July 9, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GARY JACQUES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 05-04-0307.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2010
Before Judges Reisner and Chambers.
Defendant Gary Jacques appeals from the judgment of conviction entered against him on August 15, 2006. He was convicted by a jury of second degree robbery, N.J.S.A. 2C:15-1, and third degree burglary, N.J.S.A. 2C:18-2.*fn1 The trial court sentenced him to an extended term of twelve years on the robbery charge, subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and he was sentenced to a concurrent flat five years on the burglary charge. Additionally, defendant is subject to five years of parole supervision upon completion of his sentence of incarceration. For the reasons expressed below, we affirm the conviction and sentence. We remand in order that the judgment of conviction may be amended to reflect the proper degree of each crime.*fn2
A review of the record reveals the following pertinent facts. The victim of the crime, James Gerald, testified that at about noontime on November 5, 2004, he arrived with his two children at his residence in Trenton, where he lived with his girlfriend and children. He observed that a back window was broken, pushed the children back into his car, and walked into the house. There he saw a man come down the stairs. When the man pulled out a knife, Gerald did not confront him, and the man left the house.
Gerald gave chase, shouting to his neighbors that someone had broken into his house. At one point, he grabbed the man's jacket, which came off. He chased the man to an apartment building where a woman let the man in and locked the gate. The police arrived, and they eventually brought defendant out of the building. Gerald identified defendant as the man who had been in his house. Back at his residence, Gerald found no items missing other than approximately $245. However, he could not say that defendant took the money because other visitors had been in and out of the house. He also found jewelry and a jacket on the kitchen table which did not belong to him and indications that someone had gone through some papers and drawers.
Gerald testified that on two occasions while the case was pending, defendant offered him $500 not to testify, and that when being led out of the courtroom on the first day of trial testimony, defendant held up five fingers, indicating $500. Gerald's girlfriend also testified that, while defendant was being led away from the courtroom, she observed defendant "mouth" or whisper "500" to Gerald. However, the two sheriff's officers who escorted defendant past Gerald and his girlfriend testified that they made no observations of defendant communicating with Gerald or his girlfriend.
A neighbor in Gerald's neighborhood testified that on the day in question she observed two men fighting in the street and one man shouting that his house "had been broken into." She saw one man pull the other man's jacket off. She called the police and retrieved the jacket which had jewelry in a pocket. She took the jacket and jewelry to Gerald's house. In court, she identified defendant as one of the men she observed fighting in the street, but he was not the man shouting about a burglary.
The manager of the building where defendant was apprehended testified that defendant lived upstairs in the building. On the day in question, he observed a woman who was staying with defendant let defendant into the building, and they rushed up the stairs. A few seconds later, a man from the neighborhood began banging on the door, asking to be let in, and saying that he had been robbed. The manager also testified that he saw defendant hand the woman a white bag and told her to "get rid of this." The police then arrived, entered the building, and apprehended defendant in his room.
Defendant did not testify at his trial, but he presented the testimony of the sheriff's officers regarding the alleged $500 offer following the first day of trial. The parties stipulated that no fingerprints or palm prints were found at Gerald's premises matching defendant. Although Gerald and his neighbor did not observe that defendant had a tattoo, the parties stipulated that he had a tattoo on his neck and one on his arm.
On appeal, defendant raises the following issues:
The Admission of Highly Prejudicial Testimony by State Witness that Defendant offered $500.00 to witness violated N.J.R.E. 404(b) and Deprived Defendant of [h]is Federal and State Constitutional Rights to a Fair Trial and Due Process of Law U.S. Const. Amend. XIV; N.J. Const. ACT.I,II,I, [sic] (Not Raised below)
The sentence is illegal because the discretionary sentence was applied [in] violation of [N.J.S.A.] 2C:44-3(a) and State v. Pearce and State v. Dunbar[,] 108 [N.J.] 80 (1987).
NERA was inappropriately applied because the serious bodily injury predicate was not met.
The trial court's "flight" charge was incorrect and not supported by any evidence, thereby denying defendant due process of law and a fair trial.
Defendant contends that the admission of evidence that he had offered Gerald $500 not to testify was so inflammatory and prejudicial as to have the clear capacity to produce an unjust result and to deprive him of a fair trial. He complains that the evidence was not sanitized and that the court failed to give a limiting instruction. This argument was not raised below, and, thus, our review is subject to the plain error standard.
