October 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PARKER CUSTIS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-08-0795.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2008
Before Judges Lihotz and Messano.
Defendant Parker Custis appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree robbery, N.J.S.A. 2C:15-1a, and sentenced to a nine-year term of imprisonment with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On appeal, defendant raises the following points for our consideration:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO DISMISS THE INDICTMENT BASED UPON DOUBLE JEOPARDY, MANDATORY JOINDER AND FUNDAMENTAL FAIRNESS.
POINT II THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY ELICITED FROM A STATE TROOPER INFERENTIALLY CONNECTING THE DEFENDANT WITH PRIOR CRIMINAL CONDUCT. (NOT RAISED BELOW)
POINT III THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
In a pro se supplemental brief, defendant also argues the following additional points:
POINT ONE DEFENDANT['S]  [F]IFTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION WAS VIOLATE[D], PRIVILEGE AGAINST SELF-INCRIMINATION.
POINT TWO PETITIONER WAS DEPRIVED OF EFFECTIVE ASSISTANCE OF COUNSEL AT THE TIME OF SENTENCE AND DURING TRIAL, WHICH VIOLATED[ ] DEFENDANT'S SIXTH AMENDMENT RIGHT TO THE UNITED STATES CONSTITUTION.*fn1
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The testimony at trial revealed that Bessie Bennett was working as a cashier at the Fairton Sunoco Mini-mart on the evening of August 3, 2004. Shortly before midnight, a masked man came into the store and told her "to open the drawer." She saw what appeared to be "the blade of a knife" in his hand. Bennett could not see his face, though she knew he was African-American and could describe the clothing he wore.
The man was nervous and constantly looking at two other customers who had been in the store when the robbery began. When Bennett "panicked" and was unable to open the cash register, the man fled. Bennett called the police, who responded, and she provided a description of the assailant's clothing, the car he fled in, and his direction of travel. In court, Bennett identified a hat, a scarf, and some gloves as those worn by the robber, as well as a stick wrapped in a paper bag that she believed was the "knife" used that night. A surveillance camera at the Mini-mart recorded the attempted robbery and the State played a videotape of the events for the jury.
Trooper Jeffrey G. Reitz of the New Jersey State Police testified that he received a broadcast of the incident at the Mini-mart over his car radio. He proceeded in the direction of the store and saw a green Suzuki traveling at a high rate of speed. He confirmed that this car fit the description of the one given by Bennett and followed the car. Before he could effectuate a motor vehicle stop, however, the Suzuki pulled over and stopped. Reitz and his partner exited their car, told the driver, defendant, to exit the vehicle, and handcuffed him when he did.
Reitz shone a flashlight in the Suzuki and saw items of clothing that fit the description of those worn by the Mini-mart assailant. He also recovered from the car the "knife" Bennett believed the assailant wielded.
Defendant, who had two prior drug convictions, testified on his own behalf and claimed that on the night in question, he borrowed the Suzuki from a friend to take his family grocery shopping. Later he met James McNair, who was not a friend but someone defendant knew from prison. Defendant gave McNair his phone number, and later that evening, just as he was about to bring the Suzuki back to its owner, McNair called and asked if defendant could drive him to his relatives' house. McNair offered to pay defendant ten dollars for his effort.
Defendant claimed that after he picked up McNair, they bought some beer and drove to his relatives' house, some "four or five houses away from the [Mini-mart]." As he rolled a "blunt" marijuana cigar and smoked it in the car, defendant claimed McNair ran back to the car dressed in different clothing, was sweating and panting, and told defendant he would drive. The two drove to an auto repair shop where McNair exited the car and left the clothing in the back seat. Defendant drove off, but he had only gone a short way when he saw the trooper car following him so he stopped. When the troopers arrested him, defendant immediately suspected McNair had committed a robbery. In two statements that he gave on August 4 and 9, 2004, defendant reiterated this version of events.
After defendant's testimony, the State called the two troopers who had taken those statements from defendant as rebuttal witnesses. They highlighted some inconsistencies between defendant's version of the events and his prior statements. Summations followed, the jury was charged the next day and returned its guilty verdict.
Defendant's pre-trial motion to dismiss the indictment requires some explication of events outside the trial testimony.
