February 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTIAN VASILE A/K/A CRISTIAN VASILE, CHRIS VASILE, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-09-2255.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Wefing, Parker and Lyons.
Defendant Christian Vasile (Vasile) appeals a March 2, 2006, judgment of conviction sentencing him to an aggregate custodial term of seven years, ordering restitution to various victims, and assessing the appropriate fines and penalties. We affirm.
The following factual and procedural history is relevant to our determination of the issues advanced on appeal. On June 16, 2004, Detective Gary Kronenberger (Kronenberger) of the Keansburg Police Department responded to a reported burglary in Keansburg. The home belonged to Norma Rahner (Rahner), who reported to the detective that she left her home at approximately 2:30 p.m. and, upon her return, discovered that her home was burglarized. Rahner reported that jewelry, two antique guns, foreign currency (either Canadian or Hungarian), and a blue cooler bag were stolen from her residence.
Kronenberger found no signs of forced entry. He concluded that entry was gained through the back window. He "dusted" the window for fingerprints and successfully lifted a partial latent fingerprint from the window.
Several eyewitnesses were also identified by the police. Dorothy Lupino (Lupino) testified that she saw defendant and Michelle VanDuysen (VanDuysen) in front of Rahner's house at approximately 2:50 p.m. Lupino worked as a taxi dispatcher and knew defendant as he worked with her for a couple of months. She saw VanDuysen, wearing a pink shirt and dungarees, walk to Rahner's door, while defendant waited at the end of the property.
Another witness, Anthony Riccardo, testified that he saw an individual fitting the physical description of defendant, who was wearing jean shorts, a hat, and had a tattoo on his right leg, in front of Rahner's house.
Later, the fingerprint lifted from the scene was compared with the suspects' fingerprints, including those of VanDuysen. At the police station, the police identified the fingerprint as belonging to VanDuysen. The fingerprint card was then sent to the Monmouth County Prosecutor's Office, where it was confirmed that the print belonged to VanDuysen.
On June 17, 2004, VanDuysen was arrested at approximately 1:30 p.m. She was given her Miranda warnings and she signed a waiver. VanDuysen then gave a statement to the police implicating defendant. That statement was then utilized by Kronenberger in his affidavit in support of a search warrant to search defendant's room in the Belvedere Hotel. A search pursuant to a warrant of the hotel room yielded jewelry, a blue cooler, and a woman's pink shirt that VanDuysen had been wearing that day. Following the execution of the search warrant, defendant was arrested. When arrested, he was found with Canadian currency and a tattoo on his right leg.
Detective Robert Sheehan (Sheehan) was working the 7:00 p.m. to 3:00 a.m. shift on June 19, 2004. When Sheehan reported to work that evening, he met with Captain Mike Pigott (Pigott) and Kronenberger. Kronenberger advised Sheehan that he was conducting a burglary investigation, and that he had received some information that there were some handguns concealed in the ceiling of the second floor common bathroom at the Belvedere Hotel.
At approximately 7:30 p.m., Pigott and Sheehan arrived at the Belvedere Hotel without a search warrant for the second floor common bathroom. The manager was not around, and the front door was locked. A resident was looking out of the second floor window, however, and Sheehan asked that resident to come down and open the door and let them in the hotel. The hotel has three floors, each with approximately thirteen rooms. The second floor has two common bathrooms, which contain a toilet and a shower. To Sheehan's knowledge, anyone entering the hotel could use the common bathrooms.
Sheehan entered one of the second-floor bathrooms, whose door was propped open and no key was needed for entry. The bathrooms did not contain any personal items. The bathroom had a drop ceiling of standard two-by-four-foot foam ceiling tiles, suspended by a track system. When Sheehan popped a tile above the sink, he saw and retrieved a clear plastic bag which contained handguns.
Subsequent police investigation revealed that defendant and VanDuysen were also involved in three other burglaries. Based upon the evidence produced by the police, the grand jury indicted defendant and VanDuysen for burglarizing four homes.
Defendant Vasile was charged on Monmouth County Indictment Number 04-09-2255 as follows: third-degree conspiracy, contrary to N.J.S.A. 2C:5-2 (count one); third-degree burglary, contrary to N.J.S.A. 2C:18-2 (counts two, four, and six); third-degree theft, contrary to N.J.S.A. 2C:20-3(a) (counts three, five, seven, and nine); second-degree burglary, contrary to N.J.S.A. 2C:18-2 (count eight); second-degree possession of a weapon by certain persons not to have a weapon, contrary to N.J.S.A. 2C:39-7(b) (count ten). Co-defendant VanDuysen was jointly charged in all counts, except count ten.