Evidence that a defendant offered money to an adverse witness to induce the witness not to testify is relevant as evidence of consciousness of guilt and its admissibility is controlled by N.J.R.E. 404(b), which governs other-crimes evidence. State v. Burden, 393 N.J. Super. 159, 171-72 (App. Div. 2007), certif. denied, 196 N.J. 344 (2008). Rule 404(b) provides that evidence that a defendant committed other crimes, wrongs or bad acts is inadmissible to prove defendant's disposition but the "evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b).
Generally, other crimes evidence will be admitted where the following four prongs are met:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[State v. Cofield, 127 N.J. 328, 338 (1992) (quoting Abraham P. Ordover, Balancing the Presumptions of Guilt and Innocence: Rules 404(b), 608(b), and 609(a), 38 Emory L.J. 135, 160 (1989)).]
Consciousness of guilt evidence is relevant and meets the first prong. State v. Williams, 190 N.J. 114, 122-30 (2007). The second prong is not applicable to consciousness of guilt evidence. Id. at 131. With respect to the third prong, Gerald and his girlfriend testified to the offer. Uncorroborated testimony may satisfy the clear and convincing standard. In re Samay, 166 N.J. 25, 30 (2001). Although the two sheriff's officers saw and heard nothing, that may be explained because they were escorting defendant through a busy hallway past the witnesses, they were not observing defendant's hands, and they may not have heard everything. When weighing the probative value of the consciousness of guilt evidence against its prejudice to defendant as required under the fourth prong, the Court has recognized that "[t]here is no risk that a jury hearing this other-crimes evidence will confuse it as exhibiting defendant's predisposition to commit a certain type of like crime." State v. Williams, supra, 190 N.J. at 132 n.9.
We therefore find no plain error in allowing the State to present evidence that defendant offered money to Gerald. However, this consciousness of guilt evidence should have been accompanied by a limiting instruction. Id. at 134; State v. Cofield, supra, 127 N.J. at 334. The trial court should have advised the jury that "the evidence may be used only to assess defendant's mental state" and "it should not draw any inference of consciousness of guilt by defendant from his post-crime conduct unless it believes that defendant acted to cover up a crime." State v. Williams, supra, 190 N.J. at 134.
However, the failure to give the limiting instruction is not plain error because "evidence of witness-tampering is unlikely to lead a jury to conclude that a defendant is predisposed to commit the type of crime with which he is accused." State v. Burden, supra, 393 N.J. Super. at 172. As in Burden, here the prosecutor did not suggest to the jury that the consciousness of guilt evidence reflected a predisposition of the defendant to commit the type of crime for which he was on trial. Ibid. We also note that the evidence against defendant was strong. Accordingly, the trial court's failure to give the limiting instruction was not plain error. While defendant complains that the consciousness of guilt evidence was not sanitized, he does not explain how it should have been sanitized nor how he was prejudiced by the failure to do so.
Defendant also contends that his sentence is illegal because he was sentenced to an extended term under N.J.S.A. 2C:44-3(a) without receiving the notice required by law. Rule 3:21-4(e) requires that the prosecutor file the motion for an extended term under N.J.S.A. 2C:44-3, "within 14 days of the entry of defendant's guilty plea or of the return of the verdict." The Rule allows the court to extend this time period for "good cause shown." R. 3:21-4(e).
In this case, on June 14, 2006, immediately after the jury rendered its verdict and was discharged, the State announced on the record that the State would be moving for a discretionary extended term. Thus, defendant had verbal notice as soon as the verdict was rendered that the State would be seeking an extended term. However, the State did not formally move for an extended term until August 9, 2006, two days before sentencing, and well beyond the fourteen day window it had to do so.
The prosecutor explained that he had delayed filing the motion because he had been attempting to get from another county the judgments of convictions for some of defendant's older convictions. The trial court found that the prosecutor had presented good cause for an extension of time in which to file the motion and that defendant had not been prejudiced by the delay and sentenced defendant to an extended term. We agree and find no error here.
Defendant also contends that his sentencing under NERA was improper because the predicate for serious bodily injury had not been found. This argument rests upon a prior version of NERA which required that the defendant must have committed a violent crime in order to be subject to sentencing under NERA. L. 1997, c. 117, § 2. The statute was amended in 2001 to eliminate that requirement and in its place, the statute sets forth the specific crimes under the criminal code subject to NERA. State v. Parolin, 171 N.J. 223, 232-33 (2002). In particular, the statute lists robbery and burglary as specific crimes subject to NERA. N.J.S.A. 2C:43-7.2(d)(9) and (12). As a result, defendant was properly sentenced under NERA.
Defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
The conviction and sentence are affirmed. The case is remanded to the trial court to amend the judgment of conviction.