March 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ROBERT SOUVENIER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-03-0596.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2011 -
Before Judges Fuentes, Ashrafi and Nugent.
Throughout an afternoon, evening, and early morning in June 2006, defendant Robert Souvenier subjected his former girlfriend and her disabled cousin to an ordeal during which he beat, terrorized, and repeatedly threatened to kill them. For that conduct, a jury convicted defendant of multiple offenses and a judge sentenced him to an aggregate prison term of twenty-nine and one-half years with eight years of parole ineligibility. In this appeal, defendant argues that five errors occurred during the course of his trial; errors that considered separately or cumulatively require reversal of his conviction. Defendant also argues that three sentencing errors require that he be re-sentenced. Specifically, defendant raises the following points:
IMPROPER REFERENCES TO DEFENDANT'S POST[-]ARREST SILENCE VIOLATED MR. SOUVENIER'S RIGHT AGAINST SELF-INCRIMINATION (Not raised below)
THE ADMISSION OF TESTIMONY REGARDING ALLEGED THIEVERY BY DEFENDANT WAS ERROR AND NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS
THE RE-DIRECT QUESTIONING OF DETECTIVE BROWNLEE BY THE PROSECUTOR WAS IMPROPER AND DENIED DEFENDANT A FAIR TRIAL (Partially raised below)
THE ADMISSION OF IMPROPER HEARSAY EVIDENCE DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT OF CONFRONTATION (Not raised below)
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY BY REFUSING TO ALLOW DEFENDANT AN OPPORTUNITY TO DECIDE OVERNIGHT WHETHER TO WAIVE HIS RIGHT TO TESTIFY
IT WAS ERROR FOR THE SENTENCING COURT TO FAIL TO MERGE THE OFFENSE OF TERRORISTIC THREATS WITH AGGRAVATED ASSAULT WITH A DEADLY WEAPON AND THE WEAPON OFFENSES (Not raised below)
THE RESTITUTION ORDER ENTERED BY THE COURT MUST BE VACATED (Not raised below)
THE EXTENDED TERM SENTENCE IMPOSED UPON MR. SOUVENIER OF 29 1/2 YEARS WITH 8 YEARS OF PAROLE INELIGIBILITY MUST BE MODIFIED AND REDUCED (Not raised below)
THE AGGREGATE OF ERRORS DENIED DEFENDANT A FAIR TRIAL (Not raised below)
Having considered defendant's arguments, the record, and the applicable law, we conclude that none of the alleged trial errors were clearly capable of causing an unjust verdict. Nor do we find that the trial court abused its sentencing discretion. We conclude however, that defendant's conviction on a weapons charge for which he was sentenced to a concurrent prison term should have been merged. We therefore reverse defendant's sentence on that charge only, and affirm in all other respects.
The State developed the following proofs at trial. On June 7, 2006, at 2:00 p.m., Mary Johnson left her job at an Atlantic City casino and drove defendant, her ex-boyfriend, to her Pleasantville apartment. Johnson lived with her daughter, who was not at home, and her cousin, John Moultrie, who suffered from a disability. While defendant was reading in the living room, Johnson went into the room to look for a chain her mother had given her. Johnson was concerned about the chain "because [defendant] steal[s] a lot of my jewelry." The chain was missing. Johnson confronted defendant, who denied taking the chain. When Johnson persisted, defendant said, "Now you're going to get what you're going to get," and became violent. He punched Johnson in the face and kicked her in the ribs, head, and other parts of her body.
While defendant was beating Johnson he threatened to kill her, telling her that she was "going out in a body bag." Defendant tore the telephone off of the wall and broke two cell phones. When Johnson grabbed another phone to call 9-1-1, defendant kicked her in the face and took the phone. Johnson attempted to get a knife but defendant took it, threw her on a bed, choked her, cut her hands, and continued to beat her.
