June 28, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAYMOND D. INGRAM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-0877.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 9, 2012
Before Judges Fuentes, Graves and Koblitz.
Defendant Raymond D. Ingram appeals from a July 13, 2010 judgment of conviction after being found guilty of two counts of second-degree certain persons not to possess a firearm. N.J.S.A. 2C:39-7(b). He was sentenced to concurrent discretionary extended fifteen-year terms, N.J.S.A. 2C:44-3(a), with six years of parole ineligibility pursuant to the Graves Act. N.J.S.A. 2C:43-6(c). Defendant claims that the improper admission of hearsay evidence, prosecutorial misconduct and a faulty jury instruction require a reversal. He also maintains that the sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Mercer County Indictment No. 08-10-0877 charged defendant and a co-defendant, Ismeal Abdullah, with second-degree possession of a Glock 23 .40 caliber handgun without a permit to carry, N.J.S.A. 2C:39-5(b) (count one), and third-degree possession of a Mossburg 500 shotgun without having obtained a firearms purchaser identification card, N.J.S.A. 2C:39-5(b) (count two). Defendant was charged alone in the final two counts of the indictment with possession of each of the guns by a person previously convicted of robbery. The possession of the guns was alleged to have occurred on August 19, 2008.
Co-defendant pled guilty to the first two counts and received concurrent sentences of five years with three years of parole ineligibility pursuant to the Graves Act.
The State dismissed the first two counts against defendant. Defendant stipulated that he had a predicate offense that would make him a certain person not permitted to possess firearms and that the items found in the car fit the legal definition of a firearm.
Prior to trial, the judge held a N.J.R.E. 104 hearing. Mercer County Sheriff's Officer Pablo Santiago testified that, at 9:00 p.m. on August 19, 2008, he was working with the Mercer County Violent Gangs Task Force when they received a tip that a black, four-door GMC Jimmy with a specified license plate occupied by two black males, possibly armed, was in the area of Stuyvesant Street. Santiago found the black GMC Jimmy parked on Stuyvesant Street with two African-American men inside. He parked across the street and observed the Jimmy for approximately twenty-five minutes and radioed in when it drove off. The judge precluded Santiago from mentioning gangs or the police task force during his testimony. Santiago did not testify before the jury regarding the tip.
Lieutenant Scott Schoellkopf testified at trial that he pulled over the Jimmy because he observed that the driver was not wearing a seatbelt. Schoellkopf was accompanied by five other officers when he approached the car. His flashlight illuminated the barrel of a shotgun and ammunition in the rear of the car. The driver was ordered out, and it was later determined that the Jimmy was registered to defendant's girlfriend. After obtaining a search warrant, the officers searched the car the next day and found both guns, ammunition, as well as a laundry bag and a black hooded sweatshirt.
Co-defendant Abdullah testified for the defense that he paid defendant to give him a ride. Abdullah claimed he brought with him the two guns and ammunition, placed in a laundry bag full of clothing, which he put in the back of the car.
During jury deliberations, the jury asked "why the Jimmy was under surveillance. What tipped the officers off to the car?" The judge and parties agreed that the information sought was not in evidence and should not be supplied to the jury.
On appeal defendant raises the following issues:
POINT I: OFFICER SANTIAGO'S TESTIMONY CONCERNING HIS SURVEILLANCE OF THE VEHICLE OCCUPIED BY DEFENDANT AND CO-DEFENDANT WAS INADMISSIBLE HEARSAY THAT LED THE JURY TO BELIEVE THE POLICE HAD SUPERIOR KNOWLEDGE OF DEFENDANT'S GUILT, AND THE FAILURE TO BAR SUCH TESTIMONY DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHT TO CONFRONT WITNESSES AGAINST HIM. (Partially raised below). POINT II: THE PROSECUTOR'S EGREGIOUS MISCONDUCT DURING HER CLOSING STATEMENT VIOLATED DUE PROCESS OF LAW AND A FAIR TRIAL. (Not raised below).
POINT III: DEFENDANT'S COUNSEL'S FAILURE TO REQUEST A "MERE PRESENCE" JURY INSTRUCTION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not raised below).
POINT IV: DEFENDANT'S SENTENCE IS EXCESSIVE AND IS NOT IN COMPLIANCE WITH NEW JERSEY'S CODE OF CRIMINAL JUSTICE.
Relying on State v. Branch, 182 N.J. 338, 351 (2005) and State v. Bankston, 63 N.J. 263, 271 (1973), defendant claims that testimony concerning the police surveillance of the Jimmy was impermissible hearsay that deprived defendant of his constitutional right of confrontation. See U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10. Defendant objected prior to trial to the admission of Santiago's testimony as unduly prejudicial, but did not raise the claim that it violated defendant's right to confront the witnesses against him.
