March 15, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
NORMAN JACKSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 07-01-0005.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Fisher, Sapp-Peterson and Fasciale.
Defendant was tried and convicted by a jury of numerous offenses regarding his robbery of $78 from a taxi cab driver in Paterson. We conclude that the kidnapping conviction cannot stand because defendant compelled the victim to drive only a short distance after the theft was committed. We otherwise affirm the judgment under review.
The record reveals that on January 14, 2005, at approximately 8:30 p.m., cab driver Murul Chowdhury was stopped at a red light at River and Lafayette Streets when defendant jumped into the front seat and demanded a ride to Broadway. Chowdhury said he was en route to picking up another customer, but defendant insisted on a ride, and then pointed a gun at Chowdhury and demanded all his money. Chowdhury gave defendant $65 in collected fares and another $13 from his wallet. Chowdhury was directed to drive on, and proceeded a short distance before turning left on Broadway; defendant exited a few blocks later, near the intersection of Broadway and Carroll Street. By his description, Chowdhury drove a mere twenty feet when he saw a police vehicle in his rearview mirror. He flagged down the vehicle, which was driven by Sergeant Angel Perales, and pointed out defendant as the man who robbed him. Sergeant Perales had seen defendant exit Chowdhury's cab, radioed for help, and pursued defendant on foot. When defendant saw Sergeant Perales, he started running toward a nearby park. Sergeant Perales chased defendant into the park; Chowdhury followed. While running, Chowdhury told the officer that defendant had a gun.
Officer Wayne Bizzaro and another police officer who had responded to the call wrestled defendant to the ground and handcuffed him. Chowdhury then identified defendant as the person who robbed him, and Officer Bizzaro frisked defendant and found $78 but no weapon. A search of the park did not uncover a gun.
At police headquarters, defendant was placed in an interview room. While alone with defendant, Officer Bizzaro uncuffed him in order to conduct a thorough search. He told defendant to place his hands on the wall in front of him and searched defendant's torso, neck, arms, underneath his arms, groin area, both legs and around his waistband. Officer Bizzaro claimed to feel something "hard" and "square" in defendant's groin area, but defendant pushed off the wall and turned toward Bizarro; the two began to struggle and throw punches. Another officer returned to the interview room and assisted in handcuffing defendant again. Officer Bizzaro then opened defendant's pants and uncovered a gun in defendant's groin area.*fn1
A later search of defendant's jacket uncovered the gun's slide.
In April 2005, a Passaic County grand jury returned an indictment, charging defendant with: three counts of first-degree robbery, N.J.S.A. 2C:15-1; three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); three counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); three counts of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); three counts of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7; one count of second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) or N.J.S.A. 2C:13-1(b)(2); one count of third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a); and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). In October 2005, the prosecutor's office learned of Bizzaro's false police report and the fact that he falsely testified before the grand jury. Consequently, this indictment was dismissed, and the trial judge ordered that copies of all internal affairs reports and investigations be provided to defense counsel and that the assistant prosecutor have no further involvement in the case.
On January 1, 2007, a Passaic County grand jury returned a superseding indictment, which contained the same charges as the first. Defendant moved for dismissal based on the perjury and official misconduct of a law enforcement officer; defendant also sought the recusal of the Passaic County prosecutor's office. The trial judge denied these motions and also denied a motion to suppress the slide of the gun found on defendant's person. The judge additionally severed several of the charges in the indictment, resulting in a trial that consisted only of those charged offenses that related to the incident concerning Murul Chowdhury.
After a five-day trial, on August 9, 2007, the jury convicted defendant of first-degree robbery; fourth-degree aggravated assault; second-degree possession of a weapon for an unlawful purpose; third-degree unlawful possession of a weapon; second-degree kidnapping; third-degree aggravated assault of a law enforcement officer, although the jury did not find that the victim suffered bodily injury; and third-degree resisting arrest. The jury then deliberated and found defendant guilty of certain persons not to have weapons. The prosecutor thereafter dismissed the remaining counts of the indictment.
