January 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
FUQUAN ALEXANDER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-11-3398.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2011
Before Judges Yannotti and Kennedy.
Defendant Fuquan Alexander was tried before a jury and found guilty of carjacking, kidnapping, robbery and other offenses. He appeals from the judgment of conviction entered on May 24, 2010. We affirm.
Defendant and co-defendant Jabar Jones (Jones) were charged by an Essex County grand jury with second-degree conspiracy to commit kidnapping, carjacking and robbery, N.J.S.A. 2C:5-2; N.J.S.A. 2C:15-2; N.J.S.A. 2C:13-1(b); N.J.S.A. 2C:15-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count three); first-degree robbery, N.J.S.A. 2C:15-1 (count four); second-degree burglary, N.J.S.A. 2C:18-2(b)(1) (count five); third-degree making terroristic threats, N.J.S.A. 2C:12-3(a) (count six); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count seven); first-degree employing a juvenile in the commission of a criminal offense, N.J.S.A. 2C:24-9 (count eight); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). The charges against Jones were severed, and defendant was tried before a jury.
At the trial, the State presented evidence which established that in the early morning hours of February 22, 2008, Techelet Jean (Jean) was driving a motor vehicle on Routes 1 and 9 in Newark. Jean noticed three teenage females, including one later identified as Jasmine Gray (Gray), on the side of the road near a disabled Toyota vehicle. Jean stopped to help them and agreed to drive them to Irvington. While Jean was speaking with them, two men, later identified as defendant and Jones, approached. Defendant and Jones indicated that they also were expecting a ride to Irvington. Jean felt obliged to give all five individuals a ride.
Soon after they entered the car, one of the girls requested that Jean stop so that she could use a restroom at a fast food restaurant. Defendant and Jones remained in the car while the others got out. Jones asked Jean to provide him with money for a taxi. When Jean refused, Jones spoke with defendant and then turned and struck Jean several times in the face with a gun. All five individuals got back into the car. Defendant took the gun and held it pointed at Jean. Defendant patted Jean down, looking for money. When he did not find any money, he told Jean to drive to his bank.
Jean drove to the bank and two of the girls accompanied him to the automatic teller machine (ATM), while defendant, Jones and Gray remained in the car. At the ATM, the two girls asked for Jean's debit card and personal identification number, which he provided. They attempted to withdraw $500 but they were unable to do so. They returned to the car and two of the girls said they wanted to return home. Jean drove them to Irvington, where they got out. Defendant, Jones and Gray remained in the car.
Defendant and Jones then told Jean to drive to Jean's home in West Orange, believing that he had additional money there. Jean drove there and defendant and Jones accompanied him into his home, while Gray waited in the car. Jean led defendant and Jones to the basement. There, defendant and Jones repeatedly hit Jean with the gun and kicked him. The two men led Jean out of the basement, and told him repeatedly they were going to kill him.
As they were ascending the stairs, Jean grabbed the gun and screamed. Defendant and Jones tried to recover the gun but eventually gave up and fled with Jean's wallet, which contained less than $10, and Jean's cell phone. Jean's family members heard the commotion and called the police. The police arrived. Jean described the perpetrators and the stolen car. He was transported to a hospital where he was treated.
At about five o'clock a.m. on February 22, 2008, the Montclair police stopped defendant, Jones and Gray as they were driving through Montclair in the stolen vehicle. When confronted by the police, defendant and Jones fled, while Gray remained in the car. The police quickly apprehended defendant and Jones, and all three were taken into custody. The police recovered Jean's wallet and cell phone from the back seat of the car.
Jean was released from the hospital on February 23, 2008. He went directly to the West Orange police department, where he gave a statement to the police and identified Gray, defendant and Jones through a one-way mirror. At trial, he identified defendant as one of the perpetrators.
The jury found defendant guilty on all charges. The court sentenced defendant on May 24, 2010. The court denied the State's motion for imposition of an extended term. After merging certain offenses, the court sentenced defendant to a thirty-year term of imprisonment on the carjacking, with a twenty-five and a half year period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; a concurrent twenty-year term on the kidnapping, with a NERA period of parole ineligibility; a consecutive ten-year term for the burglary, with a NERA period of parole ineligibility; and a concurrent twenty-year term for employing a juvenile in the commission of an offense, with a seventeen year period of parole ineligibility. The court also imposed appropriate monetary penalties.
Defendant appeals and raises the following arguments for our consideration:
THE SHOW-UP PROCEDURE UTILIZED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND DEPRIVED DEFNDANT OF A FAIR TRIAL. (Not raised below).
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO AN IMPARTIAL JURY. (Not raised below).
THE ADMISSION OF TESTIMONY REGARDING THE OWNER OF THE TOYOTA AUTOMOBILE WAS IMPROPER EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED.
IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE THE OFFENSES OF CARJACKING AND KIDNAPPING.
THE AGGREGATE SENTENCE OF [FORTY] YEARS WITH [THIRTY-FOUR] YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (Not raised below).
In his pro se supplemental brief, defendant raises the following additional contentions:
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDEMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S LEGAL INSTRUCTIONS TO THE JURY PRECLUDING THE JURY FROM CONSIDERING THE LESSER INCLUDED OFFENSE UNLESS IT UNANIMOUSLY FOUND THE DEFENDANT NOT GUILTY OF THE OFFENSE OF CARJACKING. POINT II GIVING THE STATE THE BENEFIT OF ALL LEGITIMATE INFERENCES FROM THE RECORD[,]
DEFENDANT SHOULD HAVE BEEN ACQUITTED OF KIDNAPPING.
Defendant first argues that the "show-up" procedure used by the police was impermissibly suggestive and admission of testimony as to Jean's out-of-court identification deprived him of a fair trial. We note that defendant did not object to admission of this evidence at trial. He nevertheless argues that, had the issue been raised, the evidence would not have passed constitutional muster. We do not agree.
The admissibility of testimony regarding an out-of-court identification of a criminal defendant is governed by a two-step analysis. State v. Madison, 109 N.J. 223, 232 (1988). The court must determine whether the procedure employed by the police in the identification process was impermissibly suggestive and, if so, "whether the procedure resulted in a 'very substantial likelihood of objectionable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)). "If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence." Ibid.
Thus, "'[r]eliability is the linchpin in determining the admissibility of identification testimony . . . .'" Ibid. (quoting Manson v. Braithwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977)). Moreover, "[t]he reliability determination is to be made from the totality of the circumstances adduced in the particular case.'" Id. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).
This analysis requires the court to weigh "the corruptive influence of the suggestive identification" against a number of factors, including the witness's opportunity to observe the perpetrator at the time the offense was committed, the witness's degree of attention, the accuracy of the witness's prior description of the perpetrator, the level of certainty demonstrated at the time of the identification, and time between the crime and the identification. Id. at 239-40 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).
As we stated previously, Jean went to the police station the day after the offenses were committed. The police officers told Jean that they "caught the guys" who committed the offenses and those individuals were in custody. An officer told Jean he was going to show him "some people" and Jean was to say if he recognized them. The officer told Jean not to "feel compelled" to identify anyone as a perpetrator of the offense. Each suspect was then escorted by an officer into the viewing room, where Jean viewed each from a one-way mirror. Jean identified defendant, Jones and Gray. Jean said that he was "really sure" of his identifications. He recognized the clothing that they were wearing and noted that he recognized defendant because his hair was in dreadlocks.
We note that one-on-one identifications are not impermissibly suggestive in all cases. Indeed, a show-up conducted shortly after a crime has been committed "promotes fairness to the accused by allowing a viewing while the witness's mental image of the perpetrator is still fresh." State v. Carter, 91 N.J. 86, 130 (1982); see also State v. Wilson, 362 N.J. Super. 319 (App. Div.), certif. denied, 178 N.J. 250 (2003) (holding that one-on-one show-up within a reasonably short time after the crime was committed was permissible even though defendant was identified while in custody, in handcuffs and in the back of a police car).
Nevertheless, for purposes of our decision, we will assume that the procedure employed here was impermissibly suggestive but conclude, based on the totality of the circumstances, that Jean's identification of defendant was reliable and admissible at trial. Jean's trial testimony indicates that he had ample time in which to view the perpetrators, since the crimes were committed over a period of several hours. Moreover, Jean was able to observe defendant because he was seated close to him in the car while they drove around. Jean was also able to observe defendant when they exited the car and went into his home.
In addition, Jean identified defendant a short time after the crimes were committed. Defendant was apprehended near the location where the crimes were committed, and he was found in the car that Jean was driving when he agreed to give defendant and the others a ride. Moreover, Jean identified defendant at the police station shortly after defendant was taken into custody. Jean stated that he was sure of his identifications.
We are therefore convinced that the trial court did not err by admitting the identification testimony into evidence.
At the time he was sentenced, defendant and his sister claimed that a juror, who they did not identify, failed to disclose during voir dire her familiarity with their family. Defendant argues that, as a consequence, he was denied the right to a fair trial. We do not agree.
We note that defendant was apparently aware of the juror's purported familiarity with his family at the time of jury selection. He failed to disclose that relationship to the court during voir dire. Moreover, defendant has not provided this court with a copy of the transcript of the voir dire, nor has he disclosed the juror's identity or the nature of the alleged relationship between the juror and his family. There also is no indication that juror was aware of the claimed relationship and intentionally failed to disclosed it.
