June 29, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER JOHN FASANO, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-04-0870.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2011
Before Judges A. A. Rodriguez and Coburn.
Following a jury trial, defendant Christopher John Fasano was convicted of second-degree burglary, N.J.S.A. 2C:18-2; third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); second-degree eluding, N.J.S.A. 2C:29-2(b); second-degree aggravated assault while fleeing, N.J.S.A. 2C:12-1(b)(6); and third-degree assault, N.J.S.A. 2C:12-1(a). After merging the convictions, Judge Ronald Lee Reisner imposed two consecutive eight-year terms subject to NERA*fn1 for the burglary conviction and the aggravated assault conviction. We affirm.
These convictions result from an incident of domestic violence between divorcing spouses. After twenty-one years of marriage, defendant and his wife divorced. They had three children, ages eighteen, fourteen and ten. Defendant had moved out of the marital home in Brick Township and resided in Pennsylvania.
On December 7, 2009, defendant drove to the former marital home and picked up the two younger children and their friend for the weekend. Before leaving, defendant and his former wife had a heated argument concerning ownership of a coin collection. Police officers responded after the former wife called 911 and asked defendant to leave. On the drive back to Brick two days later, defendant's driving became erratic and reckless. He spoke to himself loudly, saying, "I'm going to get her," and "that bitch is dead." He even said that he "could hit a pole and . . . this could all be over."
When defendant arrived at the house, his former wife was having a cigarette in the garage. When she opened the door to the house, defendant charged into the garage toward her, holding an eight-inch knife. As she attempted to defend herself, defendant pushed her to the ground.
A moment later, the couple's fourteen-year-old daughter intervened, hoping to distract her father. Defendant turned toward her and stopped. He turned around and fled in his truck. The victim was cut on her chin, had a large laceration on her left hand and a smaller cut on her right thumb. Defendant's son also suffered a laceration on his hand which required five stitches.
Police arrived and obtained defendant's cell phone number to track defendant's movements. After leaving the house, defendant drove to his friend Robert Wright's house. Although Wright did not allow defendant into the house, he agreed to meet at a local bar. After talking to Wright, defendant agreed to go to his mother's house.
Holmdel Police Patrolmen John Allen and Jeffrey Todd began following defendant as he drove towards his mother's house.
When the officers activated their lights, defendant entered the Garden State Parkway. After a brief chase exceeding one-hundred miles per hour, defendant was able to lose Patrolman Todd.
With only one officer behind him, defendant exited the highway in Tinton Falls. As the chase continued onto smaller roads, defendant suddenly slammed his brakes. Allen swerved alongside defendant's vehicle to avoid a collision. Defendant disabled Allen's car by ramming it twice and fled the scene.
Later that evening, Wright agreed to call defendant to assist the police with locating him. Defendant answered and warned that no police should attempt to find him. Meanwhile, the Tinton Falls Police Department learned that defendant had visited his brother's house. There they found defendant's abandoned truck.
The next day, defendant unexpectedly appeared at Wright's business. Wright convinced defendant to go to the hospital. En route to Monmouth Medical Center, the police intercepted the vehicle and arrested defendant.
During defendant's trial, one of the jurors informed the judge that she lived near where defendant and Allen had crashed and had personally seen the disabled police vehicle. The judge immediately dismissed the juror and conducted an extensive voir dire of the remaining jurors. The voir dire resulted in the dismissal of another juror who had conversations about the accident with the dismissed juror. The judge denied defendant's motion for a mistrial stating that he was satisfied that the jurors responded to the court's questioning truthfully and their deliberations would not be affected by the brief comments of the dismissed juror.
On appeal, defendant contends:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF JUROR MISCONDUCT, WHICH PREVENTED THE DEFENDANT FROM BEING TRIED BY A FAIR AND IMPARTIAL JURY.
A new trial is warranted only where an error is so prejudicial that it is repugnant to justice. R. 3:20-1. This determination is entrusted to the discretion of the judge and it "will not be interfered with on appeal unless a clear abuse has been shown." State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). We review a judge's investigation of allegations of jury misconduct pursuant to the same standard. State v. Scherzer, 301 N.J. Super. 363, 488 (App. Div. 1997). If these determinations rest on factual findings, we are bound by those the record supports. State v. Davila, 203 N.J. 97, 109 (2010).
A criminal defendant has an inviolate right to a trial by an impartial jury pursuant to the Sixth Amendment of the United States and Article I, paragraph ten of the New Jersey Constitution. Impartiality is ensured where the jury weighs only the evidence introduced at trial, "free from the taint of extraneous considerations and influences." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951). Thus, a new trial is appropriate where there is evidence of jury misconduct or other "intrusion[s] of irregular influences into jury deliberations" that could affect the verdict. Scherzer, supra, 301 N.J. Super. at 486. A defendant need not prove that the "irregular matter actually influenced the result, but [that] it had capacity of doing so." Panko, supra, 7 N.J. at 61.
