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State v. Fryar


July 12, 2010


On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-11-3614.

Per curiam.


Submitted April 20, 2010

Before Judges Parrillo and Lihotz.

Following a jury trial, defendant Michael Fryar was convicted of armed robbery, N.J.S.A. 2C:15-1 (count one), third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count two), third-degree unlawful possession of a weapon, N.J.S.A. 2C:39- 5(b) (count three) and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Thereafter, defendant pleaded guilty to the sole count of a second indictment charging him with second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b)(1). Defendant appeals from the judgment of conviction, arguing the cumulative impact of the prosecutor's inappropriate remarks made during summation deprived him of a fair trial and asserting errors resulted in an illegal or excessive sentence. More specifically, defendant's argues:












Following our review of the arguments presented on appeal in light of the record and applicable legal standards, we affirm defendant's conviction and sentence, except for the sentence imposed on count four, which must be merged with count one. We remand to the trial court to correct this and one other error in the judgment of conviction.

Following an armed robbery and police chase on the streets of Newark, defendant was arrested and charged under Indictment No. 06-11-3614 with armed robbery, aggravated assault, and weapons offenses. Defendant was separately charged under Indictment No. 06-11-3646 with second-degree possession of a weapon by a convicted felon.

The facts relied upon by the jury supporting defendant's conviction are taken from trial testimony. On May 18, 2006, James Jackson was heading to the New Hope Baptist Church in Newark when he stopped and ate breakfast at the Central Diner, located at Norfolk Street and Central Avenue. He saw defendant inside the restaurant. Jackson had just cashed a check for $1000 and held several twenty dollar bills in his hand as he waited to pay for his breakfast. Jackson had the money and some personal papers in his possession.

Jackson then left the restaurant and walked down Dey Street towards the church. He was approached from behind by a man who grabbed his collar and wrestled him to the ground. The man told Jackson "this a robbery," removed a handgun from his belt, and began beating him on the back of the head. The attacker then pointed the handgun at Jackson firing two shots into the air. The gunshots attracted police, and the assailant fled after taking some of Jackson's personal papers and his ATM card.

Jackson described the gun used in the assault and stated his attacker was wearing "black pants and a white T-shirt." When asked, he could not confirm whether the man was wearing a "gray hooded jacket" police later recovered. After defendant was captured, Jackson saw him in police custody and identified him as his assailant.

On the morning in question, Newark Police Officer Tyrone Moore was on patrol when he heard what sounded like a "firecracker" and saw a bystander waving at him. Moore ran up Dey Street and was approximately "12 to 15 yards" away when he saw "an older male on the ground fighting a younger black male off of him. The black male had a gun in his hand swinging down at the head and face of the older male." Moore shouted "Newark Police" and "drop the gun." Defendant looked toward Moore, grabbed some of Jackson's papers, then fled. Officer Moore stated he got a clear view of the younger man's face.

Moore radioed the incident to the police station, "stopped and looked" at the victim, and "might have asked him was he okay," but he "kept it moving" and was "running after the suspect" because he "wasn't going to let him get away." According to Moore, defendant was wearing a "gray hoodie, blue long shorts, on the street called capri [pants] . . . . and white and red sneakers." Moore chased defendant all the way out to Central Avenue . . . and, then, . . . when we got to Central [defendant] faked left and went right . . . . At that point before we got to the corner there was a black female walking on the sidewalk . . . he got on the opposite side of the female and he no longer ran at that point. He basically used her as a shield between me and him.

Defendant left the officer's sight, entering a building on a street corner. Still in pursuit, Moore "scaled the wall of the building" and watched defendant "dip down into" a subway station. The officer radioed defendant's whereabouts to fellow policemen in the area and followed him into the subway station.

Moore lost sight of defendant at that point, then saw him "escalate[] back up the other side" of the subway platform. The officer retrieved defendant's discarded "hoodie." He then saw "something come over the railing" from the street level, which he described as "a black object," and which was later identified as a gun. Outside the subway station, two other police officers apprehended defendant.

Newark Police Officer Emanuel Pereira testified he, along with Sergeant Antonio Vencenzio, responded to Moore's radio calls. Pereira observed an individual matching the assailant's description, "wearing a white T-shirt, blue capri pants, running out of the train station, coming up [from] the train station[,] and [crossing] Norfolk in front of us . . . [w]ith a weapon in his hand." He stated he and Vencenzio attempted to apprehend defendant, who "stopped" and "tossed the weapon over the fence onto the train tracks below." Pereira and Vencenzio tackled defendant from behind and handcuffed him.