"An accused is constitutionally guaranteed the right to trial by an impartial jury." State v. Bianco, 391 N.J. Super. 509, 517 (App. Div. 2007). "Jury selection is 'an integral part of the process . . . .'" Ibid. (citing State v. Singletary, 80 N.J. 55, 62 (1979)). It "'necessarily' requires a 'thorough voir dire[.]'" Ibid. (quoting State v. Fortin, 178 N.J. 540, 575 (2004)).
This "presupposes that prospective jurors will provide complete and accurate responses during voir dire." Ibid. However, "a defendant may waive the right to complain about shortcomings in the [jury] selection process, or of a juror's failure to disclose information, if defendant knowingly failed to seek the juror's removal prior to the rendering of the verdict." Id. at 518.
In Bianco, the defendant was charged with inappropriately touching the grandchild of the woman with whom he had been living. Id. at 511-12. One of the jurors in the case did not realize that he knew defendant until the jury was deliberating. Id. at 514. The defendant was, however, aware during the trial that the juror knew him, as well as the woman with whom he lived, but did not disclose that fact. Id. at 512, 515. We held that the defendant waived his right to complain about the jury selection process. Id. at 519.
We are convinced that, like the defendant in Bianco, defendant waived his right to complain about the juror's participation in this case. Accordingly, we reject defendant's contention that he was denied his right to a fair trial.
As we stated previously, Jean testified that on the night of February 22, 2008, he came upon defendant, Jones and three females near a disabled Toyota, which was stopped on Route 1 and 9 in Newark. Detective Luis Hernandez (Hernandez) testified that, after the incident, he went to the location and found the car in the place Jean had described. In cross-examination, defense counsel asked Hernandez whether defendant was the registered owner of the car. Hernandez stated that he could not recall the name of the owner without reviewing his records.
On re-direct, the State questioned the detective about the registered owner of the car. At a side-bar, defendant's attorney objected and sought to preclude the State from eliciting any further testimony concerning the Toyota, including whether it was a stolen vehicle. Defense counsel stated, however, that he did not object to the assistant prosecutor asking who owned the car but objected to "anything about it being stolen or anything like that." The court permitted the assistant prosecutor to elicit the name of the registered owner of the car.
On appeal, defendant argues that the trial court erred by allowing Hernandez to identify the owner of the car. We do not agree.
As we have pointed out, defendant's attorney first raised the issue as to the ownership of the car in the cross-examination of Hernandez. Based on Hernandez's response to the question, in which he indicated that he did not recall the name of the car's owner, the jury might have inferred that defendant owned the car. In our view, the court did not err by allowing the State to clarify the point on re-direct.
Moreover, defendant was not prejudiced by the admission of that evidence. Hernandez never said that the vehicle was stolen. The jury could have inferred that the registered owner let defendant or one of the other occupants use the vehicle on the night the crimes were committed. While the evidence had little probative value, its admission was not prejudicial and, therefore, not subject to exclusion under N.J.R.E. 403.
Furthermore, Rule 404(b), which governs the admission of evidence of other crimes, wrongs or acts, did not apply. As we have explained, Hernandez merely identified the owner of the car. He never said that it was stolen. Thus, there was no evidence that defendant or anyone else had engaged in some crime or wrongful act regarding the ownership of the car.
Defendant also argues that the trial court erred by refusing to merge the carjacking and kidnapping convictions for sentencing purposes. Again, we disagree.
To determine whether offenses merge, the court must consider whether the Legislature intended that the conduct at issue involves offenses that are "distinct and separate[.]" State v. Davis, 68 N.J. 69, 78 (1975). Once that determination is made, the court considers the particular facts of the case, specifically as to the time and place of each purported violation; whether the proof submitted as to one count . . . would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. [Id. at 81.]
Defendant argues that he was convicted of carjacking under N.J.S.A. 2C:15-2(a)(4), which states that a person is guilty of this offense if in the course of committing an unlawful taking of a motor vehicle . . . he (4) operates or causes said vehicle to be operated with the person who was in possession or control or was an occupant of the motor vehicle at the time of the taking remaining in the vehicle. [N.J.S.A. 2C:15-2(a)(4).]
He contends that this offense merges with his conviction of kidnapping in violation of N.J.S.A. 2C:13-1(b)(1). A person is guilty of this offense if he unlawfully removes another from his place of residence or business, or 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[.] [N.J.S.A. 2C:13-1(b)(1).]
The record shows, however, that defendant was not found guilty of carjacking under N.J.S.A. 2C:15-2(a)(4), but rather carjacking under N.J.S.A. 2C:15-2(a)(2). The latter statute provides that a person may be found guilty of carjacking if, during the theft of a motor vehicle, he threatens "or purposely or knowingly puts an occupant or person in control of the motor vehicle in fear of, immediate bodily injury[.]"
