November 3, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SAAHIR RAHIM, A/K/A SAAHIR ABDUR RAHIM, SAAHIR ABDUR-RAHIM, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 08-07-1773.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2011
Before Judges Messano and Espinosa.
Defendant Saahir Rahim appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of second-degree robbery, the sole count contained in the indictment. He raises the following points on appeal:
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THE OFFENSE OF THEFT AS A LESSER-INCLUDED OFFENSE OF ROBBERY (NOT RAISED BELOW)
THE PROSECUTOR REPEATEDLY COMPELLED MR. RAHIM TO TESTIFY REGARDING THE CREDIBILITY OF THE STATE'S WITNESSES THEREBY VIOLATING MR. RAHIM'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED MR. RAHIM OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS THE EVIDENCE FOUND IN MR. RAHIM'S VEHICLE
THE TRIAL COURT ERRED IN IMPEDING THE ABILITY OF THE DEFENSE TO CROSS-EXAMINE THE VICTIM IN THIS CASE (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING POLICE WITNESSES TO TESTIFY CONCERNING COMMUNICATIONS RECEIVED FROM A NON-TESTIFYING OUT-OF-COURT DECLARANT (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE (NOT RAISED BELOW)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
In Point IV, defendant argues that the judge should have granted his motion to suppress evidence seized during a warrantless search of his vehicle. He contends that since exigent circumstances did not exist, the search was not justified pursuant to the automobile and plain view exceptions to the warrant requirement. We disagree.
At a pre-trial evidentiary hearing on defendant's motion, Atlantic City police officer Robert Toscano, Jr. testified that at 2:30 a.m. on the morning of April 14, 2008, he was dispatched to "backup" officers Michael Braxton and Donnell Holland at a motor vehicle stop regarding a "strong-arm robbery." When he arrived, Braxton and Holland had already stopped a vehicle fitting the description of the car that fled from the robbery. They were questioning the driver, eventually identified as defendant.
Toscano approached the car from the passenger side and shone his flashlight on the rear seat, where he observed a driver's license. Police communications had provided a description of the items taken from the victim during the robbery, which included his driver's license, credit cards, and other personal items. "[The license] was face up and [he] could clearly see the picture on the license was of a white male." Defendant is African-American. Toscano "opened the door[,] . . . retrieved the license and . . . asked communications [for the] name of the victim." Communications provided the name "Wayne Smith," which matched the name on the license.
Holland testified that he was on patrol when he received a call from dispatch with the descriptions of a suspect and vehicle involved in a robbery. Within minutes, Holland saw a vehicle fitting the description, followed it for a block, activated his lights and pulled the vehicle over. Defendant was driving and alone in the car.
Holland asked defendant "for his license, registration and insurance," but defendant was "[un]able to provide that." Holland noticed blood on defendant's knuckles, and asked what had happened. Defendant said "he had just had a fight with his girlfriend." Holland ordered defendant out of the car and "noticed he had blood all on his t-shirt."
Braxton advised Holland that defendant had an open "warrant for a suspended driver's license." Defendant was placed under arrest. Holland "patted [defendant]" for weapons and found none. However, Holland did find a watch with a broken strap and cash in defendant's pocket. Holland knew Toscano had seized "ID" that was not defendant's from the backseat. Within minutes, the victim arrived at the scene and identified defendant as the man who robbed him.
After defendant was in the police car, Holland had Braxton search the car because "that vehicle . . . was going to be taken . . . to the tow yard and it's not protected by police at all." Additionally, the car was not registered to defendant, and the area was "a very high drug, high crime area." On cross-examination, Holland further testified that "[w]e did not have the manpower to stay with [the] vehicle," "[a] telephonic warrant takes quite some time," "we were short staffed, . . . and the vehicle was about to be turned over to a civilian and taken to an unsecured location." Braxton's search of the backseat of defendant's car resulted in the seizure of other evidence which we discuss in detail below.
Finding both officers to be credible, the judge denied defendant's motion to suppress and explained his reasons in a comprehensive oral opinion:
[T]he area in which [the officers] indicate this happened was a high crime area, where there's a lot of shootings, drug transactions. It's 2:00 a.m. in the morning. They indicated they were short of staff. They indicated that to tow the car it would go to an unsecured lot. . . . I think that under the issue of exigency, that all of this is important . . . [because] people have underestimated the fresh blood on the shirt and hands of the Defendant. . . . He gives an admission that he had some kind of a fight with his girlfriend.
