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State v. Person


April 16, 2007


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 2002-11-1493.

Per curiam.


Submitted: February 28, 2007

Before Judges Cuff, Winkelstein and Baxter.

On November 7, 2002, a Burlington County Grand Jury returned a seven-count indictment, Indictment No. 2002-11-1493-I, charging defendant Larry Person and his brother Lyle Person with first-degree robbery, contrary to N.J.S.A. 2C:15-1a(1) (count one); two counts of second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1b(1) (counts two and three); second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a (count four); third-degree unlawful possession of a weapon, contrary to N.J.S.A. 2C:39-5b (count five); first-degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count six). The indictment also charged defendant, but not his co-defendant, with second-degree possession of a firearm by a convicted person, contrary to N.J.S.A. 2C:39-7b (count seven).*fn1

Defendant's first trial ended in a mistrial, and he was retried. At the close of the State's case, both defendants moved for a judgment of acquittal pursuant to Rule 3:18-1; the court denied the motions. The jury found defendant guilty of all charges, except count seven.

At sentencing, the judge denied the State's request to impose an extended term. Following merger of counts four and six*fn2 with count one, the judge imposed a sentence of eighteen years imprisonment on count one, eight years imprisonment on count two, and eight years imprisonment on count three. Each term is subject to an eighty-five percent period of parole ineligibility. The judge also ordered that each sentence run consecutive to the other. The aggregate term is thirty-four years with a twenty-eight year, eight-month period of parole ineligibility. The judge also imposed a concurrent four-year "flat" term on count five.

On November 5, 2000, Maxim Samsonov and Sergei Minion were working at a Texaco gas station in Willingboro. Samsonov was working in the store on the premises, while Minion operated the pump. At some point that evening, a young black man, later identified by Samsonov in a police photo array as co-defendant Lyle Person, entered the store, purchased a cigar and requested pornographic magazines. Samsonov went to a side room to retrieve the magazines. When he returned, the man was gone and another man was standing behind the cash register. The other man, later identified as defendant Larry Person, had opened the cash register and was removing money. He wore a black jacket,*fn3 blue jeans and a black hat "with some holes where the eyes are supposed to be." Samsonov was unable to see his face.

When Samsonov approached the register, defendant told him "don't move." For the first time, Samsonov noticed a gun in defendant's hand. Samsonov took hold of defendant's hands and attempted to "prevent him from shooting," but defendant shot Samsonov once in the shoulder. Minion entered the store, pulled defendant from Samsonov, and threw defendant to the floor. Defendant and Minion began to struggle. At some point, the fight moved into the garage adjacent to the store. Samsonov heard three gunshots from the garage and later learned that defendant had shot Minion in the chest and stomach.

The entire scuffle between Minion and defendant lasted approximately a minute. At some point, Samsonov stepped on defendant's hand, removed the gun from defendant and threw it away from the area of the fight. Defendant eventually crawled out of the store, without his hat, sweatshirt, and a sneaker. Though he never saw defendant's face, Samsonov was able to determine that the shooter was an African-American with black braided hair.

Samsonov called the police. Officers from the Burlington County Prosecutor's Office and the Willingboro Police Department arrived on the scene, took photographs and secured into evidence the items defendant left behind. Samsonov was taken to the hospital, where he remained for a week or two.

At trial, Samsonov*fn4 was shown photographs of a sweatshirt and hat, which he identified as the ones worn by the man who opened the register. On cross-examination, when shown an exhibit that the State advanced as the hat worn by the shooter, Samsonov stated that he did not see any eye holes and asked "[i]s this the same hat? . . . I'm not sure it[] [is]. . . ." The hat shown to Samsonov at trial was brown; Samsonov recalled a black hat.

At trial, Detective William McDowell of the Burlington County Prosecutor's Office, who took photographs of the crime scene, noted that one photograph depicted "a close up view of the brown hat that was found right by the sweat shirt." He testified that though the hat "looks black," it was in fact brown, and fluorescent lighting often changes the appearance of colors. He also identified the hat in court, describing it as brown in color, and confirmed it was the same hat depicted in the photograph. He was able to identify the hat because his handwriting was on the outside of the plastic bag in which it was kept.

After securing the hat at the scene, McDowell placed it into an "evidence vault" until he removed it to take it to the State Police Central Crime Laboratory. McDowell also testified that he took "buccal" swabs from the inside of defendant's mouth pursuant to a search warrant. These swabs were used as a "control" in testing the clothing recovered from the scene for the presence of defendant's DNA. McDowell brought these swabs and the hat to the State Police lab on June 19, 2001. The sneaker and sweatshirt recovered at the crime scene were transported to the State Police lab by Burlington County Prosecutor's Office Detective Kimberly Bogie on May 10, 2004.