Not every "outside influence" affecting deliberations merits a new trial. State v. R.D., 169 N.J. 551, 559 (2001). Rather, a judge must question the jurors about the matter. R. 1:16-1. The judge should "consider the gravity of the extraneous information in relation to the case, the demeanor and credibility of the juror or jurors who were exposed to the extraneous information, and the overall impact of the matter on the fairness of the proceedings." R.D., supra, 169 N.J. at 559.
For example, in State v. Grant, 254 N.J. Super. 571, 580 (App. Div. 1992), a juror informed the jury that her husband, a corrections officer, had opined that the defendant's choice of weapon indicated guilt. Most of the jurors remembered hearing the comments. Id. at 582. We held that "the jury deliberations could have been substantially influenced by an outside source that . . . is an 'expert opinion,' not a comment one simply reads in the newspaper." Id. at 587. More importantly, the extraneous information went "to the heart of an issue at trial." Id. at 588; see also State v. Wormley, 305 N.J. Super. 57, 68-70 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998) (reversing conviction where judge did not voir dire other jurors after one juror admitted knowledge of the State's witness and the circumstances of the crime). As these cases demonstrate, extraneous influences or information must affect more than one juror and concern an ultimate issue of the trial.
Here, we conclude that Judge Reisner's response to the juror's admission was decisive, thorough and appropriate. Unlike Grant or Wormley, the juror's familiarity with the accident scene did not bear on a critical issue at trial. There was no dispute that a collision had occurred between defendant and an officer at that location and that the officer's vehicle had been disabled.
Defendant also contends:
THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL WITH RESPECT TO [THE BURGLARY CONVICTION] SINCE THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF SECOND DEGREE BURGLARY ARISING THERE FROM WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.
Defendant argues that he is entitled to a new trial because the jury's verdict was so inconsistent as to be contrary to the weight of the evidence. The jury found appellant guilty of burglary but acquitted him of all three counts of aggravated assault. Burglary requires an entry with the "purpose to commit an offense therein." N.J.S.A. 2C:18-2(a). However, we conclude that an acquittal of all the crimes allegedly committed in his former wife's house does not preclude a conviction for burglary.
Courts may accept inconsistent verdicts from juries. Dunn. v. U.S., 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 358-59 (1932); U.S. v. Powell, 469 U.S. 57, 65, 105 S. Ct. 471, 476, 83 L. Ed. 2d 461, 468 (1984); State v. Banko, 182 N.J. 44, 53 (2004). Our courts' approval of inconsistent verdicts rests on the jury's nullification power, or the power to acquit a defendant despite overwhelming evidence of guilt. State v. Ragland, 105 N.J. 189, 204-05 (1986). Thus, it is of no consequence that the jury acquitted the defendant of a crime that was a material element of a crime for which the defendant was convicted. State v. Grey, 147 N.J. 4, 11 (1996) (abrogating the exception in State v. Peterson, 181 N.J. Super. 261 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982)). If there is sufficient evidence in the record to support the counts on which the defendant was convicted, we will affirm. State v. Petties, 139 N.J. 310, 319 (1995).
Here, the evidence supports the defendant's conviction for burglary. Defendant entered his former wife's house in violation of a consent order barring him from the premises armed with an eight-inch knife. As Judge Reisner explained, the crime of burglary was "complete upon [defendant's] entry" into the house. We have no warrant to intervene.
Defendant challenges his sentence, contending:
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
THE SENTENCING COURT FAILED TO CONSIDER ALL THE APPLICABLE MITIGATING FACTORS AND FASHION ON A SENTENCE IN ACCORDANCE WITH THE PROPER FINDINGS SUPPORT BY THE RECORD.
In a pro se supplemental brief, defendant contends:
LACK OF STATUTORY GUIDELINES LEAVES UNFETTERED DISCRETION IN SENTENCING COURT'S HANDS RELATIVE TO THE IMPOSITION OF CONSECUTIVE SENTENCES.
THE IMPOSITION OF TWO CONSECUTIVE POST RELEASE PAROLE SUPERVISION TERMS VIOLATES THE DEFENDANT'S DUE PROCESS OF LAW UNDER U.S. CONST. AMEND. XIV, AND N.J. CONST. ART. 1, PARA 1, AND THE TERMS OF THE NERA STATUTE.
We are not persuaded by any of the challenges to the sentence.
A sentence will be reversed only where it results from a "patent and gross abuse of discretion." State v. Roth, 95 N.J. 334, 364 (1984). Where "substantial evidence" supports the application of the N.J.S.A. 2C:44-1 sentencing factors, reversal is appropriate only where the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 365. A judge must separately state and explain the reasons for the application of the aggravating and mitigating factors and the imposition of consecutive sentences. State v. Yarbough, 100 N.J. 627, 643-44 (1985), 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).
The judge found mitigating factor N.J.S.A. 2C:44-1(b)(7), that defendant has no prior history of criminal activity. The judge also found two of the aggravating factors listed in N.J.S.A. 2C:44-1(a), i.e., (3) a risk of recidivism and (9) a need for deterrence because there were "prior actions of domestic violence," and "two victims, the family as well as the police officer." Finding that the aggravating factors outweighed the mitigating factors, the judge sentenced defendant to eight years for second-degree burglary and eight years for second-degree aggravated assault by eluding.