So, therefore, this is all fluid and ongoing. Nobody really knows is the girlfriend behind him; is she following him; does she have people following him to get even. Or if it's not a girlfriend, whoever he had this altercation with, are they in the immediate area; are they looking to see what's going on; are they waiting for an opportunity to get the Defendant and get the cops. These are all things that go into the totality of the circumstances that deals with exigency of not waiting two, three hours at that scene. High crime area, middle of the night, Defendant with blood all over him, and waiting in this area for maybe somebody that's also looking for Defendant to get even to come upon the scene. . . . So, as far as exigency, I think under the totality of the circumstances, that exigency would appear to be satisfied. . . . I think that the search of the driver's license by Toscano . . . is allowable under . . . one of two theories, or both; one, a plain view exception and two, the exigent circumstances.
[U]nder the totality of those circumstances, I don't think there's any question that, under the plain view exception, that he could go in there and take the license to see exactly whose car this is, whose license it is. Is it the person who evidently was assaulted and robbed?
It is well-recognized that "[i]n reviewing a motion to suppress, an appellate court 'must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007), in turn quoting State v. Elders, 386 N.J. Super. 208, 228 (App. Div. 2006)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal.'" Handy, supra, 206 N.J. at 44-45 (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). "Whether the facts found by the trial court are sufficient to satisfy the applicable legal standard is a question of law subject to plenary review on appeal." State v. Cleveland, 371 N.J. Super. 286, 295 (App. Div.), certif. denied, 182 N.J. 148 (2004).
The plain view doctrine has long been recognized as an exception to the warrant requirement. State v. Johnson, 171 N.J. 192, 206 (2002) (citing Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct., 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971)). As the Court has said:
The plain view doctrine requires the police officer to lawfully be in the viewing area. The officer must discover the evidence inadvertently, meaning that he did not know in advance where evidence was located nor intend beforehand to seize it. The third element . . . is that it ha[s] to be immediately apparent to the officer that items in plain view [are] evidence of a crime, contraband, or otherwise subject to seizure.
[Id. at 206-07 (internal citations and quotations omitted).]
The Court recently addressed New Jersey's formulation of the automobile exception to the warrant requirement in State v. Pena-Flores, 198 N.J. 6, 11 (2009):
[W]e reaffirm our longstanding precedent that permits an automobile search without a warrant only in cases in which the police have both probable cause to believe that the vehicle contains evidence and exigent circumstances that would justify dispensing with the warrant requirement.
The court reiterated that "exigency above and beyond the mere mobility of the vehicle is required." Id. at 24; see State v. Colvin, 123 N.J. 428, 429-30 (1991). "Exigency must be determined on a case-by-case basis[,]" with "[n]o one factor [being] dispositive." Pena-Flores, supra, 198 N.J. at 28 (citation omitted). "[T]he totality of the circumstances" must be considered, with "the fundamental inquiry" being "[h]ow the facts of the case bear on the issues of officer safety and the preservation of evidence." Id. at 28-29 (citations omitted). "Even . . . where an arrested defendant has been secured, there may be justification to search a vehicle under the automobile exception." Id. at 20 (emphasis added). "In each case it is the circumstances facing the officers that tell the tale." Id. at 29.
In this case, turning first to Toscano's seizure of Smith's driver's license, it is beyond cavil that the first two prongs of the plain view test are satisfied. Toscano was lawfully next to defendant's car and observed the victim's driver's license when he shone his flashlight in the car.*fn1 He did not know that he would find evidence of the robbery on the backseat of the auto. See Johnson, supra, 171 N.J. at 213 (noting the "'inadvertence'" requirement is satisfied when the officer "d[oes] not know in advance that evidence would be found").
The third prong "requires us to decide whether the incriminating nature of the . . . object was immediately apparent to [Toscano] before he seized it from the [back seat]." Ibid. "[T]he 'immediate apparent' prong requires the Court to determine whether probable cause existed to associate the [license] that was in plain view with criminal activity before seizing the object from the [backseat]." Ibid. (emphasis omitted). "[W]hen 'determining whether the officer has probable cause to associate the item with criminal activity, the court looks to what the police officer reasonably knew at the time of the seizure.'" Ibid. (quoting State v. Bruzzese, 94 N.J. 210, 237 (1983) cert. denied, 405 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)).