After securing defendant in their police cruiser, Pereira and Vencenzio retrieved defendant's gun from the train tracks, removed the gun's magazine, and found one spent shell in the chamber. Moore arrived and identified defendant as Jackson's assailant.

The jury found defendant guilty of armed robbery, assault, and weapons offenses. Prior to the jury's consideration of the second indictment, defendant pled guilty to that charge.

On December 14, 2007, defendant was sentenced to an aggregate term of sixteen years in prison, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, with an eighty-five percent parole bar, a five-year term of parole supervision, and applicable fines and assessments. This appeal ensued.

Attacking the propriety of the prosecutor's remarks during summation, defendant argues his conviction must be vacated, and he must be provided a new trial. In support of this argument, defendant identifies three instances that he believes evince improper vouching or the prosecutor's interjection of his personal opinion to improperly influence the jury's evaluation of the evidence.

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). However, as long as the prosecutor's remarks in summation are "reasonably related to the scope of the evidence presented[,]" he or she is allowed considerable flexibility. State v. Frost, 158 N.J. 76, 82 (1999). It is expected that the State's summation should be "vigorous and forceful[,]" but tempered by a prosecutor's primary duty "to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987) (internal quotations and citations omitted). Generally, prosecutors are afforded "considerable leeway in closing arguments[.]" Frost, supra, 158 N.J. at 82 (citing State v. Harris, 141 N.J. 525, 559 (1995)). Accordingly, as we undertake our review, we "take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties." Harris, supra, 141 N.J. at 559.

We will reverse a criminal conviction if the State's conduct "was so egregious that it deprived the defendant of the right to a fair trial." State v. Josephs, 174 N.J. 44, 124 (2002) (citing State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001)). However, the prosecutor's conduct must have been "clearly and unmistakably improper" and must have "substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." Timmendequas, supra, 161 N.J. at 575.

During this trial, the prosecutor's remarks in summation drew no objection, which generally suggests the statements made were not prejudicial. Josephs, supra, 174 N.J. at 126; Timmendequas, supra, 161 N.J. at 576; Ramseur, supra, 106 N.J. at 323. We determine "whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred." State v. Walden, 370 N.J. Super. 549, 562 (App. Div.), certif. denied, 182 N.J. 148 (2004). Pursuant to the plain error standard, R. 2:10-2, if we conclude "the possibility of an unjust result is sufficient to raise in our minds a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached, a new trial is required." Ibid. Guided by these principles, we review defendant's contentions of prosecutorial impropriety.

First, defendant argues the prosecutor essentially utilized his own personal beliefs to buttress Jackson's identification of defendant after the attack. Responding to the defendant's challenge that Jackson did not see his attacker while being struck, the prosecutor stated:

You're going to get a good look at his face when he's that close, when he's that close, when he's hitting you.

I'm not an expert in human nature. I don't see it as a person closing their eyes getting hit. I want to know where I'm going to get hit from and protect myself from it. So my eyes are going to be open.

That statement was provoked by defense counsel's argument that Jackson likely did not see his attacker, claiming:

Now if you use your common sense, your common experiences[,] is it not reasonable that if you are blindsided and attacked, thrown to the ground and struck that all you're trying to do is shield yourself from the onslaught? More than likely your eyes are not open because that's just human reaction that you flinch and try to avoid being struck.

I understand [the victim's] desire to get at who he believes [is] responsible for striking him. But [it] is not justifiable to come in here and mislead you into thinking that something else happened. And I'll tell you why he wanted you to think something else happened, and that's because he did not see who struck him and came from behind him on that day.

Highlighting discrepancies between his trial testimony and his statement to police two hours after the robbery, the defense argued Jackson did not see his attacker and was not telling the truth.

Reviewing the challenged statements in the context of the entire summation, see State v. Morton, 155 N.J. 383, 416 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001); State v. Wilbely, 63 N.J. 420, 422 (1973), including the summation of the defense, State v. Darrian, 255 N.J. Super. 435, 454-55 (App. Div.), certif. denied, 130 N.J. 13 (1992); State v. Engel, 249 N.J. Super. 336, 379-80 (App. Div.), certif. denied, 130 N.J. 393 (1991), we conclude "the remarks were a measured response to defendant's summation made in an attempt to 'right the scale'" in response to defendant's attack on the witness's credibility. State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001); see State v. Hawk, 327 N.J. Super. 276, 284-85 (App. Div. 2000) ("A prosecutor is not forced to idly sit as a defense attorney attacks the credibility of the State's witnesses; a response is permitted."). We conclude the State's summation constituted a proper and fair comment to the defense's remarks. It was not impermissible vouching, see Frost, supra, 158 N.J. at 85-86 (holding prosecutor may not personally vouch for the credibility of a witness), and we find no prejudice resulted from these comments.