The crimes involved separate "acts of violence and threats of violence" perpetrated against different victims. Each crime had a "predominantly independent" objective and occurred at "different times and separate places." Therefore, the judge found that consecutive sentences were appropriate pursuant to Yarbough. 100 N.J. at 643-44.
Defendant argues that the judge failed to "delineate the factual basis on which [he] concluded" that there was a risk of recidivism. We disagree.
Aggravating factors (3) and (9) are not limited to cases in which the defendant has a criminal record. See, e.g., State v. Varona, 242 N.J. Super. 474, 491 (App. Div.), certif. denied, 122 N.J. 386 (1990). A history of domestic violence may support a finding of likely recidivism. For example, in State v. DeRoxtro, 327 N.J. Super. 212, 226 (App. Div. 2000), we affirmed a finding of a risk of recidivism based on the defendant's "'propensities to engage in acts of domestic violence.'"
Here, defendant had a history of domestic violence. Therefore, the judge's finding is supported by the record and was not an abuse of discretion.
Defendant also argues that his sentences should not be consecutive. Defendant points to the expert testimony of Dr. Trent, who opined that the crimes were committed during "a single period of aberrant behavior."
The following statutory factors govern a judge's decision whether to impose consecutive sentences:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts 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;
(e) the convictions for which the sentences are to be imposed are numerous . . . .
[Yarbough, supra, 100 N.J. at 643-44.]
A judge must explicitly apply the evidence to these factors to the evidence. State v. Gallagher, 286 N.J. Super. 1, 22 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).
Here, defendant's crimes were separated by several hours; occurred in different places; and were perpetrated against separate victims. Therefore, the judge appropriately concluded that the sentences should be consecutive.
Defendant also cites State v. Marinez, 370 N.J. Super. 49, 58-60 (App. Div.), certif. denied, 182 N.J. 142 (2004), for the proposition that the judge did not consider the "real-time" consequences of NERA when sentencing appellant to base-terms exceeding the presumptive sentence.
Counsel for defendant argued at sentencing that NERA "is something that the Court . . . has to weigh . . . when the Court analyzes what the [terms] should be, and if it should be a concurrent or consecutive term." In response, the judge acknowledged before sentencing that, "[a]s noted by defense counsel," both convictions "qualif[ied] under [NERA] . . . which means whatever sentence is imposed" would be subject to "a minimum period of parole ineligibility." Thus, the record demonstrates that the judge was cognizant of the real-time consequences of NERA when imposing a sentence that exceeded the presumptive term.
Defendant contends that N.J.S.A. 2C:43-7.2(c) is ambiguous because it "can arguably be construed to mean that it is impermissible for NERA parole supervision periods to be served consecutively." We disagree.
First, we note that defendant does not cite our recent decision, State v. Friedman, 413 N.J. Super. 480, 485-91 (App. Div.), certif. denied 204 N.J. 39 (2010), which addressed this issue. After a thorough review of the factual and legislative history preceding the enactment of NERA, we acknowledged that the "legislative history can be construed to support the position that NERA terms of parole supervision should be served consecutively." Id. at 490. Nevertheless, the Governor's statement "provides only that N.J.S.A. 2C:43-7.2(c) would prevent the re-entry of violent offenders without any period of supervision at all." Ibid. Construing the statute against the State, the court held that "mandatory periods of parole supervision on consecutive NERA sentences must be served concurrently." Ibid.
Defendant's argument is therefore moot. Pursuant to Friedman, defendant's mandatory three-year parole supervision periods will be served concurrently upon his release.
Defendant argues that the judge "did not contemplate that [defendant's] conduct would cause, or threaten serious harm, or injury." Defendant also challenges the judge's finding that aggravating factor N.J.S.A. 2C:44-1(a)(9) applied because defendant did not show any remorse. We disagree.
Judge Reisner explained that defendant's lack of remorse would "weigh against applying mitigating factor number 9," pursuant to State v. O'Donnell, 117 N.J. 210, 216-17 (1989). The fact that defendant had continued to avoid admitting his guilt and had eluded police instead of cooperating gave additional support to this determination.
Mitigating factor (9) is applicable when the "character and attitude of the defendant indicate that he is unlikely to commit another offense." N.J.S.A. 2C:44-1(b)(9). A defendant's lack of remorse is sufficient evidence to preclude its application. See O'Donnell, 117 N.J. at 216-17; State v. Carey, 168 N.J. 413, 426-27 (2001).
Here, defendant points only to this statement made at the sentencing hearing:
I'd like to say I'm very sorry for my children for what happened. This was a terrible accident. My family, my wife - -my ex-wife. I'm sorry for the Holmdel Police Department and everybody here.
It is clear that defendant considers the entire event an "accident" rather than something for which he is culpable. This supports the judge's determination that he lacked remorse, and he was "in a far better position to develop a 'feel of the case'." Carey, supra, 168 N.J. at 427.