July 13, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NICHOLAS WATSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-01-0069.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2010
Before Judges Stern and Sabatino.
Following a jury trial, defendant Nicholas Watson was convicted of four counts of first-degree armed robbery, N.J.S.A. 2C:15-1, three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, two counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, a single count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), and one count of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, 2C:15-1. Defendant was found not guilty of felony murder, N.J.S.A. 2C:11-3(a)(3). After the trial court merged the second degree weapons convictions and the conspiracy conviction with their related armed-robbery convictions for sentencing purposes, it imposed two consecutive seventeen-year terms for two of the robberies, plus a consecutive five-year term for the two third-degree unlawful weapons offenses, which were made concurrent with one another. For the aggravated assault, the court sentenced defendant to a five-year term that was to run concurrently with the later of his two robbery sentences. Finally, the court sentenced defendant to seventeen-year terms for both of the remaining robbery convictions, but ordered these to "run concurrent with the other counts."
This brought defendant's aggregate incarceration period to thirty-nine years for all convictions combined. By operation of law, the thirty-four-year portion of the sentence for the two robberies is subject to an eighty-five percent parole ineligibility period under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2.
The indictment arose out of a series of robberies that occurred in Clifton and Passaic on August 18, 2006. Defendant does not contest that the robberies may have occurred, but he denies any involvement in them.
According to the State's proofs at trial, defendant, Roland Lamont, Kimani Taylor, and Omar Tracey were all riding in a borrowed truck in the early morning hours of August 18, 2006. Defendant allegedly stated to his companions in the vehicle that they should "get some funds."
Consequently, at approximately 2:00 a.m., Taylor, who was driving the truck at the time, pulled over on or near Lexington Avenue in Passaic. Defendant, along with Lamont, then exited the truck while wearing masks and carrying guns. They confronted two pedestrians, Antonio Alvarao and his niece. The men stole Alvarao's phone and wallet, and then fled in the truck.
Shortly thereafter, Taylor pulled the truck up to the corner of Paulison and Howe Avenues in Passaic and Tracey and Lamont got out. While carrying guns, Tracy and Lamont stole a wallet from another pedestrian, Victor Garcia. They reentered the truck and drove off.
Taylor again pulled over the truck in Clifton, around a corner from where four people (Shawn Kaiser, George Montoya, Joshua Estrada, and Samantha Angelo) were standing in a residential driveway. Defendant, Tracey, and Lamont got out of the truck and walked around the corner to where the four individuals were standing. After two of the robbers pulled out guns, they then went through the pockets of the four individuals, removing their cell phones and wallets, and once again fled to the truck and drove away.
Finally, the group of robbers drove to a gas station in Passaic, located at the corner of Broadway and Van Houton Streets. Defendant, Tracey, and Lamont again got out of the truck. At this point, defendant and Lamont were carrying guns. The robbers instructed the gas station attendant, Gurbachan Singh, to give them money and get on the floor. After Singh refused to obey, defendant and Lamont shot him in the foot, leg and stomach. A bystander, Gersan Montalvo, who was leaving a night club across the street, heard the gunshots. Montalvo then observed a dark vehicle arrive and pick up several persons who ran out of the gas station. Montalvo went over to the gas station and found Singh lying on the floor with gunshot wounds.
Singh died a short time later at a local hospital. Investigators thereafter recovered two shell casings and two projectiles from the office inside the gas station, and ballistics reports confirmed that the bullets had been fired from two different guns.
Phone records from the stolen cell phones showed a series of phone calls to Rakema Nelson. Investigators spoke with Nelson, who identified Lamont, Taylor and Tracey as suspects in the robberies.
Thereafter, Taylor turned himself in. Taylor admitted that he had taken part in the robberies with defendant, Lamont, and Tracey, and that defendant had prompted the group to commit those robberies. Taylor stated that defendant and Lamont had guns in their possession when they initially drove to Lexington Avenue in Passaic. Taylor also stated that the borrowed truck used in the robberies belonged to Orlando Williams. Williams subsequently admitted that he had lent the truck to defendant in the past.