Defendant unsuccessfully moved for a new trial, following which the judge granted the prosecutor's motion for an extended term, pursuant to N.J.S.A. 2C:44-3(a). After merging the aggravated assault conviction with the conviction for possession of a weapon for an unlawful purpose conviction, the judge sentenced defendant to a thirty-year prison term on the robbery conviction, with an eighty-five percent parole ineligibility. The judge also imposed lesser concurrent terms on the remaining convictions.*fn2
Defendant appealed, presenting the following arguments for our consideration:
I. THE COURT ERRED IN FAILING TO GRANT A MISTRIAL WHEN THE PROSECUTOR TOLD THE JURY THAT AN ACQUITTAL WOULD AID DEFENDANT IN HIS CIVIL SUIT IN WHICH HE WAS ATTEMPTING TO RECOVER A MILLION DOLLARS FROM THE ARRESTING OFFICER AND BANKRUPT HIM "FOR THE REST OF HIS LIFE."
II. THE KIDNAPPING CONVICTION MUST BE VACATED AND A JUDGMENT OF ACQUITTAL ENTERED BECAUSE THE STATE FAILED TO INTRODUCE EVIDENCE OF EITHER OF THE ALTERNATIVE ELEMENTS OF THE OFFENSE -- THAT DEFENDANT MOVED THE VICTIM A SUBSTANTIAL DISTANCE OR CONFINED HIM FOR A SUBSTANTIAL PERIOD (Not Raised Below).
III. THE CONVICTIONS FOR ROBBERY AND KIDNAPPING SHOULD BE REVERSED BECAUSE THE INSTRUCTIONS DISPARAGED THE SIGNIFICANCE OF THE LESSER OFFENSES
(Not Raised Below).
IV. THE COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE STATE FAILED TO INFORM DEFENDANT BEFORE TRIAL THAT OFFICER PERALES WOULD TESTIFY THAT HE SAW DEFENDANT EXIT THE TAXI MOMENTS AFTER THE ROBBERY.
V. THE COURT ERRED IN RULING THAT THE STATE COULD IMPEACH DEFENDANT'S CREDIBILITY WITH STALE CONVICTIONS THAT WERE 14, 19, AND 22 YEARS OLD (Not Raised Below).
VI. THE EXTENDED TERM OF 30 YEARS, WHICH CARRIED A MANDATORY PAROLE DISQUALIFIER OF 25 1/2 YEARS, IS EXCESSIVE FOR THIS ROBBERY, WHERE THE DEFENDANT USED AN INOPERABLE GUN AND THE VICTIM WAS UNINJURED.
We find insufficient merit in Points IV and VI to warrant discussion in a written opinion. R. 2:11-3(e)(2). We agree, however, that the kidnapping conviction must be vacated and remand for an amended judgment but otherwise affirm.
Officer Bizzaro testified at trial, conceding his first report was false. In response to the assistant prosecutor's questioning, Officer Bizzaro acknowledged he was given a five-day suspension for having prepared a false report and lying to the grand jury. That testimony was immediately followed by this brief examination, to which defendant did not object:
Q. And are you being sued?
Q. By who?
A. The defendant.
Q. For what?
A. A million dollars.
This irrelevant information was not mentioned again until the conclusion of the assistant prosecutor's summation, in which he made the following improper comments:
[T]his case has another component to it that's not before you. . . . Officer Bizzaro . . . [is] being sued for a million dollars. Now, that's another issue. Maybe some of you will feel he deserves to be bankrupted for the rest of this life for what he did. And maybe some of you won't. . . . Officer Bizzaro chose to lie in a report and now [defendant] wants to be a millionaire. That's all for another day.
Out of the presence of the jury, defendant objected and moved for a mistrial, which the trial judge denied because what the prosecutor said in his summation referred "to what was testified to."
