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State of New Jersey v. andrew Swinton

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 12, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANDREW SWINTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-08-0789.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 17, 2011

Before Judges Parrillo, Grall and Alvarez.

Tried to a jury on a multi-count indictment, defendant Andrew Swinton was convicted of second-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count five); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count eight); second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:15-1 (count ten); second-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2(a)(1) and N.J.S.A. 2C:18-2 (count eleven)*fn1 ; and third-degree possession of a prohibited weapon, a sawed-off shotgun, N.J.S.A. 2C:39-3(b) (count thirteen). He was acquitted of two counts of first-degree felony murder, N.J.S.A. 2C:11-3(a)(3); and second-degree robbery, N.J.S.A. 2C:15-1(a)(1) and (2).*fn2 After merging the second-degree conspiracy to commit burglary with the attempted burglary, the judge sentenced defendant to seven years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a), concurrent, on all second-degree crimes. He imposed a consecutive sentence of four years, subject to a Graves Act term of parole ineligibility of three years, on the third-degree possession of a sawed-off shotgun count, for an aggregate term of eleven years.

Defendant appeals, and we affirm the convictions. We remand for resentencing on count eight, however, because in sentencing defendant, the court applied a section of the Graves Act which went into effect after the date of the offense. On resentencing, the trial judge shall also consider the question of whether the possession of a weapon for an unlawful purpose conviction, count eight, should merge with the second-degree attempted burglary, count five.

According to the State's proofs, Kenny Bartee and Albert Blackshear had a disagreement which resulted in a fistfight. In retaliation, Blackshear set fire to Bartee's grandmother's home. To exact revenge, Bartee solicited defendant and others to assist in burglarizing Blackshear's home. Defendant did not join in on the first occasion the burglary was attempted. But defendant accompanied Bartee and his friends the second night, September 12, 2005, when the men returned to Blackshear's home. That group, traveling in three separate cars, included Brian Baldwin, Archie Perry, Charles Clark, Jerome Farnville, William Rothmaller, and defendant.

When interviewed, defendant told police that the group's purpose was to burglarize the home, rob Blackshear, and "beat him up." He described how, upon arrival, Clark and Bartee exited their vehicle. Defendant and Farnville, both carrying sawed-off shotguns, approached the side of the house through a wooded area. Rothmaller also exited his vehicle, but Baldwin and Perry did not leave their car. When Hamilton Blackshear, the intended victim's father, walked out of the back door carrying a cable box, Farnville fired twice, mortally wounding him. On the sound of the shots, everyone ran back to their respective vehicles and drove away.

Officer Joseph Camp testified that he and other officers from the Bridgeton Police Department were in the area on unrelated business, and as a result were able to respond immediately. After their arrival, Camp spoke with Blackshear, who kept repeating that his father had been shot. The victim died at the scene.

Blackshear explained to Camp that his father had been helping him repair the damage from the prior night's burglary and that they "were gathering some items from inside the house." He also said that he and Bartee had fought recently, and that Bartee could have been involved in the shooting.

Detective Sergeant Rick Pierce, one of the responding officers, received a phone call from an off-duty State trooper familiar with the house and its occupants. The trooper told Pierce that Blackshear was a suspect in an arson and that the shooting might be connected. When Blackshear was "confronted" with this information, he admitted to the arson, explained the dispute and named a cadre of possible suspects. As a result, the investigating officers developed a list of names of persons to be interviewed.

More than three weeks elapsed before defendant was interviewed on October 5, 2005. Pierce testified that when defendant was first read his Miranda*fn3 rights and interrogated at 6:49 a.m., he waived his right to remain silent but initially said very little. Because defendant was not interested in talking to the officers, they left him alone in the interview room while they spoke to other suspects for several hours. Pierce occasionally checked in on defendant, and offered him bathroom breaks, food, and drink. When the officers returned at approximately 12:52 p.m., defendant again waived his right to remain silent. This time, however, after a pretaping interview, defendant gave a taped statement fully detailing his role in the incident. He also told the officers the location of both his and Farnville's sawed-off shotguns, hidden in a closet at his sister's home.