At trial, State Police Central Crime Lab forensic scientist Raymond Klama testified by videotape as an expert in the field of biological fluids and biological/biochemical stain analysis. He testified that he swabbed the inside of the hat, sweatshirt and sneaker recovered at the scene, to collect skin cells that could be tested by the lab's DNA Unit. He had also received the "buccal control swabs." He testified that at the time of the swabbing, he did not know if the swabs picked up any testable material. He also explained that there was a better chance of recovering testable skin cells if the item swabbed had come into direct contact with the skin. Sneakers very rarely yield such samples because most people wear socks, which act as a barrier preventing the transfer of cells. Likewise, an undershirt can impede the collection of cells from the inside of an outer shirt.

Klama also conducted testing that revealed blood stains on the outside of the sneaker and sweatshirt. He cut the piece of cloth containing the bloodstain from the sweatshirt and placed it in an envelope so the DNA Unit could test it. Prior to swabbing the hat, Klama removed several hairs of different colors, types and lengths from inside it and saved them for future testing. The hairs would be examined only if the DNA Unit could not obtain a full DNA profile from the samples produced by the swabbing. The hair was never analyzed.

At trial, Christopher Huber, a forensic scientist with the New Jersey State Police DNA Laboratory, testified as an expert in DNA testing and analysis. He tested the submissions from the State that had been prepared by Klama. He provided a detailed explanation of the DNA testing process to the jury.

Huber then opined that "Larry Person [was] identified as . . . the major contributor of the DNA profile found" inside the hat. The sample from the inside of the hat, which matched the control sample taken from defendant, "occurs in approximately 1 in 814 billion of the African American population, 1 in 885 billion in the Caucasian population, and 1 in 3.3 trillion of the Hispanic population." In a "hypothetical world of 814 billion African-Americans," "[w]e expect to see that profile once." Additionally, defendant could not "be excluded as being a partial contributor to the mixed DNA profile found" on the outside of the hat. The number of people who could not be excluded as having contributed that profile were one in 100,000 of the African-American population, one in 68,800 of the Caucasian population, and one in 87,900 of the Hispanic population.

Huber tested the blood stains on the left and right cuff of the sweatshirt and on the sneaker, and excluded defendant from all three stains. Huber also determined that he could not exclude defendant as a contributor to the sample from the inside of the sneaker. Defendant's DNA profile was present on the collar of the sweatshirt; the specimen from the collar "occurs in approximately one in 2,100 of the African-American population, [one] in 882 of the Caucasian population and [one] in 3,850 of the Hispanic population."

On appeal, defendant raises the following arguments:










Defendant's contends that the recent ruling announced in State v. W.A., 184 N.J. 45 (2005), and his absence from sidebar discussions during voir dire require a new trial. We disagree.

In W.A., the Court held that a defendant has a right to be present at every stage of his trial, including sidebar conferences during jury selection. Id. at 59. On the other hand, "a defendant who does not affirmatively request the right to participate in voir dire sidebars should be considered to have waived the right, . . . ." Id. at 63.

Here, defendant admits that he did not specifically request to be present at any sidebar conference during voir dire. Contrary to defendant's argument, it is of no consequence that the trial judge suggested that only attorneys would participate in sidebar conferences during voir dire. First, unlike in W.A., the trial judge in this case did not affirmatively state that he would not allow defendant to participate in voir dire sidebar conferences. Id. at 65. Second, defendant in this case never asserted his right to be present at sidebar conferences. Thus, the trial judge's statement that a prospective juror would be asked to come to sidebar to discuss any disqualification with the judge and attorneys cannot be considered a definitive ruling that any request to participate at sidebar conferences would not be honored. Finally, the W.A. rule is to be applied prospectively only. State v. Colbert, ___ N.J. ___, ___ (2007) (slip op. at 12).


Defendant next urges that the prosecutor vouched for the credibility of the law enforcement officers in his comments during summation concerning the conflicting testimony about the color of the hat worn by one of the robbers. He also argues that the prosecutor offered opinion testimony concerning perception. Defendant concedes that he raised no objection at trial; therefore, defendant cannot be afforded any relief unless we find that his comments amount to plain error. R. 2:10-2; State v. Tilghman, 345 N.J. Super. 571, 575 (App. Div. 2001). Defendant's contentions are without merit. Our review of the prosecutor's summation reveals no error, much less plain error.