The following day, defense counsel renewed his motion for a mistrial, explaining he did not object when Bizzaro testified about the civil suit because he did not want to "accentuate it." The trial judge reiterated that the motion had been denied but expressed a willingness to provide a curative instruction and, after some discussion about the content of such a caution, instructed the jury as follows:
Ladies and gentlemen, during the trial, you have heard testimony about other lawsuits, criminal and civil, related to this case. Those cases are separate from this case, of course. Each matter must be decided on its own individual merits, and the worth of the claims and allegations made in those other lawsuits will be the subject of separate proceedings in each of those matters. You must not consider that the verdict which you return in this case will in any way impact on any other case.
Defendant argues he is entitled to a new trial because the prosecutor's "egregiously improper comments during summation" prejudiced his right to a fair trial.
A prosecutor's "considerable leeway to make forceful arguments in summation" is tempered by an overriding duty to see that "justice is done." State v. Bradshaw, 195 N.J. 493, 510 (2008). We agree the prosecutor's comments were improper. The civil suit -- as the prosecutor conceded in the very statements in question -- had no bearing on the issues before the jury, and the prosecutor's statements could have had no purpose other than to curry sympathy for the officer and thereby, indirectly, suggest an extraneous and improper reason for defendant's conviction. While recognizing that the question of the officer's civil liability was "for another day," the outrageous statement that the officer might be "bankrupted for life," which had no basis in the evidence, sought the jury's application of an impermissible basis for defendant's conviction.
We do not agree, however, that the prosecutor's improper comments required the ordering of a mistrial. The question is whether the improper summation "created a real danger of prejudice to the accused." State v. Johnson, 31 N.J. 489, 511 (1960); see also State v. Smith, 167 N.J. 158, 178 (2001). That question requires our consideration of "the tenor of the trial." State v. Marshall, 123 N.J. 1, 153 (1991); see also State v. Frost, 158 N.J. 76, 83 (1999). Certainly it would have been better had the trial judge immediately stricken the remarks from the record in the presence of the jury so the jury would understand the impropriety and give them no weight. Even though the remarks were not stricken and the cautionary instruction not given until the following morning, and even though the instructions were less forceful than warranted,*fn3 we find no cause to conclude that the prosecutor's brief impropriety was likely to have endangered defendant's right to a fair trial. State v. Wakefield, 190 N.J. 397, 437 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).
Defendant argues his kidnapping conviction should be vacated because the State failed to introduce evidence that Chowdhury was transported a substantial distance or confined for a substantial period and that what the State proved is not what the Legislature intended to include within its definition of kidnapping. Defendant argues that the additional distance driven by Chowdhury after the theft was incidental and did not substantially increase the risk of harm to Chowdhury. We agree.
The jury convicted defendant of N.J.S.A. 2C:13-1(b), which declares that a person is guilty of kidnapping if he unlawfully removes another . . . a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes: (1) To facilitate commission of any crime or flight thereafter; (2) To inflict bodily injury on or to terrorize the victim or another.
As the statute's language suggests, "not every movement or confinement of a victim is a kidnapping." State v. LaFrance, 117 N.J. 583, 586 (1990).
The removal of a victim does not constitute a "substantial distance" and, therefore, cannot form the basis for a kidnapping conviction unless "that asportation is criminally significant in the sense of being more than merely incidental to the underlying crime." State v. Masino, 94 N.J. 436, 447 (1983). This determination requires the jury to not only consider the "distance traveled but also . . . the enhanced risk of harm resulting from the asportation and isolation of the victim." Ibid. The enhanced risk of harm "must not be trivial." Ibid. If "the victim is removed only a slight distance from the vicinity where he or she is found and such movement does not create . . . isolation and increased risk of harm . . ., then [the jury] should not convict." Ibid.
Here, the evidence reveals that the State did not establish that defendant removed Chowdhury a substantial distance from the vicinity where he was found. Defendant entered Chowdhury's cab at the intersection of River and Lafayette Streets, robbed him of $78, and exited a few blocks later. These circumstances establish only that the cab traveled a relatively short distance after the robbery occurred and this distance was, thus, "merely incidental" to the robbery. LaFrance, supra, 117 N.J. at 585.