Moultrie tried to help Johnson by jumping on defendant's back and grasping at the knife. In response, defendant grabbed a blackjack, struck Moultrie repeatedly on the head and body, and threatened to kill him. Defendant then told Johnson and Moultrie to undress and lay naked on the bed so that when they were dead he could tell authorities he did it because he caught them in bed together. Next, defendant threw Johnson into the bathroom where he continued to assault her, breaking one of her ribs. When Moultrie tried again to protect Johnson, defendant attempted to stab him, but Moultrie's belt prevented the knife from penetrating.
Defendant eventually relented and told Johnson and Moultrie to dress so that he could take them to the hospital. He took money and Johnson's car keys, ordered Johnson and Moultrie to go to Johnson's Jeep, and threatened to cut them with the knife if they said anything. Defendant drove to AtlantiCare Regional Medical Center and told them to get out. Moultrie went into the emergency room, but when Johnson tried to grab the keys and run defendant grabbed her by her hair, pulled her back into the Jeep, and drove off.
Defendant drove to Philadelphia at speeds approaching ninety miles per hour, threatening to kill himself and Johnson by driving into a wall. In Philadelphia they stopped at Johnson's sister's house but she was not there. Later, defendant purchased and smoked some marijuana, and forced Johnson to smoke as well. They returned to New Jersey, picked up Johnson's friend, Pamela Roberts, then drove to Shore Memorial Hospital where Johnson was treated. Defendant, who drove away in Johnson's Jeep, was later arrested at a Pleasantville bus station.
Law enforcement officers became involved after Moultrie reported the incident upon his admission to the hospital. Responding to a police dispatch, Pleasantville Detective-Sergeant Danny Adcock went to Johnson's apartment. When he arrived, uniformed officers told him "they [had] spoke[n] to several neighbors in the area and [had] received information that there had been some sort of altercation in the apartment, some noise[.]" Several neighbors reported hearing a "physical altercation" and one neighbor had seen Johnson arguing with a male outside of the apartment near a Jeep. After the other officers entered the apartment, Adcock went to AtlantiCare Regional Medical Center to interview Moultrie. Following the interview, Adcock returned to police headquarters where defendant had been detained after his arrest. At trial, when asked by defense counsel whether he spoke to defendant, Adcock responded, "I asked if he wanted to make a statement and he said no."
Adcock was not the only witness to refer to defendant's post-arrest silence. Pleasantville Detective Adam Brownlee had briefly interviewed Johnson at Shore Memorial Hospital. While en route to the hospital, he received information that other officers had arrested defendant. After interviewing Johnson, Brownlee testified that he returned to police headquarters where Adcock had "attempted to speak with the suspect . . . and there was no statement taken, . . . [so] we made [the] decision to file the appropriate charges for this case."
On March 15, 2007, an Atlantic County grand jury indicted defendant and charged him with twenty-four crimes. For taking Johnson's Jeep after threatening his victims, defendant was charged with first degree carjacking, N.J.S.A. 2C:15-2a(3) (count sixteen); third degree theft of a motor vehicle, N.J.S.A. 2C:20-3 (count seventeen); and fourth degree joyriding, N.J.S.A. 2C:20-10(d) (count eighteen). For his offenses against Johnson, defendant was charged with two counts of first degree kidnapping, N.J.S.A. 2C:13-1b (counts twenty and twenty-two); first degree robbery, N.J.S.A. 2C:15-1 (count fifteen); third degree and fourth degree aggravated assault, respectively N.J.S.A. 2C:12-1b(2) and (3) (counts two and eleven); third degree terroristic threats, N.J.S.A. 2C:12-3b (count four); and third degree criminal restraint, N.J.S.A. 2C:13-2 (count thirteen).
For his offenses against Moultrie, defendant was charged with two counts of first degree kidnapping, N.J.S.A. 2C:13-1b (counts nineteen and twenty-one); first degree robbery, N.J.S.A. 2C:15-1 (count fourteen); third degree and fourth degree aggravated assault, respectively N.J.S.A. 2C:12-1b(2) and (3) (counts one and ten); third degree terroristic threats, N.J.S.A. 2C:12-3b (count three); and third degree criminal restraint, N.J.S.A. 2C:13-2 (count twelve).
