July 2, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FRED A. HUNTER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 06-04-0444.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 12, 2010
Before Judges Baxter and Alvarez.
Tried by a jury, defendant was found guilty of multiple offenses under Indictment No. 06-04-0444. On January 18, 2008, he was sentenced on that indictment, as well as an open plea on one count of Indictment No. 06-06-0794, to an aggregate term of fifteen years subject to seven and one-half years of parole ineligibility. Defendant now appeals only as relates to Indictment No. 06-04-0444. We affirm, except that we remand for merger of counts five and six.
Defendant was convicted on Indictment No. 06-04-0444 of the following: fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b (count one); third-degree burglary, N.J.S.A. 2C:18-2a(1) (count two); a lesser-included fourth-degree theft by unlawful taking or disposition, N.J.S.A. 2C:20-3a (count three); third-degree forgery, N.J.S.A. 2C:21-1a(2) (count four); third-degree uttering of a forged instrument, N.J.S.A. 2C:21-1a(3) (count five); and third-degree theft by deception, N.J.S.A. 2C:20-4a (count six).
Defendant was sentenced to five years imprisonment subject to two and one-half years of parole ineligibility on count two. Count five also resulted in five years imprisonment subject to two and one-half years of parole ineligibility, consecutive to count two. All other sentences on that indictment were made concurrent to these two counts. Counts one and three each resulted in a sentence of eighteen months imprisonment. Defendant was sentenced to imprisonment for five years, subject to two and one-half years of parole ineligibility on count six. Because only counts two and five were sentenced consecutively, the aggregate sentence for this indictment was thus ten years, subject to five years of parole ineligibility.
Defendant's open plea on Indictment No. 06-06-0794 was to count one, third-degree burglary, N.J.S.A. 2C:18-2a(1).*fn1 On that count, the trial court sentenced defendant to five years of imprisonment, consecutive to Indictment No. 06-04-0444 and subject to two and one-half years parole ineligibility. The aggregate sentence was therefore fifteen years subject to seven and one-half years of parole ineligibility. Appropriate fines and penalties were also imposed.
The following facts were developed at trial. At approximately 5:15 p.m. on December 4, 2005, Laishawn Laborde, then employed as a security officer, discovered an intruder lying on a couch in a company trailer as he patrolled a Digz Construction site. The man explained his presence by claiming he was a Digz employee. As a result, Laborde called his supervisor, who directed him to escort the intruder from the premises. The man had identified himself by the name "Saleem," defendant's nickname when he worked at Digz Construction before his termination a few days earlier. Laborde described the trespasser as an African-American man wearing a black jacket.
The following Monday morning, December 5, Jose Figuera was driving on Route 206 at approximately 8:00 a.m. on his way to work at VIP Construction, next door to the Digz site. Much to his surprise, he saw the company's backhoe on Route 206 traveling in the opposite lane. Figuera, who was the VIP Construction foreman, had not given anyone permission to operate the backhoe and was the only person authorized to do so. He turned his car around as quickly as he could given traffic conditions and tried to follow. Figuera eventually found the backhoe parked behind a liquor store. After verifying that the backhoe belonged to VIP Construction, he reported its whereabouts. Figuera observed that the man driving the backhoe was an African-American wearing a black jacket.
Brian Pesce, a detective sergeant with the Township of Bordentown, testified that he was the first detective to arrive at the scene. A business known as One Stop Check Cashing (One Stop) is located on the same strip mall as the liquor store behind which the backhoe was parked. When Pesce arrived, he had already been informed that a duffle bag filled with approximately $600 worth of items, including walkie talkies and cell phones, as well as a payroll check in the name of Jimmy Avery, had been stolen from the trailer at Digz Construction. As Pesce completed his processing of the backhoe and its contents, a man matching the description of the driver walked away from him southbound on Route 206. Pesce stopped the individual, later identified as defendant, who explained that he had taken a bus from Philadelphia to Camden, gone by train from Camden to Bordentown City, and then walked approximately two miles from Bordentown City, to cash a check. When Pesce asked defendant why he had not cashed the check in Philadelphia, he had no answer. Defendant's hands were shaking, he stammered when answering Pesce's questions, and he repeatedly put his hands in his pockets. Pesce testified that defendant appeared "very nervous."