Here, the judge properly considered the totality of circumstances known to Toscano before he opened the car door and seized the driver's license. He noted the time of day and the high crime nature of the neighborhood. See id. at 217 ("The high-crime character of an area, as part of the totality of the circumstances, also may be used in determining probable cause."). Toscano knew that the license, depicting a white male, could not be that of defendant, an African-American male, and that the victim's driver's license was taken in the robbery. And, Toscano knew at some point that defendant had blood on his shirt and knuckles. Under the facts presented, Toscano reasonably believed that the license was evidence of a crime. See id. at 215 (noting probable cause requires only a reasonable belief that the item is contraband or "useful as evidence of a crime") (quoting Bruzzese, supra, 94 N.J. at 237) (internal quotations omitted)).
Defendant argues that even if Toscano's observations were permissible, his and Braxton's intrusions into the car were unjustified because exigent circumstances did not exist. Therefore, the officers should have obtained a telephonic search warrant.
We conclude that the motion judge appropriately considered the totality of the circumstances facing the officers: their safety concerns, the need to preserve evidence because the car was being towed to an unsecured location, the late hour and the high crime nature of the area. He properly determined that the officers acted reasonably in opening the car doors and securing the evidence of the robbery that was lying in plain view on the backseat of the car. Defendant's motion to suppress was properly denied.
In Points I, II, III, V, and VI, defendant raises a number of issues relating to the trial, none of which were raised below. We therefore must determine whether the alleged errors were "clearly capable of producing an unjust result." R. 2:10-2. We briefly recite some of the evidence adduced at trial. Smith testified that during the early morning hours of April 14, 2008, he drove home after visiting a friend. As Smith exited his car, defendant, whom he identified in court, approached and demanded money. Defendant was wearing a "white t-shirt, some jeans, [and] a baseball cap folded down over his eyebrows." In an attempt to stave off the robbery, Smith took off his watch and handed it to defendant.
Defendant grabbed at Smith's pockets and punched him in the face. Defendant grabbed the collar of Smith's shirt and "slammed" him against a nearby car. Bleeding from his wounds, Smith screamed for help. Someone nearby looked "out [his] window" and called out to defendant, "[H]ey, man, don't do this right here, take it down there."
Smith's shoulder was dislocated in the struggle, and defendant was able to empty Smith's pockets, which contained several debit, credit, and personal insurance cards, and "a little . . . over [$]450" predominantly consisting of twenty dollar bills. Defendant fled the scene and Smith walked to nearby Waterside Apartments where a "concierge" called the police.
Vincent Kirkland, a neighbor, testified that "late in the evening," he and his wife "awoke to screams." From his window, Kirkland saw a "commotion" between a "Caucasian male and a black guy . . . [who was] hitting him [and] going through his pockets." Kirkland called the police.
Toscano and Holland testified consistently with their testimony at the pre-trial evidentiary hearing. Holland further testified that when he frisked defendant at the scene, he had "some currency, [and] . . . a watch with a broken band." The money amounted to $493 and consisted of "a lot of 20's." While defendant was being processed at police headquarters, another officer asked Holland about the charges. Holland replied, "strong arm robbery," at which point defendant said, "I didn't rob anybody. I had a fight and . . . it's survival of the fittest. If you whoop somebody's ass, you got the right to run their pockets."
Braxton also testified in front of the jury. At Holland's instructions, he retrieved Smith's personal credit and debit cards which were "scattered around" on the backseat of defendant's car. Braxton also saw a "dark blue color[ed] cap" in the back of the vehicle that "fit the description of the suspect of the robbery."
Police officer Daryl Catanio also testified for the State. After arriving at the Waterside Apartments, Catanio placed Smith into the back of his patrol car and "took him around to where he said the assault had occurred." There, he retrieved Smith's shirt and baseball cap. He also took Smith to where Braxton and Holland had stopped defendant's car. Smith immediately identified defendant as the "person who had just robbed him."