Finally, for his use of the knife and blackjack, defendant was charged with two counts each of third degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (counts five and six); fourth degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (counts seven and eight); possession of a weapon by a convicted person, N.J.S.A. 2C:39-7 (counts twenty-three and twenty-four); and one count of fourth degree possession of a weapon without any explainable purpose, N.J.S.A. 2C:39-3e (count nine).
The jury convicted defendant of assaulting (counts one and two) and criminally restraining (counts twelve and thirteen) the victims; and making terroristic threats to put them in fear of imminent death (counts three and four). The jury also convicted defendant of joyriding (count eighteen); the lesser included offenses of criminally restraining and falsely imprisoning Johnson (counts twenty and twenty-two); the lesser included offense of theft from Johnson (count fifteen); and two counts of criminally restraining Moultrie (lesser included offenses on counts nineteen and twenty-one). Finally, the jury convicted defendant of the seven weapons offenses (counts five through nine, twenty-three and twenty-four). The jury acquitted defendant of all other counts.
Following defendant's conviction, the State filed a motion to have him sentenced to an extended term of imprisonment, which the court granted. At sentencing, the court merged defendant's convictions on counts five and six into counts one and two respectively; and his convictions on counts eight and nine into count seven. The court imposed consecutive prison terms of eight years with four years of parole ineligibility on count two (aggravated assault of Johnson); five years with two and one-half years of parole ineligibility on count one (aggravated assault of Moultrie); five years on count four (terroristic threats to Johnson); five years on count fifteen (theft); five years on count twenty-two (criminal restraint of Johnson); and one and one-half years without parole on count twenty-four (possession of a weapon, a knife, by a convicted person); for a total aggregate prison term of twenty-nine and one-half years with eight years of parole ineligibility.
The court also imposed the following concurrent prison terms: five years on count three (terroristic threats to Moultrie); five years on count seven (unlawful possession of a knife); one and one-half years on count eighteen (joyriding); five years on count twenty-one (criminal restraint of Moultrie); and one and one-half years on count twenty-three (possession of a weapon, a knife, by a convicted person).
Finally, the court imposed appropriate fines and penalties, and ordered defendant to pay restitution of $4,847.40 to the Victims of Crime Compensation Board, see N.J.S.A. 2C:43-3.1, which had paid for the victims' medical bills.
Defendant contends that five errors occurred during trial which separately or cumulatively require reversal of his conviction. In Point I, defendant argues that the references by Detectives Brownlee and Adcock to his post-arrest silence violated his right against self-incrimination. Brownlee, responding to the prosecutor's questions about why he returned to the police station after leaving Shore Memorial Hospital, said:
I met with Detective[-S]ergeant Adcock to advise him of the information I had gained at that time, and he advised he attempted to speak with the suspect in this case and there was no statement taken, so after consulting with him, we made a decision to file the appropriate charges for this case.
Defense counsel did not object to Brownlee's statement. Later, during his cross-examination of Adcock, defense counsel asked Adcock if he spoke with defendant while defendant was being processed. Adcock responded, "I asked if he wanted to make a statement and he said no." Defense counsel did not object to Adcock's answer.
We review arguments raised for the first time on appeal under a plain error standard. Under that standard, a conviction will be reversed if the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 337 (1971). "Reversal of defendant's conviction is required only if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal quotation marks and citations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); Macon, supra, 57 N.J. at 333.
The Fifth Amendment to the United States Constitution provides, in part, that "[n]o person shall . . . be compelled in any criminal case to be a witness against himself[.]" U.S. Const. amend. V. "New Jersey's privilege against self-incrimination, although not enshrined in the State Constitution, is deeply rooted in this State's common law and codified in both statute and an evidence rule." State v. Muhammad, 182 N.J. 551, 567 (2005); see N.J.S.A. 2A:84A-19; N.J.R.E. 503. "It is well-settled under federal and state law that a prosecutor may not use a defendant's post-arrest silence against him." State v. Taffaro, 195 N.J. 442, 456 (2008) (citations omitted). "Our state law privilege does not allow a prosecutor to use at trial a defendant's silence when that silence arises at or near the time of arrest, during official interrogation, or while in police custody." Muhammad, supra, 182 N.J. at 569 (internal quotation marks and citations omitted).
