May 2, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOHN JOHNS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 05-08-1618.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 29, 2011
Before Judges Parrillo, Skillman and Roe.
Defendant was indicted for six armed robberies and related offenses committed in Atlantic City between April 7 and 24, 2005. Defendant was also charged in a separate indictment with two armed robberies and related offenses committed in Egg Harbor on April 24 and 25, 2005. After the trial court rejected plea bargains that would have encompassed the charges in both indictments, defendant was tried before a jury on the indictment arising out of the Egg Harbor robberies and found guilty of all but one of the charges. The trial court sentenced defendant to consecutive sixteen-year terms of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the two armed robberies, committed in violation of N.J.S.A. 2C:15-1. In addition, the court sentenced defendant to consecutive five-year terms of imprisonment for aggravated assault, in violation of N.J.S.A. 2C:12-1(b)(2), and two counts of possession of a handgun without a permit, in violation of N.J.S.A. 2C:39-5(b). For the other offenses defendant was found to have committed, the trial court either imposed concurrent terms or merged the convictions. Thus, defendant's aggregate term is forty-seven years imprisonment, with thirty-two of those years subject to NERA parole ineligibility.
Defendant subsequently entered into a plea bargain with respect to the indictment for the six armed robberies committed in Atlantic City, under which he pled guilty to one robbery, for which he was sentenced to a six-year term of imprisonment, subject to NERA ineligibility, to be served consecutively to his sentence for the Egg Harbor robberies, and the charges based on the other five robberies were dismissed.
The first of the robberies the jury found defendant to have committed occurred around 2 a.m. on April 24, 2005 in the Egg Harbor Econo Lodge. The front desk clerk, Richard Bennett, was in the back office when defendant and his confederate, Basim Reid, entered the lobby. After he saw defendant enter the hotel by viewing the monitor of the motel security camera, Reid came out front and saw defendant standing behind the counter with a gun. Defendant ordered Bennett to his knees and began rifling through the cabinets and cash register. After finding little money in the cash register, defendant became very aggravated and demanded the money from Bennett's wallet. Thereafter, defendant took the money from Bennett's wallet and hit Bennett on the side of his head with the gun he was wielding, causing Bennett to lose a tooth. Defendant and Reid fled with a total of approximately $2100.
The second of the robberies the jury found defendant to have committed occurred around 3:30 a.m. on April 25, 2005 in the Egg Harbor Ramada Limited. Defendant first entered the motel at approximately 2:30 a.m. with a "large wad" of cash in his hands, and asked about room rates. However, when the front desk clerk, Andrew King, told defendant he had to produce identification, defendant declined to rent a room. Around an hour later, defendant returned to the motel and pointed a gun at King as he ran towards the front desk. King fell on the floor for his own protection, and defendant then jumped over the desk, after which Reid joined him. Defendant demanded to know the location of the money on the premises, and King told him. Defendant and Reid removed about $380 from a cash drawer and safe, and fled.
At trial, Bennett identified defendant as one of the persons who robbed him, and although King was unable to identify defendant as one of the perpetrators of the Ramada robbery, he did identify him as the person who had entered the motel at 2:30 a.m. and asked to rent a room. In addition, the State introduced videotapes of both robberies recorded by security cameras and defendant's tape-recorded confession to commission of the robberies. The State also presented the testimony of two fingerprint experts who concluded that latent fingerprints found behind the counter of the Econo Lodge were defendant's fingerprints.
Defendant took the stand and denied he had committed either robbery. Defendant also testified that his confession to the robberies was the product of police coercion.
Defendant also presented the testimony of his sister and two brothers that defendant was with them in Atlantic City from 9:30 p.m. until around 11:30 p.m. on the nights of both Egg Harbor robberies. However, these witnesses could not vouch for defendant's whereabouts around the time of the robberies.
On appeal, defendant argues under Point I of his brief that the trial court's rejection of plea bargains offered by the State was arbitrary and capricious, thereby denying defendant his constitutional right to due process.