Defendant testified in his own behalf. He claimed that he struck Smith in self-defense after Smith became "real offensive" and "tr[ied] to punch [defendant] in [the] head" during an argument over a parking space. Defendant admitted that Smith "got beat pretty bad." Defendant further claimed that during the altercation, his own jewelry and watch fell to the street. In retrieving them, he mistakenly grabbed Smith's identification cards and money. Defendant denied making incriminating statements at police headquarters.
In his first point, defendant argues that the judge committed plain error by failing to charge the jury sua sponte on the lesser-included offense of theft. He contends "that [the jury] could find [him] not guilty of robbery, and convict [him] of theft (and simple assault), if it found that the theft was a mere afterthought of the simple assault."
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant 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. Burns, 192 N.J. 312, 341 (2007) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). A "[d]efendant is required to challenge instructions at the time of trial." State v. Morais, 359 N.J. Super. 123, 134 (App. Div.) (citing R. 1:7-2), certif. denied, 177 N.J. 572 (2003). Failure to do so creates a "presum[ption] that the instructions were adequate." Id. at 134-35.
Although a trial judge has an "independent obligation" to charge a lesser-included offense if supported by the evidence, even in the absence of a request by counsel, State v. Jenkins, 178 N.J. 347, 361 (2004), "when the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." State v. Walker, 203 N.J. 73, 86-87 (2010) (quoting State v. Denofa, 187 N.J. 24, 42 (2006) (internal quotation marks omitted)). "[I]nstead, the need for the charge must 'jump off' the proverbial page." State v. R.T., 205 N.J. 493, 510 (2011) (citing Denofa, supra, 187 N.J. at 42).
"[T]heft, by definition, is a lesser-included offense of robbery." State v. Ingram, 196 N.J. 23, 39 (2008). In State v. Lopez, 187 N.J. 91, 101 (2006), the Court affirmed our reversal of the defendant's conviction for robbery, finding the trial judge improperly instructed the jury that defendant could be guilty of "afterthought robbery." In doing so, the Court noted, "our [robbery] statute requires that the threats or violence be carried out in furtherance of the intention to commit a theft. Indeed, the sequence of events is critical; the intention to steal must precede or be coterminous with the use of force." Ibid.
We agree with defendant's proposition that our Criminal Code does not criminalize "afterthought" robbery. As the language of N.J.S.A. 2C:15-1(a) makes clear, a defendant's use of force, for example, must be "in the course of committing a theft," which includes "an attempt to commit theft or in immediate flight after the attempt or commission." However, in the absence of a specific request, the judge's failure to define something that is not a crime is not reversible error. Here, the judge properly charged the jurors that in order "[t]o find
[d]efendant guilty of robbery, the intent to commit a theft must precede or be coterminous with the use of force. In other words, the [d]efendant must have formed the intent to commit a theft before or during his use of force." The judge repeated this in response to a jury question during deliberations.
We note that the only evidence supporting a claim of "afterthought" robbery was Holland's testimony regarding defendant's statement at police headquarters. Defendant denied making such a statement. Moreover, defendant testified that he committed no theft at all because his possession of Smith's money and other property was inadvertent. Indeed, in both his opening and closing statements, defense counsel emphasized that defendant and Smith engaged in mutual combat, nothing more.
In such circumstances, [e]ven if there is evidence in the record to support a charge, additional factors require analysis. Those factors include whether counsel is surprised, how the case was tried, whether the defense is incompatible with defendant's position at trial, or whether the instruction would prejudice the defense in some way. [R.T., supra, 205 N.J. at 510.]
Here, charging theft as a lesser-included defense would have been incompatible with the defendant's version of the events; and, the only evidence in the record supporting the charge was a statement defendant made to the police, which he subsequently disavowed at trial. In short, the judge did not commit plain error by failing to sua sponte provide a charge on theft as a lesser-included offense.
In Points II and III, defendant contends that the prosecutor committed misconduct requiring reversal. Defendant claims it was improper for the prosecutor, while cross-examining defendant, to "challeng[e] [defendant] to characterize the State's witnesses as untruthful." Defendant further argues that during his summation, the prosecutor improperly "expressed his personal opinion"; "misstated the law"; "vouched for the credibility of the State's witnesses"; "denigrated trial counsel and [defendant]"; and "shifted the burden of proof to the defendant." We deal with the claims seriatim.
