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State v. Lefurge

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 6, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
KENNETH G. LEFURGE, JR., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Ind. No. 05-04-0558.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 24, 2007

Before Judges Lihotz and Gilroy.

On April 27, 2005, defendant Kenneth LeFurge and co-defendant Andrew Vadas were indicted on Ocean County indictment number 05-04-00558, charging them with first-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count two); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count three); and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7b (count four). Before trial, the State dismissed counts two, three and four. A juvenile complaint was also issued against A.W., on charges stemming from the same incident.

Immediately before trial, Vadas accepted a plea agreement, which provided that he would enter a guilty plea and testify against defendant in exchange for a three-year sentence, with a No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA) 85% parole ineligibility period. A.W. also accepted a plea arrangement in his delinquency adjudication in exchange for his testimony. After a two-day jury trial, defendant was found guilty of first-degree robbery.

At sentencing on March 17, 2006, the State's motion for an extended sentence was denied. The sentencing judge found aggravating factors three (risk defendant will commit another offense) and nine (need to deter defendant and others from violating the law) were present, as were mitigating factors two (no serious harm contemplated) and five (victim's conduct facilitated the commission of the offense). In balancing the factors, the sentencing judge found that the aggravating factors "in some way outweigh[ed]" the mitigating factors. Defendant was sentenced to a fifteen-year term, of which NERA required that he serve 85 percent before being eligible for parole.

On appeal, defendant makes the following arguments for our consideration:

POINT I

THE COURT'S FAILURE TO GIVE A LIMITING INSTRUCTION CONCERNING THE TWO CO-DEFENDANTS' GUILTY PLEAS DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS AND A FAIR TRIAL (Not Raised Below).

POINT II

DURING SUMMATION, THE PROSECUTOR IMPROPERLY BOLSTERED THE CREDIBILITY OF STATE'S WITNESSES AND IMPROPERLY ENCOURAGED THE JURY TO TAKE INTO ACCOUNT SENTENCING CONSIDERATIONS, THEREBY DENYING DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO DUE PROCESS U.S. CONST. AMEND VI, XIV; N.J. CONST., ART. I, ¶¶ 1 AND 10 (Not Raised Below).

A. The Prosecutor Improperly Told the Jury the Sentencing Range for First-Degree Murder and the Co-defendants' Sentences, Which Encouraged the Jury to Draw Inferences About LeFurge's Culpability or Likely Sentence.

B. During Closing Remarks, the Prosecutor Improperly Expressed His Opinion About the Credibility of the State's Witnesses, Utilizing Information Not Presented to the Jury During the Trial.

POINT III

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL (Not Raised Below).

POINT IV

THIS MATTER SHOULD BE REMANDED FOR RESENTENCING, PURSUANT TO STATE v. ROACH, 146 N.J. 208 (1996), BECAUSE A SIMILARLY SITUATED DEFENDANT RECEIVED A DISPARATE SENTENCE (Not Raised Below).

POINT V

THE TRIAL COURT'S WEIGHING OF AGGRAVATING AND MITIGATING FACTORS WAS UNSUPPORTED BY THE RECORD, AND THE SENTENCE IMPOSED CONSTITUTED AN ABUSE OF DISCRETION.

Defendant, pro se, submitted a "Supplemental Letter Brief" raising these issues:

POINT I

THE TRIAL COURT VIOLATED DEFENDANT'S FEDERAL CONSTITUTION[AL] RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY TRIAL DECISION WHEN IT SENTENCE[D] HIM TO TERMS GREATER THAN THE PRESUMPTIVE TERM, BASED UPON FACTS NEITHER ADMITTED BY DEFENDANT NOR FOUND BY THE JURY, (Not Raised Below).

A. Pursuant to Blakely v. Washington, Defendant's Sentence Must be Reduced.

B. The Court's Erroneous Application of Aggravating and Mitigating Factors Requires a Sentence Reduction.

POINT II

DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED TO OBJECT TO PROSECUTOR'S STATEMENTS DURING SUMMATION AND LACK OF PREP[A]RATION FOR TRIAL.

We affirm.

I.

