February 17, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GEORGE MONROE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-03-0652.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Parrillo and Messano.
Indicted for, among other things, second-degree aggravated assault of Raymond Selvaggi, N.J.S.A. 2C:12-1b(1), defendant George Monroe was found guilty by a jury of the lesser-included offense of simple assault, N.J.S.A. 2C:12-1a; possession of a weapon for the purpose of using it unlawfully against R.S. and/or D.R., N.J.S.A. 2C:39-4d; and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d. He was sentenced to a three-year term on the possession for an unlawful purpose offense, and to concurrent terms of one-year for unlawful possession of a weapon and six months for simple assault. Defendant appeals. For the reasons that follow, we vacate the simple assault conviction and sentence thereon and affirm the judgment of conviction in all other respects.
According to the State's proofs, on September 9, 2006, at approximately 12:30 a.m., Daniel Rosano and Raymond Selvaggi*fn1 were walking to Selvaggi's residence at 501 Grand Avenue in Asbury Park. As the two approached the front entrance of the home, defendant snuck behind them and struck Selvaggi in the face with a brick. Both men turned around and faced defendant, who announced "this is a robbery" and struck Selvaggi with a glass bottle.
Rosano grabbed defendant and, while struggling with him, told Selvaggi to call the police. As Selvaggi ran inside and called 9-1-1, defendant fled. Rosano pursued defendant because he "didn't want him to get away with this crime," and during the ensuing chase, defendant periodically stopped to strike Rosano with the bottle. During one of these attacks, Rosano managed to take the bottle from defendant and strike defendant with the bottle. Defendant fled into a dark alleyway, at which point Rosano stopped his pursuit.
Rosano observed police lights and yelled to alert the police to his location. Officers instructed Rosano to remain outside the alley; the officers then entered the alley and apprehended defendant. Rosano described the incident to the police and identified defendant as the man who had attacked him. As a result of the confrontation, Selvaggi suffered a split lip, as well as soreness and swelling of his head, arms, and hands. Defendant, who was bleeding from the forehead at the time, was taken to the hospital where he received six stitches.
Shortly thereafter, Rosano went to the Asbury Park Police Station and gave a formal statement describing the incident. Officers escorted Rosano to the area defendant was apprehended and, with Rosano's assistance, police recovered the bottle defendant used to facilitate the assault. Police then responded to 501 Grand Avenue, and with Selvaggi's assistance, recovered the brick defendant used to strike Selvaggi.
Defendant offered a different account at trial. According to defendant, on the early morning in question, he was walking home when he bumped into Rosano, who was accompanied by Selvaggi and said "excuse me." When Rosano replied that he looked good, defendant responded "I'm not a homo." Monroe then proceeded on his way home, but three or four blocks later, was hit in the head with a bottle by Rosano. Defendant lost consciousness, but awoke when the police arrived.
Evidently crediting the State's version, the jury convicted defendant of the lesser-included offense of simple assault as well as the two weapons offenses charged. On appeal, defendant raises the following issues:
I. THE JUDGE INSTRUCTED THE JURY THAT THEY COULD CONVICT DEFENDANT FOR ASSAULTING SOMEONE NOT NAMED IN THE INDICTMENT.
II. DEFENDANT'S PRIOR CONVICTIONS WERE TOO REMOTE TO HAVE BEEN PERMITTED TO BE CONSIDERED BY THE JURY.
III. PREJUDICIAL MISCONDUCT BY THE PROSECUTOR DURING SUMMATION REQUIRES REVERSAL.
IV. DEFENSE COUNSEL SHOULD HAVE BEEN PERMITTED TO CROSS-EXAMINE A WITNESS ON HIS ACTIONS WHICH WERE INCONSISTENT WITH HIS WORDS.