We will not disturb a conviction unless the misconduct of the prosecutor deprived defendant of a fair trial. State v. Zola, 112 N.J. 384, 426 (1988) (citing State v. Ramseur, 106 N.J. 123, 322 (1987)), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989). "The [misconduct] must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Smith, 167 N.J. 158 181-82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 112 S.Ct. 136, 151 L.Ed. 2d 89 (2001)). This court "'must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred.'" State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S.Ct. 1306 122 L.Ed. 2d 694 (1993)).

The courts of this State have consistently recognized that it is wholly inappropriate for a prosecutor to bolster the credibility of a police witness by mentioning that the officer would be risking his or her career by lying in his trial testimony. Frost, supra, 158 N.J. at 85-86. Here, defendant takes issue with the following statement:

Let's talk about a couple of the defense arguments . . . . The color of the hat. Again, when we put the pictures up on the screen, you don't have a whole lot of time to look at them. I'm confident when you look at the hat you're going to see it's the same hat that's in evidence. Ladies, a lot of time when you wear brown it looks different in different lights. But what does that mean, the fact that the color of the hat is wrong? Are they suggesting that the hat was planted there? Are they suggesting that they're going to let the guilty go free for an opportunity to just throw Larry Person's hat in there? What does that mean? What does that suggest? That's looking for a ghost. What I'm suggesting to you is the evidence is what the evidence is. . . . The description of human events are always subject to slight misperceptions. My explanation to you, ladies and gentlemen, is he simply got it wrong. He had something covering his face and the hat. I don't believe he was walking around with the hat pulled over his eyes trying to sho0t people although at some point when they're ripping it off his head he may have been but that wasn't his original intent.

Defendant claims that by stating "Are they suggesting that they're going to let the guilty go free for an opportunity to just throw Larry Person's hat in there?", the prosecutor improperly "vouch[ed] for the credibility of the State's law enforcement witnesses."

The State asserts that it simply sought to suggest to the jury that defendant hoped that confusion over the color of the hat would carry the day for the defense. The State also claims that these comments were a measured response to the defense's closing argument. Defense counsel argued that the gunman wore a black hat, a photo depicted a black hat, yet the detective testified that the color of the hat was actually brown and cited lighting as the cause of the confusion.

While the intent of the challenged passage is not entirely clear, the State's interpretation is the more reasonable one and, as such, the challenged comment was appropriate. Moreover, the prosecutor did not explicitly or implicitly reference police credibility, nor did he touch upon the impact of any officer's testimony on any officer's career.

Frost, supra, 158 N.J. at 85-86, catalogues a number of situations where comments on credibility were improper. The comments made here are simply not of that type or magnitude. The prosecutor did not ask the officer "'is your career and the penalties that you would sustain for perjuring yourself worth the conviction . . . ?'" Id. at 85 (quoting State v. Staples, 263 N.J. Super. 602, 604 (App. Div. 1993)). Nor did he tell the jury that the officers who testified were "'good men who leave their family [and] work day and night'" and that they would not "'jeopardize their careers'" over defendant. Id. at 85-86 (quoting State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991)). Nor did he say that there "'is a lot of harm that could come to'" an officer from lying because the officer's "'career would be finished in a minute.'"

Id. at 86 (quoting State v. West, 145 N.J. Super. 226, 233-34 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977)).

Additionally, as the State contends, even if defendant's interpretation is correct, those comments should be considered a measured response to defense counsel's closing. See State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001).

In addition to arguing that the prosecutor improperly vouched for the credibility of police witnesses, defendant also argues that the prosecutor "offer[ed] opinion testimony to the jury concerning perception. Worse, the prosecutor completely ma[de] up evidence in his closing argument, which is not anywhere revealed in the record, that Larry Person had something else covering his face which caused Maxim Samsonov to . . . misperceive what the gunman was wearing." Defendant also argues there was no evidence that the robber wore headgear that covered his face or that the lighting in the store had the capacity to distort color.

Contrary to defendant's argument, the evidence fully supports the prosecutor's argument. The brown hat was repeatedly mistaken for a black hat. Even the detective at the scene did so. The victim emphasized that he was under great stress during the robbery. He never affirmatively stated that the hat he was shown at trial was not the hat worn by the shooter, although he expressed some hesitation that it was the same hat. The victim did, however, testify that the shooter wore a hat and left the premises without the hat he had been wearing. The detective at the scene introduced in evidence the three hats retrieved at the scene, the "pull over cap," and two baseball hats, which belonged to the victims. The detective further testified that the hat was brown, even though it looked black, and that lighting often affects the appearance of colors. He also testified that the sweatshirt recovered from the premises had a hood on it.