The following facts are taken from the trial record. On the evening of February 28, 2005, defendant, Vadas, his wife, Crystal, and A.W. were gathered at a relative's Point Pleasant home. A.W. stated that Timothy Schaad had promised to sell him marijuana for fifty dollars, but had taken his money without providing the drugs. Vadas telephoned Schaad and proposed a transaction: Vadas would give Schaad a $100 bill, and Schaad would provide marijuana and $50 change. Vadas and defendant planned to meet Schaad at the baseball dugout of a nearby middle school. They intended to confront Schaad and retrieve the $50 he allegedly took from A.W.

Before they left for the meeting, defendant used a permanent marker to blacken the orange tip of a pellet gun so it more closely resembled a gun. Defendant told Vadas he was going to bring the gun along, although Vadas advised he felt it was unnecessary.

Crystal drove Vadas, A.W., and defendant to the school. By then, night had fallen. As the three of them walked from the car to the dugout, the gun fell from defendant's jacket. Vadas, angered that defendant brought the gun, told him to throw it away. When defendant refused, Vadas instructed defendant not to take the gun out during the meeting with Schaad. Defendant and Vadas met Schaad and his younger cousin at the dugout. Defendant asked Schaad whether he had the $50 change. Schaad replied affirmatively. Defendant told Schaad to give him the money, but Schaad refused. Defendant then withdrew the gun from his jacket and pointed it at Schaad. Believing the gun was real, Schaad handed defendant the $50.

II.

Defendant argues that the court's failure to give a limiting jury instruction, stating that the guilty pleas of A.W. and Vadas could be used only for impeachment purposes and not as substantive evidence of defendant's guilt, constitutes plain error. See State v. Murphy, 376 N.J. Super. 114, 122-23 (App. Div. 2005). The trial judge had given a general instruction that prior convictions could be used only "in determining the credibility or believability of the[] witnesses' testimony." However, no specific instruction stated that the guilty pleas of A.W. and Vadas must not be used as evidence of defendant's guilt. Since there was no objection at trial to the charge as given, we review the claim under the plain error doctrine, R. 2:10-2, and disregard an error unless it is "clearly capable of producing an unjust result[.]" Ibid. See State v. Wakefield, 190 N.J. 397, 471 (2007).

We have held that "[w]hen evidence of the guilty plea of a co-defendant is admitted at trial, the trial judge must provide a cautionary instruction as to the limited use of the testimony for credibility purposes." Id. at 122. A limiting instruction stating that the jury may not consider the witness's guilty plea as substantive evidence of defendant's guilt has not been determined to be mandatory in all instances when a co-defendant's guilty plea is presented as part of that witness's testimony. Ibid.

In Murphy, we reversed defendant's conviction because of a flawed curative instruction, which had the clear capacity to bolster the credibility of the State's main witnesses and defendant's former co-defendants, as well as the omission of an instruction that the jury could not consider the co-defendant's plea agreement as substantive evidence of defendant's guilt. Id. at 124-25. The facts supporting this conclusion included these: two witnesses testified about their involvement in events, which arose from the same offense for which defendant was on trial; all three participants were charged with second-degree robbery; the only evidence implicating the defendant in the robbery was provided by these testifying co-defendants, who had accepted plea agreements; and finally, the trial judge had bolstered the credibility of the testifying co-defendants when he advised the jury that a guilty plea could not be accepted unless the judge was satisfied that the person entering the plea was, in fact, guilty. Id. at 122-23.

These distinguishing facts are not presented in this matter. Vadas and A.W. were charged with offenses other than first-degree robbery. Each testified and were cross-examined at length during trial regarding their complicity in the robbery of Schaad. Questions regarding the guilty pleas were presented in the context of the terms of each witness's respective plea bargain. Thus, the testimony of the guilty plea and the surrounding circumstances constituted evidence bearing directly upon potential bias and issues of credibility, matters which were probed on cross-examination and properly addressed by the trial judge's instructions to the jury.

Upon review of the trial record, we determine that the guilty pleas of Vadas and A.W. added "little, if any, extra evidential weight" to the factual testimony supporting defendant's guilt. See State v. Stefanelli, 78 N.J. 418, 436 (1979). Therefore, we conclude that the admission of the guilty plea without an additional limiting instruction was not capable of producing an unjust result. Ibid.

III.