Defense counsel's failure to object to the detective's statements suggests counsel did not think the statements were unduly prejudicial. See State v. Timmendequas, 161 N.J. 515, 576 (1999). That inference is particularly applicable here, where defense counsel himself elicited the statement from Adcock.
The fleeting references to defendant's silence took place during a six-day trial in which the State presented overwhelming proof of defendant's guilt. Significantly, defendant conceded in his opening statement and summation that he assaulted Johnson. He strenuously disputed the charges of robbery, kidnapping, and carjacking, and the jury acquitted him of those charges. The evidence that defendant assaulted and threatened his victims, took Johnson's Jeep, and used a knife and blackjack during the ordeal, was virtually irrefutable. Under those circumstances, the references to defendant's silence were insufficient to raise a reasonable doubt as to whether they led the jury to a result it otherwise might not have reached. In short, the detectives' two references to defendant's post-arrest silence did not constitute plain error, and thus we reject defendant's demand for a new trial on this issue.
Defendant contends in Point II that his conviction should be reversed because Johnson testified on direct examination that he stole a lot of her jewelry; and testified on cross-examination that defendant often stole her jewelry and money, and had been fired from a casino job for stealing. The State contends the testimony about defendant's other thefts was admissible under the doctrine of res gestae.
The admissibility of evidence of other crimes is limited by N.J.R.E. 404(b), which states:
[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
We disagree with the State's contention that the "other crimes" were admissible under the res gestae doctrine. As defendant points out, Johnson's two statements about defendant stealing jewelry from her on other occasions, and the statement about defendant's termination from work for theft, are the "other crimes." Those other instances of theft were not res gestae, that is, they were not "part of the total criminal conduct that occurred during the incident in question." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 2001) (citation omitted). Even if they were res gestae, our Supreme Court has since rejected the use of that doctrine as a basis for admitting evidence. State v. Rose, 206 N.J. 141, 182 (2011).
When "other crimes" evidence is admitted under N.J.R.E. 404(b), the jury must be instructed as to the limited use of the evidence. State v. Marrero, 148 N.J. 469, 495 (1997); State v. Cofield, 127 N.J. 328, 340-41 (1992). Although the court did not give a limiting instruction after Johnson's statement on direct examination that defendant had stolen other jewelry from her, after defendant elicited similar testimony during cross-examination of Johnson, the court, without a request from counsel, gave a limiting instruction. The court advised the jury that if it found defendant had previously stolen jewelry from Johnson, it could consider the evidence solely to explain why she accused defendant of taking the gold chain. The court emphatically instructed the jury that it could not consider the evidence as demonstrating defendant's propensity to commit theft:
However, the important thing to remember is, you may never at anytime use that comment or that reference to decide that this defendant Mr. Souvenier has a tendency to commit crimes or that he is a bad individual or bad person; that is, you may not decide that just because he may have committed what was attributed to him by Ms. Johnson on previous occasion or occasions that he must be guilty of any of the present allegations. The evidence was only brought up by the defense in reference to why Ms. Johnson would have accused Mr. Souvenier in the first place. Remember that you can't consider that comment or that reference for any other purpose and must never and can never find the defendant guilty now on any of these charges simply because of the offered commentary that he may have committed other bad acts.
The court did not give an instruction after Johnson testified defendant was fired from his job for stealing, but the court repeated its limiting instruction in the final charge to the jury.
Defendant argues that the court's failure to give a curative instruction immediately after each of the three references to the prior thefts, and the court's failure to give any specific curative instruction concerning defendant's alleged theft from his casino job, "clearly had a negative and improper influence upon the jury's evaluation of the facts." We disagree with defendant's conclusory statement. As we have previously noted, the evidence against defendant was overwhelming. Notably, the jury acquitted defendant of carjacking, robbery, and kidnapping. Considering the overwhelming evidence of defendant's guilt on the charges on which he was convicted, the court's curative instruction, and the absence of an objection by defense counsel, we conclude the admission of the other crimes evidence was not clearly capable of producing an unjust result.