Rule 3:9-3(e) provides:
If at the time of sentencing the court determines that the interests of justice would not be served by effectuating the agreement reached by the prosecutor and defense counsel or by imposing sentence in accordance with the court's previous indications of sentence, the court may vacate the plea or the defendant shall be permitted to withdraw the plea.
In determining whether to reject a plea bargain under Rule 3:9-3(e), a trial court has "wide discretion." State v. Madan, 366 N.J. Super. 98, 108 (App. Div. 2004). "One reason for permitting wide discretion in the sentencing judge is that at the time a plea is entered the judge ordinarily has before him only the offense. A fuller picture of the offender does not emerge until sentencing, when the judge has had the benefit of a defendant's presentence report." State v. Brockington, 140 N.J. Super. 422, 427 (App. Div.), certif. denied, 71 N.J. 345, cert. denied, 429 U.S. 940, 97 S. Ct. 357, 50 L. Ed. 2d 310 (1976). However, in determining whether to accept a plea bargain, a trial court is not limited to consideration of information in the presentence report that is contrary to representations made during the plea hearing. State v. Daniels, 276 N.J. Super. 483, 487 (App. Div. 1994), certif. denied, 139 N.J. 443 (1995); State v. Salentre, 275 N.J. Super. 410, 418-20 (App. Div.), certif. denied, 138 N.J. 269 (1994). Rather, the court may consider all relevant circumstances in determining whether "the interests of justice would be . . . served by effectuating the agreement reached by the prosecutor and defense counsel." R. 3:9-3(e).
In this case, the trial court tentatively indicated on May 22, 2006 that it would accept a plea bargain under which defendant would plead guilty to the two Egg Harbor and six Atlantic City robberies and the State would recommend a maximum aggregate sentence of sixteen years imprisonment, subject to NERA. At the plea hearing, defendant provided a factual basis for his pleas to each of the eight robberies. The factual basis that defendant provided for one of the robberies only established commission of a second-degree robbery because defendant denied using or threatening the use of a gun in that robbery. However, in view of the fact that defendant had provided an adequate basis for his pleas to seven other armed robberies, the prosecutor indicated that the indictment could be amended to reflect that the eighth robbery was a second-degree offense. The trial court then tentatively accepted the plea bargain and informed defendant: "I'll review a presentence report, and so long as I'm satisfied that this is an appropriate plea agreement, which I, at this point, believe it is, I will sentence you in accordance with it . . . ."
Defendant's confederate, Basim Reid, who pled guilty to the robberies the same day as defendant, was scheduled to be sentenced before defendant. During the course of colloquy with the trial court at sentencing, Reid characterized the proceedings as "bull shit." The court then held Reid in contempt and rejected the plea bargain Reid had entered into with the State based on the bad attitude he displayed at sentencing.
Defendant was brought before the court for sentencing a month later, on August 25, 2006. The sentencing proceeding began with the prosecutor recounting the efforts of his office to communicate with the victims of the robberies and the responses his office had received. The prosecutor advised the trial court that the desk clerk at the Econo Lodge in Egg Harbor, Bennett, had been "pistol whipped" during the robbery, which had required "extensive dental work," and that Bennett was also suffering from "post traumatic syndrome." In addition, the prosecutor advised the court that the victim of one of the robberies defendant committed in Atlantic City was "severely hurt" and was suffering from "post traumatic syndrome."
At this point, the trial court stated that it was "on the fence" with respect to acceptance of the plea bargain between the State and defendant. The court described the circumstances of its rejection of the plea bargain between the State and Reid, stating that he had come to realize at Reid's sentencing "how . . . little regard [Reid] had for the rights and safety of others," and that whenever he was released from prison, he would be "an instant danger to society." The court then stated:
[Defendant is] not much better, and just the attitude I'm seeing here in court today with the way he's just smirking and everything, like this is a joke, really a joke, a walk in the park -- Defendant interrupted the court, and said: "It's funny." After hearing this comment, the court tentatively concluded that the plea bargain should not be accepted:
I just don't know that 16 do 85 is enough for a guy like this or a guy like Basim Reid. They are dangerous, dangerous people, they really are, and they have no thought whatsoever for the rights or safety of others.