As a result, Pesce patted defendant down and found a screwdriver in defendant's right pocket. Pesce walked into the check cashing store to verify defendant's story and obtained the $744.77 payroll check that defendant had just cashed. The check was endorsed by a signature purporting to be that of Avery, whom Pesce knew "from prior contacts in the community." Accordingly, Pesce took defendant into custody and gave him his Miranda*fn2
Defendant admitted taking the check from the Digz Construction trailer, forging Avery's signature, and cashing it at One Stop. He denied any knowledge of the duffle bag or other items recovered from the rear of the backhoe, however. When Pesce told him that he "was amazed" that defendant "commandeered [a] backhoe and drove it up" Route 206 to a check cashing store, defendant "just basically started to laugh and had a big smile on his face and was just laughing." He later gave a formal statement.
Kathleen Maurio, the owner of One Stop, also testified. At approximately 10:00 a.m. on December 5, 2005, defendant entered the store claiming to be Avery. The store video system was not operational at the time as Maurio had just begun her day and defendant was her first customer.
Keys belonging to Andrew Braverman, the supervisor at Digz Construction, were also located on defendant's person at the time of arrest. Braverman testified that defendant had been terminated prior to December 1, 2005, for his failure to return to work.
Defendant raises the following points on appeal:
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO ADMIT EXCULPATORY PORTIONS OF HIS STATEMENT TO THE POLICE. POINT II THE TRIAL COURT ERRED IN FAILING TO MERGE THE DEFENDANT'S CONVICTION OF THEFT BY DECEPTION INTO HIS CONVICTION FOR UTTERING A FORGED INSTRUMENT.
THE TRIAL COURT ERRED IN IMPOSING AN EXCESSIVE SENTENCE.
Defendant's first contention is that the court erred in excluding defendant's exculpatory statements to police. Defense counsel objected to the exclusion of the exculpatory material in light of the admission of the inculpatory portions of defendant's statement. The "exculpatory" material was defendant's statement that he cashed Avery's check because "Avery owed him money for past crack cocaine purchases" and gave him the check in satisfaction of the debt. Defendant admitted forging Avery's signature but thought that, since Avery owed him money, he had the right to do so.
In defendant's view, the explanation would have justified his signature of Avery's name to the check and "was an integral part of" the entire statement. We do not agree.
We considered this very issue in State v. DeRoxtro, 327 N.J. Super. 212 (App. Div. 2000). Exculpatory material may be admitted along with inculpatory statements under two separate theories. Id. at 221-22. The first is that the trustworthiness of a statement made against penal interest will "rub off" on the exculpatory material, thereby permitting the exculpatory material to "tag along." Id. at 222. The second is that the material must be admitted where necessary for the sake of "completeness." Ibid. In other words, that "it would be admitted for the purpose of conveying the full and complete meaning of the [inculpatory] statement." Ibid.
When employing the trustworthiness theory of admission "the primary question is whether the two declarations are 'essentially a single, integral statement.'" Ibid. (citing State v. Gomez, 246 N.J. Super. 209, 218 (App. Div. 1991)). If they are, the trustworthiness of the inculpatory statement will make the exculpatory material sufficiently reliable for admission, even though the exculpatory material is not against the declarant's interest. Ibid.
We agree with the trial court that the statement was not admissible under the trustworthiness theory because the two statements were distinct and severable. Defendant's admission that he forged another person's signature on a paycheck was trustworthy because in the circumstances of his arrest it was a statement clearly against his interest. Defendant's explanation of how he became to have possession of the check, however, did not have any "indicia of reliability." Ibid. Defendant's acknowledgment of being involved with crack cocaine is only inculpatory at first blush. No drugs were on his person at the time of arrest and drugs played no role in the events leading to his arrest. Moreover, defendant made the statements for the sole purpose of justifying his possession and cashing of the check. And the story meant that even if Avery were questioned and denied giving defendant the check and authorizing his signature, a reason for Avery denying having done so was built right in to defendant's story. The statements were only self-serving, as Avery's statements would be viewed skeptically because of defendant's claim he had sold him drugs, a claim it would be natural for Avery to deny. The trustworthiness of the inculpatory portions therefore did not mandate that the exculpatory portions "tag along." The trustworthiness of the inculpatory portion did not make the exculpatory portion reliable.