The trial judge sanitized the potentially prejudicial reasons for the surveillance. Evidence concerning the police gang task force and the confidential tip was not heard by the jury. As noted in Bankston, supra, in which the Supreme Court reversed a conviction because the police officer testified before the jury as to the substance of the informant's tip:
It is well settled that the hearsay rule is not violated when a police officer explains the reason he approached a suspect or went to the scene of the crime by stating that he did so "upon information received." Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct. [Bankston, supra, 63 N.J. at 268 (citations omitted).]
Santiago's statement regarding surveillance of the Jimmy is not hearsay in that he was not relaying an out-of-court statement. Santiago and Schoellkopf's testimony that they "received information" that prompted their activities that night is also permissible and was not objected to by defense counsel.
We see no error in how the trial judge handled these evidentiary issues.
Next we address defendants' argument, raised as plain error, that the State committed egregious misconduct in summation. Defendant objects to the portions of the summation during which the prosecutor argued what conduct would be reasonable under the circumstances. She commented:
And when [Santiago] saw that car, it had two people in it. We don't know the identity of those two people, but I would submit to you the driver and Ismeal Abdullah sitting in that car together for almost half an hour. And we know that those guns were already in the car during that half-hour. Because we know that the guns didn't get into the car when they made the right on Highland.
She also urged the jury to discredit Abdullah's testimony, explaining that once he pled guilty he had no reason not to testify in a helpful way at his friend's trial. These remarks represent fair comment on the evidence.
To determine whether prosecutorial misconduct in summation warrants reversal, we must assess whether the misconduct "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In making this assessment, we must consider "'the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred.'" State v. Echols, 199 N.J. 344, 360 (2009) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). The State's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "vigorous and forceful" manner. State v. Lazo, 209 N.J. 9, 29 (2012). Indeed, the Supreme Court has recognized that criminal trials often create a "'charged atmosphere . . . [that] frequently makes it arduous for the prosecuting attorney to stay within the orbit of strict propriety.'" State v. Ramseur, 106 N.J. 123, 320 (1987), (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)), cert. denied sub nom., Ramseur v. Beyer, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993); see id. at 323 (noting that the absence of a timely defense objection to a prosecutor's remarks in summation generally signifies that the remarks are not prejudicial). We discern no undue prejudice arising from these portions of the summation and, more importantly, detect no prosecutorial misconduct when properly considering the summation as a whole. See State v. Ingram, 196 N.J. 23, 43 (2008) (evaluating the propriety of a prosecutor's summation when "[t]aken as a whole").
In Point III of his brief, defendant claims his counsel's failure to request the two paragraph "mere presence"*fn1 portion of the jury charge constituted ineffective assistance of counsel.
We refrain from resolving defendant's ineffective assistance claims on direct appeal. Instead, we reserve such claims for a future potential application for post-conviction relief (PCR), where the record may be expanded with appropriate proofs outside of the trial transcripts. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). We express no opinion as to the merits of any future PCR petition.
Finally, defendant alleges that his sentence was excessive and disproportionate to the sentence imposed on his co-defendant. In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 506-07 (2005). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001). If a court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]
Based on defendant's prior record of a conviction for possession of CDS in 2000, a violation of the consequent probation and a conviction of "a Graves Act firearm robbery crime in 2001," the judge found aggravating factors (3), the risk of committing another offense, (6), the nature and extent of defendant's prior record, and (9), the need to deter defendant and others from violating the law. N.J.S.A. 2C:44-1(a)(3), (6) and (9). He found no mitigating factors. Finding the aggravating factors "substantially outweigh" the nonexistent mitigating factors, as well as an "obvious need to protect the public," the judge granted the State's motion for a discretionary extended term and sentenced defendant to the mid- Defendant argues that the judge should have found as a mitigating factor that he was particularly likely to respond affirmatively to probation, N.J.S.A. 2C:44-1(b)(10), as he was only twenty-nine years old and had family support. The judge indicated he specifically considered and rejected that factor because defendant had been given an opportunity for probation and had not successfully completed the program. The judge also specifically considered and rejected factor (11), that incarceration would entail excessive hardship to himself or his dependents. The judge accepted that defendant may have a strong relationship with his young daughter, but found that did not constitute a mitigating factor.
Defendant further argues that his sentence was disproportionate to his co-defendant's sentence. Pursuant to a plea agreement, Abdullah pled guilty to second- and third-degree weapons charges, unlike defendant who was found guilty of two second-degree crimes. The judge may consider a plea bargain as a moderating influence on a strict application of the sentencing code. State v. Balfour, 135 N.J. 30 (1994). Moreover, in contrast to defendant, the judge found mitigating factor (10), that Abdullah was particularly likely to respond affirmatively to probation, and only aggravating factors (3), the risk of committing another offense, and (9), the need to deter defendant and others from violating the law. Abdullah had a less serious prior criminal record than defendant and as the passenger in the car, he was arguably less culpable.*fn2
The judge did not abuse his discretion in sentencing defendant.