In his statement, which was played to the jury, defendant readily acknowledged that the intent of the visit was to burglarize Blackshear's home, rob, and assault him. During the interview, defendant was asked open-ended questions regarding the dispute with Blackshear and he responded with a detailed narrative. Officers interjected occasionally only to ask questions such as the full names of individuals defendant referred to by nicknames, the ownership of a car, and similar points.

Defendant explained that the men all donned masks upon arriving at Blackshear's house. Defendant's sawed-off shotgun was hidden in his pants; Farnville's sawed-off twelve-gauge shotgun, unlike defendant's weapon, was a pump-action model. Once Bartee informed the group that he had seen Blackshear loading his car, they saw their opportunity to "snatch him up, scare him, . . . have our way with him." Defendant had been told that because Blackshear was a drug dealer he would have both cash and drugs on hand. The men surreptitiously approached the house. He described seeing Farnville kneel down on the ground to take aim at the person coming out the back door and seeing him fire. Once the gunshots rang out, defendant headed back towards the car, everyone "loaded up[,]" drove to the corner of the street, turned on their headlights, and sped away.

Defendant described himself as the "muscle" of the operation organized to rob and assault Blackshear. He denied any purpose to murder anyone, insisting they went to Blackshear's home solely to scare him and get some money, and that the weapons were brought solely to frighten Blackshear. Defendant went along with the group because he "could use a couple extra dollars . . . ."

At trial, defendant repudiated his statement. He admitted planning to assault Blackshear, but said he never intended to rob him or burglarize the home. Furthermore, he claimed that he made the taped admissions about intending to rob or burglarize Blackshear solely to avoid being charged with murder.

At trial, Camp testified about Blackshear's statements: that Blackshear admitted fighting with Bartee and had suggested that Bartee could have been behind the shooting. Camp described Blackshear as being "under the heat of the event . . . ." Before the testimony, defendant's trial attorney acknowledged that Blackshear's initial statement was going to be admitted as an excited utterance; Blackshear himself did not testify.

In his opening statement, the prosecutor told the jury that "[w]e have something called [f]elony [m]urder, that can actually make you responsible for the acts of another person." He said in closing, responding to similar comments by defense counsel, "Like [defense counsel], I also believe in justice and I also love my job because I get to come here as an officer of the [c]court and fairly and accurately present a case to you, and back it up with evidence."

Before trial, defendant filed several motions, including a motion to suppress his Mirandized statement. The trial court denied the Miranda motion, relying heavily upon the fact that defendant's second interview occurred only when he indicated that he wanted to speak to the officers, and that on tape defendant said he was treated fairly, and offered food and bathroom breaks. The judge observed that defendant spoke in a conversational tone during the entire recording.

On appeal, defendant raises the following issues:

POINT 1

DEFENDANT'S MOTION TO SUPPRESS HIS STATEMENTS TO POLICE SHOULD HAVE BEEN GRANTED.

POINT 2 THE ADMISSION OF HEARSAY STATEMENTS VIOLATED THE RULES OF EVIDENCE AND DEFENDANT'S RIGHT TO CONFRONT THE WITNESSES AGAINST HIM AT TRIAL (PLAIN ERROR).

POINT 3 THE ATTEMPTED BURGLARY CONVICTION STANDS ON INSUFFICIENT EVIDENCE AND IMPROPER JURY CHARGES (PLAIN ERROR). POINT 4 IMPROPER COMMENT AND USE OF DEMONSTRATIVE AIDS BY THE PROSECUTOR BEFORE THE JURY INFECTED THE FAIRNESS OF THE TRIAL AND WARRANTS VACATION OF THE VERDICTS OBTAINED BELOW (PLAIN ERROR).

POINT 5

DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.

Defendant filed a pro se brief, in which he added the following:

POINT I

TRIAL COURT ERRED IN NOT ENTERING A [JUDGMENT] OF ACQUITTAL ON THE CHARGE OF CONSPIRACY TO COMMIT ROBBERY WHERE THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT A CONVICTION POINT II DEFENDANT WAS PREJUDICED AND DENIED A FAIR TRIAL GUARANTEED UNDER BOTH THE UNITED STATES AND NEW JERSEY CONSTITUTION[S] WHEN TRIAL JUDGE ERRED IN ALLOWING WITNESS CHARLES CLARK TO TESTIFY IN RELATION TO HIS GUILTY PLEA TO THE CONSPIRACY CHARGE.