Prior to defendant's trial, VanDuysen entered a plea of guilty. She agreed to testify against defendant at trial. In addition, those counts relating to the Rahner burglary on June 16, 2004, were severed and trial on those charges was scheduled to begin on October 25, 2005. The remaining counts of the indictment related to the three other burglaries.
A pretrial motion to suppress evidence was heard on June 3, 2005. Counsel for defendant argued that the police should have secured a warrant before searching the bathroom in the Belvedere Hotel where the guns were found. The State argued that there was no reasonable expectation of privacy in the common bathroom. The trial court found that although the hotel door itself was locked, once inside the hotel, everybody had access to the common bathrooms and noted that there were no personal items in the bathrooms. Therefore, the court denied the motion to suppress evidence because defendant had no expectation of privacy with respect to the common bathroom.
On October 27, 2005, after a jury trial, defendant was found guilty of third-degree conspiracy and third-degree theft. Defendant was found not guilty of second-degree burglary and the weapons charge was dismissed.
On January 30, 2006, defendant entered pleas of guilty to counts three, five, and seven pursuant to a plea agreement. Pursuant to the plea agreement, counts three, five, and seven were amended to charge third-degree receiving stolen property. The State agreed to dismiss counts two, four, and six against defendant. The State also agreed to "recommend a maximum sentence on all outstanding charges including convictions at prior trial, not to exceed 7 years in the aggregate." The State further agreed to withdraw its motion for an extended term. After questioning defendant and finding that he was knowingly and voluntarily entering the pleas, and that there was a factual basis for the pleas, the trial court accepted the guilty pleas.
On March 2, 2006, defendant was sentenced. The trial court found the aggravating factors "to be the risk that the defendant will commit another offense; the extent of his prior record; and the seriousness of the offenses [of] which he has been convicted; and the need to deter this defendant and others from violating the law." Therefore, the court concluded that the aggravating factors outweigh the mitigating factors. And this was a negotiated plea. I also think that a consecutive sentence is necessary here.
These were separate offenses. The defendant continued to commit offenses after he was found -- well he was found guilty of a conspiracy and a theft, and then the others are receiving stolen property. And the record shows that he continued to receive property from others who were burglarizing and stealing from people. And he took those items and sold them for either drugs or money, or whatever possible.
For the conviction on count one, the conspiracy charge, defendant received four years. For count nine, a theft charge, defendant received four years to run concurrent with count one. For the plea on counts three, five, and seven, theft charges, defendant received three years to run concurrent with each other, but consecutive with counts one and nine. Defendant was also assessed fines, restitution, and ordered to give a DNA sample.
Defendant subsequently filed a motion for reduction of sentence. On May 12, 2006, the trial court heard argument and denied defendant's motion. Defendant filed this appeal on May 22, 2006.
In his appeal, defendant raised the following points for the court's consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS BECAUSE DETECTIVE SHEEHAN'S INITIAL ENTRY INTO THE BELVEDERE HOTEL WAS PRETEXTUAL AND WITHOUT LEGAL JUSTIFICATION, AND BECAUSE THE DEFENDANT HAD A REASONABLE EXPECTATION OF PRIVACY IN THE BATHROOM.
A. DETECTIVE SHEEHAN'S ENTRY WAS PRETEXTUAL AND UNLAWFUL.
B. THE DEFENDANT'S EXPECTATION OF PRIVACY WAS REASONABLE.
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.
THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS JURY INSTRUCTIONS BY FAILING TO PROVIDE ADEQUATE GUIDANCE AS TO HOW THE JURY WAS TO ASSESS THE CREDIBILITY OF MS. VANDUYSEN IN LIGHT OF THE FACT THAT SHE WAS TESTIFYING FOR THE STATE PURSUANT TO A FAVORABLE PLEA AGREEMENT (NOT RAISED BELOW).
THE AGGREGATE BASE SENTENCE OF 7 YEARS WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF DISCRETION BECAUSE THE 3 YEAR SENTENCES IMPOSED ON THE DEFENDANT'S PLEAS ON COUNTS THREE, FIVE, AND SEVEN SHOULD BE CONCURRENT WITH THE 4 YEAR SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS ON COUNTS ONE AND NINE.