Next, defendant suggests the prosecutor improperly attempted to personally reinforce Moore's testimony by saying: "It doesn't take more than two, three seconds to find out whether someone is shot or not, especially if you ask, are you okay? And you get a response." We disagree.

The defense had asserted Moore's testimony was "fantastic," stating:

So the police officer took the time to talk to [the victim] to determine what his condition was, although there was another person who could have taken care of that[.]

I submit to you . . . it wasn't because of his police concern. I submit to you it was because whoever fled was so out of the officer's reach that he could not get him. So he . . . called for backup.

And I'm going to give you a little idea why you should believe that Officer Moore was not at the subway station [when] a gun and this hoodie [were] found[.]

And I think it's really curious how Officer Moore tried to bolster his story again. I submit . . . the officer did not see [the assailant.]

I submit [Moore] never left Mr. Jackson.

That when he stopped chasing the individual . . . he called up backup and he was with Mr. Jackson and the backup was trying to find whoever was responsible.

The State's comment was appropriate rebuttal to the forceful attack made against Moore's credibility. We reject the contention that the prosecutor's summation exceeded the bounds of legitimate advocacy. Morton, supra, 155 N.J. at 457-58; State v. Perry, 65 N.J. 45, 48 (1974); State v. Di Paglia, 64 N.J. 288, 297 (1974).

Finally, defendant takes exception to the prosecutor's statement that "[w]hen you take all of this testimony together it's clear it was the defendant Michael Fryar who committed these crimes." Defendant characterizes this remark as the prosecutor's expression of "his personal belief with respect to the defendant's guilt." We conclude the argument lacks sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). The comment was confined to the record and in no way expressed an opinion of defendant's guilt in such a manner that the jury could understand it to be based on something outside the evidence. State v. Wakefield, 190 N.J. 397, 440 (2007), cert. denied, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed. 2d 817 2008).

Following our review, we determine the prosecutor's remarks were proper. We conclude their impact individually or in combination did not affect the fairness of defendant's trial.

We turn to the sentencing issues defendant raises. Defendant urges the trial court erred in failing to merge the charges for assault and the weapons offenses into the armed robbery. The State concedes the conviction for possession of a weapon for an unlawful purpose (count four) should merge with the armed robbery conviction (count one). Consequently, the sentence imposed for count four is vacated. See State v. Romero, 191 N.J. 59, 80 (2007) (holding that the "failure to merge convictions results in an illegal sentence for which there is no procedural time limit for correction"); R. 3:22-12(a).

Also, the State acknowledges the judgment of conviction conflicts with the trial court's oral sentencing determination, in that it improperly merged count three into count four. "It is firmly established that the sentencing transcript is 'the true source of the sentence.'" State v. Walker, 322 N.J. Super. 535, 556 (App. Div.) (quoting State v. Pohlabel, 40 N.J. Super. 416, 423 (App. Div. 1956)), certif. denied, 162 N.J. 487 (1999).

Therefore, remand is necessary to correct the judgment of conviction to reflect the merger of count four into count one and that the sentence imposed for the conviction on count three was a four-year term of imprisonment concurrent to the sentence in count one. See R. 2:10-3. Otherwise, we reject defendant's arguments that the convictions in count two and three merge with the armed robbery.

As a preliminary matter, we note "[a]t its core, merger's substantial purpose 'is to avoid double punishment for a single wrongdoing.'" Romero, supra, 191 N.J. at 80 (quoting State v. Diaz, 144 N.J. 628, 637 (1996)). Additionally, N.J.S.A. 2C:1-8 set[s] forth a series of factors that help a court determine whether to bar multiple convictions for conduct that constitutes more than one offense. In particular, N.J.S.A. 2C:1-8(d) calls for merger when one offense is established by proof of the same or less than all of the facts required to establish the commission of another offense charged[.]

[State v. Mirault, 92 N.J. 492, 502 n. 10 (1983).]

Defendant argues "the same physical act necessary to establish the robbery also constituted the aggravated assault embodied in Count II[,]" as "the defendant did not threaten the victim or place him in fear of immediate bodily injury[,]" but instead "immediately began assaulting [the victim] with his gun, thereby utilizing force against him and inflicting bodily injury upon him." Defendant maintains it was this conduct that elevated the theft to robbery. The State disagrees, maintaining "[t]he gun was used as a club. It was not an act necessary for the armed robbery, and stands on its own." Therefore, the State maintains "the first-degree robbery was not dependent upon the beating inflicted upon the victim."