POINT III THE TRIAL COURT ERRED IN NOT CHARGING THE JURY ACCORDING TO HAMPTON AND KOCIOLEK IN REGARDS [TO] VOLUNTARINESS OF THE DEFENDANT'S STATEMENT.

We address the issues in the order presented for our consideration.

I.

Unquestionably, it is the State's burden at a Miranda hearing to prove beyond a reasonable doubt that the right to remain silent has been waived and that all uncounseled statements are being made freely, intelligently, and voluntarily. State v. Nyhammer, 197 N.J. 383, 400-01, cert. denied, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). Defendant contends that his Mirandized statement should have been suppressed as the State did not carry its burden.

Initially, the State must establish that a defendant was fully informed of his rights. See ibid. In this case, defendant was taped while being informed of his rights, if not the first time they were administered, at least the second time. His acknowledgment that he understood those rights was also recorded.

The voluntariness of a waiver of Miranda rights is assessed based on the totality of the circumstances regarding any potential coerciveness in the interrogation, and the potential that defendant's will was overborne. Id. at 402, 404. In support of his position that he did not make a knowing, intelligent, and voluntary waiver of his right to remain silent, defendant makes certain factual assertions not borne out by the record.

Before the taped interview, it is undisputed that there were conversations between the officers and defendant which were not recorded.*fn4 At trial, defendant said that during those unrecorded conversations the officers suggested to him that if he admitted to involvement in the burglary, he would be excused from culpability in the murder. In further support of this position, appellate counsel asserts in his brief that on cross-examination Pierce admitted telling defendant that if he were forthright, he would "help" him.

But contrary to defendant's claim, Pierce did not testify that he induced defendant into making incriminating statements by trickery. The cross-examination questions Pierce was asked were general, eliciting information about techniques the officer had used in the past. Pierce acknowledged that he had used trickery in other cases, and that it was possible he did so in this case, but said he had no recollection of doing so during this interview. In other words, the officer never testified that he made any misrepresentations to defendant to induce him to confess. See State v. Pillar, 359 N.J. Super. 249, 268-75 (App. Div.), certif. denied, 177 N.J. 572 (2003).

Nor did Pierce acknowledge, contrary to defendant's assertions on appeal, extending promises he was not authorized to make, including the promise of leniency, in order to induce defendant to confess. See id. at 270-71. Defendant testified that Pierce assured him that if he admitted the intent to rob, he would not be charged with murder. Pierce stated unequivocally that he did not have the authority to make any such offers. He said that he had used words to that effect to other suspects in other cases, but did not remember doing so in this case.

Neither does our reading of defendant's recorded confession support these claims. Defendant's statement was a virtually uninterrupted, spontaneous, and detailed narrative. The officers interjected with mostly single words intended to keep the narrative flowing, such as "okay" and "right." There are no references anywhere in the recorded confession to promises with regard to either the charges defendant would ultimately face or to leniency. Because we do not find these assertions to be supported by the record, we will not address them further.

The totality of the circumstances established beyond a reasonable doubt that defendant's statements were made knowingly, intelligently, and voluntarily. Defendant was taken to City Hall in the morning, placed in an investigation room, and when finally recorded, spoke readily, spontaneously, at length, and in great detail. Miranda, supra, 384 U.S. at 424, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707. We therefore find no merit in his claim that the admission of his statement violated Miranda principles.

II.

Hearsay is an out-of-court statement "offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c); see also State v. Savage, 172 N.J. 374, 402 (2002). Hearsay is generally inadmissible because it is "untrustworthy and unreliable . . . ." State v. White, 158 N.J. 230, 238 (1999); N.J.R.E. 802. Some hearsay, however, is admissible, because "exceptions are created out of necessity and are justified on the ground that 'the circumstances under which the statements were made provide strong indicia of reliability.'" White, supra, 158 N.J. at 238 (quoting State v. Phelps, 96 N.J. 500, 508 (1984)).

We review the admission of evidence employing an abuse of discretion standard. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). Defendant contends that the court's admission of certain hearsay statements was an abuse of discretion resulting in plain error which not only violated the hearsay rules but also defendant's constitutional right to confront witnesses against him.