Defendant maintains prosecutorial misconduct violated defendant's due process rights when the prosecutor, during the State's closing, mentioned the sentences Vadas and A.W. would have faced if they had not made plea deals. Defendant suggests this improperly brought to the jury's attention the sentencing range defendant would face if he were convicted of armed robbery. After full review of the record, we conclude the prosecutor's comments in his closing argument are best understood as a counter to the defense strategy, on cross-examination and in summation, to call into question Vadas's motive behind his plea agreement and the substance of his version of the robbery. In cross-examining Vadas, apparently to show the jury that he had received a beneficial plea agreement that might have been motivated him to be untruthful, defense counsel asked Vadas:

[DEFENSE COUNSEL]: You were originally charged with first-degree robbery. Isn't that right?

[VADAS]: Yes.

[DEFENSE COUNSEL]: And you know . . . that for first-degree robbery, you could receive a sentence of from ten to twenty years? [WITNESS]: Not at the time I was arrested, but I learned that, yes.

Then, during summation, defense counsel stated that given the possible sentence, Vadas's plea bargain was "a great deal."

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented. Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." State v. Mahoney, 188 N.J. 359, 376 (2006) (quoting State v. Frost, 158 N.J. 76, 82 (1999)).

Taken in context, the challenged comments were fair responses to defendant's trial strategy.

Defendant argues additionally that the prosecutor improperly bolstered A.W. and Vadas's credibility by implying that they had no real motive to lie when he stated that they in fact had no interest in "drag[ging] [defendant] down with them,"

"A prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993), (citing State v. Marshall, 123 N.J. 1, 154 (1991)). On the other hand, a prosecutor is free to "argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Bradshaw, 392 N.J. Super. 425, 437 (App. Div. 2007) (quoting State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004)). "And in that regard, a prosecutor is permitted to respond to defense counsel's arguments." Ibid. Applying these principles to the prosecutor's statement, we find no reversible error.

IV.

In his initial and supplemental briefs, defendant asserts he was denied effective assistance of counsel. Our courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). We find that policy applicable in this case, and therefore decline to consider defendant's arguments in the present context. Defendant may raise these issues in any future application for post conviction relief.

V.

Defendant next challenges his sentence, maintaining it was excessive. He first argues that, under State v. Roach, 146 N.J. 208 (1996), a remand for resentencing is required because the trial court imposed a sentence, which was five times greater than that ordered for co-defendant Vadas. In Roach, the Court acknowledged that in a case where two equally culpable perpetrators were given differing sentences, the question is "whether the disparity is justifiable or unjustifiable." Id. at 232. A court must examine a number of factors to determine whether two co-defendants are so "similar" that a disparity in their sentences would be unfair. Id. at 233.

In this case, we conclude that the roles of defendant and Vadas were insufficiently similar. Defendant, the oldest of the participants, insisted on bringing the altered pellet gun despite Vadas's repeated requests to the contrary. Most importantly, Vadas pled guilty to second-degree conspiracy to commit armed robbery, while defendant was convicted of first-degree robbery. At sentencing, defendant's prior indictable convictions impacted the determination of his sentence; while the fact that Vadas had no prior indictable convictions affected his sentencing. Our review of the record discerns that the court engaged in an appropriate analysis of relevant factors, and that defendant and Vadas were sufficiently dissimilar to warrant the disparity in the respective sentences ordered.

Defendant next contends that the trial judge abused his discretion in the application of the mitigating and aggravating factors. We find this argument lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), as it is clear from the record that the trial judge's evaluation and application of the aggravating and mitigating factors was grounded in the evidence.

Defendant further claims resentencing is warranted pursuant to State v. Pierce, 188 N.J. 155 (2006). Defendant's view is that Pierce requires a sentencing judge to start with the lowest possible sentence and then review the balance of aggravating and mitigating factors. This contention is incorrect. When sentencing a defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3a, "the court may consider the full range of sentences available from the bottom of the ordinary-term range to the top of the extended-term range." Pierce, supra, 188 N.J. at 174. Here, the State's application for an extended term was denied. Defendant was not sentenced with reference to the former presumptive term. See State v. Natale, 184 N.J. 458, 488 (2005). We conclude the trial judge properly imposed a midrange sentence after completing the balancing process and will not substitute our judgment for that of the sentencing judge. See State v. Roth, 95 N.J. 334, 365 (1984).

Affirmed.

20070806

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