V. THE SENTENCE WAS EXCESSIVE.
As to the first issue, Count Two of the indictment charged defendant with aggravated assault only upon Selvaggi. Yet, when charging the jury, the judge mistakenly included Rosano as an alleged victim of the aggravated assault, and repeated the error by including Rosano on the verdict sheet for that crime as well as its lesser-included offenses. Given the well-settled principle that a defendant may not be convicted of a crime not charged, State v. Dixon, 125 N.J. 223, 257 (1991), the State concedes plain error requiring reversal. We agree, and therefore vacate the simple assault conviction and sentence thereon.
We are satisfied, however, that, contrary to defendant's further suggestion, the mistaken instruction has no impact on his conviction of possession of a weapon for an unlawful purpose. That count of the indictment charged defendant had "a purpose to use (the brick or bottle) unlawfully against the person of R.S. and/or D.R. . . ." To that end, the court instructed the jury:
In this case the State contends defendant's unlawful purpose in possessing those weapons, one or both, was to assault and/or rob Mr. Rosano and Dr. Selvaggi.
You must not rely on your own notions of the unlawfulness or some other undescribed purpose of the defendant; rather, you must consider whether the State has proven a specific unlawful purpose charged.
On this score, defendant appears to be arguing that because Rosano was not named a victim in the aggravated assault count, the court erred in instructing that defendant could be found guilty of possession of a weapon for the unlawful purpose of assaulting Rosano. We find no error in the court's instruction in this regard, much less plain error.
Under N.J.S.A. 2C:39-4d, a person commits a third-degree offense if he possesses any weapon other than a firearm with the purpose to use it unlawfully against another. One of the essential elements of this offense is that the defendant intended to use the weapon in an unlawful manner. State v. Harmon, 104 N.J. 189, 212 (1986); State v. Daniels, 231 N.J. Super. 555, 558 (App. Div. 1989). When instructing a jury as to this element, a trial court must identify the potential unlawful uses of the weapon, as charged by the State and suggested by the evidence adduced at trial, and then instruct that the jury may only consider the specified unlawful purposes in satisfaction of this element. State v. Williams, 168 N.J. 323, 341 (2001); State v. Petties, 139 N.J. 310, 314 (1995). The jury may not infer possession for some other unidentified unlawful purpose. State v. Banko, 182 N.J. 44, 55-56 (2004); State v. Brims, 168 N.J. 297, 306-07 (2001); State v. Villar, 150 N.J. 503, 511 (1997).
Of course, the focus of N.J.S.A. 2C:39-4 is on the defendant's purpose in possessing a weapon, not how the weapon was ultimately used. State v. Parolin, 171 N.J. 223, 227 (2002) (citing Brims, supra, 168 N.J. at 303-04); Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:39-4 (2008). The jury need not be instructed on the elements of the crime defendant allegedly sought to commit. State v. Mello, 297 N.J. Super. 452, 466 (App. Div. 1997). There is also no requirement that a defendant be indicted for any crime corresponding to the underlying unlawful purpose. Indeed, a jury may conclude that a defendant's purpose in possessing a weapon was unlawful even if it finds the unlawful act was not committed. See, e.g., Banko, supra, 182 N.J. at 57-58; Petties, supra, 139 N.J. at 314-21; State v. Becheam, 399 N.J. Super. 268, 278 (Law Div. 2007). Cf. State v. Turner, 310 N.J. Super. 423, 434 (App. Div. 1998) (vacating conviction where acquittal of aggravated assault on a theory of unlawful purpose negated the only unlawful purpose instructed to the jury).
Here, the court's instruction on the charge of possession of a weapon for an unlawful purpose was consistent with the Model Jury Charge. As to the "purpose" element, the judge charged that defendant allegedly possessed the weapon(s) with the intent to assault and/or rob either Rosano or Selvaggi or both. The judge then instructed the jury that it was not permitted to infer any other unlawful purposes, and that it was not necessary for defendant to have successfully carried out his purpose for his possession of the weapon(s) to be unlawful.