R. 2:10-2; see also State v. Gillispie, 208 N.J. 59, 93-94 (2011).
Defendant argues in Point III that after defense counsel cross-examined Brownlee, the State improperly had Brownlee read into evidence a transcript of Johnson's recorded statement taken on June 15, 2006. We reject defendant's contention that the scope of Brownlee's redirect examination was improper and requires a new trial.
Defense counsel cross-examined Brownlee about numerous topics in the statement, including defendant's use of different knives, defendant's ownership of the blackjack, whether Johnson mentioned defendant had taken money from her, the ride to Philadelphia, and the purchase of marijuana while Johnson and defendant were in Philadelphia. After questioning the detective about Johnson's statement, defense counsel had it marked as an exhibit.
On redirect examination, the prosecutor had Brownlee read from sections of Johnson's statement about defendant forcing Johnson and Moultrie to undress, instructing Johnson to tell the police she was beaten by three girls, and defendant's theft of $400. Defense counsel's only objection was an attempt to clarify whether the detective was reading from the statement or recalling Johnson's statement from memory.
Defendant argues that the statement was read into the record solely to bolster Johnson's credibility, not to rebut a charge of recent fabrication. See N.J.R.E. 803(a)(2). The State argues that the redirect examination was admissible under N.J.R.E. 106 to put those parts of the statements brought out during cross-examination into their proper context.
The State may not offer a prior consistent statement solely to bolster a witness's testimony. Neno v. Clinton, 167 N.J. 573, 580 (2001); Palmisano v. Pear, 306 N.J. Super. 395, 402 (App. Div. 1997). The State may, however, elicit the content of a statement under the doctrine of completeness embodied in N.J.R.E. 106.
When a witness testifies on cross-examination as to part of a conversation, statement, transaction or occurrence, under the doctrine of completeness the party calling the witness is allowed to elicit on redirect examination the whole thereof, to the extent it relates to the same subject matter and concerns the specific matter opened up. The theory behind the doctrine of completeness is that the opponent, against whom a part of an utterance has been put in, may in his turn complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance. [State v. James, 144 N.J. 538, 554 (1996) (internal quotation marks and citations omitted).]
Defendant cross-examined Brownlee on a broad range of topics in Johnson's statement. Much of the redirect examination placed those topics in context. Defendant did not object to the scope of Brownlee's redirect testimony, and to the extent the redirect examination went beyond what was necessary to place the cross-examination in context, the error was harmless. See State v. R.B., 183 N.J. 308, 330 (2005). Most of the subject matter of the statement had been testified to by Johnson and Moultrie. Moreover, defendant elicited from various witnesses much of the subject matter that was contained in Johnson's statement.
We find defendant's contention in Point IV -- that Adcock's testimony about the neighbors hearing an altercation in Johnson's apartment and seeing Johnson and a male arguing outside the apartment was hearsay and reversible error -- to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only that defendant did not dispute that an altercation had occurred in Johnson's apartment, and defendant's failure to object to the testimony "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." Timmendequas, supra, 161 N.J. at 576.
Defendant did not testify at trial. In Point V, he contends the trial judge erred by refusing to allow him to decide overnight whether to waive his right to testify. We disagree.
The parties completed jury selection and gave their opening statements on March 17, 2009. On Monday, March 23, 2009, during the morning recess, the trial court indicated that when the State rested later that morning, it would have a colloquy with defendant about whether he would testify. After the State rested, the court asked defense counsel if he had spoken with defendant about testifying or not testifying. Counsel replied that they had discussed defendant's options, but they "would still like to have a discussion in private, if [they] could, before [they made] the ultimate decision." The court replied that the delay would put tremendous pressure on it with the jurors who were "either going to be here for [defendant's] testimony after lunch, or they're going to go home today, and then summations in the morning." The court permitted defendant and his counsel to make the decision during a lunch break.