In addition, defendant raises the following points in a pro se supplemental brief:
THE DEFENDANT ASSERTS THAT THE PROSECUTORS OFFICE COMMITTED OFFICIAL MISCONDUCT BY WITH HOLDING [SIC] AND/OR CONCEALING PHYSICAL EVIDENCE ORDERED BY THE TRIAL COURT PRIOR TO TRIAL.
1. TRIAL COURT ORDERED THE PROSECUTORS [SIC] OFFICE TO PROVIDE THE DEFENDANT WITH THE PHOTOGRAPHIC EVIDENCE PRIOR TO TRIAL FOR REVIEW AND/OR INPECTION [SIC] PURPOSES TO PREPARE FOR TRIAL.
2. DETECTIVE KRONENBERGER DOCUMENTED TO SOME EXTENT THE PHOTOGRAPHIC EVIDENCE TO THE FINGERPRINT EVIDENCE AND THE LOGING [SIC] AND CHAIN OF CUSTODY AND ITS REMOVAL FROM THE CRIME SCENE.
3. THE DEFENDANTS [SIC] REASONABLE EXPECTIONS [SIC] WERE DEFEATED BY THE PROSECUTORS [SIC] MISCONDUCT IN FRAUDULENTLY ALTERING DOCUMENTS WHICH OUTLINED THE NEGOTIATED PLEA BARGIN [SIC] ON THE REMAINING INDICTMENT.
THE DEFENDANT CONTENDS THAT HE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
We will address defendant's arguments seriatim. Defendant argues that "Detective Sheehan's entry into the second floor bathroom was pretextual in nature because he did not obtain a valid consent to enter the building in the first instance and because there did not exist any exigent circumstances justifying his entry." Therefore, defendant argues that the trial court should have suppressed the evidence of the two handguns found above the tiles in the bathroom.
The police testified that they were permitted to enter the common area of the hotel by a resident. The police further testified that they had first sought out the manager, but he was not in his apartment. They saw a resident looking out of a second floor window and called up and asked to be let into the building. The person came down and opened the door for them. Our court has said that:
Any doubt that the consent of one who possesses common authority over premises or effects is valid against the absent, non-consenting person with whom that authority is shared was put to rest in United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed. 2d 242 (1974). The test set forth therein is that a consent is valid if the prosecution can show that * * * permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected. [State v. Miller, 159 N.J. Super. 552, 557 (App. Div.), certif. denied, 78 N.J. 329 (1978).]
Clearly, the resident possessed common authority to allow access to the hotel.
As to the common bathroom itself, the record is undisputed that the bathroom was available for use by anybody in the hotel. There were no personal items -- other than the weapons -- left in the bathroom and the bathroom did not require a key for entry. State v. Nunez, 333 N.J. Super. 42, 50 (App. Div. 2000), certif. denied, 167 N.J. 87 (2001), cites United States v. Concepcion, 742 F. Supp. 503 (N.D.Ill. 1990), aff'd, 942 F.2d 1170 (7th Cir. 1991), for the proposition that "the better reasoned decisions are that searches of common areas of secured apartment buildings do not violate the tenants' legitimate expectations of privacy." Likewise, albeit in a different context, our court has also said that "[i]ndividuals performing illegal activities in the common area of a public rest room can not possess a reasonable expectation of privacy." State v. Boynton, 297 N.J. Super. 382, 389 (App. Div.), certif. denied, 149 N.J. 410 (1997).
In Boynton, in order to evaluate an expectation of privacy, we employed a four-prong test found in State v. Berber, 740 P.2d 863 (Wa. 1987):
These considerations are: (1) society's belief that certain areas are ordinarily understood to afford personal privacy; (2) the character of the area in which the claimed privacy interest is asserted; (3) the way in which the area is used; and (4) the method, means, or manner by which the government agents intrude in the area. [Boynton, supra, 297 N.J. Super. at 391.]
Similar to this case, the bathroom in Boynton was open to the public. Ibid. The police officer entered the bathroom in the same manner as any other member of the public and no other clandestine activity was involved. Id. at 391-92. In Boynton, we found that "[d]efendant's misuse of the area by having another person in the rest room with him further diminished his own expectation of privacy." Id. at 391. Here, there was nobody in the bathroom. Therefore, defendant had no expectation of privacy that society normally affords the act of using the bathroom, as opposed to the room itself. Police merely walked into the common, open bathroom and did not use any force. Defendant misused the bathroom by hiding weapons in the ceiling, thereby further diminishing his expectation of privacy, if any existed at all. Therefore, defendant's expectation of privacy was not reasonable and the search was valid.