Clearly, the judge properly specified the unlawful purposes that the State alleged defendant had at the time he possessed the weapons. Indeed, the "purpose to assault Rosano" fell squarely within the broad description of the "unlawful purpose" charged in the indictment. This specific unlawful purpose was also well supported by the facts of record, which suggested that an intended purpose of defendant's possession of the brick and/or bottle was to facilitate an assault on Rosano, irrespective of whether defendant was separately charged in the indictment with that particular substantive crime.
Defendant's reliance on Turner, supra, is misplaced. Unlike Turner, defendant was not acquitted of the single substantive offense identified in the trial court's instructions as the basis for the "unlawful purpose" element. In sum, the judge here specified the unlawful purpose alleged by the State and related it to the facts of the case. No error was committed, much less plain error.
Defendant next contends the court erred in permitting the State to cross-examine him about convictions too remote to have any probative force. We disagree.
In August 1992, defendant was sentenced to an aggregate five-year term for his convictions of third-degree burglary, N.J.S.A. 2C:18-2; third-degree knowingly receiving stolen property, N.J.S.A. 2C:20-7a; and third-degree possession of CDS, N.J.S.A. 2C:35-10a(1). The trial court permitted the State to cross-examine defendant as to the number and degree of these offenses.
Whether to admit the prior convictions of a testifying defendant is a matter reserved to the sound discretion of the trial court and may only be reversed on appeal upon a showing of an abuse of discretion. State v. Hamilton, 193 N.J. 255, 256-57 (2008); State v. Sands, 76 N.J. 127, 144 (1978); State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). Under N.J.R.E. 609, the State may introduce evidence of a defendant's prior convictions to impeach a testifying defendant's credibility. A defendant's prior convictions are generally presumed to be admissible, and it is defendant's burden to justify exclusion. State v. Spivey, 179 N.J. 229, 242-43 (2004); Sands, supra, 76 N.J. at 144. To meet this burden, defendant must demonstrate that a conviction is so remote that, in the circumstances of the case, its "probative force" is "significantly outweighed" by the risk that the jury will "believe the defendant has a criminal disposition." Sands, supra, 76 N.J. at 141, 147.
Defendant's sole argument against admission is the remoteness of the crimes. Yet, the mere passage of time is not the sole factor the trial court must consider in determining remoteness. Sands, supra, 76 N.J. at 144. The nature and seriousness of defendant's prior convictions must also be given consideration. Ibid. Moreover, the court may consider any intervening convictions when making its determination as to the remoteness of a prior conviction. Id. at 145.
Here, although the balance of defendant's sentences had expired ten years ago, defendant has had intervening disorderly persons convictions in 1995, 1996 and as recently as 2005, which the trial judge properly considered as evidencing defendant's continued disregard for the law. See id. at 144-45. Moreover, in mitigating any prejudice to defendant as a result of its admission, the judge properly "sanitized" the evidence, by allowing disclosure only as to the number and degree of the offenses. See Hamilton, supra, 193 N.J. at 257. Under these circumstances, admission of such evidence did not constitute an abuse of the trial court's discretion.
Defendant also complains about the prosecutor's comment during summation that he contends maligned defense counsel as trying to mislead the jury. We find no reversible error was committed.
The challenged remarks must be placed in context. During summation, defense counsel attacked the credibility of the State's witnesses, Rosano and Selvaggi, citing what he called "major" inconsistencies in their testimonies. The prosecutor responded to this attack in his closing:
Let's not forget the scene here as we're going through the little whole "when you left this detail out here." . . . [Y]ou heard how scared they were. Scared. Frustrated. How would you feel? . . . .
You might leave a couple of details out when you are telling, retelling the story. Someone might be able to cross-examine you later, question you and maybe find that you might word something differently and accuse you of not putting it in your statement or making it up, because that's what we have here. It's not inconsistent. Don't confuse an inconsistency with a little trick if you worded something differently almost a year later than you did that night at 3:00 in the morning.
