July 28, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VAUGHN TAYLOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-12-1451, 05-03-0424; Accusation No. 05-01-1302.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges Parker and Gilroy.
Defendant Vaughn Taylor appeals from three judgments of conviction, all entered on November 4, 2005. We affirm.
The judgment of conviction in Indictment 04-12-01451 was entered after a jury found defendant guilty of first degree robbery, N.J.S.A. 2C:15-1 (Count One); third degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (Count Two); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (Count Three); and fourth degree unlawful taking, N.J.S.A. 2C:20-10, amended from unlawful possession of a motor vehicle (Count Five). Counts Two and Three were merged into Count One and defendant was sentenced on Count One to an extended term of twenty-three years subject to 85% parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He was sentenced on Count Five to a concurrent term of one year, for an aggregate term of twenty-three years.
On Indictment 05-03-0424, defendant pled guilty to second degree robbery, N.J.S.A. 2C:15-1 (Count One); and second degree aggravated assault with bodily injury, N.J.S.A. 2C:12-1b(1) (Count Three). On each of the two counts, defendant was sentenced to consecutive terms of six years subject to 85% parole ineligibility pursuant to NERA. The twelve-year term was imposed consecutively to the term of I-04-12-1451 for an aggregate term of thirty-five years on the two indictments.
In Accusation 05-01-01302, defendant pled guilty to third degree criminal intent to escape from detention, N.J.S.A. 2C:29-5(a). On this offense, defendant was sentenced to a term of five years subject to 85% parole ineligibility pursuant to NERA, to run concurrently with the two indictments.
These charges arose out of a series of offenses committed by defendant in August 2004. On August 18, 2004, Marguitha Green reported that her dark green two-door Lexus was stolen from Meeker Street in Newark.
On August 25, 2004, two eyewitnesses observed a black male with a shaved head or short hair, wearing a dark shirt and dark pants, get out of a dark green two-door Lexus and approach a woman later identified as Jacqueline Davis. The assailant struck her over the head, knocking her to the ground, took her purse and ran back to the car. One of the witnesses, Marion Sawicki, identified the object with which defendant hit Davis as a tire iron. The other witness, Christopher Caivano, testified that he saw defendant get out of a green 1991 Lexus. On the same date, Hillside Police Detective Jamie Howell was patrolling in an unmarked police car. He had information about the stolen Lexus and attempted to stop a dark green two-door Lexus, which sped off as the officer approached it. Howell pursued the vehicle until it eventually crashed into the front porch of a residence. When Howell approached the vehicle, he found two individuals inside, defendant and Stephanie Woodfork.
After the Lexus crashed, Marion Sawicki and Christopher Caivano were brought to the scene and identified defendant as the assailant of Jacqueline Davis. Sawicki and Caivano later identified photos of defendant and the stolen Lexus at police headquarters.
