April 3, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NATHAN D. YATES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 05-01-0312.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 12, 2008
Before Judges Cuff and Lihotz.
Following a jury trial, defendant Nathan D. Yates was convicted of 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 (handgun), N.J.S.A. 2C:39-5b (count three); fourth degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count four); and second degree eluding arrest, N.J.S.A. 2C:29-2b (count five). In a separate proceeding, the jury found defendant guilty of second degree certain persons not to have a weapon, N.J.S.A. 2C:39-7 (count six). After merging count two with count one, Judge Snyder imposed a mandatory extended term of twenty-five years in prison subject to a NERA*fn1 85% parole ineligibility term. He also imposed concurrent five-year terms of imprisonment on counts three and four; a concurrent eight-year term on count five; and an eight-year term with a mandatory five-year term of parole ineligibility on count six to be served consecutive to count one. The aggregate term is thirty-three years; twenty-six years and three months of which must be served without parole eligibility. The appropriate fines, penalties and assessments were also imposed.
The conviction arises from a robbery of a family owned and operated food store in Sicklerville. On May 7, 2002, at approximately 9:45 p.m., Navinchal Patel was behind the counter of the store standing at the register. A man, later identified as defendant, walked into the store. He was wearing a black, hooded jacket or sweatshirt. Defendant approached the counter, pointed a big, silver gun at Patel's face, and demanded money. Patel opened the registers and gave defendant between $200 and $300. Defendant ran from the store. As he did so, Patel's son, Pranesh, entered the store. Pranesh Patel described defendant as a six feet tall, thin, black man wearing a black, hooded sweatshirt. The son observed defendant get into a white Ford Taurus with Pennsylvania plates that contained the letters "ED or "EK" and make a right turn from the parking lot onto Hickstown Road.
The Gloucester Township police arrived at the store within minutes of the robbery. Approximately fifteen minutes later, Gloucester Township Police Officer Michael McDonnell observed a white Ford Taurus with a single occupant, bearing Pennsylvania license plate number EKD-0350, in the northbound lane of Route 42. McDonnell followed the car and observed the driver reaching into the back seat. The officer activated the overhead lights and the driver of the Taurus pulled onto the shoulder of the road. Within seconds, however, the Taurus accelerated and returned to the highway. McDonnell activated the siren and commenced a pursuit. Traveling at speeds in excess of ninety miles per hour, the driver of the Taurus lost control of the car on an exit ramp of Route 676. The Taurus struck a fence and flipped over onto the passenger side. McDonnell approached the car but the driver was gone. The driver was not apprehended that evening.
Pranesh Patel identified the Taurus as the car used by the robber. A black sweatshirt was found in the trunk of the Taurus, as well as a silver handgun and four hollow nose bullets. A plastic bag in the pocket of the black sweatshirt contained $180 in five and ten dollar denominations.
The driver of the Taurus left the keys in the ignition. The keychain contained a supermarket shoppers card and a mailbox key. The shopper's card was registered to Veronica Yates, defendant's wife. The mailbox key opened the mailbox at the apartment complex where defendant lived with his wife. Detectives found defendant's driver's license and social security card in the glove box of the Taurus and the registration card for the car.
Navinchal Patel identified defendant from a photo array the day after the robbery. He was unable to identify defendant at trial.
On appeal, defendant raises the following arguments:
THE PROSECUTOR'S REMARKS IN SUMMATION, WHICH VOUCHED FOR THE CREDIBILITY OF THE STATE'S WITNESSES, WERE ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (Not Raised Below).
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
Defendant complains that the prosecutor made two comments that vouched for the credibility of the State's two main witnesses: Navinchal Patel and Officer McDonnell. He asserts that the prosecutor "distorted the jury's evaluation of these witnesses" when he characterized Patel's identification through a photo array as "rock solid" and opined that the witness was "extremely honest." Defendant also argues that the prosecutor's suggested alternative version of McDonnell's testimony bolstered his credibility. No objection was lodged at trial; therefore, any error must have been "'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2); State v. Macon, 57 N.J. 325, 333 (1971). Read in context, we discern no error clearly capable of producing an unjust result.
