January 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DAVID HOHSFIELD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-10-1651.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 14, 2010 - Decided Before Judges Wefing and Koblitz.
A jury convicted defendant of violating a condition of his community supervision for life, N.J.S.A. 2C:43-6.4d, a crime of the fourth degree. The trial court sentenced defendant to eighteen months in prison. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In 2003, defendant was convicted of a criminal offense which entailed, as part of his sentence, community supervision for life. In connection with that sentence, he acknowledged in writing that he had been fully informed of all the conditions attached to community supervision for life, including Condition 14, which states, "I am to obtain the permission of the assigned parole officer prior to securing, accepting or engaging in any employment or business activity and prior to a change in employment."
From approximately 2006, defendant resided in Whiting, in Manchester Township, providing assistance to an elderly gentleman who had various ailments, and he received a weekly stipend for his services. His parole officer would regularly meet with defendant at the residence and during the course of those meetings would inquire about defendant's efforts to obtain further employment. In response, defendant only told his parole officer of three specific instances: an application for a manufacturing position and twice participating in drug trials.
In June 2007, defendant's parole officer saw a listing in the Asbury Park Press of new businesses in the area; included in that listing was an entry for Freelance Photo and Modeling, which named defendant as the owner and gave as the business address the residence at which he was providing care and assistance. Defendant was arrested for violating Condition 14.
An investigation developed the following additional facts. On April 5, 2007, defendant filed a New Jersey Certificate of Trade Name with the Ocean County Clerk's Office for the business name Freelance Photo and Modeling, listing that home address as the business address.
In April 2007, Jennifer DeWorth was eighteen years old and had just started working at the Ocean County Clerk's Office as a clerk typist. She left work early one afternoon because she was not feeling well. While walking down the street, she was approached by a man, later identified as defendant, who told her his name was Divad and asked her if she knew where the modeling agency was located. She said she did not. Defendant asked if she would be interested in doing work for his modeling agency. Flattered, she said she would be. They made arrangements to meet the following day at a restaurant in Barnegat where they would have something to eat, after which defendant would take pictures of her. She gave defendant her telephone number. He called her the following day to finalize details. DeWorth's testimony about this conversation unfolded in the following manner:
Q: And the discussion was to go where?
A: To meet at the Carriage House and just -- we had plans to go to the beach to take pictures after dinner, and just to wear lowcut - -Q: Well, without going into details of what he said, he had some conversation with you about your attire?
She hung up on defendant. He placed a number of subsequent calls to her, none of which she answered.
She did not immediately pursue the matter further. She testified that she did tell her mother, but her mother had died by the time of defendant's trial. For reasons which are not apparent from the record, she later advised her supervisor who, it turned out, was the individual who had received and processed defendant's application for a trade name certificate. DeWorth and her supervisor testified at defendant's trial, as did his parole officer. Defendant presented the only other witness, the gentleman with whom he resided and for whom he provided assistance. He told the jury what a good help defendant was to him.
On appeal, defendant raises the following issues:
I. THE TRIAL COURT ERRED IN ALLOWING "OTHER CRIMES" EVIDENCE IN TRIAL WHICH RESULTED IN [SIC] UNFAIR TRIAL.
II. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO MOVE FOR A NEW TRIAL IN A TIMELY MANNER WHICH VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW.
III. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT VIOLATED THE COMMUNITY SERVICE FOR LIFE PROVISIONS AS SET FORTH IN N.J.S.A. 2C:43-6.4d; CONSEQUENTLY THE CONVICTIONS ON COUNT ONE MUST BE VACATED.
IV. NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT REVERSAL.
V. THE TRIAL JUDGE ABUSED HIS DISCRETION IN IMPOSING AN EXCESSIVE SENTENCE BY FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.
Defendant's first argument revolves around two incidents which occurred during his trial: DeWorth's testimony, set forth above, in which she started to testify that defendant asked her to wear low-cut clothing, and the reference by his parole officer to community supervision for life being a sentence "under Megan's Law." Defendant also contends that DeWorth should not have been permitted to testify that defendant continued to call her after she hung up on him. We are unable to agree with defendant's argument that these remarks, singly or in combination, were unduly prejudicial and inadmissible under N.J.R.E. 404(b).
Defendant made no objection to either of Ms. DeWorth's comments, and we are satisfied from our review of the record that neither would lead the jury to a result it otherwise would not have reached. R. 2:10-2.
Defendant did object immediately when his parole officer referred to "Megan's Law." The trial court gave a prompt, firm instruction to the jury in the following manner:
All right. Ladies and gentlemen, there was a comment made about Megan's Law. I'm going to ask you to totally and completely disregard any comment about Megan's Law.
The defendant in this case is not charged with a violation of Megan's Law. Megan's Law has absolutely nothing to do with this trial, so please disregard that comment in its entirety.
At the conclusion of the trial, the trial court inquired whether defendant wished to have that instruction repeated during the course of the court's charge. Defendant specifically elected not to have the charge repeated. We presume the jury followed the court's initial curative instruction. State v. Windsor, 200 N.J. 231, 256 (2009).
In his second point, defendant contends that he was denied the effective assistance of counsel because his trial attorney filed an untimely motion for a new trial. We would generally not deal with a contention of ineffective assistance of counsel on direct appeal because such matters are, in most instances, more appropriately dealt with in the context of a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992). We are satisfied that defendant's contention can be dealt with from the record before us, and thus we elect to deal with the merits of his claim.
It is, of course, settled law that to prevail on a claim of ineffective assistance of counsel, a defendant must satisfy both elements of the two-prong test enunciated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and State v. Fritz, 105 N.J. 42 (1987), that is, not only that counsel's performance was deficient but that there is a reasonable probability that defendant was prejudiced by that deficiency. Here, defendant cannot satisfy this second prong because he has not asserted any reasonable grounds upon which he should have received a new trial.
Defendant's remaining arguments do not require extended discussion. We reject as without merit his contention that his conviction should be vacated because the State failed to prove his guilt beyond a reasonable doubt. R. 2:11-3(e)(2). And, having found no error during the course of his trial, his claim of cumulative error, State v. Orecchio, 16 N.J. 125, 134 (1954), must fail. Finally, we reject defendant's claim that his sentence, which had been satisfied by the time this appeal was submitted, was excessive. The trial court properly noted defendant's extensive involvement with the criminal justice system and gave only slight weight to mitigating factor #11, N.J.S.A. 2C:44-b(11). We are unable to find any error in the trial court not including mitigating factor #2, N.J.S.A. 2C:44-b(2), in its sentencing calculus. The trial court did not abuse the sentencing discretion vested in it. State v. Bieniek, 200 N.J. 601, 611-12 (2010); State v. Roth, 95 N.J. 334, 365-66 (1984).
Defendant's conviction and sentence are affirmed.
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