March 4, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SANFORD WILLIAMS, JR., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES WILLIAMS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-05-0425.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 9, 2008
Before Judges Fuentes and Chambers.
In these back to back appeals, defendants Sanford Williams, Jr., and James Williams appeal from their convictions by a jury for fourth degree criminal mischief, N.J.S.A. 2C:17-3(a)(1), and fourth degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). The trial court sentenced each defendant to a term of imprisonment of eighteen months on each conviction, with the sentences to run consecutively, so that each defendant has an aggregate term of three years. The trial court also imposed the requisite monetary fees and penalties. On appeal, defendants challenge both their convictions and sentences. Finding no error, we affirm.
These convictions arose from events that occurred on the evening of October 9, 2004, in East Windsor Township. Officer Brian Mattek testified that while responding to a call, he heard a loud banging noise coming from a nearby gas station and called for responding units. In response, Officer Christopher Jackson drove his marked police vehicle into the gas station where he observed two men standing near the vending machines with a large sledgehammer.
As soon as the two men spotted Officer Jackson's police vehicle, they ran away. As they were running, Officer Jackson observed the men discard the sledgehammer and other items. He gave chase first in his vehicle and then on foot. Officer Mattek and Officer Matthew Flynn joined in the chase. Officers Jackson and Flynn temporarily lost sight of the suspect they were chasing.
Meanwhile Officer Mattek successfully captured the other suspect, later identified as defendant Sanford Williams, Jr., and with the assistance of the other officers, Mattek arrested this defendant. After Sanford Williams, Jr., was given his Miranda*fn1 rights, he said to Officer Mattek "[i]t wasn't my idea. My buddy needed money. And you know, I have been arrested for this before" and "I know this was a stupid idea."
Thereafter, Officers Flynn and Jackson observed the second suspect jump from behind some bushes and run away. They gave chase and captured this suspect who was later identified as defendant James Williams. The defendants are brothers.
Seventy-nine single dollar bills were found on the person of James Williams. Officer Flynn found the sledgehammer, a bag with tools, soda cans, loose change, and a coin slot that looked like it came from a vending machine in the roadway by the gas station where the suspects had been running. He also found crowbars nearby. When he went back to the gas station, he saw that the vending machines had been "destroyed;" the machines had been taken apart and the coin slots removed.
Defendants were charged with third degree criminal mischief and fourth degree resisting arrest. The trial court denied their motions to suppress. Sanford Williams's motion challenging the sufficiency of his Miranda warnings was also denied.
In a pretrial application, defense counsel for James Williams requested that either the trial of the co-defendants be severed or that the statement of Sanford Williams, Jr., to the police be deleted. At the request of the trial court, the statement of Sanford Williams, Jr., was sanitized. At trial, Officer Mattek testified to the statement as follows:
Q: Officer, did the defendant, Sanford Williams, say anything to you after you gave him his Miranda warnings?
Q: Did he . . . say words to the effect, "this was not my idea"?
A: Yes, he did.
Q: Did he say further that, something to the effect, "I needed money"?
Q: Finally, did he say something to the effect of, "I know it was a stupid idea"?
The day before the trial started, defense counsel moved to bar the State from presenting witnesses to testify to the value of the vending machines. While hearsay evidence presented to the grand jury stated that the value of the vending machines was $6,000, the State came forward with no admissible evidence on this question until the eve of trial. Five days before trial, the State provided defense counsel with a report from the Philadelphia Coca Cola Bottling Company stating that the value of the machines was $2,335. The day before the trial, the State faxed defense counsel its witness's report, opining that the value of the machines was $3,093.
Defense counsel argued that due to the late discovery, the State should be barred from introducing evidence of the value of the machines; since no value could be placed on the machines, the criminal mischief charges should be downgraded to disorderly persons offenses. See State v. Clarke, 198 N.J. Super. 219, 226 (App. Div. 1985) (stating that "[w]here there is no evidence of pecuniary loss, for grading purposes it is assumed that the loss was nominal and the offense would be a disorderly persons offense"). The State indicated that it would consent to an adjournment to allow defense counsel to conduct any necessary investigation on the value of the machines.
The value of the machines was critical to the case, because the gradation of the crime turned on the value of the property damaged. N.J.S.A. 2C:17-3(b)(1) and (2). If the pecuniary loss caused by criminal mischief is $500 or less, the crime is treated as a disorderly persons offense; if the pecuniary loss is between $500 and $2,000, the crime is a fourth degree offense; and if the pecuniary loss is $2,000 or more, the crime is a third degree offense. Ibid. In this case if defendants were convicted of a third degree crime, due to their extensive criminal records, they would be subject to an extended term at sentencing. See N.J.S.A. 2C:43-7(a)(4).
After a recess and conference in chambers, defense counsel agreed to stipulate that the value of the machines was between $500 and $2,000, which would reduce the criminal mischief charges to fourth degree offenses. Ibid. The State would not agree to this stipulation. The court then found that the State was too late in providing discovery on the value of the machines, and granted defendants' application to bar testimony on the dollar value of the damages to the machines. Due to the defense's stipulation that the damages were more than $500 and that the State could not prove that they were more than $2,000, the criminal mischief charges were downgraded to fourth degree offenses. N.J.S.A. 2C:17-3(b)(2). We denied the State's emergent application to appeal this ruling.
