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State v. Fitton


June 20, 2008


On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-05-00196.

Per curiam.


Argued May 21, 2008

Before Judges Cuff, Lihotz and King.

Defendant Michael Fitton appeals his conviction, following a jury trial, for second-degree burglary, N.J.S.A. 2C:18-2 (count one); the petty disorderly offense of harassment, N.J.S.A. 2C:33-4, as a lesser included offense of the charged offense (count two); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three); fourth-degree unlawful possession of a weapon N.J.S.A. 2C:39-5(d) (count four); and the lesser included offense of fourth-degree attempted aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five). Count six of the indictment, which charged third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10(a)(1) was severed prior to trial and dismissed following conviction.

Fitton also argues the sentence imposed was excessive. The trial judge sentenced defendant as follows: on count one, six years incarceration subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d)(12); on count two, thirty days in state prison to run concurrent to the sentence on count one; on counts three (merged with count four) and five, four years incarceration on each count to run concurrent to the sentences for counts one and two. The applicable fines and penalties were imposed.

On appeal, Fitton suggests the incident resulting in the charges "was more farce than crime" and presents the following issues for our review:

Point I

The Court's Denial of an Adjournment Was Harmful Error Denying Defendant of His Right To a Fair Trial Under Both the United States Constitution Amendment VI and the State of New Jersey Constitution Article I, Paragraph 10.

Point II

The Court Committed Plain Error by Failing to Declare Sua Sponte a Mistrial Immediately Upon Defense Counsel's Admission of Guilt During the Opening Statement Which Deprived Defendant of a Fair Trial Under Both the United States Constitution Amendment VI and the New Jersey Constitution Article I, Paragraph 10 (not raised below R. 2:6-2).

Point III

The Court Committed Plain Error by Allowing the "Severance" Of Count 6 From The Indictment in Clear Violation of R. 3:25-1 Thereby Denying Defendant of a Fair Trial (Not Raised Below).

Point IV

The Prosecutor's Failure to Disclose the Plea Agreement And Allocution of the Co-Defendant Violated Defendant's Right to a Fair Trial Under United States Constitution Amendment VI And The New Jersey State Constitution Article 1 Paragraph 10.

Point V

The Court's Jury Instructions Regarding Second Degree Burglary Were Inadequate and Therefore The Conviction on Count One Must Be Reversed (Not Raised Below).

Point VI

The Court's Failure to Instruct the Jury Regarding Criminal Trespass as a Lesser Included Offense Constituted Plain Error (Not Raised Below).

Point VII

The Defendant's Conviction Under Count Five of A Lesser Included Offense of Attempting to Inflict Bodily Injury With a Deadly Weapon Must be Vacated.

Point VIII

The Court Erred in Denying Defendant's Motion For A Hearing on the Enforceability of the Plea Agreement Depriving Defendant of His Right to a Fair Trial Under the United States Constitution Amendment VI and the New Jersey Constitution, Article I, Paragraph 10.

Point IX

The Court Below Erred in its Application of the Statutory Sentencing Standards Resulting in an Excessive Sentence and This Court Should Exercise Its Authority Under R. 2:10-3 to Modify the Sentence Imposed to a 3rd Degree Non-Custodial Sentence Pursuant to N.J.S.A. 2C:44-1(f)(2).

We affirm.

Fitton, a former President of Capstar, a subsidiary of the Educational Testing Service, befriended Leann Jankoski, a prostitute. Fitton gave Jankoski a car, money, and a place to live. Fitton assumed he was helping Jankoski change her life and escape an "unsafe lifestyle." Fitton and Jankoski resided in Princeton with co-defendant John Kogut.

As Capstar's President, Fitton leased commercial office space from Jalsa Urubshurow, the victim. Fitton alleged Urubshurow was not a reputable businessman but was a "procurer of women" who ran a drug and prostitution ring from his residence in Lambertville. As Fitton saw it, his knowledge of Urubshurow's illicit business operations caused him to offer Fitton a $25,000 bribe, which Fitton rejected. An argument erupted and Urubshurow left Fitton's home accompanied by Jankoski. Fitton believed Jankoski was taken against her wishes.