Defendant's claim that the State's evidence was insufficient to support the convictions is clearly without merit. At the close of the State's case or after all evidence has been given, the court must, on motion by defendant or on its own initiative, grant a motion to acquit if "the evidence is insufficient to warrant a conviction." R. 3:18-1. When a motion is made at the close of the State's case, the trial court must deny the motion if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). We apply the same standard as the trial court to decide if the trial court should have acquitted defendant. State v. Moffa, 42 N.J. 258, 263 (1964).
The record at the close of the State's case overwhelmingly supports the trial court's denial of the motion to acquit.
N.J.S.A. 2C:5-2(a) provides:
A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(1) Agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(2) Agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.
Furthermore, "[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." N.J.S.A. 2C:20-3(a).
The State presented testimony and proofs that supported the charges. VanDuysen's testimony, together with the testimony of the eyewitnesses, satisfied the elements of the offenses. There were eyewitnesses who testified they saw defendant and VanDuysen in front of Rahner's home at the approximate time of the burglary. The State also produced fingerprint evidence showing that VanDuysen was, in fact, at Rahner's home. A search of defendant's apartment yielded a blue, soft-sided cooler that was reported missing from Rahner's home. Two guns that were reported missing were found in the common bathroom of defendant's hotel. When defendant was arrested, he was in possession of Canadian currency, which was reported as possibly missing from Rahner's home. The additional testimonial evidence further supported the elements of the crimes charged.
Viewing the evidence in the light most favorable to the State, we agree with the trial court that "[c]ertainly [the] circumstantial evidence is enough in the case . . . and [VanDuysen's] testimony is enough." State v. Perez, 177 N.J. 540, 549 (2003). Accordingly, defendant's claim that the trial court abused its discretion in denying the motion for acquittal is without merit. R. 2:11-3(e)(2).
Defendant's claim that the trial court's failure to give a co-defendant witness charge amounted to plain error is also without merit. Defendant argues that the "trial court committed plain error in its jury instruction by failing to provide adequate guidance as to how the jury was to assess the credibility of [the co-defendant] in light of the fact that she was testifying for the State." As support, defendant cites State v. Spruill, 16 N.J. 73, 78 (1954), for the proposition that "[i]t is incumbent upon the trial court to instruct the jury that in those instances it should 'look carefully into the secret motives that might actuate bad minds to draw in and victimize the innocent.'"
As an initial matter, we note that defendant failed to object to the jury instructions or request specific charges pursuant to R. 1:8-7(a) at the charge conference. Our Supreme Court instructs that "the failure to object to a jury instruction requires review under the plain error standard." State v. Wakefield, 190 N.J. 397, 473 (2007) (citing State v. Bunch, 180 N.J. 534, 541 (2004)), cert. denied, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed. 2d ___ (2008). See State v. Mays, 321 N.J. Super. 619, 631 (App. Div. 1999).
The commentary to Model Jury Charge (Criminal), entitled "Testimony Of A Cooperating Co-Defendant Or Witness When Witness Is A Co-defendant," notes:
This charge should not be given except upon the request of defense counsel. "While a defendant is entitled to such a charge if requested and a judge may give it on his own motion if he thinks it advisable under the circumstances, it is generally not wise to do so absent a request, because of the possible prejudice to the defendant. State v. Begyn, 34 N.J. 35, 54-56 (1961); State v. Gardner, 51 N.J. 444, 460-61 (1968). Certainly, it is not error, let alone plain error, for a trial judge to fail to give this cautionary comment where it has not been requested." State v. Artis, 57 N.J. 24, 33 (1970). See also State v. Gardner, 51 N.J. 444, 460-61 (1968); State v. Anderson, 104 N.J. Super. 18 (App. Div. 1968), aff'd, 53 N.J. 65 (1968), cert. denied, 394 U.S. 966 (1969).
Even though a judge may give a co-defendant witness charge "sua sponte if he or she thinks it is advisable under the circumstances," State v. Shelton, 344 N.J. Super. 505, 520 (App. Div. 2001), our Supreme Court has explicitly stated that it is not error for a trial judge to fail to give this charge when not requested. Artis, supra, 57 N.J. at 33. That is precisely the case here.
