July 1, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
VINCENT HAWKINS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-02-0146.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 18, 2009
Before Judges Lisa and Alvarez.
Tried to a jury on Cumberland County Indictment No. 06-02-0146, defendant Vincent Hawkins was convicted of second-degree burglary, N.J.S.A. 2C:18-2(a)(1), and third-degree theft, N.J.S.A. 2C:20-2(b)(2)(d), a lesser included to the original charge of robbery. The jury acquitted defendant of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2), and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). A count of fourth-degree criminal trespass, N.J.S.A. 2C:18-3(a), was dismissed prior to trial. Defendant appeals the convictions as well as the sentences. We affirm.
Defendant's trial ended on August 25, 2006. On October 27, 2006, the State's application for discretionary extended term sentencing of defendant pursuant to N.J.S.A. 2C:44-3(a), was granted at the first sentencing hearing. Thereafter, the trial judge conducted a second sentencing hearing on March 9, 2007, to address State v. Pierce, 188 N.J. 155 (2006). Defendant was then resentenced on the second-degree burglary as an extended term offender to the same term of twenty years previously imposed, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The trial judge merged the third-degree theft into the second-degree burglary. Appropriate fines and penalties were imposed.
The victim, Pedro Santiago, testified at trial that at approximately 11:00 a.m. on September 23, 2005, he was in bed in his apartment when he heard his apartment door open. He went into the living room to find defendant stuffing his belongings into a bag. As Santiago approached, defendant, who was wearing white and grey socks on his hands, dropped the bag and pulled out an approximately three to four inch knife. The two men struggled, and the struggle continued into the street. When defendant heard someone say that the police had been called, he redoubled his efforts and fled. When his shirt came off, he was freed from Santiago's grip and ran.
When the dispatch went out regarding the incident, police who were gathered at an unrelated investigation site nearby almost immediately observed a man who matched defendant's description running toward them. Among others, Patrolman Deena Glover-Bertolini and Lieutenant Mark Ott pursued defendant in their separate patrol cars. Glover-Bertolini pulled up in front of defendant, who upon seeing her, said "Oh, s--t," and ran the other way. Lieutenant Ott also pulled up alongside defendant, got out of his car and drew his weapon, at which time defendant stopped running and dropped to his knees. Once arrested, police found a pocket knife, a screwdriver, and some socks in defendant's pockets.
Patrolman John Sloboda observed fresh pry marks on Santiago's door, the door latch and the knob. There were paint chips on the floor, directly below the door frame.
One of the State's witnesses was the victim's landlord, who observed the struggle between Santiago and defendant. She testified that defendant shouted out, "Does anybody here speak English?" and, "Can't you tell them I just wanted to feed my family?" She was the person who triggered defendant's flight by saying that she was calling police.
At trial, defendant testified that he was in Santiago's apartment solely to collect $80 he had loaned Santiago the prior day to buy drugs. He said that the victim would not pay him back in cash, but agreed that he could take some of the victim's belongings in lieu of the money. When he attempted to place items of value in the bag, however, Santiago assaulted him. Defendant claimed that the screwdriver actually belonged to Santiago, who threw it at him, striking the door and thereby causing the pry marks and chipping the paint. Defendant also claimed that he had been wearing two pairs of socks and had to remove one pair while running from the scene because his shoes were falling off. Defendant acknowledged three sanitized convictions on direct and was briefly examined about them on cross-examination as well.
On appeal, defendant raises the following points:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT ELICITING HIS PRIOR CRIMINAL RECORD AFTER IT HAD BEEN FULLY DISCLOSED BY DEFENSE COUNSEL DURING DIRECT EXAMINATION. (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING TO IMPOSE A DISCRETIONARY EXTENDED TERM ON COUNT III INVOLVING SECOND DEGREE BURGLARY, WARRANTING A REMAND TO IMPOSE A SENTENCE COMMENSURATE WITH A SECOND DEGREE OFFENSE.
ASSUMING THE PROPRIETY OF THE TRIAL COURT'S DECISION TO IMPOSE A DISCRETIONARY EXTENDED TERM ON COUNT III, THE MAXIMUM POSSIBLE 20 YEAR EXTENDED TERM WITH AN 85 PERCENT PAROLE DISQUALIFIER WAS MANIFESTLY EXCESSIVE.
