August 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
LEROY FOSTER GILLEAD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-01-0067.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 21, 2010
Before Judges Fisher and Espinosa.
Defendant appeals from his sentence and convictions for third-degree theft by deception, N.J.S.A. 2C:20-4 (count one) and fourth-degree unauthorized practice of law, N.J.S.A. 2C:21-22(b)(1) and (b)(2) (count two). We affirm.
The victim in this case, Shade Lee, was the only witness at the trial. He met defendant through their association with the chapter of the Tuskegee Airmen Organization located at McGuire Air Force base. Lee believed that defendant was an attorney because he was listed in the Tuskegee Airmen directory with "Esq." following his name, other people told him that defendant was an outstanding attorney and because other people referred to defendant as an attorney. Defendant never corrected Lee when he introduced him as "attorney Gillead."
When Lee was sued for $500,000 for defamation by a plaintiff acting pro se, Lee initially believed he could handle the matter himself. He filed an answer pro se and wrote letters to the plaintiff. However, when he appeared in court on that matter, the judge advised him to obtain a lawyer. Lee spoke to some lawyers who charged a fee of $200 per hour. When he told defendant that he was looking for a lawyer, defendant stated that he was an attorney and had practiced in the Superior Court of New Jersey, the United States District Court, the appellate courts in Philadelphia and had argued cases before the United States Supreme Court. Defendant agreed to represent Lee for a discounted rate of thirty dollars per hour, and asked Lee for $3000.
Lee wrote two checks totaling $3000 made payable to LeRoy Gillead, II, Esq. The memo portion of the first check stated "part of retainer fee" and the memo portion of the second check stated "balance of retainer." On each check, defendant wrote his own name, followed by "Esq." in the payee section.
Lee met with defendant to review documents and discuss strategy. Thereafter, defendant drafted documents for Lee, including motions to dismiss the complaint, for summary judgment, to suppress evidence and for leave to file a counterclaim. At defendant's suggestion, the documents were signed, "Shade M. Lee, defendant, pro se." Defendant explained that it would delay matters to go through a substitution of counsel. Defendant never appeared in court for Lee. However, the complaint was dismissed based upon the motion papers that defendant had prepared.
Lee then sought a refund of $2500 of the retainer because defendant had not appeared in court. In a letter to defendant, whom he addressed as "Dear Attorney Gillead," Lee stated that, because of defendant's "limited legal representation," he should only have to pay $500. Defendant wrote a letter in response in which he stated that Lee had "misunderstood the nature of my involvement in your lawsuit" and further stated, "as I informed you I am not an 'attorney at law' and do not maintain a law practice." However, defendant enclosed a bill with the letter that detailed why he was entitled to the $3000 paid.
The jury convicted defendant on both counts of the indictment. The court sentenced defendant on count one to probation for a period of three years and, as conditions of probation, required defendant to serve 364 days in the county jail and pay restitution in the amount of $3000, which amount was reduced to judgment. The court imposed a concurrent probationary term of three years on count two and imposed appropriate fines and penalties.
In this appeal, defendant raises the following issues:
THE IMPOSITION OF A CUSTODIAL SENTENCE FOR THIS THIRD DEGREE CRIME WAS ARBITRARY AND EXCESSIVE.
A. THE SENTENCING COURT FOUND THAT THE MITIGATING FACTORS OUTWEIGHED THE AGGRAVATING.
B. THE TRIAL COURT'S BASES FOR IGNORING THE PRESUMPTION AGAINST INCARCERATION WAS LEGALLY IMPERMISSIBLE.
1. THE PRIOR ARREST RECORDS WITHOUT CONVICTIONS COULD NOT JUSTIFY THE INCARCERATION.
2. DEFENSE COUNSEL'S CROSSEXAMINATION OF THE COMPLAINING WITNESS COULD NOT BE USED TO JUSTIFY INCARCERATION.
C. THE LAW REQUIRED A NON-CUSTODIAL SENTENCE IN THIS CASE.
THE PROSECUTOR UTILIZED REPEATED UNFAIRLY PREJUDICIAL ARGUMENTS IN SUMMATION WITHOUT OBJECTION AND, THEREFORE, WITHOUT ANY CURATIVE INSTRUCTIONS AT ALL.
