July 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ABDULLAH ALI, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-06-1857.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 3, 2009
Before Judges Parrillo and Messano.
Defendant Abdullah Ali appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of three counts of the lesser-included offense of second-degree sexual assault, N.J.S.A. 2C:14-2; and the lesser-included offense of simple assault, N.J.S.A. 2C:12- 1(a). The judge granted the State's motion to impose a discretionary extended term of imprisonment, N.J.S.A. 2C:44-3(a), and sentenced defendant to three concurrent twenty-year terms on the sexual assaults, and a concurrent sentence of time served on the simple assault. An 85% period of parole ineligibility was mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant raises the following points for our consideration:
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (Not Raised Below)
THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO ATTACK CREDIBILITY.
THE TRIAL COURT ABUSED ITS DISCRETION IN DECIDING TO IMPOSE A DISCRETIONARY EXTENDED TERM, WARRANTING A REMAND TO IMPOSE A SENTENCE COMMENSURATE WITH A SECOND[-]DEGREE OFFENSE.
ASSUMING THE TRIAL COURT'S IMPOSITION OF A DISCRETIONARY EXTENDED TERM WAS APPROPRIATE, THE MAXIMUM 20 YEAR EXTENDED TERM WITH AN 85 PERCENT PAROLE DISQUALIFIER WAS CLEARLY MANIFESTLY EXCESSIVE.
THE TRIAL COURT COULD NOT PROPERLY HAVE IMPOSED EXTENDED TERMS ON COUNTS II AND III AS WELL AS ON COUNT I.
We have considered these arguments in light of the record and applicable legal standards. We agree that only one extended term of imprisonment could be imposed upon defendant, N.J.S.A. 2C:44-5(a)(2), a point the State concedes. We therefore are compelled to remand the matter for re-sentencing. In all other respects, we affirm.
On the evening of March 19, 2006, defendant, A.D., and three other individuals were using crack and heroin in A.D.'s Newark apartment. At around 11 p.m., defendant and A.D. were alone, the others having left the apartment. Defendant followed A.D. into her bedroom and asked, "[S]o, sis, you going to hit me off?" A.D. took this to mean that "[h]e was coming onto [her] sexually," and refused. Defendant then struck her in the face, pinned her to the bed, choked her, and put a pillow over her face so she "couldn't breathe or scream." Although she resisted violently at first, A.D. eventually succumbed to defendant's assault, and he forced her to perform oral sex on him. She attempted to escape, but defendant blocked the door with her bed. Defendant forced A.D. to take off her clothes and vaginally penetrated her with his fingers and penis.
The assault ended at about 2:30 a.m., at which point defendant drove A.D. to work. When she returned home around 2 p.m., her apartment door was open. When she entered, A.D. noticed that her bedroom furniture had been put back in place; she left the apartment in fear. When she returned a second time, around 7 p.m., the lights were on and defendant's car was parked in front. A.D. immediately called the police, who responded and apprehended defendant after he escaped through A.D.'s living room window.
A.D. was taken to University Hospital where she was examined and forensic evidence was obtained. She had swelling under her right cheek and dried blood on the outside of her left ear. Vaginal and cervical smears were taken and tested positive for the presence of sperm. Subsequent DNA analysis matched those samples to the combined DNA profile of A.D. and defendant.
During summation, the prosecutor made the following comments:
There's been innuendo that somehow A.D. should be looked upon as a prostitute; that she's a whore; that she's somehow seeking compensation for this. Did you hear any evidence of that? Was there any evidence on that stand?
She has no reason to lie. There's been no . . . evidence for a reason to lie. Quite to the contrary, everything she says is corroborated someplace else in the evidence you do have before you.
And, ladies and gentlemen, I submit to you there is not one iota of evidence she told you anything but the truth.
Defendant contends that the "prosecutor's references emphasizing the absence of any evidence contradicting the victim's testimony served to emphasize to the jury the defendant had not, in fact, testified," thus violating defendant's Fifth Amendment right to remain silent. We note that no objection was made at trial. Thus, to justify reversal, the comments must amount to plain error, i.e., error that could clearly bring about an unjust result. R. 2:10-2.
"[P]rosecutors occupy a unique position in the criminal justice system and  their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).
"A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)); State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996) (quotations omitted).
The prosecutor is permitted to vigorously rebut specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006) (holding "prosecutor's comments . . . placed an unforgiving and harsh glare on . . . defense" but were permissible) cert. denied, 549 U.S. 995, 127 S.Ct. 507, 166 L.Ed. 2d (2006); see also State v. Morais, 359 N.J. Super. 123, 131 (App. Div.) (holding prosecutor may respond to defense counsel's arguments as long as comments "do not stray beyond the evidence"), certif. denied, 177 N.J. 572 (2003). "Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial[.]" State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84.
We fail to see that the prosecutor's remarks implicitly referenced defendant's decision not to testify. Compare State v. Sinclair, 49 N.J. 525, 549 (1967). Instead, the prosecutor urged the jury to evaluate A.D.'s testimony in light of other evidence corroborating it. As to the comment regarding the lack of any evidence that demonstrated A.D. was a "prostitute," we note this was in specific response to a recurrent defense theme. In opening, defense counsel stated:
[W]e're not denying there was sex! . . . . But DNA can't tell us that she changed her mind. DNA can't tell us if she was expecting something for it.
During summation, he said:
Incredible means not believable. It's a fancy way of saying liar, and that's what we have . . . . Maybe [A.D.] wanted attention. Maybe some women lie because they have regrets or they get embarrassed.
Life experience and common sense may tell you that addicts will do anything to get high. She has a long addiction, and that's really sad, but sympathy has absolutely no place in a courtroom; absolutely none . . . .