The purported confinement of Chowdhury was also insubstantial. Confinement is criminally significant "in the sense of being more than merely incidental to the underlying crime," id. at 594, and the determination whether a confinement is substantial is made with reference not only to the duration of the confinement, but also to the "enhanced risk of harm resulting from the [confinement] and isolation of the victim [or others]. That enhanced risk must not be trivial." [State v. Purnell, 394 N.J. Super. 28, 54 (App. Div. 2007) (quoting LaFrance, supra, 117 N.J. at 594, and Masino, supra, 94 N.J. at 447.]
Here, the State did not establish that defendant unlawfully confined Chowdhury for a substantial period of time. According to Chowdhury, defendant entered his vehicle at approximately 8:30 p.m., and according to Sergeant Perales, defendant exited the cab at 8:30 p.m. Obviously, from Chowdhury's testimony, it may be assumed that the entire episode was more than instantaneous, but this testimony regarding the time at which defendant entered and exited the cab -- as well as the short distance traveled -- demonstrates that the event was very brief. In addition, there was no evidence to suggest that the risk to Chowdhury was enhanced by the so-called confinement or isolation. Chowdhury was at the greatest risk during the robbery; the risk was not increased or enhanced by his driving a few additional blocks with defendant in the vehicle.
Defendant argues that his robbery and kidnapping convictions should be reversed because the judge's charge disparaged the significance of lesser-included offenses. He claims the jury instructions "signaled" that lesser-included offenses do not carry the same weight as the offenses charged in the indictment and that the judge instructed that the lesser-included offenses were insignificant and were only discussed because the judge was compelled to do so "by operation of law."
Specifically, after describing the elements of robbery, the judge turned to the potential lesser-included offenses, and told the jury that
The fact that you get a charge for a lesser included offense is not meant to suggest anything to you. You should attribute no significance to that. This happens by operation of law and is nothing that should have any meaning to you. [Emphasis added.]
He explained that if the jury acquitted defendant of robbery while armed, then you should go on to consider whether or not he is guilty of the lesser included offense of robbery. You should attach no significance to the fact that a charge for a lesser included offense is being given to you. It's not meant to suggest anything to you one way or another. [Emphasis added.]
Because defendant did not object when these instructions were given, the plain error standard must be applied; it requires demonstration of "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970); see also State v. Nero, 195 N.J. 397, 407 (2008). In that circumstance, we examine "the totality of the entire charge" and do not view the alleged erroneous instruction "in isolation." Ibid.
A trial court "has an independent obligation to instruct" the jury "on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004). "Because proper jury instructions are essential to a fair trial, erroneous instructions on material points are presumed to possess the capacity to unfairly prejudice the defendant." State v. Bunch, 180 N.J. 534, 541-42 (2004) (internal citations omitted); see also State v. Walker, 203 N.J. 73, 90 (2010).
When advising juries on the methodology for considering lesser-included offenses, a judge must adopt a position of neutrality rather than grudgingly providing the instructions only because so compelled by law. This approach is best exemplified by Model Jury Charge (Criminal), "Lesser Included Offenses" (2002), which states:
The law requires that the Court instruct the jury with respect to possible (lesser) included offenses, even if they are not contained in the indictment. Just because the Court is instructing you concerning these offenses does not mean that the Court has any opinion one way or another about whether the defendant committed these, or any, offenses. You should consider these offenses along with those for which the defendant is indicted. However, you are not to render a verdict on these offenses or answer the questions on the verdict sheet unless you find that the State has failed to meet its burden with regard to the offense(s) in the indictment.
