July 18, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CORDERROL PRIESTER, AKA PRIESTER CORDERROL, CORDERROL T. PRIESTER AND CORDERROL T. PRISTER. DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-12-1110.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 6, 2012 Before Judges Payne, Reisner and Hayden.
Following trial on charges arising from a home invasion, defendant, Corderrol Priester, was found guilty of first-degree kidnapping, N.J.S.A. 2C:13-1b (count one); second-degree kidnapping, N.J.S.A. 2C:13-1b (count two); third-degree criminal restraint, N.J.S.A. 2C:13-2 (count three); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts four and six); two counts of second-degree burglary, N.J.S.A. 2C:18-2 (counts eight and nine); second-degree possession of a weapon, a gun, for an unlawful purpose, N.J.S.A. 2C:39-4a (count ten); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-3b (count eleven); five counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4) (counts twelve through sixteen); and one count of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (count seventeen).
At sentencing, the court merged count three into count four; count nine into count eight; counts ten, twelve and seventeen into count four; and count fourteen into count six. The court then sentenced defendant on count one (first-degree kidnapping) to a fifteen-year period of imprisonment, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on count two (second-degree kidnapping) to a consecutive five-year period of imprisonment, subject to the parole ineligibility provisions of NERA; on count four (first-degree robbery) to a consecutive ten-year period of imprisonment, subject to the parole ineligibility provisions of NERA; on count six (first-degree robbery) to a consecutive ten-year period of imprisonment, subject to the parole ineligibility provisions of NERA; on count eight (second-degree burglary) to a concurrent five-year period of imprisonment, subject to the parole ineligibility provisions of NERA; on count eleven (third-degree unlawful possession of a weapon) to a concurrent five-year period of imprisonment; on count thirteen (fourth-degree aggravated assault) to a concurrent eighteen-month period of imprisonment, subject to an eighteen-month period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c); on count fifteen (fourth-degree aggravated assault) to a concurrent eighteen-month period of imprisonment, subject to an eighteen-month period of parole ineligibility pursuant to the Graves Act; and on count sixteen (fourth-degree aggravated assault) to a concurrent eighteen-month period of imprisonment, subject to an eighteen-month period of parole ineligibility pursuant to the Graves Act.
Defendant has appealed his convictions and sentence, presenting the following arguments for our consideration:
THE JUDGE'S CHARGE ON ACCOMPLICE LIABILITY WAS AWKWARDLY SEPARATED FROM THE SUBSTANTIVE CHARGES, INADEQUATELY TAILORED TO THE FACTS OF THE CASE, AND FAILED TO PROPERLY CONVEY THAT AN ACCOMPLICE COULD BE FOUND GUILTY OF A LESSER OFFENSE THAN THE PRINCIPAL. (Not Raised Below.)
TESTIMONY THAT CRAWFORD SPOTTED A PERSON ON THE STREET WHOM HE WAS CERTAIN WAS THE GUNMAN DID NOT QUALIFY AS A "PRIOR IDENTIFICATION" WHERE THERE WAS NO EVIDENCE, DIRECT OR CIRCUMSTANTIAL, THAT THE MAN CRAWFORD SPOTTED WAS PRIESTER. THUS, THE JURY SHOULD NOT HAVE BEEN PERMITTED TO CONSIDER THE TESTIMONY AS PROOF THAT PRIESTER WAS THE GUNMAN OR AS CORROBORATION FOR CRAWFORD'S IN-COURT IDENTIFICATION. (Not Raised Below.)
ADMISSION OF THE OUT-OF-COURT IDENTIFICATIONS OF PRIESTER MADE BY CRAWFORD AND BRANTLEY, WHICH WERE IMPERMISSIBLY SUGGESTIVE AND INSUFFICIENTLY RELIABLE, VIOLATED PRIESTER'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW. (Partially Raised Below.)
THE JUDGE'S INSTRUCTIONS REGARDING THE IN-COURT AND OUT-OF-COURT IDENTIFICATIONS WERE MISLEADING, AS THEY FOCUSED ON FACTORS THAT WERE IRRELEVANT AND FAILED TO MENTION FACTORS CRITICAL TO THE RELIABILITY OF THE IDENTIFICATION EVIDENCE. (Not Raised Below.)
THE TRIAL JUDGE'S DECISION TO IMPOSE FOUR CONSECUTIVE NERA SENTENCES CONSTITUTED AN ABUSE OF DISCRETION.
The record provides evidence that, on July 31, 2006 at approximately 2:00 a.m., defendant, wearing a do-rag over his face that left his chin exposed, along with two taller and darker-skinned persons wearing ski masks, accosted David Crawford outside of his house. After chasing him down, stripping off his pants and shoes, binding him up with duct tape, and hitting him on the side of the head, they forced him to give them entry into his house. Once in the house, they proceeded to a spare bedroom and then to the bedroom of Crawford's mother, Kathleen Rabb, whom they also bound with duct tape and held at gunpoint. After ransacking the room, they eventually found a safe, which they emptied. Although the intruders also found a second safe in the spare bedroom, they were unable to gain access to its contents. Frustrated, they commenced hitting Crawford and threatening him and his mother that they would be shot if they did not relinquish the safe's combination, which neither recalled.
Thereafter, Crawford was brought to the basement by the two taller men, where the intruders found a third safe and, because they claimed that Crawford had lied about its existence, one of the men hit him again across the face. However, they seemed less interested in gaining access to this safe, and eventually returned with Crawford to the main floor. Throughout, the intruders demanded $75,000, which they apparently assumed to be in the house.