Defendant's first contention is that the prosecutor's cross-examination eliciting a repetition of his sanitized criminal history violated the principles enunciated in State v. Johnson, 65 N.J. 388 (1974). Because his trial counsel did not challenge the questioning at that time, his claim is considered under the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Johnson and its progeny stand for the proposition that once prior criminal convictions are disclosed on direct, a prosecutor's questioning on the subject during cross-examination, and comments thereon in summation, can result in unfairness by suggesting to a jury that a defendant is a hardened criminal. See Johnson, supra, 65 N.J. at 391-92. That principle was not violated by the examination in this case. The prosecutor's questions were very brief and did nothing more than reiterate defendant's offense history. The few questions followed extensive cross-examination about defendant's version of the incident.
The State also mentioned defendant's criminal history in closing, but discussed that history solely in the context of the anticipated instruction on defendant's credibility.*fn1 The State did not suggest that because defendant had previously been convicted of crimes, he was more likely than not to have committed this offense because of some criminal propensity.
Credibility was the key issue during the trial. A prosecutor is entitled to highlight the facts that the State considers to be important so long as he or she does not prejudice a defendant's right to a fair trial. State v. Frost, 158 N.J. 76, 82-83 (1999). In this case, the victim's version of the incident was in sharp contrast with defendant's version.
In his summation, the prosecutor thoroughly reviewed the details of defendant's testimony that made the defense theory less tenable and his testimony less credible, such as defendant's statement that the pry marks resulted from the screwdriver striking the door frame. Given defendant's testimony and the State's focus on the details of his version of the incident, the State's cross as to defendant's criminal history and mention of defendant's record during summation does not constitute error, much less plain error.
Defendant also contends that the trial court abused its discretion by sentencing him to an extended term. After the appropriate motion, the trial court found that defendant was statutorily eligible for a discretionary extended term, N.J.S.A. 2C:44-3(a). Once that threshold is met, a court is at liberty to sentence a defendant from the minimum of the ordinary-term range through the maximum of the extended-term range. Pierce, supra, 188 N.J. at 169. In accord with Pierce, once a court has chosen to sentence a defendant within that range, this discretionary decision is not error so long as credible evidence exists to support the court's finding of aggravating and mitigating factors. Ibid.
As the court noted in the March 9, 2007 resentencing proceeding, defendant was eligible for sentence as a discretionary extended term offender because at age thirty-nine, he had been convicted of eleven prior offenses, including eight burglaries, receiving stolen property, resisting arrest, theft, and possession of a handgun. Having determined that defendant was statutorily eligible for extended term sentencing, the court then considered aggravating and mitigating factors in order to determine the base term of the extended sentence, in accord with Pierce's mandate. See id. at 164. The court found aggravating factors three, six and nine and gave those factors "full weight." N.J.S.A. 2C:44-1(a)(3), (6) and (9).
The court accorded substantial weight to aggravating factor three, the risk that defendant would reoffend, because of defendant's twenty-two contacts with the criminal justice system between 1985 and 2005. He had previously received five probationary terms and seven prison terms, with three parole violations. Defendant's lengthy prior criminal history mandated a finding of factor six. The court concluded that factor nine, the need to deter, was extremely significant as no prior sentence had deterred defendant from continuing criminal conduct. There were no mitigating factors.
As a result, defendant was sentenced to twenty years in state prison, subject to NERA and a three-year period of parole supervision. Not only were the minimum statutory standards for imposition of a discretionary extended sentence met, the length of the term was justified in light of the weight accorded to the aggravating factors and the absence of mitigating considerations. The sentence will not be disturbed as it was based on competent credible evidence, complied with relevant law, and does not shock the court's conscience. State v. Roth, 95 N.J. 334, 363-64 (1984).
Lastly, defendant contends that because the original plea offer was for eight years subject to NERA, imposition of the maximum sentence permitted by law was effectively a punishment levied upon his exercise of his right to a trial. We consider this argument to be so lacking in merit as to not warrant any further discussion in a written opinion. R. 2:11-3(e)(2).