After midnight, Fitton and Kogut drove to Urubshurow's Lambertville home. Fitton "shimmied" up the pole to a second floor balcony and used a Leatherman utility tool to cut the screen, then kicked in the rear door. Kogut, acted as a distraction by knocking on the front door. When noises were heard upstairs, he pushed his way passed Urubshurow through the front door.

A physical altercation ensued: Fitton, while brandishing a knife, threatened to "break every bone" in Urubshurow's body because he "stole his girlfriend"; Urubshurow using a chair as a shield, threw it at Fitton. Urubshurow's girlfriend called 9-1-1 and the police responded. The responding officer interviewed all parties. He discovered a utility tool under a blanket in a chair where Fitton had been sitting.

At trial, Fitton testified in his own behalf. He acknowledged he kicked in the back door, however his mission was to "save a soul," not to harm anyone. He explained he needed to "talk" to Jankoski because he feared for her safety. Fitton also admitted possessing the Leatherman utility tool, but did not brandish the knife component of his tool. Fitton maintained Urubshurow was the aggressor and he only re-acted in self-defense. Turning to the first issue for review, Fitton explains in his merits brief, he is not seeking direct review of any ineffective assistance of counsel claims. However, he challenges the denial of his pre-trial adjournment request, which infringed upon his due process rights. At a pre-trial hearing, Fitton himself expressed concern for counsel's unpreparedness and emphasized the need for an adjournment. After consideration, the trial judge stated:

[Defense counsel] seems to be quite familiar with the background of the case. I did receive his letter setting forth the witness list and setting up some further background as to each of these witnesses. He indicates that he's prepared to proceed and I accept that. So, I've not heard . . . any substantive reason why this trial cannot proceed further . . . . Given the information I've been provided with, it seems appropriate that it does proceed, particularly in light of [defense counsel's] indicati[on] that he's satisfied that he's prepared to proceed.

"'The granting of trial adjournments rests within the sound discretion of the trial court. Absent any abuse of discretion, denial of a request for an adjournment does not constitute reversible error.'" State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)), certif. denied, 58 N.J. 335 (1971).

Despite the differences of opinion between Fitton and counsel on the presentation of the defense, counsel assured the court he was familiar with the facts and ready to proceed. The denial of the request for adjournment was unremarkable. Further, the determination of whether counsel fulfilled his duty to make "reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary" will abide defendant's requests for post conviction relief. Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 2067, 80 L.Ed. 2d 674, 696 (1984).

Next, defendant raises several claims of trial error, which we find to be without merit. More specifically, the arguments raised in Points VI and VII do not warrant discussion in a written opinion. R. 2:11-3(e)(2). We briefly address the remaining points.

Defendant argues the court should have sua sponte granted a mistrial based upon comments made in his opening, implicating defendant's guilt. We disagree. Defense counsel's comment that "Fitton is guilty of some of these charges, there ain't no doubt about it[,]" presented nothing more than an expression that supported the trial strategy to admit to the commission of a lesser offense. The defense sought to convince the jury that Fitton's actions amounted to no more than third-degree burglary. Both defendant's testimony and that of the other defense witness supported the theory that Fitton forcibly entered Urubshurow's home with the Leatherman tool in his possession, but had no intention of harming anyone.

A motion for a mistrial should be granted only if "as a result of error, manifest injustice would result from continuation of the trial." State v. Hogan, 297 N.J. Super. 7, 14 (App. Div. 1997); see State v. Di Rienzo, 53 N.J. 360, 383 (1969); State v. Lozada, 257 N.J. Super. 260, 277 (App. Div.), certif. denied, 130 N.J. 595 (1992). Our review of the record discloses no basis for the trial judge's sua sponte exercise of the "extraordinary discretionary measure" of ordering a mistrial. State v. Allah, 170 N.J. 269, 280-81 (2002).

Next, we reject defendant's assertion that the trial court's exercise of discretion in severing the drug possession count of the indictment warrants reversal as plain error. We disturb the trial judge's decision on this issue only if it can be shown that the "finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); State v. Collier, 316 N.J. Super. 181, 193 (App. Div. 1998), aff'd, 162 N.J. 27 (1999).

