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State v. Fogel

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHRISTOPHER C. FOGEL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, No. 04-08-2748-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 3, 2007

Before Judges Wefing and Lyons.

Tried to a jury, defendant was convicted of carjacking, a crime of the first degree, N.J.S.A. 2C:15-2; criminal restraint, a crime of the third degree, as a lesser-included offense to kidnapping, N.J.S.A. 2C:13-2; and robbery, a crime of the second degree, N.J.S.A. 2C:15-1. The trial court sentenced defendant to an aggregate sentence of twenty years in jail, subject to the terms of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence but remand the matter to the trial court to correct the judgment of conviction.

Defendant's convictions rested upon an incident that occurred on the evening of June 6, 2004. Deborah Freeman, then seven months pregnant, left her husband and children at home and drove to several nearby stores for a quick errand. Driving her Suburban, a large vehicle with three rows of seats, she stopped first at a CVS drug store and then drove to a nearby QuickChek. When she returned to the car from the QuickChek she started to drive to get gas when she heard a noise from the third row of seats. She thought it was her oldest boy, who would often try to play a trick upon her. Instead, she looked into the rear view mirror and saw a man climbing forward from the rear of the Suburban. He told her he had a gun and would not hurt her if she did as she was told. He instructed her to drive him to a location in East Orange and she complied. When they arrived, he asked for her money and she handed over eighty dollars. He also demanded her car keys and got out of the vehicle and went into a nearby house. Ms. Freeman did not know the area in which they were stopped; she testified there were a number of people around but it struck her as an area in which people dealt in narcotics, and she was afraid to get out of the car. The man then returned to the Suburban, gave her the keys, and told her to drive to a second location, where he again took the keys and left her briefly. This area she described as more secluded than the other. She still did not know where she was and was afraid to leave the vehicle. The man again returned to the car and told her to drive off. He gave her directions and eventually told her to stop at a certain point. He got out of the car and she saw him run across the Garden State Parkway, which at that point had eight lanes of traffic. She returned home and, crying hysterically, told her husband to call the police. She estimated that the entire ordeal lasted approximately forty-five minutes to an hour.

The police responded promptly to her home and commenced an investigation. They took the Suburban to see if they could retrieve anything of evidential value but were unsuccessful. In particular, no usable fingerprints could be obtained. Ms. Freeman provided a description of the individual, and Officer Coreo of the Bloomfield Police Department the next day saw someone in the vicinity of the QuickChek who matched that description; it was defendant.

Officer Coreo notified those police assigned to investigate the carjacking incident, and several officers went to defendant's home. Defendant agreed to go to the police station and, after arriving there and having been advised of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966), he agreed to waive those rights. He gave a statement in which he confessed his involvement. He said he had seen Ms. Freeman go into the QuickChek without locking the Suburban and he had entered it, looking for something to steal. She had returned more quickly than he had anticipated and he was still in the car when she got in.

Ms. Freeman was shown two photo arrays. Defendant's picture was not included in the first array, and she was unable to identify anyone included in that array. After defendant provided his statement, she was shown a second array in which defendant's picture was included. She was, of course, not informed of his statement. She immediately selected the picture of defendant.

Defendant makes two arguments on appeal:

POINT I THE PROSECUTOR'S USE OF LEADING QUESTIONS VIOLATED EVIDENCE RULE 611(c) AND DEPRIVED DEFENDANT OF A FAIR TRIAL (Not raised below)

POINT II DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE N.J.R.E.

611(c) provides in pertinent part that leading questions "should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony." A leading question is one which "suggests what the answer should be or contains facts which in the circumstances can and should originate with the witness." State v. Abbott, 36 N.J. 63, 79 (1961). We have carefully reviewed the transcript of defendant's trial, and it is clear that at certain points Ms. Freeman's direct examination was conducted through leading questions. No objection was made at trial, however, and defendant may only prevail on appeal if he can establish plain error, that is, that such examination was clearly capable of producing an unjust result. R. 2:10-2. Our inquiry is whether, having reviewed the transcript as a whole, there is a reasonable doubt that the examination had the capacity to lead the jury to a result it otherwise would not have. State v. Brown, 190 N.J. 144, 160 (2007).

We are satisfied that we cannot discern such error from the record here. Indeed, the evidence presented against defendant may fairly be characterized as overwhelming. Just as the leading questions did not lead the jury to a result it would otherwise not have reached, neither did the failure of defendant's attorney to object to those leading questions.

Defendant's second argument relates to his sentence. At sentencing, the trial court denied the State's motion to sentence defendant to an extended term as a persistent offender. N.J.S.A. 2C:44-3(a). The trial court also concluded that consecutive sentences would be inappropriate in this factual complex. It then gave an extended and meticulous analysis of the various factors it considered in reaching its conclusion that defendant should serve a sentence at the mid-range of permissible sentences for carjacking.

The standard governing our review of this sentence is well-known.

On appeal, a trial judge's sentencing determinations are entitled to substantial deference. We will not substitute our judgment for that of the trial judge and will uphold a sentence unless "it represents an abuse of the lower court's discretion." [State v. Pagan, 378 N.J. Super. 549, 558 (App. Div. 2005) (quoting State v. Gardner, 113 N.J. 510, 516 (1989)).]

Defendant's arguments that the sentence imposed by the trial court was manifestly excessive do not warrant further discussion in a written opinion for it would have no precedential value. R. 2:11-3(e)(2).

The judgment of conviction, however, must be amended. The judgment entered reflects that defendant was convicted of kidnapping and first-degree robbery, as well as carjacking. The jury, however, acquitted defendant of kidnapping and convicted him of the lesser-included offense of criminal restraint. The trial court, moreover, did not send the crime of first-degree robbery to the jury, finding the evidence presented at trial insufficient to support a conviction of that offense. The jury deliberated upon, and convicted defendant of, second-degree robbery. In addition, the judgment indicates that defendant entered a guilty plea. He was, however, found guilty at trial.

Defendant's convictions and sentence are affirmed; the matter is remanded to the trial court for entry of an amended judgment of conviction.

20071213

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