In our fact-sensitive inquiry, we must determine whether the two offenses are the same and, therefore, merge, or whether "'each [offense] requires proof of an additional fact[,] which the other does not[,]'" making merger inapplicable. State v. Dillihay, 127 N.J. 42, 48 (1992) (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309 (1932)).

The first count of the indictment alleged defendant "did knowingly commit an act of robbery upon" the victim "and in the course of committing said robbery was armed with, did use or threaten the immediate use of a deadly weapon, a handgun[.]" Under the criminal code:

A person is guilty of robbery if, in the course of committing a theft, he [or she]:

(1) Inflicts bodily injury or uses force upon another; or

(2) Threatens another with or purposely puts him [or her] in fear of immediate bodily injury; or

(3) Commits or threatens immediately to commit any crime of the first or second degree.

[N.J.S.A. 2C:15-1(a).]

Robbery "is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).

Count two of the indictment alleged defendant "did attempt to cause significant bodily injury" to the victim, or "under circumstances manifesting extreme indifference to the value of human life recklessly cause[d] . . . significant bodily injury." The code provides that a person is guilty of aggravated assault if he or she "[a]ttempts to cause significant bodily injury to another or causes significant bodily injury purposely or knowingly or, under circumstances manifesting extreme indifference to the value of human life recklessly causes such significant bodily injury[.]" N.J.S.A. 2C:12-1(b)(7).

For the two offenses to merge, the assault must be the "very conduct[,] which raised a theft to a robbery," and "precisely the same physical acts are used to make out the robbery and the assault." Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:1-8(a)(1) (2010); see Mirault, supra, 92 N.J. at 503-04; State v. Pyron, 202 N.J. Super. 502, 503 (App. Div. 1985). However, where the conduct constituting an assault is factually separable from the force used to raise theft to robbery, the assault conviction does not merge with the robbery conviction. State v. Carlos, 187 N.J. Super. 406, 418 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983).

In Mirault, supra, the Court tackled the "difficult question" of whether a "conviction of aggravated assault should be merged with [a] conviction of robbery in the first degree[.]"

92 N.J. at 501. A violent struggle occurred when an investigating police officer confronted a suspected burglar found in a residence. Id. at 494. The defendant was found guilty of aggravated assault and first degree robbery. Ordering merger of the two convictions, the Court concluded the offenses merged stating that:

In this case, . . . the proofs to sustain the aggravated assault and the robbery in the first degree were identical. The trial court refused to merge the offenses because it found that the jury could have separated the defendant's first lunge at the officer and shoulder injury from the subsequent struggle over the officer's gun. But the purported segments of the episode lack the separation in time . . . that distinguishes the offenses under the "same transaction" test. Here the same physical acts necessarily gave rise to the distinct grade of both offenses. [Id. at 503-04 (citations omitted).]

But see State v. Buonadonna, 122 N.J. 22, 50 (1991) (concluding the State proffered sufficient evidence for the offenses of aggravated assault and armed robbery and the convictions addressed separate injuries such that "non-merger was proper").

In Carlos, supra, the defendant robbed a gas station owner and pump attendant at gun point. 187 N.J. Super. at 410. The defendant fired shots at both victims in an effort to force them to comply with his demands, striking one in the thigh. Ibid. After trial, the defendant's convictions included multiple counts of armed robbery and both aggravated assault and attempted aggravated assault, N.J.S.A. 2C:12-1(b)(1). Id. at 410. We concluded merger did not apply, stating:

Defendant further contends that the aggravated assault upon [the first victim] and [the second victim] should be merged with the robbery offenses against them. We find this contention unpersuasive. The first degree robbery of [the first victim] under count 1 was based on committing a theft from him while armed with or threatening him with a deadly weapon. The aggravated assault on [the first victim] under count 5 was based on defendant shooting [the first victim] in the right thigh. The first-degree robbery of [the second victim] under count 2 was based on a theft from him by defendant while armed with or threatening him with a deadly weapon. The attempted aggravated assault on [the second victim] was based on defendant firing a shot at him which went wide of its mark. The elements of each offense are different. Thus, no merger is warranted. [Id. at 418 (citations omitted).]

See also State v. Crouch, 225 N.J. Super. 100, 102-03 (App. Div. 1988) (concluding merger of armed robbery and aggravated assault was inapplicable where the facts supported that the defendant intended to cause serious bodily harm after he grabbed the victim from behind by her neck, pressed a sharp object against her side, choked her, stole her purse, then threw her to the ground, causing a fractured clavicle); Cf. State v. Battle, 209 N.J. Super. 255, 259 (App. Div.) (merging the defendant's convictions for second-degree robbery and aggravated assault in a sidewalk purse snatching where the victim was thrown to the ground because there were no facts adduced that could support a finding the defendant was guilty of an attempt to cause his victim serious bodily harm), certif. denied, 105 N.J. 560-61 (1986).