Indictment No. 04-11-1068, returned on November 10, 2004, charged defendant with one count of possession of a controlled dangerous substance.*fn2 The State dismissed this indictment with prejudice on March 14, 2005. On August 24, 2005, Indictment No. 05-08-795 was returned by the grand jury, charging defendant with the second-degree robbery of the Mini-mart, third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, fourth-degree possession of an unlawful weapon, N.J.S.A. 2C:39-5d, and third-degree hindering apprehension, N.J.S.A. 2C:29-3b.*fn3
Both indictments charged defendant with conduct that allegedly occurred on August 4, 2004, and the State conceded that the circumstances supporting the drug indictment occurred when defendant's car was stopped by trooper Reitz, some eight to ten minutes after the robbery. A subsequent search of the vehicle also revealed the drugs.*fn4
Defendant argued that the two indictments should have been contained in one because the events were proximate in time and place and essentially occurred within one continuous course of events. He further contended that the State committed prosecutorial misconduct by seeking an indictment knowing that the lab report revealed no drugs were present.
The State argued that the operative facts supporting the two indictments were different and that it was not required to join the drug charge with the other charges associated with the robbery. The prosecutor alternatively argued that even if the indictments had to be joined, the drug indictment was the product of "absolute stupidity," not prosecutorial misconduct, and the State had an obligation to dismiss the drug indictment, which it did.
The judge concluded that "the State probably should have joined the CDS offenses with the [r]obbery[-]related offenses." However, the judge concluded that defendant failed to demonstrate 1) "that jeopardy attached" so as to bar his subsequent trial on the robbery; or 2) prosecutorial misconduct in the first instance. We agree and affirm substantially for the reasons expressed by the trial judge.
We assume arguendo that the drug offense and the robbery-related charges could have been joined in the same indictment. See N.J.S.A. 2C:1-8(b)(providing that "a defendant shall not be subject to separate trials for multiple criminal offenses based on the same conduct or arising from the same episode, if such offenses are known to the appropriate prosecuting officer at the time of the commencement of the first trial and are within the jurisdiction and venue of a single court"); R. 3:15-1(b)(requiring mandatory joinder of "multiple criminal offenses based on the same conduct or arising from the same episode"). The issue is whether the subsequent prosecution of defendant on the robbery charges somehow violated either double jeopardy or principles of fundamental fairness. We believe it did not.
The trial judge correctly considered the issue within the framework of N.J.S.A. 2C:1-10 which provides in relevant part,
A prosecution of a defendant for a violation of a different provision of the statutes or based on different facts than a former prosecution is barred by such former prosecution under the following circumstances:
a. The former prosecution resulted in an acquittal or in a conviction . . . .
b. The former prosecution was terminated, after the complaint was filed or the indictment found, by an acquittal or by a final order or judgment for the defendant which has not been set aside, reversed or vacated and which acquittal, final order or judgment necessarily required a determination inconsistent with a fact which must be established for conviction of the second offense.
c. The former prosecution was improperly terminated . . . and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.
"This section . . . enforces the requirement that related offenses based on the same conduct arising from the same episode be disposed of in a single trial[.]" Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:1-10 (2008)(citing N.J.S.A. 2C:1-8b).
Subsection a. does not apply because defendant was not convicted or acquitted in the former drug prosecution. Defendant argued before the trial judge that subsection b. applied because the order dismissing the drug indictment had not been "set aside, reversed or vacated." However, the dismissal order did not "require a determination inconsistent with a fact which must be established for conviction of the second offense." N.J.S.A. 2C:1-10b. In other words, even if the dismissal order is indicative of the State's inability to prove defendant possessed the drugs noted in the indictment, that was not a fact "which [had to] be established for conviction of the second offense," i.e., the robbery of the Mini-mart.
Defendant has not specifically argued before us that his motion to dismiss the indictment should have been granted because of prosecutorial misconduct, though he raised this point before the trial judge. To accord complete review of defendant's argument, we consider whether reversal is warranted under subsection c.
The trial judge specifically concluded there was, at best, prosecutorial negligence, not misconduct, in securing the drug indictment. However, we will assume arguendo that defendant's claim that the State secured the first indictment knowing that the laboratory report indicated he did not possess drugs of an indictable nature or weight amounts to misconduct. His argument is still unavailing.
Initially, we note that the prosecution was not "improperly terminated"; rather, the State sought dismissal when it ultimately became aware that a mistake had been made and this was entirely appropriate and consistent with the prosecutor's obligations. See Rules of Professional Conduct 3.8(a)(requiring a prosecutor to "refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause"). Moreover, and more importantly, subsection c. provides a narrower bar to subsequent prosecution than subsection a.