The trial court did charge the following regarding witness credibility:*fn1
As the judges of the fact[,] you are to determine the credibility of the witnesses. And in determining whether a witness is worthy of belief and therefore credible, you may take into consideration the following: the appearance and demeanor of the witness; the manner in which he or she may have testified; the witness' interest in the outcome of the trial, if any; his or her means of obtaining knowledge of the facts; the witness' power of discernment, meaning his or her judgment or understanding; his or her ability to reason, to observe, to recollect, and to relate; the possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by the other evidence; whether the witness testified with an intent to deceive you; the reasonableness and unreasonableness of the testimony the witness has given; whether the witness made any inconsistent or contradictory statement; and any and all other matters in the evidence which serve to support or discredit his or her testimony.
Through this analysis, as the judges of the facts, you weigh the testimony of each witness, and then determine the weight to give to it. Through that process[,] you may accept all of it, a portion of it, or none of it. (emphasis added)
The trial court's charge on credibility provided the jury with factors upon which to assess a witness's credibility. This charge pointed out the jury can look to a witness's interest in the outcome of the trial, possible bias, and any other matters in evidence which would serve to support or discredit testimony. That charge, certainly in this trial, adequately informed the jury as to the appropriate factors that it could look to in assessing VanDuysen's testimony. Therefore, the trial court's omission of the co-defendant witness charge was "not error, let alone plain error." Ibid.
Additionally, defendant "is not entitled to a charge in his own words." State v. Ball, 268 N.J. Super. 72, 112 (App. Div. 1993), aff'd, 141 N.J. 142 (1995), cert. den., 516 U.S. 1075, 116 S.Ct. 779, 133 L.Ed. 2d 731 (1996). Instead, he "is only entitled to an adequate instruction of the law." State v. Pleasant, 313 N.J. Super. 325, 333 (App. Div. 1998), aff'd, 158 N.J. 149 (1999). Since defendant did not request that the trial court give the co-defendant witness charge, the court did not err by giving the Model Jury Charge (Criminal), entitled Credibility of Witnesses. Ibid.
Defendant argues that "the aggregate base sentence of [seven] years was manifestly excessive and constituted an abuse of the trial court's sentencing discretion." Defendant also argues that because all of "his convictions on all counts constituted one continuous act of aberrant behavior, all sentences imposed should run concurrent with each other." He claims that the court's decision to impose consecutive sentences cannot be supported by the convictions and the aggravating factors.
The Supreme Court set forth the standard of review for sentencing in State v. Roth, 95 N.J. 334 (1984), and State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). In Roth, the Court articulated the standard:
In this context of appellate review of sentencing, then, an appellate court can perform these review functions within its traditional mode. It can (a) review sentences to determine if the legislative policies, here the sentencing guidelines, were violated; (b) review the aggravating and mitigating factors found below to determine whether those factors were based upon competent credible evidence in the record; and (c) determine whether, even though the court sentenced in accordance with the guidelines, nevertheless the application of the guidelines to the facts of this case makes the sentence clearly unreasonable so as to shock the judicial conscience.
[Roth, supra, 95 N.J. at 364-65.]
This standard applies to both a trial court and an appellate court on review. Ibid. The Court further warned that "[w]e must avoid the substitution of appellate judgment for trial court judgment. What we seek by our review is not a difference in judgment, but only a judgment that reasonable people may not reasonably make on the basis of the evidence presented . . . ." Id. at 365.
Both State v. Abdullah, 184 N.J. 497 (2005), and State v. Yarbough, 100 N.J. 627 (1985), aimed to create guidelines for sentencing situations, such as the one presented in this case. In addition, N.J.S.A. 2C:44-5(a) dictates that "[w]hen multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence." Therefore, the sentencing court does have discretion in rendering these decisions. See Abdullah, supra, 184 N.J. at 512.
Applying the dictates of N.J.S.A. 2C:44-5 and the relevant standards found in Yarbough, defendant's consecutive sentence is clearly supported by the record. The trial court appropriately found that these crimes were separate offenses committed at different times and places, meriting separate consecutive sentences. The crimes involved multiple victims. The aggravating factors were not double counted. Defendant received four years on his jury trial conviction, but he received less, three years, for his plea. Therefore, the sentence satisfies N.J.S.A. 2C:44-5 and the relevant Yarbough criteria.