During defendant's cross-examination, the following colloquy took place:
Q: [Y]ou told the police, when they pulled you over, specifically Officer Holland, you told them you were coming from your girlfriend's house?
A: Yes, I was waiting on a girlfriend, but I just had gotten into a fight. That . . . explained the blood on my shirt.
Q: Okay. So, you heard them -- their testimony, correct?
Q: And Officer Holland and Officer Braxton, they . . . both testified today.
A: Yes, they both testified today.
Q: Okay. And you heard both of them say that when they asked you the question of why there is blood on your hands, you responded I got into a fight with my girlfriend?
A. Yes, I did hear both of them say that.
Q. So, you're saying they're lying about that statement?
A. I would say they misunderstood how I told them the answer of how -- where I was coming from and how did I get blood on my shirt.
Later, a similar exchange took place:
Q. And [the officers] . . . also did say that you said I didn't commit a robbery, I kicked the guy's butt and beat him up and took his stuff.
A. No, I didn't say that.
Q. No, no. Did you hear them . . . testify to that?
Q. Okay. So, you're saying they're lying about the part [about] you saying you took [Smith's] stuff?
Asking a witness to assess the credibility of another is prohibited. State v. Frisby, 174 N.J. 583, 594 (2002). When a defendant elects to testify, the prosecution should "avoid" any "line of questioning . . . compel[ling] defendant to comment starkly on the credibility of the witnesses against him." State v. Dellisanti, 203 N.J. 444, 463 (2010). ("There were other ways in which the State could have made its point without asking the defendant repeatedly to comment on whether another testifying witness or witnesses are lying"). Ibid. However, reversal is only warranted where the questioning was "so egregious that it deprived defendant of a fair trial." State v. Bunch, 180 N.J. 534, 549 (2004) (quoting State v. Ramseur, 106 N.J. 123, 322 (1987) (internal quotation marks omitted)).
In this instance, the prosecutor's cross-examination was improper. However, it was limited and defense counsel posed no objection. Moreover, the judge properly instructed the jurors regarding credibility, factors to consider in assessing each witness's credibility, and the jurors' paramount role in determining issues of credibility. The prosecutor's improper questions did not deprive defendant of a fair trial. See Dellisanti, supra, 203 N.J. at 463 (rejecting the argument that defendant was "deprived . . . of a fair trial" because the "trial court provided a full and appropriate instruction to the jury on how to address credibility").
In summation, the prosecutor made several comments that defendant now claims deprived him of a fair trial. Although "[p]rosecutors are expected to assert vigorously the State's case and are given considerable leeway" to do so in summation, State v. Daniels, 182 N.J. 80, 96 (2004), they have a corresponding duty to pursue justice and "refrain from any conduct lacking in the essentials of fair play." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'"
State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84. "In evaluating claims of prosecutorial misconduct and plain error the fundamental question we must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred." State v. Walden, 370 N.J. Super. 549, 562 (App. Div.), certif. denied, 182 N.J. 148 (2004).
Initially, defendant's argument regarding several of the allegedly improper remarks lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2). Based upon our review of the summation comments, the prosecutor did not "misstate the law," "denigrate trial counsel and [defendant]," improperly "vouch for the credibility of [Kirkland]," or "shift the burden of proof to . . . defendant." However, some of the prosecutor's tactics require further discussion.
During his summation, the prosecutor used the phrases "[i]n my opinion," "I think," and "I don't believe that," in discussing the evidence and, in particular, defendant's testimony. It is axiomatic that "prosecutors should confine their summations to a review of, and an argument on, the evidence, and not indulge in improper expressions of personal or official opinion as to the guilt of the defendant." Frost, supra, 158 N.J. at 88 (quoting State v. Thornton, 38 N.J. 380, 400 (1962), cert. denied sub nom., Thornton v. New Jersey, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed. 2d 1039 (1963) (internal quotation marks omitted)). The prosecutor's remarks, although inartfully prefaced with the above phrases, were fair comments on the evidence.
Defendant claims, however, that the following remarks by the prosecutor were particularly egregious in this regard:
I believe our theory of the case without a doubt or I wouldn't present it to you at this point in time. . . . [A]ctually, my job is not to present something if I didn't believe it wholeheartedly.
We agree that these comments are qualitatively different from the others; on a basic and fundamental level they are so improper that we are surprised they were uttered in summation.