A. PERSONAL VOUCHING AND SUGGESTING TO THE JURY THAT AN ACQUITTAL WAS "WRONG" AND WOULD CAUSE THE PROSECUTOR NOT TO BE ABLE TO SLEEP WERE IMPROPER.
B. THE PROSECUTOR GLORIFIED THE VICTIM TO IMPROPERLY SWAY THE JURY AND THEN ASSERTED THAT THEY HAD TO LABEL THE VICTIM A LIAR AND A PERJURER TO [NOT] CONVICT.
C. COMMENTS ON THE FAILURE TO TESTIFY.
THE REASONABLE DOUBT INSTRUCTION DOES NOT MEET THE CONSTITUTION'S REQUIREMENTS.
After reviewing the record and briefs of counsel, we conclude that none of these arguments have sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2), beyond the following comments.
The standard of review of the trial court's sentencing decision is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989).
The thrust of defendant's challenge to his sentence is that the presumption of non-incarceration applicable to a third-degree conviction for a first offender precluded the imposition of county jail time as a condition of probation. Although a presumption of non-incarceration exists, "a term of imprisonment as a condition of probation is permissible where the presumption of non-imprisonment governs a defendant's sentence." State v. Hartye, 105 N.J. 411, 418 (1987). Therefore, the court did not err in imposing this condition as part of defendant's probationary sentence.
Aside from arguing that the trial court improperly relied upon defendant's prior arrests, defendant has not challenged any aggravating factor as lacking a sufficient factual basis in the record. In addition, he argues that the court erred in failing to find four mitigating factors beyond those found, and that if these factors had been found, the mitigating factors would have outweighed the aggravating factors. The fallacy in defendant's argument is that the analysis of aggravating and mitigating factors is qualitative and not quantitative. State v. Kruse, 105 N.J. 354, 363 (1987). Further, contrary to defendant's assertions, the record does not indicate that the court's references to defendant's prior arrests or counsel's efforts to impeach Lee's credibility formed the basis for its decision to impose jail time as a condition of probation.
Defendant's argument in Point II that the prosecutor committed misconduct by making improper comments during his summation was not raised below. This court does not entertain exceptions raised for the first time on appeal, State v. Robinson, 200 N.J. 1, 20 (2009), except for those that constitute plain error. See R. 2:10-2.
Defendant argues that the prosecutor improperly expressed a personal belief in the defendant's guilt. In the complained of remarks, the prosecutor referred to a remark in his opening statement that "with overwhelming evidence I would prove this case beyond a reasonable doubt" and that he was tempted to sit down but did not have the nerve to do so "because I couldn't sleep tonight if that's all I did and something wrong happened in this case."
Defendant argues that this comment, now scrutinized out of context in an appellate brief, constitutes a statement to the jury that they would do something wrong if they did not convict defendant. "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action." State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted). We are satisfied that there was no objection to this comment because when it was heard at the trial, defense counsel did not deem it prejudicial. We agree with that assessment.
Finally, defendant challenges the jury charge on reasonable doubt. Pursuant to Rule 1:7-2, defendant's failure to object at trial constitutes a waiver of his right to challenge that instruction on appeal, and so, we review the charge to determine whether there was plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Afanador, 151 N.J. 41, 54 (1997). The trial court provided the jury with the Model Jury Charge on reasonable doubt, as it was required to do, see State v. R.B., 183 N.J. 308, 325 (2005) ("model jury charges should be followed and read in their entirety to the jury"), and did not commit plain error in doing so.
© 1992-2010 VersusLaw Inc.