The court reached this tentative conclusion based not only on the eight armed robberies defendant had committed but also "his attitude about these crimes." The court concluded the proceedings that day by saying that it wanted an opportunity to review the presentence report again before finally deciding whether to accept or reject the plea.
That presentence report, which was submitted to us after oral argument, indicated that defendant had struck the victims of three of the robberies in the head or the face with a pistol and punched a victim of one of the other robberies in the face.
On the next scheduled court date, September 8, 2006, defendant refused to appear in court. The court stated that it was rejecting the plea bargain for which it had taken the factual bases on May 22, 2006. The court also stated that it would not accept a plea bargain for less than twenty years imprisonment. In explaining its reasons for rejection of the plea bargain, the court stated: "Due to their [referring to both Reid and defendant] conduct in court as well as the severity of . . . each and every one of the armed robberies."
Although the trial court should have given a fuller statement of reasons, we conclude that the court did not abuse its wide discretion in rejecting defendant's original plea bargain with the State. The presentence report disclosed that there were aggravating circumstances with respect to a number of the robberies that were not revealed by the factual bases defendant provided at the plea hearing held on May 22, 2006. For example, defendant testified in giving the factual basis for his guilty plea to the robbery of the Econo Lodge in Egg Harbor that he did not use an actual gun in that robbery but only simulated possession of a gun. However, the presentence report indicated that defendant not only possessed an actual gun in that robbery but that he had struck Bennett on the side of the head with the gun, causing him to lose a tooth. The presentence report further indicated that defendant had inflicted physical harm upon a number of other victims by striking them in the head or face with a gun or punching them. In addition to these aggravating circumstances of several of the robberies disclosed by the presentence report, the trial court properly took into consideration that when defendant appeared for sentencing on August 25, 2006, he failed to show any remorse for the crimes he had committed, instead treating the proceedings as if it were a joke by "smirking" at the trial court, and when the court commented upon his bad attitude, stating "It's funny." Such absence of remorse was an appropriate consideration, together with defendant's acts of physical violence toward the victims of some of the robberies, in the court's decision to reject defendant's plea bargain with the State.
Defendant argues that the trial court also erred in rejecting a second plea bargain he entered into with the State after the court's rejection of his original plea bargain, which provided for an aggregate seventeen-year term of imprisonment subject to NERA. Defendant argues that the court erroneously concluded that the factual bases he provided on October 4, 2006 for his guilty plea to the first of the seven first-degree robberies that were to be resolved by that plea bargain was insufficient.
We agree with defendant that the trial court seemed to be operating under the erroneous assumption that the simulation of use of a gun in a robbery is insufficient to establish commission of the first-degree offense. However, the court never rejected this proposed plea bargain. After erroneously stating that defendant had not established an adequate factual basis for his plea to the first of the seven robberies to which he had agreed to plead guilty, the court observed that it was 4:30 p.m. and that it was "shutting down" the plea proceedings "for the day." The court also observed that this would afford defense counsel "more time to meet with [defendant]," and that "[i]f [defendant] wants to plead guilty, and the factual bases match up to what he's pleading to, that's fine." The court concluded the day's proceeding by stating: "Yeah, this is no time to mess around with all these counts, okay. Okay, if we can work it out, we can do that at anytime. If we can't, we'll see you November 29th." Therefore, the trial court did not reject defendant's second plea bargain with the State at the proceeding conducted on October 4, 2006. Instead, it continued the matter until a later date.
On the next proceeding on the record, which was a pretrial conference held on November 29, 2006, the trial court began the proceeding by stating, "[t]his was . . . to be the final pretrial conference and plea cut off for all of [defendant's] various charges and Indictments," and then asking defense counsel, "what do you and your client wish to do at this point because we have long since [passed] the time when you have to fish or cut bait." In response, defense counsel advised the court: "Your Honor, he's telling me he wishes to proceed to trial and proceed with any pretrial motions." The court subsequently addressed defendant directly:
THE COURT: Okay. Do you understand, Mr. Johns, that after today, after you fill out a pretrial memo form, you can't later negotiate these matters?