When viewed in light of the evidence adduced at trial, the prosecutor's comments were proper, especially when analyzed under the plain error standard. It was appropriate for the prosecutor to comment on human misperceptions, including the misperception of his own witness. Samsonov noted that his perception was affected by the stress of the situation. Thus, it was possible for the victim to misperceive the brown hat as a black hat. The detective at the scene of the robbery noted that the hat appeared black in the photographs he took, even though it was brown, and that lighting affects a person's perception of colors.

Additionally, the sweatshirt recovered at the scene had a hood on it. Samsonov may have believed that the pulled up hood was part of whatever was covering the shooter's face. Though the prosecutor's comment that the shooter "had something covering his face and the hat" may not have been derived directly from the victim's testimony, it was a reasonable inference from the evidence presented, and by itself was not "clearly capable of producing an unjust result." See R. 2:10-2. All of the prosecutor's comments during summation were "reasonably related," Frost, supra, 158 N.J. at 82, to the evidence produced at trial. He drew only "reasonable inferences," Zola, supra, 112 N.J. at 426, from that evidence.


Defendant argues that his conviction is against the weight of the evidence. He concedes that he did not file a motion for a new trial but seeks to argue that his motion for a judgment of acquittal made at the close of the State's case satisfies that requirement. At sentencing, despite the absence of a motion, the judge stated that the verdict could not be considered a miscarriage of justice.

We note that a motion for a judgment of acquittal, governed by Rule 3:18-1, and a motion for a new trial, governed by Rule 3:20-1, are evaluated against different standards. The motion for acquittal requires the trial judge to give the State the benefit of all of its favorable evidence and all of the favorable inferences from that evidence and then determine whether a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). By contrast, a motion for a new trial based on the weight of the evidence requires a judge to "sift through the evidence to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (internal quotations omitted), certif. denied, 134 N.J. 476 (1993); see also State v. Brown, 80 N.J. 587, 591, 594 (1979) (repeating the "basic test" for challenging the sufficiency of the evidence and noting that, for the appellate court, a "meticulous and objective analysis of the evidence is imperative").

Though the appellate court "sift[s] through . . . the evidence," it may not overturn the verdict merely because it might have reached a different result on the same evidence. Smith, supra, 262 N.J. Super. at 512. Indeed, "[a]ppellate intervention is warranted only to correct an 'injustice resulting from a plain and obvious failure of the jury to perform its function.'" Ibid. (quoting State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985)). In those cases where the jury was required to assess witness credibility, an appellate court will intercede only in the face of clear evidence of mistake or prejudice. Ibid. (citing State v. Haines, 20 N.J. 438, 446-67 (1956)). In short, the judge must be convinced that a new trial is required by the interests of justice. R. 3:20-1.

Due to the different standards, we have held that a motion for acquittal at the close of the State's case under Rule 3:18-1 does not preserve for appeal the issue of whether the verdict was against the weight of the evidence. See Johnson, supra, 203 N.J. Super. at 133-34 ("A motion made at the close of the State's case is controlled by a different standard than a motion for a new trial"); see also State v. Pickett, 241 N.J. Super. 259, 264-68 (analyzing separately the appellant's claim that his Rule 3:18-1 motion for acquittal was improperly denied and his argument that the verdict was against the weight of the evidence).

Here, we elect to consider this argument because the trial judge at sentencing obliquely addressed the issue in the course of his rejection of defendant's claim of innocence. We, like the trial judge, conclude that the evidence at trial was sufficient for a reasonable jury to find defendant guilty.

Defendant was tied to the crime scene by two pieces of substantive physical evidence. The hat demonstrated a virtually conclusive link between defendant and the crime scene; the sweatshirt formed a somewhat weaker, but still strong, link. The sneaker found at the scene merely demonstrated that defendant could not be ruled out as having contributed DNA.

While there were some discrepancies regarding the color of the hat, accounts remained consistent that it was dark in color, either black or brown. The chain of custody evidence established that the hat retrieved at the scene was the hat introduced in evidence at trial. DNA testing revealed that "in a hypothetical world of 814 billion African-Americans," the DNA profile of the sample taken from the inside of the cap would appear only once. The fact that defendant's DNA was found inside the hat worn by the perpetrator at the crime scene is strong evidence that it was defendant who committed the crime. This conclusion was also bolstered by the expert's testimony that defendant was a likely contributor to the DNA material found on the collar of the sweatshirt. Furthermore, at trial, the victim identified the sweatshirt and hat that had been tested as the jacket and hat worn by the perpetrator. Additionally, in a photo array shown to him before trial, the victim identified defendant's brother and co-defendant, Lyle Person, as the individual who entered the store minutes before the robbery to buy a cigar and a pornographic magazine. There was, therefore, substantial evidence from which a reasonable jury could have found defendant guilty beyond a reasonable doubt.