At trial, the State presented numerous witnesses to establish defendant's involvement in these robberies and the fatal shooting of Singh. The witnesses included Taylor and Tracey, who testified for the prosecution after reaching plea agreements in which they received more lenient treatment in exchange for their cooperation.
In his trial testimony, Tracey stated that defendant had initially been driving the borrowed truck but then switched places with Taylor. He corroborated defendant's participation in all four robberies. With respect to the gas station robbery, Tracey testified that when Singh refused to get down on the floor, he observed defendant shoot Singh in the leg and Lamont shoot him in the stomach.
Defendant did not testify at trial or present any competing proofs. After two days of deliberations, the jury found him guilty of the offenses described above.
On appeal, defendant raises the following arguments:
THE ASSISTANT PROSECUTOR VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL BY SUGGESTING IN SUMMATION THAT THE JURORS WOULD BE VIOLATING THEIR OATHS IF THEY REJECTED THE TESTIMONY OF THE STATE'S WITNESSES AND BY TELLING THE JURY THAT HE CHOSE TO BE A PROSECUTOR RATHER THAN A DEFENSE ATTORNEY BECAUSE EVEN THOUGH HE MAKES LESS MONEY THAN DEFENSE COUNSEL, IT IS "FULFILLING" TO BE A PROSECUTOR. (Not Raised Below).
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY ALLOWING THE STATE TO INTRODUCE IRRELEVANT, HIGHLY PREJUDICIAL EVIDENCE OF GANG AFFILIATION BY ELICITING TESTIMONY THAT DEFENDANT WAS A MEMBER OF A "CREW." (Not Raised Below).
THE COURT'S FAILURE TO SPECIFICALLY INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTITY BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO PRESENT A DEFENSE AND TO A FAIR TRIAL. (Not Raised Below).
THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ROBBERY AND UNLAWFUL POSSESSION OF A WEAPON CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. 104[, 106 S.Ct. 1193, 89 L.Ed. 2d 308] (1986).
DEFENDANT'S SENTENCE OF THIRTY-FOUR YEARS WITH AN [EIGHTY FIVE PERCENT] PERIOD OF PAROLE INELIGIBILITY PLUS TEN YEARS IS EXCESSIVE.
After duly considering these points in light of the record and the applicable law, we are satisfied that the judgment of conviction and the corresponding sentence should be affirmed, except for a minor correction to the sentence reflected in the judgment of conviction. None of defendant's arguments has sufficient merit to be discussed in detail in this opinion. R. 2:11-3(e)(2). We make only a few brief comments respecting each of defendant's contentions.
First, with regard to the alleged improper comments made by the assistant prosecutor during his summation, none of which were objected to by defense counsel at trial, we detect no plain error from those comments capable of producing an unjust result. See R. 2:10-2. In general, the duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Ramseur, 106 N.J. 123, 320 (1987). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" Ibid. (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S.Ct. 1157, 2 L.Ed. 2d 1160 (1958)).
In Ramseur, the Supreme Court noted that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial. Id. at 323. We discern no undue prejudice arising from the limited portions of the summation now complained of by defendant for the first time on appeal, and, more importantly, detect no prosecutorial misconduct when properly considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008) (instructing that appellate courts must assess the propriety of a prosecutor's summation when "[t]aken as a whole").
Specifically, we perceive no impropriety in the prosecutor's argument to the jury that they should find credible the co-participants in the robberies who testified for the State. The prosecutor did not personally vouch for those witnesses, nor did his comments negate the court's instruction that the jurors were the sole judges of credibility. Moreover, we note that the argument fairly responded to the defense counsel's characterization of those State witnesses, in his own closing argument, as "street hoods," among other assorted pejorative terms.