THE DEFENDANT: Yes.
Thus, there is no evidence before us that the trial court rejected the plea bargain presented on October 4, 2006. Rather, it appears defendant simply changed his mind about accepting that plea bargain.
Therefore, the only plea bargain the court rejected was the one it tentatively accepted on May 22, 2006, and for the reasons previously discussed, we conclude that the rejection of that plea bargain did not constitute an abuse of discretion.
Defendant argues under Point II of his brief that the trial court erred in admitting evidence of King's out-of-court and in-court identifications of him as the person who attempted to rent a room at the Egg Harbor Ramada an hour before the robbery and Bennett's in-court identification of him as the perpetrator of the robbery at the Egg Harbor Econo Lodge. This argument is clearly without merit and only warrants brief discussion. R. 2:11-3(e)(2).
Initially, we note that defendant did not move before trial to exclude evidence of King's out-of-court identification and did not object to King's and Bennett's identifications of him at trial. In any event, there was no basis for exclusion of this identification evidence. The fact that Bennett had been unable to identify defendant in a photo array the police showed him after the robbery was not a basis for exclusion of his trial testimony identifying defendant as the perpetrator of the Egg Harbor Econo Lodge robbery. See State v. Clausell, 121 N.J. 298, 327-28 (1990). The fact that King was only shown a single photograph of defendant in making his out-of-court identification was not a basis for excluding evidence of that identification, which was demonstrated to be highly reliable. See State v. Adams, 194 N.J. 186, 203-06 (2008). We note in particular that the State's evidence included not only Bennett's and King's identifications of defendant as one of the perpetrators, but also surveillance videotapes of both robberies, which provided strong corroboration for those identifications, and defendant's tape-recorded confession.
Defendant argues under Point III of his brief that the State violated his rights under the Confrontation Clauses of the United States and New Jersey Constitutions because its fingerprint experts utilized the results of an analysis by the Automated Fingerprint Information System (AFIS), in screening possible matches of a fingerprint of the perpetrator of the Egg Harbor Econo Lodge robbery, without producing the AFIS operator to testify about how the AFIS generates fingerprint data. There was no fingerprint evidence relating to the robbery at the Ramada, so this argument pertains solely to the Econo Lodge robbery.
One of the State's fingerprint experts, Ian Finnimore, described AFIS as "a machine [that] gives law enforcement a list of candidates [for a fingerprint match] that we go through and look at systematically." Finnimore did not testify that he made any use of the data generated by AFIS other than to identify defendant's fingerprints, together with the fingerprints of nineteen other individuals, as one of the group of possible matches for the latent fingerprints found behind the counter of the front desk at the Econo Lodge. Finnimore's opinion that defendant was the source of that latent fingerprint was based solely on his comparison of the features of that fingerprint with those of defendant's fingerprint. The State's other fingerprint expert, Justin Furman, did not refer to AFIS at all in his direct examination in which he expressed the opinion that defendant was the source of the latent fingerprint found at the Econo Lodge. AFIS was mentioned for the first time during defense counsel's cross-examination. Furman testified that he did not make any direct use of the AFIS report because he was simply asked to verify a prior examiner's identification of defendant as the source of the latent fingerprint. Consequently, once he confirmed that that fingerprint belonged to defendant, he did not examine the other nineteen fingerprints identified by AFIS. Thus, the AFIS preliminary fingerprint screening did not play a significant role in the expert opinions provided by the State's fingerprint experts.