Unlike the model jury charge, the judge's instructions downplayed the importance of this process. The judge declared that the lesser-included offenses were not significant and that his instructions should have "no meaning" for the jurors. These comments were certainly erroneous, but as noted, we do not consider whether a few comments were erroneous but rather the charge on the whole. The balance of the judge's instructions accurately described the proper methodology for the jury's consideration of the lesser-included offenses without the ostensible disdain that the comments quoted earlier appeared intent on conveying. We, thus, conclude that the judge's few misstatements were not capable of producing an unjust result.
R. 2:10-2; see also State v. Burns, 192 N.J. 312, 341 (2007).
The trial judge determined that, if defendant testified, the prosecutor would be entitled to impeach his credibility with evidence of defendant's: (1) July 9, 1985 conviction in New York of second-degree robbery for which he was sentenced to eighteen to fifty-four months in prison; (2) August 23, 1989 conviction in New York of fourth-degree criminal possession of a controlled dangerous substance for which he was sentenced to three to six years in prison; and (3) May 25, 1993 conviction in New York of first-degree attempted robbery for which defendant was sentenced to five to ten years in prison. The judge held that, if used, the convictions would be sanitized, meaning "the jury won't know what the defendant was convicted of" but will just learn "the degree of the crime, the sentence date and what the sentence was."
Defendant argues for the first time on appeal that this ruling was erroneous. He claims the convictions were stale, because they were fourteen, nineteen, and twenty-two years old and, as a result, their prejudicial effect far outweighed any probative value. Although the age of the convictions raises legitimate concerns about their use, the fact that both the oldest and most recent were for robbery and attempted robbery, respectively, demonstrates their gravity.
The use of a prior conviction to impeach a defendant's credibility depends on the application of a two-tier process. State v. Lykes, 192 N.J. 519, 523 n.2 (2007). First, the trial judge must assess the admissibility of the prior convictions under N.J.R.E. 609, which states that, "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." Remoteness is the "key to exclusion," and it cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. [State v. Sands, 76 N.J. 127, 144 (1978).]
Thus, in deciding whether to allow the use of prior convictions, the trial judge "must balance the lapse of time and the nature of the crime to determine whether the[ir] relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45. In addition, if a defendant "has an extensive prior criminal record," then the jury "has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen." Id. at 145. If a defendant "has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible." Ibid.
Second, if a trial judge allows the use of prior convictions, and some of these convictions are similar to the charged offense, the State may "introduce evidence only of the date and degree of crime of all of the defendant's prior convictions, but cannot specify the nature of the offenses." State v. Brunson, 132 N.J. 377, 394 (1993). Through sanitization, the defendant is protected "from the risk that a jury will be influenced by knowledge of the prior conviction for the same or a similar offense when determining whether to convict the defendant on the new charge." State v. Hamilton, 193 N.J. 255, 257 (2008).
Although defendant's convictions may be considered fairly remote in time, they were for serious crimes. The 1985 and 1993 convictions were for robbery and attempted robbery. Robbery is a serious crime, State v. Franklin, 175 N.J. 456, 468 (2003), and its commission implies a lack of veracity, State v. Pennington, 119 N.J. 547, 587 (1990), overturned on other grounds, Brunson, supra, 132 N.J. at 389--90. Because defendant was charged with robbery in the present case, the court correctly sanitized the prior convictions. Moreover, the availability of the use of defendant's 1989 conviction for CDS possession is to be distinguished from the circumstance in State v. Murphy, 412 N.J. Super. 553, 565 (App. Div.), certif. denied, 203 N.J. 440 (2010), upon which defendant relies, where the CDS conviction resulted in a probationary sentence and the defendant had no intervening convictions. Here, defendant had multiple prior convictions and received a prison term for his CDS conviction.
For these reasons, the probative value of the three prior convictions outweighs their prejudicial effect and consequently, the judge's decision to permit their use did not constitute an abuse of his discretion despite the age of the convictions. Sands, supra, 76 N.J. at 144.
For these reasons, we vacate the kidnapping conviction and remand for entry of an amended judgment, but otherwise affirm.
Affirmed in part; reversed in part.