In this appeal, defendant argues:
DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL
A. Trial Counsel's Failure to Request a Wade Hearing*fn1 Constituted Ineffectiveness of Counsel
B. Trial Counsel's Failure to Clarify the Nature and Chronology of the Identification Procedures Confused the Jury and Rendered Trial Counsel's Strategy Impotent
THE TRIAL JUDGE ERRED IN SENTENCING DEFENDANT BY CITING AGGRAVATING FACTORS NOT PRESCRIBED BY THE SENTENCING GUIDELINES AND BY CITING AGGRAVATING FACTORS THAT WERE NOT BASED UPON COMPETENT CREDIBLE EVIDENCE
Defendant submitted a pro se supplemental brief in which he argues:
THE ONE-PERSON SHOW-UP OF DEFENDANT WAS IMPERMISSIBLY SUGGESTIVE AND RESULTED IN A VERY SUBSTANTIAL. LIKELIY HOOD OF IRREPARABLE MISIDENTIFICATION, AND AS SUCH, THE PRE-TRIAL AND IN COURT IDENTIFICATION OF DEFENDANT BY SAWICKI AND CAIVANO SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE. (SUPPLEMENTED TO COUNSEL'S POINT I)
TRIAL COUNSEL WAS INEFFECTIVE FOR FAILURE TO PARTICIPATE IN AN ADEQUATE JURY CHARGE MAINLY TO MOLD THE IDENTIFICATION CHARGE TO INCLUDE AN ADEQUATE INSTRUCTION ON CROSS RACIAL IDENTIFICATION AND TO RELATE THE CHARGE TO THE FACTS OF HE CASE DEPRIVED THE JURY OF ADEQUATE GUIDANCE FOR ITS DELIBERATIONS VIOLATING DEFENDANT'S TAYLOR'S RIGHT TO DUE PROCESS UNDER THE STATE AND FEDERAL CONSTITUTION (SUPPLEMENTED TO COUNSEL'S POINT I)
In his first point, defendant argues ineffective assistance of counsel, in that counsel failed to request a Wade hearing regarding the identification procedures used by the police. To prevail on a claim of ineffective assistance of counsel, a defendant must show that his counsel's performance was deficient and that the deficiency prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 2064-65, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1984). This requires a showing that counsel's errors were so egregious as to deprive the defendant of a fair trial. Ibid. In determining whether counsel was deficient, the court must presume that the attorney "made all significant decisions in the exercise of reasonable professional judgment." Id. at 691. To rebut that presumption, a defendant must prove that counsel's performance was deficient and that there was "a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2086, 80 L.Ed. 2d at 698. A reasonable probability was defined by the Court as that which is "sufficient to undermine confidence in the outcome." Ibid.
Ordinarily, ineffective assistance of counsel claims are not addressed on direct appeal because there is insufficient evidence in the record to determine whether trial counsel made a strategic decision to forego a Wade hearing because she believed the identification procedure was not suggestive or for some other strategic purpose. Such claims generally involve facts outside the trial record, requiring an evidentiary hearing. State v. Preciose, 129 N.J. 451, 460 (1992). That is not to suggest that the record before us demonstrates a sufficient factual basis to support an evidentiary hearing. Rather, it is our determination that the record before us is insufficient for such a determination and defendant may make the appropriate application for post-conviction relief. R. 3:22-1.
Defendant next argues that the trial court erred in sentencing defendant because the court relied on aggravating factors not included in the sentencing guidelines. Specifically, he argues that "the trial judge's statements when rendering the sentence indicate that . . . he violated the most fundamental sentencing guideline, that the sentence fit the crime, not the criminal." We disagree.
We have carefully considered the transcript of defendant's sentencing on November 4, 2005, and we find that the trial court properly considered aggravating factors 1, 3, 6 and 9 and found no mitigating factors. The court imposed an extended term based upon the aggravating factors substantially outweighing the nonexistent mitigating factors. Moreover, the trial court properly described the offense in applying aggravating factor one, indicating that the victim, Jacqueline Davis, was a little woman, not very tall, and somewhat -- you would say -- a person of very modest means, a very gentle woman, almost an angel-like type woman, in her docility, in the manner in which she conducted herself. . . .
[A]nd she could have easily been knocked down by a strong wind, let alone anyone using any force, but in one of the more cowardly acts, he goes behind her with a tire iron and slashes her in the head with the tire iron. He could have . . . just taken her purse from her easily with no trouble. Anyone over the age of four could have taken that purse easily with no trouble, but he had to inflict a tire iron, slashing to the head, and knocking her to the ground before he took the [purse].
Clearly, that is the type of offense that warrants [an] extended term.
The trial court referred to defendant's record, as was appropriate under aggravating factor number six. Based upon letters the trial court received from defendant and various supporters, the court commented that defendant is "a very intelligent man."
In our review of the record, we are satisfied that the trial court applied the appropriate aggravating factors -- 1, 3, 6 and 9 -- and imposed sentence based upon the seriousness of the offense and not defendant as an individual. We are further satisfied that in this instance, the punishment clearly fit the crime. State v. Hodge, 95 N.J. 369 (1984).
The arguments raised in defendant's pro se brief lack sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).