June 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TODD R. WHITE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-05-0445.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 28, 2012
Before Judges Messano and Yannotti.
Following a jury trial, defendant Todd White was convicted of third degree attempted theft by unlawful taking, N.J.S.A. 2C:20-3(a) and 2C:5-1. The jury acquitted defendant of second-degree robbery, N.J.S.A. 2C:15-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2). The judge granted the State's motion to sentence defendant as a persistent offender, N.J.S.A. 2C:44-3(a), and imposed a ten-year term of imprisonment with a five-year parole disqualifier. This appeal followed.
Defendant raises the following points for our consideration:
THE TRIAL COURT INCORRECTLY CHARGED THE JURY WITH RESPECT TO THE CHARGE OF ATTEMPTED THEFT (NOT RAISED BELOW)
PROSECUTORIAL MISCONDUCT IN SUMMATION WHICH SHIFTED THE BURDEN OF PROOF TO THE DEFENDANT DEPRIVED MR. WHITE OF A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY THAT HE RESPONDED TO THE AREA DUE TO INFORMATION RECEIVED (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. WHITE (NOT RAISED BELOW)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The testimony at trial revealed the following. Shortly after 9:00 a.m. on December 27, 2007, a man wearing a mask came into the Roma Bank on Hamilton Avenue in Trenton and approached one of the tellers, Youngor Wozee. Yvonne Gonzalez, a supervisor at the bank, noticed the man had a plastic bag in his hand, and Gonzalez drew the attention of Jimmy Garruba, a retired Trenton police officer who worked as an armed security guard at the bank. Wozee testified that the individual was an African-American man wearing a tan ski mask, black jacket, black pants and black gloves.
The man told Wozee to put whatever money she had in the plastic bag. Wozee was scared, began to physically shake and was unable to comply with the demand. Garruba saw the man and believed he was trying to rob the bank. Garruba drew his firearm as he approached the individual, who "took one hand off the bag[,] . . . placed it into his pocket and was fumbling as if he had a gun." Garruba told the man, "I wouldn't do that if I were you." The man took his hand out of his pocket and showed Garruba his palm. Garruba allowed him to leave the bank, and the man quickly walked away toward Columbus Park. Much of what occurred in the bank was captured on surveillance cameras, and the jury was shown both a videotape and still images of the incident.
Detective George Kasony of the Trenton police department received a call that "there was a bank robbery . . . at the Roma Bank on Hamilton Avenue." The dispatcher communicated a description of the suspect. When the prosecutor asked about the specifics of the description, defense counsel objected on hearsay grounds. After a sidebar, the judge sustained the objection, and Kasony simply stated that after obtaining certain information from dispatch, he "started to proceed to the Roma Bank."
But, shortly thereafter and without objection, Kasony testified that as he arrived at the bank, he observed a "black male . . . match[ing] the description that was given of the suspect that had just robbed the bank." The individual was wearing "a tan hat[,] . . . a black jacket, . . . blue jeans[,]" and was holding "[a] white . . . plastic bag."
Kasony pursued the man down an alley, but, when the individual ran and jumped a fence, Kasony turned his vehicle around and drove to the street where the man had fled. There, Kasony saw that police sergeant Robert Carrier had apprehended the suspect. Kasony noted the tan hat the suspect wore had two eyeholes cut out of it. Before the jury, Kasony identified defendant as the man he and Carrier apprehended that day.
Carrier also testified and corroborated much of Kasony's testimony regarding defendant's arrest. Carrier identified defendant in court. Defendant did not testify or produce any witnesses in his defense.
We consider the various points defendant has raised on appeal in light of this testimony which overwhelmingly demonstrated defendant's guilt of attempted theft.
In his charge regarding the elements of the crime, the judge properly instructed the jury that the State must prove defendant "purposely" engaged in conduct that would constitute a "substantial step . . . culminat[ing] in the commission of the crime." See N.J.S.A. 2C:5-1(a)(3). Defendant does not object to this part of the instruction. However, the judge also provided instructions pursuant to N.J.S.A. 2C:5-1(a)(1) (defining attempt as "conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be"). Defendant argues this instruction on "attempt-impossibility" was inapplicable to the facts and deprived him of a "fair trial because it expanded the basis of criminal liability." We disagree.