After lunch, the court asked defendant and defense counsel whether the defendant would testify. Defense counsel responded:
We spoke downstairs and we decided that [defendant] was not going to testify. I don't believe it's necessary at this point, however, he just asked me a question: Would it be possible to finish doing our procedural stuff this afternoon and allow him to think about it overnight, that's what he is asking?
The court responded:
The problem with that is, and I would love to be able to do that, but that screws us up completely because, number one, I can't do a final charge conference until I know whether he is going to testify or not because I don't know what he is going to say; number two, I have to be wary of this jury, their availability, and the perfect time is now. This is the time for him to either testify or not testify. And we could keep going back and forth -- especially if this were the first day of trial, maybe I'd understand it; second day of trial, maybe I'd understand it, but we've been engaged in trial really since last Tuesday a week ago, and really did the preparatory things on Monday so it really has been a number of days he's been here, a number of years now waiting this trial; . . . I'll give him another ten minutes to make up his mind. . . . But I cannot wait till tomorrow then find out if he is going to testify or not testify, then have a charge conference. I won't even get the case to the jury then until Wednesday and now we're running behind what we told them they'd be finished, and then I run a risk of a mistrial if two of them have to leave . . . .
Despite its concerns, the court agreed to take another fifteen minute recess so that counsel and defendant could further discuss the matter. The court then asked defense counsel to confirm that defendant's inclination was not to testify. Defense counsel responded: "[T]hat's correct, and he is telling me right now this second there's no need to delay things any further and he does not want to testify." Defendant confirmed his decision not to testify and indicated that nobody had forced or threatened him to make that decision. The court then expressly asked defendant if he understood why the court could not give him until the next morning to make that decision.
Defendant said that he understood and that he had been given enough time to think it through.
Decisions concerning scheduling and control of trial proceedings rest within the sound discretion of the trial court. See Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191, 202 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). "A trial court . . . must have the power to tightly control its own calendar so that the assignment of cases cannot be manipulated by the defense counsel or the defendant." State v. Furguson, 198 N.J. Super. 395, 401 (App. Div.), certif. denied, 101 N.J. 266 (1985). We generally accord deference to the discretionary determinations of a trial court, and will not reverse these decisions absent an abuse of discretion. Id. at 402; Cosme, supra, 304 N.J. Super. at 202.
Defense counsel had discussed the decision with defendant the previous Friday, on Monday morning, and during the Monday luncheon recess. The trial court was prepared to permit defendant and defense counsel another fifteen minutes to further discuss the matter. Moreover, defendant acknowledged that he had made the decision voluntarily and had enough time to think it through. We find no abuse of discretion by the trial court.
We now turn to defendant's arguments concerning his sentencing. He first argues in Point VI that the court erred by not merging the terroristic threats convictions (counts three and four) with the aggravated assault convictions (counts one and two) because counts three and four are lesser included offenses. Defendant also argues the trial court erred by not merging his convictions for unlawful possession of a weapon (counts seven and eight) with his conviction of possession of a weapon for an unlawful purpose (count five) because counts seven and eight are lesser included offenses. The State argues that there should not have been a merger of these offenses because they are separate crimes that involved separate proofs.
It is well-settled that "[i]f an accused has committed only one offense, he cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975); see State v. Truglia, 97 N.J. 513, 522 (1984). Moreover, "merger implicates a defendant's substantive constitutional rights." State v. Cole, 120 N.J. 321, 326 (1990). Nonetheless, when the elements of the offenses and the facts supporting them differ, a defendant is not entitled to merger. See State v. Adams, 227 N.J. Super. 51, 62 (App. Div.), certif. denied, 113 N.J. 642 (1988). Even when offenses arise out of the same overall sequence of events, merger is not required if the offenses arise out of distinct segments of the incident in question. See Truglia, supra, 97 N.J. at 521-22.
Courts "employ a certain flexibility of approach to the inquiry of whether separate offenses have been established under the proofs, attended by considerations of 'fairness and fulfillment of reasonable expectations in the light of constitutional and common law goals.'" Davis, supra, 68 N.J. at 81 (quoting State v. Currie, 41 N.J. 531, 539 (1964)). For example, courts may consider:
[T]he time and place of each purported violation; whether the proof submitted as to one count of the indictment 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. Certainly there are other factors to be considered and, along with the above, accorded greater or lesser weight depending on the circumstances of the particular case. [Ibid.]