In analyzing the events here, we determine defendant's conduct evinced two separate offenses supporting non-merger of the convictions. The robbery was based on defendant's forceful theft while armed with a deadly weapon; the act of grabbing Jackson from behind, then brandishing and firing a gun, upgraded the robbery to a first-degree crime. On the other hand, the aggravated assault conviction was based on defendant's repeated beating of Jackson after he was thrown to the ground. The conduct is distinct, and the acts supporting one offense do not constitute the elements of the other. We agree with the State that no merger is warranted.

We also reject defendant's contention that his conviction for possession of a handgun without a permit, charged in count three, constitutes a lesser included offense of the separately charged certain persons offense, requiring merger. The offenses are distinct.

Defendant notes that the first two elements of each statute are the same, and argues a convicted felon will inevitably be guilty of carrying a weapon without a permit since "the existence of the conviction prohibits any individual from obtaining a permit to possess a handgun." Defendant, therefore, suggests that possession without a permit "is necessarily contained within N.J.S.A. 2C:39-7(b) by virtue of the fact that a convicted felon cannot properly possess a handgun and . . . could not possibly have a permit to possess a handgun."

In State v. Veney, 409 N.J. Super. 368, 381-82 (App. Div. 2009), we discussed the possible double jeopardy consequences of these two offenses, concluding unlawful possession of a handgun, without having obtained a permit to carry the same, N.J.S.A. 2C:39-5(b), and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b), "charge[] separate crimes" as "[a]n offense under the former statute is not a lesser-included offense under the latter statute within the meaning of N.J.S.A. 2C:1-8(d)." See also State v. Ragland, 105 N.J. 189, 193 (1986) (holding that when a defendant is simultaneously charged with unlawful possession of a weapon and possession of a weapon by a convicted felon, the offenses "must be tried separately since proof that defendant was a convicted felon . . . clearly tends to prejudice the jury in considering the former"). Therefore, the imposition of consecutive terms for convictions of unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) and possession of a weapon by certain persons not to have a weapon, N.J.S.A. 2C:39-7(b), was not error.

Defendant's final challenge is that his sentence was excessive. Our review of sentencing challenges requires that we confirm the trial judge's compliance with the sentencing guidelines contained in the criminal code. This process requires: (1) "that an exercise of discretion be based on findings that are grounded in competent, reasonably credible evidence"; (2) "that the factfinder apply correct legal principles in exercising its discretion"; and (3) the modification of a sentence only where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). "'[W]hen reviewing a trial court's sentencing decision, an appellate court may not substitute its judgment for that of the trial court.'" State v. Cassady, 198 N.J. 165, 180 (2009) (quoting State v. Evers, 175 N.J. 355, 386 (2003)).

The trial judge considered the applicable aggravating factors, including factors three (risk of recidivism), N.J.S.A. 2C:44-1(a)(3); six (the seriousness and extent of a defendant's prior criminal record), N.J.S.A. 2C:44-1(a)(6); and nine (the need to deter the defendant and others), N.J.S.A. 2C:44-1(a)(9); and, also mitigating factor eleven N.J.S.A. 2C:44-1(b)(11), (imprisonment would entail excessive hardship to defendant's dependents). Finding "the aggravating factors preponderance over any mitigating factors," the court imposed a higher than mid-range custodial term of sixteen years, subject to NERA, on count one; a concurrent term of four years subject to NERA on counts two and three; a concurrent term of seven years subject to NERA on count four; and a concurrent five-year custodial term with a five-year period of parole ineligibility on count one of the second indictment.

Following review, we conclude defendant's argument that the trial court erred in applying aggravating factors (a)(3) and (a)(6) and omitting additional applicable mitigating factors is meritless. R. 2:11-3(e)(2).

In imposing sentence, the court's findings are amply supported by substantial evidence in the record, and we discern no abuse of discretion. Cassady, supra, 198 N.J. at 180-81. Defendant's sentence fails to shock our judicial conscience and, except for the merger of count four into count one as described above, will not be disturbed. Roth, supra, 95 N.J. at 363-64.

Summarizing our determination, we affirm defendant's conviction and sentence, except the sentence imposed on count four shall be vacated, and we remand to the trial count to merge count four into count one. Additionally, the trial court shall amend the judgment of conviction to conform with the sentence imposed on count three and vacate the provision merging it with count one. Crouch, supra, 225 N.J. Super. at 107.


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