Where a prosecution is improperly terminated, [N.J.S.A. 2C:1-10c] will not bar further prosecutions for offenses with which defendant could have been charged and tried at the former prosecution, even though he was not. It will bar further prosecution of any offense for which he actually could have been convicted. Thus, not included in the range of the subsection c. bar are those cases which should have been joined for trial under [N.J.S.A. 2C:1-8b.]. [Cannel, New Jersey Criminal Code Annotated, comment 6 on N.J.S.A. 2C:1-10 (2008).]
Thus, even if defendant's claim of prosecutorial misconduct had substance, and we conclude it did not, his subsequent prosecution for robbery was not barred.
Defendant's second point deals with a portion of the testimony of Detective William Henry who was the lead investigator for the case. Asked if he knew the suspect who was in custody for the Mini-mart robbery, Henry indicated that he did, and the following exchange then took place between the prosecutor and the witness:
Q: Did you have occasion to encounter that suspect?
A: Yes, I did.
Q: Do you know the suspect's identity?
Q: Now, prior to that date, did you know who Parker Custis was?
Q: And through out dealing as any human being, you know, in Cumberland County may have had who ever encountered Parker Custis?
Q: Would you [have] recognized him back then if you would have seen him?
Henry then identified defendant in the courtroom.
Although there was no objection lodged from defense counsel, defendant now argues that this testimony denied him a fair trial because it "inferentially connect[ed] him with prior criminal conduct." We disagree. The comments were fleeting and the jury could not reasonably infer that Henry knew defendant only from prior arrests or investigations. Moreover, given the fact that defendant testified and acknowledged his two prior convictions, if admission of the testimony was error, it was surely harmless.
Additionally, defense counsel never objected nor asked for a curative charge. As we noted in State v. Mays, 321 N.J. Super. 619 (App. Div.), certif. denied, 162 N.J. 132 (1999), When no request for a limiting or curative instruction is made, defendant must show that the failure to give such an instruction sua sponte constitutes an error clearly capable of producing an unjust result. Moreover, we infer from counsel's failure to request a curative instruction that he made a strategic decision not to draw more attention to this isolated, fleeting comment. We owe some degree of deference to counsel's strategic or tactical decisions and should carefully refrain from undermining or preempting them. [Mays, supra, 321 N.J. Super. at 633 (internal quotation omitted).]
In short, Henry's testimony does not provide a basis for reversal.
Nor do the arguments defendant raises in his pro se filing. Defendant seemingly argues that he was not provided with his Miranda*fn5 rights prior to police questioning. However, the issue was never raised at trial and as a result it has been waived. See State v. McKnight, 52 N.J. 35, 48 (1968); R. 3:5-7(f). As to defendant's ineffective assistance of counsel claim, consideration of that issue is more appropriate in the context of any petition for post-conviction relief that defendant may file. State v. Preciose, 129 N.J. 451, 462 (1992).
Lastly, defendant contends his sentence was manifestly excessive, arguing the trial judge's "finding with respect to the applicable aggravating and mitigating factors were not supported by sufficient credible evidence[,]" and that "a proper weighing of the truly applicable . . . factors required a lesser sentence[.]" We disagree.
Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).
Noting defendant had sixty "contacts with the system between 1989 and 2006 resulting in eight juvenile adjudications, [twenty-six] disorderly persons offenses and four indictable convictions[,]" the judge found aggravating factors three ("[t]he risk that  defendant will commit another offense"), six("[t]he extent of  defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"), and nine ("[t]he need for deterring  defendant and others from violating the law"). N.J.S.A. 2C:44-1(a)(3), (6), and (9). He found no mitigating factors.
Defendant concedes that the judge's determination in this regard was supported by the record, but he contends the judge should have also found mitigating factors two ("defendant did not contemplate that his conduct would cause or threaten serious harm") and eleven ("[t]he imprisonment of  defendant would entail excessive hardship to himself or his dependents"). N.J.S.A. 2C:44-1(b)(2) and (11). He argues that no weapon was actually used because the "knife" was actually a stick wrapped in a paper bag, and therefore no serious harm was contemplated; he further argues that he has four children and his imprisonment would create a hardship.
As to the latter, it was revealed that defendant did not live with his children and owed more than twenty-eight thousand dollars in child support arrearages. Although defendant used a make-shift facsimile of a knife, the circumstances clearly provided the opportunity for significant harm to Bennett and others, including the law enforcement officers who responded. Under all the circumstances, defendant's sentence was not excessive.