This flexible "approach requires us to focus on 'the elements of crime and the Legislature's intent in creating them,' and on 'the specific facts of each case.'" Cole, supra, 120 N.J. at 327 (quoting State v. Miller, 108 N.J. 112, 116-17 (1987)).
N.J.S.A. 2C:1-8 defines the circumstances under which one offense merges with another. The statute states, in part:
When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not, however, be convicted of more than one offense if:
(1) One offense is included in the other, as defined in subsection d. of this section . .
d. . . . An offense is so included when:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8.]
Defendant's argument that the trial court should have merged his conviction for terroristic threats with his conviction for aggravated assault is unpersuasive. N.J.S.A. 2C:12-1b(2) states that a person is guilty of third degree aggravated assault if he "[a]ttempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon." N.J.S.A. 2C:12-3b provides that a person is guilty of third degree terroristic threats "if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out."
Although there are circumstances in which the offense of terroristic threats can merge with aggravated assault, see State v. Doss, 310 N.J. Super. 450, 462 (App. Div.), certif. denied, 155 N.J. 589 (1998), the two offenses should not merge in the present case. Defendant's threats to his victim arose out of separate and distinct segments of the prolonged ordeal. Defendant's conviction for aggravated assault with a weapon arose from his physical beatings of Johnson and Moultrie with both a knife and a blackjack. The trial court did not err in finding each count constituted separate and distinct crimes, which were satisfied by separate proofs. Therefore, the terroristic threats should not have merged with aggravated assault with a weapon.
We reach a different result with respect to the weapons offenses. N.J.S.A. 2C:39-4d, possession of a weapon for unlawful purposes, states: "Any person who has in his possession any weapon, except a firearm, with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the third degree." N.J.S.A. 2C:39-5d, unlawful possession of a weapon, provides: "Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree." When convictions for those two offenses are based on possession and use of the same knife, "the conviction for possession of a knife under manifestly inappropriate circumstances (N.J.S.A. 2C:39-5d) should [be] merged with the conviction for possession of the same knife for an unlawful purpose (N.J.S.A. 2C:39-4d)." State v. Purnell, 394 N.J. Super. 28, 33 (App. Div. 2007) (citing State v. Jones, 213 N.J. Super. 562, 568 (App. Div. 1986), certif. denied, 107 N.J. 90 (1987)). The court explained in Jones:
The proof required for conviction under N.J.S.A. 2C:39-5d is the knowing possession of a weapon under circumstances not manifestly appropriate for a lawful use.
Under N.J.S.A. 2C:39-4d, in addition to proving knowing possession of a weapon, the State must prove an unlawful purpose. Thus, all the elements of N.J.S.A. 2C:39-5d are part of the proof necessary to establish a violation of N.J.S.A. 2C:39-4d. The offense set forth in N.J.S.A. 2C:39-5d is a lesser included offense of the crime set forth in N.J.S.A. 2C:39-4d. Therefore, we hold that defendant's conviction under N.J.S.A. 2C:39-5d . . . merges with his conviction under N.J.S.A. 2C:39-4d . . . . [Supra, 213 N.J. Super. at 568 (internal quotation marks and citations omitted).]
Here, there is no indication from the verdict sheet or from the trial court at sentencing that the two charges did not result from defendant's possession of the same knife for the same purpose. Consequently, we determine that the conviction should have been merged, and we vacate the one and one-half year concurrent term of imprisonment as well as any fines and penalties imposed on defendant's conviction on count seven.
In Point VII defendant argues for the first time on appeal that the restitution order of $4,847.40 was improper because it was not based on defendant's ability to pay and there was no restitution hearing. The State maintains that defendant waived this argument by not objecting and the court reasonably concluded defendant will have the ability to pay restitution for the victims' medical expenses.
