September 8, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GROVER ALLEN PLUMMER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2364.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 31, 2010
Before Judges LeWinn and J. N. Harris.
Defendant was charged in a one-count indictment with third-degree burglary, in violation of N.J.S.A. 2C:18-2. After a twoday jury trial, defendant was convicted as charged. Upon discharging the jury and with defendant's consent, the trial judge conducted a bench trial on a related disorderly persons offense of theft of movable property involving an amount less than $200, in violation of N.J.S.A. 2C:20-2(b)(3); -3(a). Defendant was also convicted of this disorderly persons offense. Ultimately, the court sentenced defendant for both offenses to an aggregate term of four years incarceration, plus the appropriate fees and penalties.
In this appeal, defendant seeks redress for what he describes as due process violations, together with a broad challenge to his sentence. We have carefully reviewed all of defendant's claims and find that they are unpersuasive. Accordingly, we affirm.
On June 11, 2008, defendant was observed in Asbury Park entering an unoccupied delivery truck and removing a compact disc player belonging to the driver of the truck. The witnesses present happened to be two police detectives from the nearby Neptune Township Police Department. After taking defendant into custody, the detectives turned him over to Asbury Park police officers for formal charging, who in turn lodged a single disorderly persons offense against defendant pursuant to N.J.S.A. 2C:33-2 (disorderly conduct).*fn1
Several weeks later, one of the Neptune police detectives became aware of the lone pending disorderly persons charge against defendant. On July 16, 2008, that police detective executed a complaint-warrant against defendant also charging him with burglary and theft.*fn2 On October 16, 2008, a Monmouth County Grand Jury returned the single-count burglary indictment against defendant that resulted in his conviction. The disorderly persons theft charge remained active.
Prior to the commencement of the jury trial, the State moved to dismiss the initial disorderly conduct charge (Docket No. 2008-14961303) and to bar the defense from eliciting any testimony relating to that charge during the trial. In granting the in limine motion, the trial judge recognized that the Asbury Park police officer who prepared the initial charging instrument had not observed the incident in question and would therefore have nothing of evidentiary significance to present to the jury. Essentially, the court held that any evidence concerning an alleged violation of N.J.S.A. 2C:33-2 was not relevant to the burglary or theft charges that still remained pending against defendant.
The defendant has presented the following arguments for our consideration:
POINT I: DEFENDANT WAS DENIED DUE PROCESS BY VIRTUE OF THE STATE'S VINDICTIVE DISMISSAL OF THE ASBURY PARK DISORDERLY PERSONS COMPLAINT IN FAVOR OF AN INDICTMENT BASED ON DETECTIVE HUDSON'S VINDICTIVE INTERVENTION IN THE CHARGING PROCESS.
POINT II: DEFENDANT WAS DENIED HIS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION BY THE GROSS FAILURE OF THE STATE TO CONDUCT A COMPETENT INVESTIGATION, THE RESULTS OF WHICH COULD WELL HAVE VINDICATED APPELLANT.
POINT III: DEFENDANT'S SENTENCE WAS EXCESSIVE.
We are satisfied that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion in this opinion. R. 2:11-3(e)(2). However, we add the following brief comments and remand for the entry of a corrected judgment of conviction.
We first address defendant's argument concerning prosecutorial vindictiveness. Essentially, prosecutorial vindictiveness involves a violation of one's due process rights, a situation where the State retaliates against a defendant for exercising a legal right. State v. Gomez, 341 N.J. Super. 560, 571 (App. Div.), certif. denied, 170 N.J. 86 (2001).
We have recognized that "no presumption of vindictiveness arises in the pretrial stage." Id. at 573. Moreover, the "'mere opportunity for vindictiveness is insufficient to justify' a presumption of vindictiveness." State v. Froland, 378 N.J. Super. 20, 39 (App. Div. 2005) (quoting State v. Long, 119 N.J. 439, 466-67 (1990)); Gomez, supra, 341 N.J. Super. at 574. Therefore, a prosecutor should not be prohibited, after conducting investigation or research, from exercising principled discretion in deciding how to proceed on the charges against a defendant.
Even though the presumption of vindictiveness is inapplicable in pretrial situations, the Supreme Court did not foreclose the possibility that the defendant could prove actual vindictiveness before a trial began. Wasman v. United States, 468 U.S. 559, 569, 104 S.Ct. 3217, 3223, 82 L.Ed. 2d 424, 433 (1984); United States v. Goodwin, 457 U.S. 368, 384, 102 S.Ct. 2485, 2494, 73 L.Ed. 2d 74, 87 (1982); see also State v. Bauman, 298 N.J. Super. 176, 205 (App. Div.), certif. denied, 150 N.J. 25 (1997). In this case, no such evidence was presented other than the entirely speculative argument that the Neptune police were "out to get the defendant, apparently because of his past run-ins" with them.
As for prohibiting the testimony from the Asbury Park police officer who initially charged defendant with a disorderly persons offense, we review a trial judge's discretionary decision to admit or exclude evidence under an abuse of discretion standard. State v. Ramseur, 106 N.J. 123, 266 (1987). "To demonstrate abuse of such discretion, the danger of undue prejudice must outweigh probative value so as to divert jurors 'from a reasonable and fair evaluation of the basic issue of guilt or innocence.'" State v. Moore, 122 N.J. 420, 467 (1991) (quoting State v. Sanchez, 224 N.J. Super. 231, 249-50 (App. Div.), certif. denied, 111 N.J. 653 (1988)). Given the clear lack of connection between that police officer's charging decision and the elements of the crime proven at trial, there was not a scintilla of discretionary abuse by the court in this case.
Lastly, we note that the trial court sentenced defendant to an aggregate four-year term of imprisonment. The judgment of conviction indicates that a concurrent ninety-day term was imposed for violating "S2008-001496-1302," which is described as "Violent Behavior." We cannot be certain, but we firmly believe that the judgment of conviction erroneously reflects a conviction for the initial disorderly persons charge that had actually been dismissed prior to trial, instead of the theft charge, upon which defendant was found guilty by the judge following the jury's determination on the burglary charge. We remand to the trial court solely to review and correct the judgment of conviction if such is determined to be necessary and appropriate.
Here, the trial judge found three aggravating sentencing factors, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no appliable mitigating sentencing factors, N.J.S.A. 2C:44-1(b). We conclude that the trial court properly "adhered to the sentencing principles set forth in the Code [of Criminal Justice] and defined in our case law." State v. Bieniek, 200 N.J. 601, 612 (2010). Accordingly, we find no reason to interfere with the sentence imposed.
In view of the foregoing, the matter is remanded for the entry of a corrected judgment of conviction upon examination of the procedural history. In all other respects, the judgment under review is affirmed.