Errors, however, including those brought to the trial court's attention, are not grounds for reversal if deemed harmless. See State v. Macon, 57 N.J. 325, 337-38 (1971). This is true even if the errors are of a constitutional dimension. Id. at 338. Trial errors may be found harmless when evidence of guilt is overwhelming. See State v. Gillispie, 208 N.J. 59, 93 (2011).

Defendant challenges as inadmissible hearsay the following:

(1) Camp's testimony relating details about the shooting and about Blackshear engaging in a fistfight with Bartee, as recounted by Blackshear; and (2) Pierce's testimony that he learned from an off-duty trooper that the shooting may have been triggered by Blackshear's arson and that he developed a pool of suspects after his conversation with Blackshear.

Defendant further asserts that the judge should have stricken Pierce's testimony that information was also developed through subsequent interviews, to the effect that defendant and his group came to rob Blackshear. Defense counsel objected to this material, the objection was sustained, and the line of questioning ceased.

We address the last point first. In light of defendant's taped confession, his co-defendant's inculpatory testimony, and his actual trial testimony, sustaining the objection without actually striking the offending material was sufficient to correct any prejudice. For example, while on the stand, defendant made inculpatory statements, explaining that he brought the shotgun along "to make sure it was a fair fight" between his group and Blackshear. Therefore, even if we assume for the sake of argument that merely sustaining the objection was insufficient and the failure to strike was error, it was harmless error.

As to defendant's objection to Camp's testimony, because defendant did not object at trial and actually acknowledged that it would come in as an excited utterance, unless the admission was clearly capable of leading to an unjust result, it will not constitute a basis to set aside the verdict. R. 2:10-2. The admission of Camp's testimony must raise a reasonable doubt as to whether the jury would have arrived at its guilty verdict in the absence of the testimony. State v. Taffaro, 195 N.J. 442, 454 (2008).

N.J.R.E. 803(c)(2) carves out an exception to the hearsay rule for statements relating "to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition and without opportunity to deliberate or fabricate." These essential elements must be found before a statement becomes admissible under the rule. State v. Branch, 182 N.J. 338, 365 (2005). The Court has cautioned against using the rule as a "vehicle for introducing past narratives from non-testifying declarants" because the risk of doing so would run counter to the requirements of "Confrontation Clause jurisprudence." Ibid. Camp's description of Blackshear's statement, implicating Bartee because of their recent fistfight, falls into the category of excited utterance.

The timing of Blackshear's statements to Camp, made minutes after his father was mortally wounded, establishes that he was still under the stress of the event and that he lacked the opportunity to fabricate. See id. at 365. As a result, it fell within the excited utterance exception to the hearsay rule.

The same analysis justifies admission of Pierce's testimony regarding Blackshear's statements. Nothing in the record would cause us to conclude otherwise. To reiterate, at the scene, Blackshear was under the excitement and stress attendant to the shooting death of his father. That he named persons he thought might be involved still falls within the rubric of the excited utterance exception.

The statements by Camp or Pierce did not offend defendant's right to confront witnesses, guaranteed by the Sixth Amendment to the United States Constitution. Davis v. Washington, 547 U.S. 813, 821, 126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 236 (2006); Crawford v. Washington, 541 U.S. 36, 38, 124 S. Ct. 1354, 1356, 158 L. Ed. 2d 177, 184 (2004). The right of confrontation excludes the "admission of testimonial statements of a witness who did not appear at trial unless . . . unavailable to testify." Id., 541 U.S. at 53, 124 S. Ct. at 1365, 158 L. Ed. 2d at 194. But the right of confrontation is not violated when the statement being admitted is not testimonial in nature. Davis, supra, 547 U.S. at 824, 126 S. Ct. at 2274, 165 L. Ed. 2d at 238; see also State v. Coder, 198 N.J. Super. 451, 460 (2009).

Here, Blackshear's statements were not testimonial. He made them while under the stress and excitement of the shooting death of his father. In any event, the statements on their face suggested a connection between Bartee and the shooting, not with defendant and the shooting. Certainly, defendant was a cohort of Bartee's, but the statement implicated him only after police investigation. Any prejudice was attenuated under this unique circumstance. In any event, if error, the admission of the statements was harmless beyond a reasonable doubt given that they explained the impetus and direction of the investigation and must be balanced against the overwhelming proofs in the case. See Macon, supra, 57 N.J. at 340-41; Gillispie, supra, 208 N.J. at 93-94.