Indeed, in this case, the trial court charged the jury under N.J.S.A. 2C:15-2(a)(2) not N.J.S.A. 2C:15-2(a)(4). The court told the jurors that:
[i]n order for you to find the defendant guilty of carjacking, the State is required to prove each of the following elements beyond a reasonable doubt: One, that the defendant was in the course of committing an unlawful taking of a motor vehicle. And two, . . . the defendant knowingly threatened an occupant or person with -- in control with, or purposely or knowingly put an occupant or person in control of the motor vehicle in fear of immediate bodily injury.
Carjacking under N.J.S.A. 2C:15-2(a)(2) does not merge with kidnapping under N.J.S.A. 2C:13-1(b)(1) because the Legislature clearly intended that these two offenses would be treated separately. The evidence required for a conviction of carjacking under N.J.S.A. 2C:15-2(a)(2) is significantly different from the proofs required for conviction of kidnapping under N.J.S.A. 2C:13-1(b)(2).
Carjacking under N.J.S.A. 2C:15-2(a)(2) requires proof that during the theft of a motor vehicle, the defendant threatened or put the occupant of the vehicle in fear of immediate bodily injury. Kidnapping under N.J.S.A. 2C:13-1(b)(2) requires proof that an individual was moved "a substantial distance" from the place whether the individual was found, or proof that defendant unlawfully confined another person for a substantial period of time.
Our decision in State v. Matarama, 306 N.J. Super. 6 (App. Div. 1997), supports our conclusion that merger of the carjacking and kidnapping convictions was not required here. In Matarama, two defendants assaulted a woman, took her car keys and dragged her into an alley. Id. at 12. The defendants were convicted of carjacking and kidnapping. One of the defendants appealed and argued that the kidnapping and carjacking convictions merged. Id. at 23.
We rejected that argument, noting that the Legislature intended to impose separate punishments for the two offenses. Id. at 23. We stated that, "Kidnapping and carjacking, under the facts of this case, require proof of an additional fact that the other does not have, that is, they include unique elements." Id. at 23-24. We noted that there are factual scenarios where kidnapping and carjacking would merge, citing N.J.S.A. 2C:15-2(a)(4). Id. at 24 n.9.
The factual scenarios presented in this case made clear, however, that the offenses at issue here do not merge. As we have explained, the State presented evidence from which a jury could conclude that defendant took Jean's vehicle and, while doing so, threatened him or placed him in fear of immediate bodily injury. Moreover, the State presented evidence from which the jury could conclude that defendant moved Jean a substantial distance from the place where he was found, or held him for a substantial period of time, for the purpose of facilitating the commission of a crime.
In addition, defendant challenges his sentences. He contends that the court erred in its findings of aggravating factors. He also contends that the court erred by imposing a consecutive sentence on the burglary conviction.
Here, the trial court found aggravating factors one, N.J.S.A. 2C:44-1(a)(1) ("nature and circumstances of the offense, . . . including whether . . . it was committed in an especially heinous, cruel, or depraved manner"); three, N.J.S.A. 2C:44-1(a)(3) ("risk that the defendant will commit another offense"); six, N.J.S.A. 2C:44-1(a)(6) ("extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"); and nine, N.J.S.A. 2C:44-1(a)(9) ("need [to] deter the defendant and others from violating the law"). The court found no mitigating factors.
The trial court stated that defendant had committed the offenses in an especially heinous, cruel and depraved manner in that the crimes were committed over a period of several hours and the victim was harmed at multiple points in that time. The court noted that defendant had an extensive criminal record, which includes convictions for receiving stolen property and certain drug offense. The court also pointed out that defendant had shown no remorse. In our view, the record supports the court's findings.
The record also supports the court's decision to impose a consecutive sentence for the burglary. The sentencing court has the discretion to determine whether a sentence should run concurrently or consecutively. State v. Miller, 205 N.J. 109, 128 (2011). In doing so, the sentencing court is guided by the criteria set forth in State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The court must 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 time 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. [Id. at 644.]
The sentencing court also must be guided by the principle that "there can be no free crimes in a system for which the punishment shall fit the crime[.]" Id. at 643.
Here, the sentencing court determined that a consecutive sentence was warranted for the burglary because that offense involved separate acts of violence and threats of violence, which took place at a time and place different from the the other offenses. The burglary also involved other victims, specifically the other occupants of Jean's home. In our view, the court properly considered the Yarbough criteria and its decision to impose a consecutive sentence is amply supported by the record.
We are therefore satisfied that defendant's sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
We have considered defendant's other contentions, including those set forth in his pro se supplemental brief, and find them to be of insufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
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