Thirty-five baggies of heroin a week, 20 vials of crack a week. Is this cheap? No.
[T]his trial is not about her addiction . . . . But it is a component . . . .
[S]he doesn't have enough money to go get her own drugs [on] the night of that party, [and] she doesn't deny taking $20 from [her brother] . . . to go get some.
Why is this important? If she doesn't have enough money to get drugs she's got to get them somehow.
The prosecutor's comments were in direct response to these attacks and did not amount to prosecutorial misconduct requiring reversal.
Prior to trial, the judge conducted a Sands-Brunson hearing.*fn1 It was undisputed that in 1985, defendant was convicted of receiving stolen property, unlawful possession of a weapon, and robbery. In 1986, defendant was convicted of aggravated assault, robbery, and kidnapping. In 1995, defendant was convicted of third-degree drug possession, as well as aggravated manslaughter and possession of a weapon. Defendant argued that the evidence of his prior convictions should be excluded because they were remote.
The trial judge disagreed. He expressed his reasoning as follows: I understand that the defense argument would be remoteness, because some of these convictions are over 20 years old. But,  you have somebody who is sentenced to 20 years [in] state prison in 1985 on a crime of violence, and then gets another sentence in '95 on a aggravated manslaughter of [fifteen] years[.] . . . State prison sentences [would] take up a lot of that gap.
The judge ruled that evidence of defendant's prior convictions would be "sanitized," i.e., limited to the date of conviction, the degree of the crime, and the sentence imposed. Brunson, supra, 132 N.J. at 391; State v. Sinclair, 57 N.J. 56, 63 (1970). Defendant exercised his right not to testify at trial.
Before us, he reiterates the argument he made below, contending that his prior convictions were remote and should have been excluded from evidence.
N.J.R.E. 609 provides that "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." Whether to admit evidence of a prior conviction rests with the sound discretion of the trial court. State v. Sands, supra, 76 N.J. at 144. "[I]n those cases in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged, the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." Brunson, supra, 132 N.J. at 391.
Recently, the Court made clear that the trial judge's authority to sanitize a prior conviction is not limited to only circumstances where the earlier crime was the same or similar to that for which a defendant was being tried. State v. Hamilton, 193 N.J. 255, 268-69 (2008). The judge must balance the competing interests of the parties, and employ the "sanitization remedy, as part of [his] discretionary authority to control undue prejudice[.]" Id. at 269. Here, the judge appropriately ordered the sanitization of defendant's prior convictions.
However, defendant argues that the convictions were too remote, having occurred years earlier. That contention is answered by the following passage from Sands:
Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. Moreover, it is appropriate for the trial court in exercising its discretion to consider intervening convictions between the past conviction and the crime for which the defendant is being tried. When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible. [Sands, supra, 76 N.J. at 144-45.]
Here, defendant's prior convictions were for serious crimes of violence. He had been sentenced to terms of imprisonment in each instance. His criminal transgressions continued in an unabated fashion upon his release. In short, his prior convictions were not remote, and the trial judge appropriately exercised his discretion by admitting them in sanitized version if defendant testified.
We turn to defendant's sentencing arguments. He contends that the judge abused his discretion in imposing an extended term. Alternatively, he argues that even if imposition of an extended term was an appropriate exercise of judicial discretion, the maximum twenty year sentence was "clearly manifestly excessive." We disagree with both contentions.
Defendant concedes he was eligible for an extended term under N.J.S.A. 2C:44-3(a).*fn2 Once the statutory eligibility criteria are met, the permissible range of sentences available "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." State v. Pierce, 188 N.J. 155, 169 (2006). The judge may sentence the defendant within that range, "subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found." Ibid. We review the judge's decision under an abuse of discretion standard. Id. at 169-70.
At sentencing, the judge considered defendant's age, marital status, history of alcohol and drug abuse, sporadic employment, use of different aliases and social security numbers, the extent and seriousness of his criminal history, and the report from the Adult Diagnostic and Treatment Center at Avenel, finding defendant's conduct demonstrated "antisocial personality orientation that borders on psychopathy." Defendant had been arrested fourteen times as an adult, five of which were indictable offenses resulting in five State prison sentences. The judge concluded aggravating factors three, six and nine were present, and found no mitigating factors.*fn3
Defendant argues that his prior convictions were remote and should not have resulted in the imposition of an extended term in the first instance. In light of the pervasive, violent nature of defendant's prior criminal history, which demonstrated that he remained law-abiding only while incarcerated, this argument has no merit.
Defendant contends that the maximum twenty-year sentence was not warranted because the judge double-counted some of the aggravating factors and failed to find two mitigating factors, specifically, his drug addiction and the hardship his incarceration would cause his family. However, it is well-established that drug dependency is not a factor tending to justify or excuse a defendant's prior convictions. State v. Ghertler, 114 N.J. 383, 389-390 (1989). Moreover, defendant's incarceration would not involve a hardship to his family because there was no evidence that his children or their mothers depended on him for emotional, parental or financial support.
There was no double-counting of aggravating factors by the judge. In short, the judge did not mistakenly exercise his discretion by imposing the maximum sentence. State v. Roth, 95 N.J. 334, 364-65 (1984).
However, the judge imposed three concurrent extended term sentences on the sexual assault counts. The State concedes this was error. See N.J.S.A. 2C:44-5(a)(2) ("Not more than one sentence for an extended term shall be imposed."). Consequently, we are constrained to remand the matter to the Law Division for re-sentencing that includes imposition of only one extended term. State v. Denmon, 347 N.J. Super. 457, 468 (App. Div.), certif. denied, 174 N.J. 41 (2002).
Remanded for re-sentencing. In all other respects, affirmed. We do not retain jurisdiction.