No such exception to the hearsay rule applies to Pierce's testimony that he developed the list of suspects after an off-duty State trooper notified him of the ongoing dispute between Blackshear and Bartee. The admission of these statements violated both the hearsay rule as well as the doctrine enunciated in State v. Bankston, 63 N.J. 263 (1973), if we assume for the sake of discussion, that statements against Bartee effectively implicated defendant.

In Bankston, the Court proscribed the State's use of testimony which implies an officer has superior inculpatory knowledge regarding a defendant, which is not being shared with the jury. Id. at 271. When defense counsel objected to this testimony, it immediately stopped. But if the principles enunciated in Bankston were violated in this case, the admission was nonetheless ultimately harmless. See Macon, supra, 57 N.J. at 340-41.

Although the jury would have been left with the impression that as a result of Pierce's conversation with the State trooper, a pool of unnamed suspects was developed, and that information was provided to Pierce which was not being shared with them, this was not prejudicial.

The jury knew from the opening statements that Blackshear had implicated Bartee at the scene, which we find to be admissible as an excited utterance. From the opening statements, they also knew defendant confessed to burglary, robbery, and possession of a sawed-off shotgun, and they heard that the group's animus sprung from the arson at Bartee's grandmother's house. Once the State, in its case-in-chief, played the recording of defendant's confession to the jury, the jury heard freely and spontaneously given details of the event. Defendant's confession was overwhelming proof of guilt, which minimizes the impact of Blackshear's statements at the scene. And they added nothing to the State's case, as it was defendant's confession and his co-defendant's testimony which explained the impulse to retaliate which set matters in motion.

In light of defendant's own words, the erroneous admission of Pierce's hearsay testimony is harmless error. It did not contribute to the jury's return of a guilty verdict. See id. at 340. It did not lead to an unjust result. Because of its minimal impact, even if error, the use of the statement was harmless. See Gillispie, supra, 208 N.J. at 93-94.

III.

Defendant asserts that the evidence was insufficient to establish attempted burglary because no "substantial step" for the offense, required by statute, was presented to the jury. N.J.S.A. 2C:5-1(a)(3) and 1(b). See also State v. Kornberger, 419 N.J. Super. 295, 302-03 (App. Div.), certif. denied, 208 N.J. 368 (2011); State v. Condon, 391 N.J. Super. 609, 617 (App. Div.), certif. denied, 192 N.J. 74 (2007). He contends that as a result, the court erred by charging the jury with attempted burglary. Defendant also contends that the jury instructions were erroneous because the court charged criminal attempt and conspiracy separately from the substantive offense of burglary. We do not agree.

Clearly "[a]ccurate and understandable jury instructions in criminal cases are essential to a defendant's right to a fair trial." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993) (quoting State v. Concepcion, 111 N.J. 373, 379 (1988)). So important is this principle, that "a trial court's failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." Bielkiewicz, supra, 267 N.J. Super. at 527 (citing State v. Federico, 103 N.J. 169, 176 (1986)).

A substantial step corroborates the firmness of an actor's purpose to carry out the crime and is a necessary statutory element in proving criminal attempt. State v. Ferrad, 164 N.J. 247, 258 (2000). After developing a plan with Bartee, defendant, armed with a sawed-off shotgun, drove with others to Blackshear's home. He got out of the car, his face covered, and then hid in shrubbery located in a side yard while part of the group surreptitiously headed towards the front of the house.

When added to defendant's stated anticipation he would obtain cash and drugs from Blackshear's home, the intent to commit the substantive offense of burglary and conduct establishing the necessary firmness of purpose, was presented to the jury. The conduct was patently corroborative of his purpose to commit a burglary and constituted substantial steps towards the commission of the charged crime. Therefore, the judge was correct in charging attempted burglary.

