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State v. Hogan

January 24, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENNY HOGAN, DEFENDANT-APPELLANT.



Argued March 29, 1995 - Decided May 9, 1995. Remanded by New Jersey Supreme Court June 17, 1996. On appeal from the Superior Court of New Jersey, Law Division, Hudson County.

Approved for Publication January 24, 1997.

Before Judges Muir, Jr., Kleiner and Coburn. The opinion of the court was delivered by Kleiner, J.A.D.

The opinion of the court was delivered by: Kleiner

The opinion of the court was delivered by

KLEINER, J.A.D.

Defendant Benny Hogan was indicted on January 12, 1990, for robbery and burglary allegedly committed on August 29, 1989. Thereafter, on August 15, 1990, a Hudson County grand jury returned a superseding indictment charging defendant with the following crimes: armed robbery, contrary to N.J.S.A. 2C:15-1 (count one); robbery, contrary to N.J.S.A. 2C:15-1 (count two); burglary while displaying a deadly weapon, contrary to N.J.S.A. 2C:18-2 (count three); burglary, contrary to N.J.S.A. 2C:18-2 (count four); aggravated assault, contrary to N.J.S.A. 2C:12-1b(4) (count five); unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b (count six); and possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4 (count seven). Defendant was found guilty of all counts except count five.

After defendant's motions for judgment notwithstanding the verdict and a new trial were denied, the trial court determined that defendant was eligible for an extended term. The court sentenced defendant to a custodial term of fifty years with a sixteen and two-third year period of parole ineligibility on count one and a concurrent term of fifteen years with a five-year period of parole ineligibility on count three. Counts two, four, six, and seven were merged into counts one and three.

In defendant's initial appeal, he raised nine points of error:

POINT I

THE TRIAL COURT COMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S PRE-TRIAL MOTION TO DISMISS THE INDICTMENT.

POINT II

THE TRIAL COURT COMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTION FOR MISTRIAL AFTER THE PROSECUTOR'S OPENING STATEMENT.

POINT III

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FIRST, RESERVING ON, AND THEN DENYING, THE DEFENDANT'S MOTION WITH RESPECT TO THE UNAUTHENTICATED PIECE OF PAPER WHICH THE PROSECUTOR SOUGHT TO PRESENT TO THE JURY.

POINT IV

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE PROSECUTOR TO NEUTRALIZE HIS OWN WITNESS (NOT RAISED BELOW).

POINT V

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN PERMITTING THE PROSECUTOR TO (1) ALLUDE TO THE DEFENDANT'S PRIOR CRIMINAL RECORD (2) ELICIT HEARSAY AND (3) LEAD THE WITNESS.

POINT VI

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FAILING TO ATTEMPT MORE DILIGENTLY TO ELIMINATE THE PREJUDICE BY ADEQUATELY CHARGING THE JURY.

POINT VII

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTIONS FOR A JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT OR, IN THE ALTERNATIVE, A NEW TRIAL.

POINT VIII

ASSUMING, ARGUENDO, THAT THE INDIVIDUAL ERRORS DO NOT CONSTITUTE REVERSIBLE ERROR, THE ERRORS AGGREGATELY DENIED THE DEFENDANT A FAIR HEARING.

POINT IX

THE DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

In our opinion, State v. Hogan, 281 N.J. Super. 285, 657 A.2d 462 (App. Div. 1995), we reversed predicated solely on point one of defendant's appeal. We therefore concluded that we had no need to address the remaining points of error. We stayed our decision to permit the State the opportunity to seek certification, which was granted. 142 N.J. 458, 663 A.2d 1364 (1995). Our decision was reversed, 144 N.J. 216, 676 A.2d 533 (1996), and defendant's appeal was remanded for consideration of the remaining points of error.

On defendant's motion, we granted defendant leave to file a supplemental brief, to which the State has responded. In his supplemental brief, defendant raises five points of error:

POINT I

REFERENCES TO DEFENDANT HAVING BEEN IN PRISON BEFORE THE COMMISSION OF THE INSTANT OFFENSE, IN COMBINATION WITH THE PROSECUTOR'S REFERENCE IN HIS OPENING STATEMENT TO THE FACT THAT MS. DAYE IDENTIFIED DEFENDANT'S PHOTOGRAPH AT THE "BUREAU OF CRIMINAL IDENTIFICATION," AND GRATUITOUS TESTIMONY CONCERNING DEFENDANT BEING CONSIDERED "ARMED AND DANGEROUS" WHEN LATER ARRESTED, VIOLATED EVID. R. 55 AND 4. THE JUDGE'S FAILURE TO GIVE ANY CURATIVE OR LIMITING INSTRUCTIONS WHATSOEVER COMPOUNDED THESE ERRORS, REQUIRING REVERSALS OF DEFENDANT'S CONVICTIONS.

POINT II

THE PROSECUTOR'S CONDUCT DURING TRIAL EXCEEDED THE BOUNDS OF PROPRIETY BY COMMENTING ON MATTERS NOT IN EVIDENCE, BLATANTLY MISCHARACTERIZING THE TESTIMONY, ELICITING INADMISSIBLE EVIDENCE, AND ACCUSING DEFENSE COUNSEL OF MISCONDUCT, THEREBY DEPRIVING THE DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 10)

POINT III

THE TRIAL COURT'S INSTRUCTIONS WITH REGARD TO ACCOMPLICE LIABILITY WERE PREJUDICIALLY ...


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