Determination of this issue is not guided by Rule 3:25-1(b), as suggested by defendant. Rather, Rule 3:15-2 provides that if a court finds joinder of charges will cause a defendant undue prejudice, it may sever two or more offenses charged in the same indictment. Reversal of that determination is only appropriate where there has been an abuse of discretion. State v. Pierro, 355 N.J. Super. 109, 121 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003); State v. Marrero, 148 N.J. 469, 483 (1997); Collier, supra, 316 N.J. Super. at 193.

A pre-trial agreement between the prosecutor and defense counsel resulted in the severance of count six. Following conviction, the State dismissed the charge.

During trial, while cross-examining Jankoski, defense counsel aborted a line of questions regarding her knowledge of defendant's drug use prior to the incident. At side-bar, the State inquired whether defense counsel intended to open the door to examine the drug possession issue. Upon reflection, counsel decided to wait, allowing the issue to remain open and the witness subject to recall, to assess defendant's testimony before presenting this issue.

Fitton asserts the drug use of his accusers at the time of the incident was a proper subject of cross-examination. Except for an anticipated challenge on relevance, there is nothing to suggest questions regarding the drug use of others would have been barred or that defendant was precluded from eliciting this evidence.

We disagree with defendant's next contention arguing the State's failure to expressly disclose Kogut's guilty plea, entered five days prior to the commencement of trial, amounted to a Brady*fn1 violation, which deprived him of essential exculpatory discovery. While we agree Kogut could not have been compelled to testify prior to entering a plea, Kogut's plea did not bar his testimony at trial. State v. Fort, 101 N.J. 123, 131 (1985). Moreover, defendant does not suggest he contemplated calling Kogut as a witness and lacked his contact information, see State v. Clark, 347 N.J. Super. 497, 508 (App. Div. 2002), nor does he present evidence that Kogut's testimony would have aided his defense.

Next, Fitton challenges the sufficiency of the jury charge. Because he did not object to the instructions at trial, we consider these issues under the plain error rule. R. 2:10-2. We may reverse on the basis of unchallenged error if we find that the error was "clearly capable of producing an unjust result." Ibid. State v. Adams, 194 N.J. 186, 206-07 (2008). The crux of Fitton's argument is the trial judge failed to define "deadly weapon" and "attempt" when instructing the jury on the elements of second-degree burglary.

We do not excise, in isolation, portions of a jury charge asserted to be erroneous, but view the entire charge as a whole to determine its overall effect. State v. Jordan, 147 N.J. 409, 422 (1997); State v. Council, 49 N.J. 341, 342 (1967). In light of that standard, we examine the jury charge.

The trial judge properly discussed the elements of second-degree burglary mentioning the State's theory that defendant "was armed with or displayed what appeared to be a deadly weapon, mainly a knife." The judge further stated: "In order for a person to be armed with or display what appears to be a deadly weapon[,] he must first be in possession of that." The charge continued with the element of possession.

At the close of the recitation of the law applicable to the fifth count of the indictment that charged aggravated assault, the court specifically reviewed the definitions of "bodily injury" and "deadly weapon," as set forth in N.J.S.A. 2C:11-1(b) and (c). These definitions are common to both second-degree burglary and aggravated assault. Although it is preferred to include the applicable definitions with each charge, we do not find this lapse to rise to the level of plain error.

Moreover, the overwhelming evidence that defendant brandished a knife as presented by the State's witnesses, whose recitation of events was remarkably consistent, provided substantial, credible evidence upon which the jury could determine defendant's guilt beyond a reasonable doubt.

We conclude there exist no "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." Jordan, supra, 147 N.J. at 422 (citations omitted).

We also reject Fitton's contention that the plea agreement process was conducted unfairly because the State "lulled defense counsel into a sense of false security that a plea agreement had been reached." The record reveals defendant offered to enter a guilty plea to third-degree burglary and other charges in exchange for entry into drug court. It appears that the State did not favor this proposal and did not submit any response. We conclude the State did not breach a negotiated "plea agreement," as no negotiated plea agreement had been reached.

Finally, since we conclude there exists no basis to disturb the sentence imposed by the trial judge, we decline defendant's urging to exercise original jurisdiction. Pursuant to N.J.S.A. 2C:43.7.2, defendant's second-degree burglary conviction results in the imposition of a mandatory period of parole ineligibility. Even though Fitton had no prior felony convictions, the presumption of imprisonment was not overcome. See State v. Jabbour, 118 N.J. 1, 7 (1990).


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