Similarly, the theory of completeness is not a basis for admission. As explained in DeRoxtro, there are four grounds upon which an otherwise inadmissible statement can be admitted into evidence on the theory of completeness: "(1) to explain the initial, admissible statement; (2) to provide a context for the admissible statement; (3) to avoid any misleading of the trier of fact; and (4) to ensure 'a fair and impartial understanding' of the initial statement." Id. at 223 (citing Gomez, supra, 246 N.J. Super. at 220).
None of these factors make the statements admissible. Defendant's purported reason for the forgery does not rationally explain it, does not provide a context, does not avoid misleading a trier of fact, nor does it ensure a fair understanding of the initial statement. Even if Avery owed defendant money, he obviously could have endorsed the paycheck himself and only then handed it over to defendant. This separate and distinct exculpatory material does not aid the trier of fact in assessing the "truth or accuracy of the first statement." Ibid. We therefore affirm the court's exclusion of the exculpatory material as it did not meet the criteria to "tag along" with the inculpatory statement.
Defendant's second contention is that the court erred in failing to merge his conviction for theft by deception, count six, with his conviction for count five, uttering a forged instrument. We agree. N.J.S.A. 2C:1-8 provides:
When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other . . . . [N.J.S.A. 2C:1-8a.]
The inclusion occurs when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" N.J.S.A. 2C:1-8d(1). Merger is not required if offenses arising out of the same overall sequence of events are distinct and separate segments of the incident. See State v. Truglia, 97 N.J. 513, 521-22 (1984). Here, however, the elements of the offenses of theft by deception and uttering a forged instrument and the facts blend seamlessly together.
In State v. Alevras, 213 N.J. Super. 331, 341-42 (App. Div. 1986), we said that when property is wrongfully obtained because of the utterance of a forged check, the theft and forgery merge. As we reiterated in State v. Streater, 233 N.J. Super. 537, 544 (App. Div. 1989), "only a single crime is committed when a theft by deception is accomplished by uttering a forged instrument and . . . the two offenses merge." Accordingly, we merge count six, the third-degree theft by deception, into count five, the uttering of a forged instrument. The merger, however, does not impact defendant's sentence.
Defendant's last point is that the trial court erroneously imposed an excessive sentence. We note that the judge declined to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3a because in his view the nature of the offenses did not warrant the imposition of an extended term. Nonetheless, the court found aggravating factors three, "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3), factor nine, the need to deter, N.J.S.A. 2C:44-1a(9), and factor thirteen, that defendant while committing a crime "used . . . a stolen motor vehicle," N.J.S.A. 2C:44-1a(13). Defendant had been previously convicted of multiple indictable charges as well as various disorderly offenses. He had been arrested approximately twenty-seven times. The court also found mitigating factor two, that "defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1b(2), and factor eleven, that "imprisonment . . . would entail excessive hardship to himself or his dependents," N.J.S.A. 2C:44-1b(11). The mitigating factors were accorded slight weight in contrast to the weight accorded the aggravating factors because of defendant's criminal history.
We therefore disagree with defendant that the weight accorded the mitigating factors was insufficient, or that the court double counted the aggravating factors to arrive at the aggregate sentence. We are satisfied from our review of the record that the trial judge's findings were "'supported by substantial [credible] evidence. . . .'" See State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). The judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and in our view, the sentence is neither manifestly excessive nor unduly punitive; it does not constitute a mistaken exercise of discretion. See State v. O'Donnell, supra, 117 N.J. at 215-16. See also State v. Ghertler, 114 N.J. 383, 393 (1989). Given defendant's criminal history, it does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984) (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).
Affirmed as to the conviction and sentence, except that the matter is remanded for the merger of counts five and six.