As to the separate jury instructions, the judge charged attempt and conspiracy, only then proceeding to define the substantive crimes. The instructions tracked the model criminal jury charges. Jury instructions must be accurate, State v. Rhett, 127 N.J. 3, 5 (1992), and these were accurate. They clearly outlined the relevant statutory elements. That the judge administered those charges separately from the instructions on the substantive offenses was unobjectionable. No error occurred, rather, the judge in an efficient and more understandable manner merely avoided potentially confusing and time-consuming repetition.

IV.

Defendant alleges that the prosecutor used demonstrative aids improperly and made prejudicial comments. In other words, that the prosecutor engaged in misconduct "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).

The demonstrative aids were described by the prosecutor immediately prior to the start of the trial as: an enlarged copy of a diagram of the scene made by a police officer, a list of the names of all the co-defendants, the elements of felony murder, and the charges against defendant. When the trial judge later enumerated the exhibits being used in the trial, the court referred only to a depiction on a poster of the relevant counts of the indictment, the list of the co-defendants, and a summary of the elements of felony murder.*fn5 Obviously, since defendant was acquitted of the felony murder charge, the use of the summary of the statutory elements was not prejudicial. Since defendant does not explain the reason the remaining seemingly innocuous aids were improper or prejudicial, we will not address the point further. It does not merit additional discussion in a written opinion. R. 2:11-3(e)(2).

Defendant also objects to the following: that the prosecutor told the jury that felony murder "can actually make you responsible for the acts of another person" and "I also believe in justice and I also love my job because I get to come here as an officer of the [c]court and fairly and accurately present a case to you, and back it up with evidence." Because defendant was acquitted of felony murder, we will not address the first statement.

In order to fairly assess the second statement, it must be viewed in the context of the trial. Defense counsel, in closing, said, among other things: "I do this mostly because I believe in the concept of justice." The portion of the prosecutor's statement that he too believed in justice was obviously made in response and was therefore appropriate. See State v. DiPaglia, 64 N.J. 288, 297 (1974) (holding that "[t]he State had every right" to counter an assertion made by the defense). Even if we were to conclude that the prosecutor's comments were improper, they did not mislead the jury as to the legal requirements for assessing defendant's guilt, they did not stir the jury to retaliate against defendant on behalf of the community, or otherwise spur them on to act improperly. The statement was an attempt at a rhetorical flourish that, in the final analysis, was harmless. See, e.g., State v. Perry, 65 N.J. 45, 53 (1974) (holding that prosecutorial excess was not grounds for reversal).

V.

Defendant also contends that his sentence was both improper and excessive. In reviewing sentencing decisions we do not substitute our judgment for that of the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Id. at 608-09.

The trial judge imposed separate consecutive sentences for burglary and possession of the sawed-off shotgun. He found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no factors in mitigation, N.J.S.A. 2C:44-1(b). In support of his conclusion with regard to aggravating factor three, the judge cited defendant's extensive juvenile history, and that as an adult he was charged on six separate occasions, resulting in seven ordinance violations and one indictable conviction. He also noted that defendant, when released on bail, was arrested for new indictable charges. The court referenced defendant's prior criminal conviction in support of aggravating factor six, and the need to deter this defendant and others from violating the law, in support of aggravating factor nine. Therefore the trial judge did fairly evaluate the record and provided a statement of his reasoning. See Bieniek, supra, 200 N.J. at 609. In light of the absence of mitigating factors and the presence of aggravating factors, the sentence the judge imposed, on the lower end of the second-degree range, seven years, is unobjectionable. It does not shock our judicial conscience. See ibid.

In deciding whether to sentence defendant consecutively or concurrently, and making the requisite Yarbough*fn6 analysis, the judge observed that the offense of possession of a sawed-off shotgun has elements "separate and distinct from the series of events . . . in question." In his view, the possession did not "fall within the events of the one aberrant act that resulted in this particular case[,]" thereby making imposition of a consecutive sentence appropriate. Although an expanded explanation would have been helpful, it is clear the judge concluded that the two offenses warranted imposition of consecutive and not concurrent terms of incarceration because defendant's ongoing possession of a sawed-off shotgun, by his admission, both before and after the incident, was an entirely separate crime. See Yarbough, supra, 100 N.J. at 643-44.