N.J.S.A. 2C:44-2 provides in part:
b. The court shall sentence a defendant to pay restitution in addition to a sentence of imprisonment or probation that may be imposed if:
(1) The victim . . . suffered a loss; and
(2) The defendant is able to pay or, given a fair opportunity, will be able to pay restitution.
c. (1) In determining the amount and method of payment of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.
(2) In determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay.
Where there is no dispute as to the amount of restitution or defendant's ability to pay, a restitution hearing is not required. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994). The trial court's determination concerning restitution is entitled deference on appeal. See State v. Harris, 70 N.J. 586, 595 (1976).
Here, the parties do not dispute the amount of restitution; rather, the only issue is whether the court should have held a hearing on defendant's ability to pay. There is evidence in the record to support the court's determination. The presentence report indicates defendant had been employed at a casino as a "barkeep," and had prior employment consisting of six years as a mover and five years as a security guard. The evidence supported the conclusion that given a fair opportunity, defendant will be able to pay restitution. Moreover, defendant did not object to the restitution order. Cf. State ex rel. R.V., 280 N.J. Super. 118, 121 (App. Div. 1995) (explaining that the defendant did not object to the court requiring restitution and on that basis the defendant's objection could be considered waived). Additionally, [w]e see no reason to restrict restitution to less than the amount of harm or loss actually caused, particularly when enforcement or collection may be postponed, as is often the case with civil judgments, since essentially the same procedure for collection applies by virtue of N.J.S.A. 2C:46-2b and c. [Id. at 122.]
As his last alleged sentencing error, defendant argues in Point VIII that his twenty-nine and one-half year sentence with eight years of parole ineligibility must be reduced because the sentences for counts two, three, ten, and fifteen should have been concurrent, not consecutive, as they all arose out of one continuous criminal episode. The State maintains the court did not abuse its discretion at sentencing.
Appellate courts may not substitute their judgment for that of the sentencing court, unless the application of the sentencing guidelines to the facts made the sentence "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). When trial judges "exercise discretion in accordance with the principles set forth in [New Jersey's Code of Criminal Justice] and defined by [the Supreme Court], they need fear no second-guessing." State v. Bieniek, 200 N.J. 601, 607-08 (2010) (quoting State v. Ghertler, 114 N.J. 383, 384 (1989) (internal quotation marks and citation omitted)).
"[T]here is no presumption in favor of concurrent sentences and therefore the maximum potential sentence authorized by the jury verdict is the aggregate of sentences for multiple convictions." State v. Abdullah, 184 N.J. 497, 513-14 (2005) (citing N.J.S.A. 2C:44-5(a)). The Court in 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), identified criteria for determining when consecutive, as opposed to concurrent, sentences should be imposed. The court should consider whether:
(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[.] [Id. at 644.]
These factors "should be applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). "[A] sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." Id. at 427-28. "[T]he focus of the court should be on the fairness of the overall sentence." State v. Sutton, 132 N.J. 471, 485 (1993) (citing State v. Miller, 108 N.J. 112, 121 (1987)).
The trial court here appropriately determined aggravating and mitigating factors, explained its reasoning for merging four counts and further explained why the sentences imposed on some counts were concurrent and others consecutive. We find no abuse of the court's sentencing discretion.
Lastly, defendant argues that the aggregate of errors committed deprived him of a fair trial. The State contends that since every argument raised by defendant lacks merit, there can be no cumulative effect depriving defendant of a fair trial. A "defendant is entitled to a fair trial but not a perfect one." Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 2d 593, 605 (1953). Thus, only those errors that "'in their aggregate have rendered the trial unfair . . . dictate the granting of a new trial.'" State v. Marshall, 123 N.J. 1, 169 (1991) (quoting State v. Orecchio 16 N.J. 125, 129 (1954)). The State presented overwhelming evidence in this case of defendant's guilt. We do not find that the errors alleged by defendant, considered separately or collectively, rendered the trial unfair or warrant reversal.
Affirmed in part, reversed in part, and remanded for the court to correct defendant's judgment of conviction consistent with this opinion.
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