We also find no reversible error in the prosecutor's brief reference to his "satisfying" work as a government attorney when addressing the jury in his summation. The prosecutor made that comment in response to defense counsel's allusion in his own summation comparing the prosecutor to the fictional character of "The Godfather," and alleging that he made the testifying co-perpetrators an "offer they could not [refuse]." Although we certainly do not endorse unjustified ad hominem attacks upon the integrity of opposing counsel in any court proceeding, we are satisfied that the prosecutor's limited attempt to defend his professionalism fell within the "considerable leeway" to be accorded in summations. See State v. Jenewicz, 193 N.J. 440, 472 (2008). In essence, defense counsel opened the door to the prosecutor's response through the tenor of his own summation, and the lack of any contemporaneous objection underscores the absence of any substantial prejudice to his client.
Nor are we persuaded that defendant is entitled to a new trial because one of the State's witnesses, Williams, during the course of his testimony, described defendant as being a member of a "crew." The prosecutor referred back to this description in summation, attempting to explain why Williams, as the owner of the truck and a person affiliated with defendant's "crew," may have been reluctant to testify for the State. The witness and the prosecutor did not use the inflammatory term "gang," even though defense counsel himself, in his cross-examination of one of the police detectives, elicited testimony that Williams was a member of a "gang." We do not perceive that the reference to a "crew" was made or was used here for the purpose of suggesting prior bad acts on the part of defendant, see N.J.R.E. 404(b). Instead, the term legitimately responded to concerns of perceived or potential witness bias. See United States v. Abel 469 U.S. 45, 49, 105 S.Ct. 465, 467, 83 L.Ed. 2d 450, 455 (1984). Here again, the absence of a timely objection at trial bespeaks the lack of undue prejudice under N.J.R.E. 403, which is confirmed by our own independent review of the record as a whole.
Third, we reject defendant's contention that the trial judge was obligated to issue a special instruction to the jury on identification because of the prosecutor's remark in summation that "[w]hat's in dispute is who was the fourth person [involved in the robberies and the shooting], so it becomes an identity case, okay." Despite that remark by the prosecutor, viewing the State's proofs as a whole in their proper context, this is not a case in which identification was a "key issue," such as where the State relies upon "a single victim-eyewitness." Cf. State v. Cotto, 182 N.J. 316, 325 (2005). Here, the State's proofs of defendant's guilt extended far beyond a victim-eyewitness, and included the testimony of several other participants in the robberies. If those co-perpetrators are believed, they established that they were riding with defendant that night in the same vehicle, that he supplied the vehicle and the guns, and that they participated with him in the various criminal acts. No misidentification defense was asserted by defendant.
The situation here therefore more accurately may be treated as a dispute over witness credibility, rather than one of the reliability of a third-party's identification. A special jury instruction on identity was not "essential" in this context. See State v. Robinson, 165 N.J. 32, 40 (2000).
Finally, we find no illegality or excessiveness in the sentence imposed by the trial judge. The consecutive terms imposed for the two distinct robbery offenses involving multiple victims at different times and places were entirely proper under Yarbough, supra, 100 N.J. at 643. Moreover, the consolidated five-year consecutive term for the weapons offenses was within the court's authority to impose, given the proof that defendant had possessed the unlawful firearms without a permit before any of the robberies occurred.
We also do not second-guess the particular length of the sentences meted out by the trial judge, as they are not manifestly excessive on their face, bearing in mind the severity and multiplicity of defendant's offenses. State v. Bieniek, 200 N.J. 601, 611-12 (2010); State v. Roth, 95 N.J. 334, 365 (1984). The sentencing judge adequately considered and rejected defense counsel's request to take into account his client's young age, a consideration that was offset by defendant's juvenile record, the fact that he was under juvenile supervision at the time these offenses were committed, and the fact that defendant "was one of the movers in this" series of robberies.
As an administrative matter, however, we do need to remand the matter to the trial court, in order to clarify the judgment of conviction to reflect more accurately and precisely that the parole ineligibility period under NERA applies only to the thirty-four-year portion of the sentence and not to the additional five consecutive years imposed for the weapons offenses. See N.J.S.A. 2C:43-7.2d (enumerating the crimes to which the period of parole ineligibility applies).
Affirmed, and remanded solely to correct the judgment of conviction in a manner directed in this opinion.
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