"Prosecutors are the representatives of the State, a position which carries great prestige with jurors. Their statements, as representatives of the State, have a tendency to be given great weight by jurors." Walden, supra, 370 N.J. Super. at 558. It was improper for the prosecutor to equate his professional obligations with his personal belief in the State's theory of the case, and to convey both to the jury during summation. We condemn the remarks and strongly urge that they not be repeated.
However, having said that, there was no objection when the comments were made, and the evidence of defendant's guilt was substantial. "When all of the offending conduct is considered against the strength of the State's evidence, we cannot conclude that the prosecutor's tactics deprived defendant of a verdict that fairly reflected the evidence." State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007). We find no basis for reversal.
The arguments raised by defendant in Points V and VI lack sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We add only the following brief comments.
Defendant contends that it was improper for the judge "to prohibit trial counsel from questioning . . . Smith about an important inconsistency between his testimony at trial and a statement that he had previously provided to the police." The issue arose in the following context.
Following the prosecutor's redirect examination of Smith, defense counsel requested a sidebar and this colloquy ensued:
Defense counsel: Based on those [questions], I do want to ask him just one quick question about what's in his left pocket there. . . . I want to ask him a question about . . . the wallet that he told - -Judge: What wallet?
Defense counsel: He told [the police] that he had a wallet and that was also - -Judge: You asked him about a wallet before. Prosecutor: . . . [I]t was not on redirect. Judge: And [the prosecutor] didn't bring it up on redirect.
Defense counsel: Well, that's what I'm saying. I want to bring it up now. Under [N.J.R.E. 611] you can allow me to - - Judge: But you've already - - I know you asked him about a wallet.
Defense counsel explained that he wanted to confront Smith with his prior statement to the police. The judge sustained the objection because the question was "beyond the scope of redirect" and Smith had already been "asked questions . . . about a wallet."
"The scope of redirect and re-cross-examination is presumably governed by N.J.R.E. 611(a), giving the court reasonable control of the mode of interrogating witnesses." Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 611 (2011) (emphasis omitted)). We give substantial deference to the trial judge's evidentiary rulings. State v. Goodman, 415 N.J. Super. 210, 224 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011). The judge did not mistakenly exercise his discretion in this case.
Defendant next argues Holland's and Braxton's testimony --they were dispatched to the scene of the robbery and provided with a description of the vehicle that fled the scene --violated the Court's holding in State v. Branch, 182 N.J. 338 (2005) because it was evidence from a "non-testifying declarant that implicated [defendant] in the incident at issue." We disagree because the evidence did not unfairly implicate defendant as the perpetrator of the robbery. Defense counsel lodged no objection and brief references to the information provided by the dispatcher did not bring about an unjust result.*fn2
Finally, defendant contends the sentence imposed was excessive. The judge granted the State's motion to impose an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a) (permitting a sentence to an extended term when defendant is a "persistent offender"). He found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (the possibility that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record and seriousness of offenses for which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterrence); and mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (imprisonment would "entail excessive hardship to [defendant] or his dependents"). The judge sentenced defendant to thirteen years in prison with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Based upon his prior convictions, defendant was eligible for an extended term, and he does not contend otherwise.
Instead, he argues that the judge improperly balanced the sentencing factors and failed to consider the "real time consequences" given the NERA component of the sentence. We disagree.
In imposing a discretionary extended term sentence, the judge must follow the framework set forth in State v. Pierce, 188 N.J. 155, 168 (2006):
The sentencing court must first . . . determine whether a defendant's criminal record of convictions renders him or her statutorily eligible. If so, then the top of the range of sentences applicable to the defendant . . . becomes the top of the enhanced range. Thereafter, whether the court chooses to use the full range of sentences opened up to the court is a function of the court's assessment of the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public. Consideration of the protection of the public occurs during this phase of the sentencing process.
In this case, the judge clearly followed the Pierce paradigm.
An appellate court must "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Id. at 608; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Here, the judge properly determined the aggravating and mitigating sentencing factors which were all amply supported by the record. He considered the actual time defendant would serve, noting in colloquy that he had intended initially to impose an even longer sentence upon defendant but had reconsidered his initial impression. The sentence does not offend our sensibilities and we see no basis to disturb it.