Furthermore, it is important to note that "there is no presumption in favor of concurrent sentences . . . ." Abdullah, 184 N.J. at 513-14; see N.J.S.A. 2C:44-5(a). When committing several distinct criminal acts and facing trial for them, the criminal "'knows he is risking' an aggregate sentence covering all the offenses he has committed." Abdullah, supra, 184 N.J. at 514 (quoting Blakely v. Washington, 542 U.S. 296, 309, 124 S.Ct. 2531, 2540, 159 L.Ed. 2d 403 (2004)).
Moreover, at his plea, defendant clearly understood that he was to be sentenced to seven years in the aggregate.
Court: So it will be a seven maximum. That will be in the aggregate. They'll be restitution to all victims and you agree to do that.
And the prosecutor will withdraw his motion for extended term.
Is that your understanding of the plea agreement?
Defendant: Yes, your Honor.
Additionally, as part of the plea, the prosecution withdrew its motion for an extended term which would have subjected defendant to far longer periods of incarceration. "A whimsical change of mind by defendant, or the prosecutor, will not be a valid reason for altering the bargain." State v. Huntley, 129 N.J. Super. 13, 18 (App. Div. 1974) (citing State v. Thomas, 61 N.J. 314, 321-23 (1972); State v. Wall, 36 N.J. 216, 218 (1961)).
The trial court clearly and appropriately discussed the basis for the sentence, as well as the aggravating factors and mitigating factors. Reviewing the record as a whole, we clearly find that the sentences do not shock the judicial conscience.
Defendant argues, in his pro se brief, that the State withheld a photograph of the scene where the fingerprint was pulled from the window. Defendant claims that the absence of this photograph "hindered defendants [sic] ability in mounting an affirmative defense and putting the State to the test of proving 'beyond a reasonable doubt,' that the 'Fingerprint Evidence' was to have implicated the Co-Defendant, that provided testimony, that held the defendant liable and was of inculpatory nature." Specifically, defendant argues that he was "unable to attack the credibility of Detective Kronenberger, as to the said location of the fingerprint on the frame of the window."
The police report indicates, in relevant part, that:
We went around the back of the house and observed a chair in position below a window and the window open. The window and area around the window were dusted for fingerprints. Some partial latent prints were lifted from the window. The scene was photographed.
Defendant interprets this to mean that the location of the latent prints were specifically photographed.
Nothing in Kronenberger's testimony, however, indicates that he photographed the fingerprint scene pointing out the exact location of the fingerprint on the window in the photograph. He did photograph the window and the fingerprint, and those slides were introduced in evidence and produced in discovery. During a colloquy among defendant, his counsel, the court, and the prosecutor during trial, the prosecutor represented that all discovery had been delivered to defendant. There is no proof that a photograph, as described and sought by defendant, ever existed. It appears that defendant erroneously reads the police report statement that "The scene was photographed" to mean that "The scene of the fingerprint was photographed pointing out the exact location of the fingerprint" in the photograph. His erroneous reading is unsupported by proof. In the absence of any such proof, defendant was not denied appropriate discovery and his claim, therefore, is without sufficient merit to warrant further discussion. R. 3:11-3(e)(2).
Defendant also reads Arnold, Criminal Practice and Procedure, Volume 31, N.J. Practice Series § 1.18 (2005) to require photographing the fingerprint scene, showing in the photograph the exact location of the fingerprint. There is no statutory or common law obligation to do so, nor any right which flows to defendant if the State did not do so.
Defendant also claims in his pro se brief that the failure of trial counsel to "bring forth the fact to the trial court, that the Monmouth County Prosecutor's Office withheld evidence that the State was ordered to produce prior to trial" amounted to ineffective assistance of counsel. This argument also fails because there is no proof that the Monmouth County Prosecutor's office withheld any such evidence. Defendant, though, argues that his counsel was ineffective in failing to allege that the prosecutor withheld evidence. Based upon our review of the record, there would have been no basis for counsel to have made such an argument. Counsel certainly, therefore, acted appropriately, and consequently there is no basis for finding ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed. 2d 674 (1984), as adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). Therefore, as defendant is unable to show his counsel's performance deficient, his claim for ineffective counsel fails.
To the extent we have not specifically addressed any other arguments of defendant, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Accordingly, we affirm the judgment of conviction in all respects.