Defendant failed to object to the testimony of the State's fingerprint experts regarding AFIS. This failure constituted a waiver of any objection defendant might have had to such testimony. See Melendez-Diaz v. Massachusetts, ___ U.S. ___, n.3, 129 S. Ct. 2527, 2534, 174 L. Ed. 2d 314, 323 (2009); State ex. rel. J.H., 244 N.J. Super. 207, 218 (App. Div. 1990). Therefore, even though it is doubtful the AFIS report would be considered "testimonial" evidence subject to exclusion under Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) even if it had been offered into evidence and defendant had properly objected, see State v. Chun, 194 N.J. 54, 146-47, cert. denied, ___ U.S. ___, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008), there is no need to decide that issue.
Finally, defendant argues that his aggregate sentence of forty-seven years imprisonment, with more than twenty-seven years of parole ineligibility under NERA, was excessive. Defendant's sentence consisted of consecutive sixteen-year terms of imprisonment, subject to an 85% period of NERA parole ineligibility under NERA, for each of the Egg Harbor armed robberies and consecutive five-year terms of imprisonment for the aggravated assault and both convictions for possession of a handgun without a permit.
We vacate the consecutive sentence for the second of defendant's convictions for possession of a handgun without a permit. Insofar as the record before us indicates, defendant possessed the same handgun in the robberies at both the Econo Lodge and Ramada. We question whether the possession of the same unpermitted handgun in the commission of two offenses supports a finding of two violations of N.J.S.A. 2C:39-5(b), but we do not decide this issue because it has not been briefed. In any event, it is clear that such continuing possession of the same weapon does not involve separate wrongs that could justify imposition of consecutive sentences. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In fact, we question whether any consecutive sentences at all were warranted for possession of a handgun without a permit. See State v. Jones, 66 N.J. 563, 567-68 (1975); State v. Copling, 326 N.J. Super. 417, 441 (App. Div. 1999), certif. denied, 165 N.J. 189 (2000). Therefore, the trial court should reconsider this part of defendant's sentence.
We also conclude that the consecutive aspects and overall length of the remainder of defendant's sentence must be reconsidered. The determination whether sentences should be served consecutively or concurrently, and the overall length of consecutive sentences, are governed by the criteria set forth in Yarbough:
(1) there can be no free crimes . . . ;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) . . . the sentencing court should . . . [consider] whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims; [and]
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense. [Id. at 643-44.]
In State v. Miller, 108 N.J. 112, 122 (1987), the Court emphasized that even when consecutive sentences are appropriate, "the [court's] focus should be on the fairness of the overall sentence." Accord State v. Abdullah, 184 N.J. 497, 515 (2005); State v. Soto, 385 N.J. Super. 247, 256 (App. Div.), certif. denied, 188 N.J. 491 (2006).
Applying these criteria, we question the appropriateness of imposing consecutive sentences for the armed robbery of Bennett and the aggravated assault committed upon him during the course of that robbery. These two crimes and their objective were not "predominantly independent of each other"; did not involve "separate acts of violence or threats of violence"; were not "committed at different times or separate places"; and did not involve "multiple victims." Yarbough, supra, 100 N.J. at 644. The infliction of physical harm upon the victim of an armed robbery may be an appropriate factor to consider in determining the length of the sentence for that offense, see N.J.S.A. 2C:44- 1(a)(2), but it is not ordinarily a basis for imposition of a consecutive sentence for assault.
We also conclude that the trial court failed to provide an adequate statement of reasons for imposition of consecutive sentences for the two robberies and the overall sentence for those offenses. The court seemed to be operating under the assumption that consecutive sentences should be automatically imposed if a defendant is convicted of multiple robberies. That is not what our law provides. Our Supreme Court has recently reaffirmed that a "comprehensive" analysis of the Yarbough criteria must be conducted "whenever consecutive sentences are considered." State v. Miller, 205 N.J. 109, 130 (2011). The trial court did not undertake that analysis in this case. The court also failed to separately consider "the fairness of the overall sentence." Abdullah, supra, 184 N.J. at 515. Therefore, defendant must be resentenced.
Accordingly, defendant's convictions are affirmed, but his sentence is vacated and the case is remanded to the trial court for resentencing in conformity with the principles set forth in this opinion.
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