Defendant is serving an aggregate term of thirty-four years in prison. The sentence is composed of three consecutive terms: eighteen years for armed robbery and eight years on each aggravated assault conviction. Defendant argues that the judge failed to articulate the reasons for imposition of consecutive terms and that each term exceeds the presumptive term; therefore, he must be resentenced. We agree and remand for resentencing.

The trial judge found aggravating factors three, six and nine applied in this case. He also found no mitigating factors. These factors served as the foundation for the ultimate finding that the aggravating factors substantially outweighed the nonexistent mitigating factors and warranted a term of imprisonment above the respective presumptive terms of fifteen and seven years. In State v. Natale, 184 N.J. 458 (2005) (Natale II) the Court, in line with decisions of the United States Supreme Court, noted that, "'[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.'" Id. at 474 (quoting Apprendi v. N.J., 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed. 2d 435, 455 (2000)). The statutory maximum "'is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.'" Id. at 476 (quoting Blakely v. Washington, 542 U.S. 296, 302, 124 S.Ct. 2531, 2537, 159 L.Ed. 2d 403, 413 (2004)). In Natale II, the Court found that in New Jersey, the presumptive term constituted the "statutory maximum"; and that the existing system of above-presumptive term sentencing was unconstitutional. Id. at 484. To conform the sentencing provisions of the Criminal Code to these rulings, the Court eliminated the presumptive term from the Code. Id. at 487.

In State v. Thomas, 188 N.J. 137, 152-54 (2006), the Court considered the bounds of the "recidivism exception." This exception was recognized in Apprendi, supra, where the Court stated, "'recidivism . . . is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence.'" 530 U.S. at 488, 120 S.Ct. at 2361-62, 147 L.Ed. 2d at 454 (quoting Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S.Ct. 1219, 1230, 140 L.Ed. 2d 350, 368 (1998)). In Thomas, supra, the defendant argued that though the "recidivism" aggravating factors (three, six, and nine) are "related to prior conviction evidence, each requires findings that encompass more than the mere fact of the past conviction," and thus, a sentence above the presumptive term predicated on a finding of those factors necessarily requires constitutionally barred judicial fact-finding. 188 N.J. at 141.

The Thomas Court preliminarily noted that "[w]ith respect to pre-Natale ordinary-term sentences, defendants whose sentences were above the presumptive sentence have been vacated and remanded for re-determination without use of a required presumptive sentence, regardless of whether the particular above-the-presumptive sentence was based on aggravating factors three and nine," and then continued on to the merits of the defendant's argument. Id. at 152. The Court also observed that "it is more prudent, constitutionally, to construe narrowly the 'facts' that [the] prior-conviction exception permits a . . . court to consider." Id. at 153. Therefore, the Court held, "judicial fact-finding must be limited to the finding of the existence of yhr prior conviction." Ibid.

As a practical matter, it is not always clear that a court's finding of aggravating factors (3), (6), and/or (9), was based exclusively on a defendant's prior criminal history. Id. at 152. For this reason, the Thomas Court had "no confidence" that any defendants who, prior to Natale, were sentenced above the presumptive term on the basis of factors (3), (6), and (9) were sentenced exclusively on the finding of the existence of a prior conviction. Id. at 153. "Indeed, implicit in a sentencing court's assessment of . . . [factors (3), (6), and (9)] is a qualitative assessment that we . . . expect the court to make." Ibid. All the factors relating to recidivism "involve determinations that go beyond the simple finding of a criminal history and include an evaluation and judgment about the individual in light of his . . . history." Ibid.

Here, in light of the aggravating factors found, the sentences on counts one, two and three must be vacated and we remand for resentence in light of the principles announced in Natale II and Thomas.

On remand, the trial judge shall also explain the reasons for imposition of consecutive terms as required by State v. Yarbough, 100 N.J. 627, 643 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We emphasize that we do not hold that consecutive terms may not be imposed in this case. There is no constitutional impediment to the imposition of consecutive terms. State v. Abdullah, 184 N.J. 497, 514 (2005). A consideration of the Yarbough factors is, however, a qualitative assessment. State v. Ellis, 346 N.J. Super. 583, 594 (App. Div.), aff'd, 174 N.J. 535 (2002). The absence of a statement of reasons inhibits our appellate function.

The convictions are affirmed; the sentence is vacated and remanded for resentencing.

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