Because there was no objection, we employ the plain error standard in conducting our review. R. 2:10-2. "In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "'poor candidate for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Additionally, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
In State v. Kornberger, 419 N.J. Super. 295, 302 (App. Div. 2011), the trial judge provided instructions as to all three subsections of the criminal attempt statute, even though only the "substantial step" type of attempt, subsection (a)(3), applied to the facts of the case. We concluded that although a "charging error" was committed, id. at 303, it did not require reversal given the strength of the State's case, the balance of the judge's charge, and the contentions of the parties. Id. at 303-04. We held:
Taken in context, there is no realistic likelihood that the jury would have focused on the clearly inapplicable theor[y] of impossibility . . . . We will not speculate that "for unknown reasons" the jury might have convicted defendant on . . . a(1) . . . when they "would have acquitted him" under a(3). Cf. [State v. Condon, 391 N.J.
Super. 609, 618 (App. Div.), certif. denied, 192 N.J. 74 (2007)]. Given the overwhelming evidence in this record, there is no chance that any jury "would have acquitted" this defendant under a(3). [Id. at 304.]
In this case, the evidence of defendant's guilt of attempted theft pursuant to N.J.S.A. 2C:5-1(a)(3) was overwhelming, and there was no confusion over what subsection of the statute applied. In her summation, defense counsel argued that defendant had not committed robbery, but told the jury, "What happened . . . is actually an attempted theft." Her final words were, "[Defendant] did not commit a robbery, he attempted a theft, and he was unsuccessful." The charging error in this case does not require reversal.
We also reject defendant's argument that the prosecutor's summation comments were improper. As noted, defense counsel's strategy was to admit defendant committed an attempted theft while at the same time arguing that he did not commit a robbery. In his summation that immediately followed, the prosecutor told the jury that many facts were undisputed, including defendant's identity and his intent upon entering the bank. Defendant never objected but now contends these remarks "suggested that the defense bore a burden of proof."
Although "[p]rosecutors are expected to assert vigorously the State's case and are given considerable leeway" to do so in summation, State v. Daniels, 182 N.J. 80, 96 (2004), they have a corresponding duty to pursue justice and "refrain from any conduct lacking in the essentials of fair play." State v. Wakefield, 190 N.J. 397, 437 (2007) (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)), cert. denied, 552 U.S. 1146, 128
S. Ct. 1074, 169 L. Ed. 2d 817 (2008). "A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)).
"Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial . . . ." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Also relevant to our review is a defendant's failure to object to the prosecutor's remarks at the time they were made because this "deprives the court of an opportunity to take curative action" and suggests that defendant did not find the remarks prejudicial. Frost, supra, 158 N.J. at 84. "In evaluating claims of prosecutorial misconduct and plain error the fundamental question we must answer is whether it is clear beyond a reasonable doubt that the jury would have returned a guilty verdict if the questioned conduct had not occurred." State v. Walden, 370 N.J. Super. 549, 562 (App. Div.), certif. denied, 182 N.J. 148 (2004). Here, the prosecutor's comments did not suggest that defendant bore a burden of proof, nor were they otherwise improper in light of defense counsel's summation.
Defendant asserts the judge erred by permitting Kasony to testify that he responded to the bank based upon information he received from dispatch and, thereafter, to testify that defendant matched the description provided by the dispatcher. We agree that some of Kasony's testimony was improper, but its admission does not require reversal of defendant's conviction.
In State v. Branch, 182 N.J. 338, 352 (2005), the Court concluded that "'based on information received' may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and only if the . . . phrase does not create an inference that the defendant has been implicated in a crime by some unknown person." "When the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." State v. Bankston, 63 N.J. 263, 271 (1973).
