposed thereon, and should instead be limited to introducing only their number, degrees and dates.
The trial court found that all of defendant's convictions were admissible under Sands, and noting the State's voluntary proffer to sanitize them, rejected defendant's argument respecting the inadmissibility of sentencing information. The trial court observed that "the ultimate [legal] Conclusion [regarding the use of sentencing information] reached was prior to Brunson " and that under the earlier cases, "the Court would have permitted reference to the sentence in order for a jury to understand the gravity of the offense." The trial court held, therefore, that Brunson did not prohibit the introduction of sentencing information and chose not to follow Williams:
By sanitizing [defendant's prior record] we now tell them we don't want you to know, and as in this case that the defendant may well have been involved with drugs before because it may, certainly, impact on them saying, well, if he [was] before he must be now, even though they were instructed not to do that. So, that we take that taint away from them and we tell them third degree offense, which means absolutely nothing to most jurors any more than a second degree offense means anything more than a fourth degree or a first degree [offense], because most jurors do not know the weight to be given. The only way they would know is by the severity of the sentence imposed. The anomaly is, if it's dissimilar you can reference it. If it's similar you can't. Yet the protection in Brunson was [designed] not to get the specific act named to the jury of similar offenses, for the reasons set forth in Brunson.
I, therefore, feel that State v. Williams is interesting, but not persuasive. I don't feel it's applicable. I will not follow it, and should the defendant choose to testify as to the five prior convictions . . . I've already indicated the State will be permitted to elicit the sentence in addition to that which I've already indicated would be available to the State.
The admission of prior convictions to impeach credibility is governed by N.J.S.A. 2A:81-12, which provides:
For the purpose of affecting the credibility of any witness, his interest in the result of the action, proceeding or matter[,] or his conviction of any crime may be shown by examination or otherwise, and his answers may be contradicted by other evidence. Conviction of crime may be proved by the production of the record thereof, but no conviction of an offender shall be received in ...