A prosecutor's challenged comments must be viewed in the context in which they were made. 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). A prosecutor is permitted to respond appropriately to a defense counsel's attack on a State's witnesses' credibility. State v. Hawk, 327 N.J. Super. 276, 284 (App. Div. 2000); Engel, supra, 249 N.J. Super. at 379-80. The inquiry for an "uninvited" response is whether the response unfairly prejudiced the defendant; if the prosecutor's remarks did no more than "right the scale" in response to defense counsel's argument, his remarks will not be considered improper. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001); Engel, supra, 249 N.J. Super. at 379. Indeed, it is well-settled that a conviction will not be reversed due to prosecutorial misconduct during summation unless the prosecutor's misconduct was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Ramseur, 106 N.J. 123, 322 (1987).
So viewed in context, the prosecutor's comments here simply countered defense counsel's argument by suggesting the discrepancies in the State's witnesses' accounts were minor in nature and attributable to the passage of time. While the use of the word "trick" was unfortunate, it was isolated and fleeting, State v. Watson, 224 N.J. Super. 354, 362 (App. Div.), certif. denied, 111 N.J. 620, cert. denied, 488 U.S. 983, 109 S.Ct. 535, 102 L.Ed. 2d 566 (1988), and did not prejudice defendant's right to a fair trial.
Defendant also argues the court erred in limiting counsel's cross-examination of Rosano. We disagree.
On direct, Rosano testified that he pursued defendant after the attack because he "didn't want him to get away with his crime." On cross, counsel attempted to underscore a perceived inconsistency by questioning Rosano about his present reluctance to testify, suggesting that Rosano's hesitation was evidence of his fear of committing perjury. After entertaining brief argument on the State's objection, the judge barred the defense from this line of inquiry as irrelevant. Defendant now contends such limitation deprived him of a fair trial.
Although a defendant enjoys the constitutional right to confront and cross-examine the State's witnesses, State v. Harvey, 151 N.J. 117, 187-88 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000); State v. Budis, 125 N.J. 519, 530 (1991), that right is not limitless. Harvey, supra, 151 N.J. at 188 (citing Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed. 2d 15, 19 (1985)). The scope of cross-examination "rests within the sound discretion of the trial court[,]" ibid.; see N.J.R.E. 611(b), which retains "wide latitude" to reasonably limit cross-examination to avoid harassment, prejudice, confusion of the issues, or interrogation that is only marginally relevant. State v. P.H., 178 N.J. 378, 389-90 (2004); Budis, supra, 125 N.J. at 532 (citing Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 1435, 89 L.Ed. 2d 674, 683 (1986)); see also N.J.R.E. 611(a)(3). We do not interfere with the trial court's decision to limit the scope of cross-examination absent a finding of "clear error and prejudice." State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002).
Here, there has been no demonstration that the proffered line of questioning would have any tendency to either prove or disprove any fact of consequence. N.J.R.E. 401. On the contrary, there are any number of reasons a witness may be reluctant to testify against a defendant at trial, and counsel's surmise of Rosano's fear of committing perjury is entirely speculative. Balancing, on the one hand, its marginal relevance at best, and on the other, its clear capacity to harass the witness and confuse and mislead the jury, we are satisfied defendant was not prejudiced by an inability to pursue this line of questioning. In any event, in summation, counsel was able to argue this very point, namely that Rosano was reluctant to testify because he did not want to perjure himself.
Lastly, defendant contends his three-year sentence was excessive, citing in part the judge's reference to the "resurrection" of Asbury Park as an impermissible "aggravating factor." We find no abuse of the sentencing court's discretion.
Defendant received the minimum custodial term for a crime of the third-degree. His three-year term was amply justified by the preponderance of aggravating factors, N.J.S.A. 2C:44-1a(3), (6), (9), based largely on defendant's extensive criminal record, and, contrary to defendant's argument, untainted by any extraneous factors. On this score, the judge's reference to Asbury Park's resurrection was in the context of his application of aggravating factor nine, the need to deter defendant and others from violating the law. Under the circumstances, the sentence meted out is fair and just.
The conviction for simple assault and sentence thereon are vacated. The judgment of conviction is affirmed in all other respects.