Summations, like jury instructions, must be read as a whole. See State v. Morton, 155 N.J. 383, 416 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Wilbely, 63 N.J. 410, 422 (1973). A summation cannot be evaluated in isolation because the State is permitted to respond to allegations made by defense counsel in summation. State v. Darrian, 255 N.J. Super. 435, 454-55 (App. Div.), certif. denied, 130 N.J. 13 (1992); State v. Engel, 249 N.J. Super. 336, 379-80 (App. Div.), certif. denied, 130 N.J. 393 (1991). In other words, when a comment in the prosecutor's summation is "invited" as a response to the summation offered by defense counsel, the inquiry is whether the invited response unfairly prejudiced the defendant. Engel, supra, 249 N.J. Super. at 379. Measured by this standard, we discern no error much less plain error.
At trial, Navinchal Patel was unable to identify defendant as the man who entered his store and robbed him at gunpoint. He related, however, that a police officer showed him a photo array and that he picked the person depicted in photo number three as the culprit. It was uncontested that defendant was the person in photo number three. The officer who conducted the photo identification testified that the shopkeeper selected defendant's photo with "a hundred percent certainty."
Defense counsel referred to the shopkeeper as an "honest" man because he readily admitted at trial that he was unable to identify defendant as the man who robbed him. Thus, the prosecutor's characterization of Navinchal Patel's identification one day after the event was not only fully supported by the trial record but also in direct response to a comment in defendant's summation.
The prosecutor's discussion of what the jury might have heard from Officer McDonnell if he was "crooked" or "shady" was in direct response to defense counsel's summation. Officer McDonnell could not identify defendant at trial as the man driving the Ford Taurus. Defense counsel argued that McDonnell failed to identify defendant because he did not want to lie, therefore, suggesting that the State had fabricated the evidence linking defendant to the getaway car. Defense counsel also argued that McDonnell was unable to identify defendant at trial because defendant was not the driver of the Ford Taurus. Thus, here too, the prosecutor was simply responding to a comment by defense counsel when he offered an alternative version of McDonnell's testimony, if he was, in fact, reaching to link defendant to the car. Further, we can identify nothing in the summation that caused undue prejudice to defendant.
Defendant also argues that the thirty-three year sentence with a parole ineligibility term of twenty-six years and three months is manifestly excessive. He contends that the risk of future offenses cited by the judge can be satisfied by a lesser term of imprisonment, that defendant's prior criminal record is not as serious as found by the judge, and that the judge failed to consider the familial and community support available to defendant.
Defendant had a prior firearms conviction; therefore, the judge was required to impose a mandatory extended term for the first degree robbery conviction. N.J.S.A. 2C:43-6c, -7c. The sentence for a first degree offense falls between ten and twenty years, N.J.S.A. 2C:43-6a(1), unless the defendant qualifies for an extended term sentence, which shall be between twenty years and life imprisonment. N.J.S.A. 2C:43-7a(1). In addition, NERA requires that 85% of the base term must be served without parole. N.J.S.A. 2C:43-7.2.
Here, imposition of an extended term was mandatory. Citing defendant's prior record and the need to deter, the judge imposed a twenty-five year base term for the first degree robbery conviction. We discern no mistaken exercise of discretion in selecting a base term five years above the minimum term for an extended first degree term. His failure to identify any mitigating factors, including community and familial support, is supported by the record. Defendant's residence with his wife and children failed to prevent this current criminal activity.
The sentence imposed on count six is also unremarkable. N.J.S.A. 2C:39-7b requires the imposition of a five-year period of parole ineligibility. The eight-year base term is supported by the record. Therefore, we discern no basis to disturb the sentence imposed for the armed robbery and certain persons convictions.
On the other hand, the five-year term imposed for fourth degree possession of hollow nose bullets is an illegal sentence because the sentence for a fourth degree offense cannot exceed a term of eighteen months. N.J.S.A. 2C:43-6a(4). The sentence for this count runs concurrent with the armed robbery sentence; nevertheless, the judgment of conviction must be amended. We, therefore, remand for entry of an amended judgment of conviction.
The conviction and sentence are affirmed in all respects but for the sentence imposed on count four. The matter is remanded for entry of an amended judgment of conviction on count four.