In this case, Kasony's testimony that defendant "matched the description that was given of the suspect that had just robbed the bank" was improper. That testimony "state[d] or suggest[ed] that some other person provided information that linked the defendant to the crime." Branch, supra, 182 N.J. at 351. However, there was no objection and, applying the plain error standard, the testimony was not "clearly capable of producing an unjust result." R. 2:10-2.
At trial, several of the witnesses in the bank provided descriptions of the clothing worn by defendant. Kasony and Carrier described the clothing in a similar fashion. And, as noted, defense counsel acknowledged in summation that defendant was the person who had committed an attempted theft of the bank. Thus, Kasony's testimony does not "raise a reasonable doubt" that it "led the jury to a result it otherwise might not have reached." Jordan, supra, 147 N.J. at 422 (quoting State v. Macon, 57 N.J. 325, 336 (1971)) (internal quotation marks omitted). We affirm defendant's conviction.*fn1
Defendant argues that the trial court relied upon "unsupported findings of fact, and improper balancing of aggravating and mitigating factors," thus resulting in a sentence that was manifestly excessive. We disagree.
In reviewing a "sentence challenged for excessiveness[,]
[t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
At sentencing, after granting the State's motion to sentence defendant as a persistent offender, N.J.S.A. 2C:44- 3(a), the judge found aggravating factors two, three, six and nine. See N.J.S.A. 2C:44-1(a)(2) (the "gravity and seriousness of the harm inflicted on the victim"); (3) (the risk of re-offense); (6) (extent of defendant's prior record and seriousness of present offense); (9) (the need to deter). The judge found no mitigating sentencing factors.
Defendant contends that the findings regarding factors three, six and nine cannot be sustained because the judge relied solely upon defendant's prior record. That is not impermissible, assuming the judge engages, as he did here, in "a qualitative assessment" "that go[es] beyond the simple finding of a criminal history and include[s] an evaluation and judgment about the individual in light of his or her history." State v. Thomas, 188 N.J. 137, 153 (2006). Defendant's prior record was formidable, including prior federal and state convictions for bank robbery. The judge noted defendant had previously been convicted of robbing the same bank and committed this attempted theft shortly after his release from jail. The judge further noted that prior periods of incarceration had not deterred defendant from committing crimes. The judge adequately explained his finding as to these aggravating factors.
Defendant also contends the judge erred by finding aggravating factor two because there was insufficient support for the conclusion that the victim was substantially harmed. "When a sentencing court considers the harm a defendant caused to a victim for purposes of determining whether that aggravating factor is implicated, it should engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim . . . ." State v. Kromphold, 162 N.J. 345, 358 (2000). In determining whether the judge's assessment is adequately supported, a reviewing court is permitted to assess the entire record, not just the testimony before the trial judge on the day of sentencing. See Roth, supra, 95 N.J. at 365-66.
Here, the judge justified his findings with respect to aggravating factor two by noting the "serious sense of terror" caused by defendant. He cited Wozee's testimony and further noted "it was pretty clear from the video" that defendant was attempting to intimidate patrons and employees. Dom Butchko, the director of security for Roma Bank, spoke at sentencing. He expressed the concern of the employees who were aware that defendant had previously robbed the same bank branch. The judge did not err in finding aggravating factor two.
Defendant contends that the judge should have found mitigating factor one, because "defendant's conduct neither caused nor threatened serious harm," and two, because "defendant did not contemplate that his conduct would cause or threaten serious harm." N.J.S.A. 2C:44-1(b)(1) and (2). The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). It suffices to say that defendant entered the bank wearing a ski mask, demanded money, caused trauma and distress to the employees, and came perilously close to causing an armed security guard to discharge his weapon.
Lastly, defendant argues the judge failed to engage in a separate weighing process regarding imposition of a period of parole ineligibility, and he urges us to remand so that the judge can re-sentence him. See State v. Dunbar, 108 N.J. 80, 92-94 (1987). However, "[i]t is not necessary that every sentence be a discourse." Dunbar, supra, 108 N.J. at 97. The judge's well-articulated analysis adequately explained his reasons for imposing a period of parole ineligibility.