There is one necessary correction to the sentence which requires a remand. Possession of a sawed-off shotgun became a Graves Act offense only after January 13, 2009. L. 2007, c. 341, § 5. These crimes, however, were committed on September 11, 2005. Because the possession predated the change in the law, defendant cannot be sentenced as a Graves Act offender. See State v. Kotsev, 396 N.J. Super. 389, 391 (App. Div.) (applying the law that existed at the time of the offense, not trial), certif. denied, 193 N.J. 276 (2007); see also State v. Chambers, 377 N.J. Super. 365, 372 (App. Div. 2005) (noting the general prohibition against retroactive application of penal laws). We therefore remand count eight for resentencing in accord with the law at the time the offense occurred. N.J.S.A. 2C:39-5 (2005) (amended by L. 2007, c. 341 § 5).

On defendant's resentence, the trial judge should consider whether the crime of second-degree possession of a weapon for an unlawful purpose, count eight, merges with the second-degree attempted burglary, count five. See State v. Diaz, 144 N.J. 628, 636 (1996); N.J.S.A. 2C:1-8(a). For grading purposes, as to the burglary, the jury was asked if defendant possessed a deadly weapon - which they answered in the affirmative. See N.J.S.A. 2C:18-2(b)(2). Defendant testified during the trial that he possessed the weapon "[j]ust to make sure it was a fair fight." Merger may be required here where the jury was asked only to render a finding as to grading and did not find another purpose for the possession of the shotgun. See Diaz, supra, 144 N.J. at 636-37.

VI.

In his pro se brief, defendant first asserts that the court erred by not entering a judgment of acquittal on the charge of conspiracy to commit robbery. Given defendant's confession, as corroborated by Clark, and the circumstances of the crime, that contention lacks merit and is not worthy of further discussion in a written opinion. R. 2:11-3(e)(2).

Defendant also argues that it was prejudicial for Clark to have testified that he had entered a guilty plea "for the same charges" for which defendant was on trial because of the inherent prejudice in such testimony. In support of the argument that it is unduly prejudicial to allow a co-conspirator to inform the jury that he entered a guilty plea on a charge of conspiracy with a defendant against whom the witness is testifying because the jury would assume the existence of the conspiracy, he cites to us United States v. Toner, 173 F.2d 140 (1949), and State v. Stefanelli, 153 N.J. Super. 452 (App. Div. 1977), rev'd, 78 N.J. 418 (1979). Defendant's analysis is that a jury would inevitably conclude that a person would have no reason to plead guilty if no conspiracy existed, and that the fact of the plea itself becomes evidence. The use of the conspiracy plea by a witness in Stefanelli*fn7 was different, however, than the situation here.

In that case, the witness who entered a guilty plea only testified that he suggested the commission of the robbery to the defendant - who actually committed the crime at a later point in time with others. Stefanelli, supra, 153 N.J. Super. at 455-56. That witness was extensively cross-examined about his limited involvement with the crime, id. at 457, however, and the testimony about the guilty plea without a limiting instruction was ultimately found to be harmless. Id. at 456.

In this case, the co-defendant testified not just about his guilty plea and some preliminary discussion with defendant which may have suggested the crime, but also described defendant's conduct during the actual commission of the offense which, irrespective of the witness's plea, constituted evidence of defendant's guilt of the crime of conspiracy. The witness acted shoulder-to-shoulder with defendant and several others and plainly said so. This argument does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Defendant's final point is that the trial judge failed to charge the jury in accordance with Hampton and Kociolek. Contrary to defendant's claim, our review of the record establishes that the court did give a Hampton charge. See State v. Hampton, 61 N.J. 250 (1972). Nothing further was required since the statement was tape recorded. See State v. Kociolek, 23 N.J. 400 (1957); Model Jury Charge (Criminal), "Statements of Defendant (When Court Finds Police Inexcusably Failed to Electronically Record Statement)" (2005). There was no need for the jury to be told that when considering oral statements repeated in court by another they needed to scrutinize every aspect. Defendant's confession was taped, therefore there was no risk that a witness would make a mistake in recalling defendant's statement. See Kociolek, supra, 23 N.J. at 421-22. Accordingly, we do not consider this contention to have any merit either.

Affirmed; except remanded for resentencing as to the Graves Act and to address the question of merger.


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