The case was tried to a jury. Defendants did not testify at trial or present any witnesses.
On appeal, defendant Sanford Williams, Jr., raises the following issues:
WHERE THE EAST WINDSOR POLICE HAD NO REASONABLE BASIS TO BELIEVE THAT THE DEFENDANT WAS ENGAGED IN CRIMINAL ACTIVITY, THE CHASE OF THE DEFENDANT VIOLATED HIS RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AND THE DECISION OF THE TRIAL COURT DENYING DEFENDANT'S MOTION TO SUPPRESS MUST BE REVERSED.
THE COURT BELOW COMMITTED REVERSIBLE ERROR BY FAILING TO EXERCISE ITS DISCRETION TO GRANT RELIEF TO THE DEFENDANT, BY REASON OF THE FAILURE OF THE STATE TO COMPLY WITH ITS DISCOVERY OBLIGATIONS.
THE TRIAL COURT ERRED IN NOT GRANTING A TRIAL ADJOURNMENT TO PERMIT THE DEFENDANT TO HAVE THE DAMAGE TO THE COCA COLA MACHINES EVALUATED OR IN THE ALTERNATIVE DOWNGRADE THE CRIMINAL MISCHIEF CHARGE TO A DISORDERLY PERSONS OFFENSE CONSISTENT WITH STATE V. CLARKE.
TRIAL COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO INVESTIGATE THE VALUE OF THE PURPORTED DAMAGE TO THE COCA COLA VENDING MACHINES AND ENTERED INTO A STIPULATION THAT EXPOSED THE DEFENDANT TO A 4TH DEGREE CRIME INSTEAD OF A DISORDERLY PERSONS OFFENSE.
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT IMPOSING STATUTORY MINIMUM SENTENCES AND IN IMPOSING CONSECUTIVE SENTENCES IN VIOLATION OF STATE V. NATALE AND STATE V. YARBOROUGH.
A. Defendant's sentence violates the dictates of State v. Natale.
B. The imposition of consecutive sentences was in violation of the holding in State v. Yarborough requiring resentencing. Defendant James Williams raises these issues:
THE TRIAL COURT ERRED IN DETERMINING THAT PROBABLE CAUSE EXISTED TO DETAIN AND ARREST DEFENDANT-APPELLANT JAMES WILLIAMS.
THE COURT CONSTITUTED PREJUDICE AGAINST DEFENDANT-APPELLANT JAMES WILLIAMS SUCH THAT IT SERVED TO DENY HIM HIS RIGHT TO A FAIR TRIAL.
DEFENDANT-APPELLANT JAMES WILLIAMS FAILED TO RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL DURING THE COURSE OF HIS TRIAL.
THE VERDICT OF THE JURY WAS NOT SUPPORTED BY THE WEIGHT OF THE SUBSTANTIAL, CREDIBLE EVIDENCE ADDUCED AT TRIAL.
THE TRIAL COURT'S IMPOSITION OF THE CONSECUTIVE MAXIMUM SENTENCE IN THE EXTANT CASE WAS EXCESSIVE.
THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
After a careful review of the record, we affirm finding that defendants' arguments are without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2). We add only the following comments.
Defendant Sanford Williams, Jr., maintains that after the State provided the late damage reports on the value of the vending machines, the trial court should have provided him with relief under Rule 3:13-3(g) by adjourning the trial date or the criminal mischief offense should have been downgraded to a disorderly persons offense. In this argument, he contends that the defense stipulated to the damage figure after the court indicated that it would deny the adjournment.
Our review of the record indicates the contrary. The stipulation was first placed on the record and thereafter the trial court granted the motion to bar the State's evidence on value. Since the defense stipulated to damages and defendants' motion to bar the State's evidence was granted, an adjournment was unnecessary. We fail to see how the defense was prejudiced by these events. Indeed, because of these events, the third degree criminal mischief charges were downgraded to fourth degree charges. Due to the stipulation, the court had no basis to downgrade further the criminal mischief offenses to disorderly persons charges.
Defendant James Williams contends that the use of his brother's statement at trial denied him the right to a fair trial and that his attorney was ineffective for failing to ask for severance of his case from that of his brother. He maintains that his brother's statement, even in its sanitized version, implicated him, and that, since it could not be effectively redacted, separate trials were required under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968). As a result, he concludes that his attorney's failure to seek severance constituted ineffective assistance of counsel.
Where the statement of a non-testifying co-defendant expressly identifying defendant as an accomplice is admitted into evidence, the defendant's constitutional rights of confrontation are violated. Bruton v. United States, supra, 391 U.S. at 123-26, 88 S.Ct. at 1621-22, 20 L.Ed. 2d at 478-79; State v. Young, 46 N.J. 152, 156-59 (1965). However, where reference to the defendant has been redacted, and thus is not incriminating on its face, the statement is admissible even though that statement coupled with other evidence links defendant to the crime. See State v. Guzman, 313 N.J. Super. 363, 380-383 (App. Div.), certif. denied, 156 N.J. 424 (1998).
We conclude that the statement "this was not my idea" should also have been excluded. A fair inference that can be made from the statement is that it was the brother who suggested the crime. However, in light of defendant's failure to object and all of the other evidence available to the jury, the error was "not clearly capable of producing an unjust result." R. 2:10-2.