At some point, Crawford's girlfriend, Tyisha Brantley, who had been pistol-whipped across the temple, was brought into the room by the person who appeared to Crawford to be the leader of the three. However, when she requested to be permitted to go upstairs to Crawford's bedroom to attend to her baby, the leader threatened Crawford that if he did not give the men what they were looking for, the baby would be thrown down the stairs. When Crawford reacted to the threat, he was again hit on the back of his head. Thereafter, the baby was brought safely downstairs. However, eventually, Brantley was permitted to go to another room to lay the baby down. There, she was guarded at gunpoint by defendant.
Crawford was again taken to the basement, along with Rabb and Crawford's grandmother, Sarah Kee. All were ordered to sit on the couch, where they were threatened and held at gunpoint. After a period of time, one of the men turned on the television, with the volume very loud. The occupants of the basement were instructed to be quiet and not to move, and the intruders left the basement. When the noises overhead stopped, the family called the police.
The intruders spent a total of approximately three hours in the house. In addition to the jewelry stolen from the safe in Rabb's room, they took approximately $1,500 in cash that Crawford told them would be found in his car.
Defendant was initially identified by the police as a potential perpetrator approximately two weeks after the home invasion after jewelry stolen from the house was found in a local pawn shop and traced back to him. Thereafter, Crawford and his mother were asked to come to the police station to identify the jewelry, which they did.
While at the police station, Crawford and Rabb were each shown a six-person photo array that contained the photograph of defendant. Rabb was unable to identify anyone in the array; Crawford identified defendant as similar to the intruder who held a gun on him and his baby, stating that he was fifty percent sure of the identification. Two days later, Crawford's girlfriend, Brantley, was shown a photo array, and she selected defendant from it, stating that she was ninety percent sure of the identification. Crawford and Brantley stated that they obtained a partial view of defendant's face through the do-rag, which was somewhat transparent, and they were able to observe his skin color, his neck, and wispy hairs on his chin, because his face was not completely covered.
Both identifications were admitted in evidence at trial, along with in-court identifications by Crawford and Brantley. In that connection, Crawford testified that, while in a car with Rabb one week after the home invasion, he had seen a person on the street that he was "very certain" was the gunman. Crawford did not report the sighting to the police, and mentioned it for the first time shortly before trial two years later. Although Rabb had been unable to identify anyone in the photo array as one of the perpetrators, at trial she identified defendant as the man whom Crawford had identified a week after the home invasion.
On appeal, defendant challenges the court's charge on accomplice liability, arguing that it was "awkwardly separated" from the charges on the substantive offenses and inadequately tailored to the facts in the matter. Additionally, defendant claims that the court failed to explain to the jury that an accomplice need not be found guilty of committing the same degree of crime perpetrated by the principal, as required by State v. Bielkiewicz, 267 N.J. Super. 520, 528 (App. Div. 1993). We reject defendant's arguments.
Our review of the record discloses that the court first instructed the jury on each of the charges against defendant set forth in the indictment - a lengthy process, given the indictment's eighteen counts. The court then carefully instructed the jury that the State "maintains that the defendant is liable for each count of the indictment based upon his own hand, his own conduct." But, the court continued, "[t]he State also maintains that he is responsible for the criminal conduct of the taller, masked perpetrators of the home invasion that occurred on July 31, 2006[.]" The court followed this statement with a legally accurate explanation of accomplice liability. Contrary to defendant's argument, that instruction was followed by a further instruction to the jury to consider whether defendant acted as an accomplice, but with a purpose to commit a lesser crime.
Thus, we find that the court's charge was correct. We perceive no error in the fact that the legal basis for a finding of accomplice liability was charged after the elements of each charge against defendant were explained. Indeed, we find that organization to have been entirely proper, given the complexity of the charge required in the matter. And while the court did not include any discussion of trial evidence in the accomplice aspect of the charge, such facts were discussed elsewhere.
Thus, no error occurred.
Defendant next argues that the court erred in permitting Crawford to testify that, one week after the home invasion, he saw someone on the street that he was very certain was the perpetrator who had worn the do-rag over his face, and that person was defendant. Defendant contends that "there was no evidence, either direct or circumstantial, tending to prove that the person was, in fact, Priester."
We find defendant's position to be incorrect. As he states in his brief, during her trial testimony, Rabb recounted Crawford's sighting, while in her company, of a person that he claimed was one of the intruders who had unlawfully entered the family's house a week earlier. And, in response to the prosecutor's questions, Rabb stated that she saw the person whom Crawford had identified in court, and that person was defendant. Accordingly, corroboration of Crawford's out-of-court identification clearly existed. That Rabb did not know the identity of the person identified by Crawford at the time of his identification is irrelevant. As a consequence, we find that the out-of-court identification was properly admitted pursuant to N.J.R.E. 803(a)(3).
Defendant argues additionally that the fact that Crawford and Brantley were shown photo line-ups after Rabb had identified the jewelry retrieved from the pawn shop as hers "impermissibly tainted" their selection of defendant's photograph from the array. According to defendant, even if Goldston, the police officer who recovered the jewelry, did not explain how or from where it had been recovered, "the mere fact that it was recovered sent a subliminal message to the victims that Goldston had a suspect and the suspect's photo was in the array." We find that argument to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Defendant next challenges the instructions given to the jury regarding the parties' in-court and out-of-court identifications, arguing that the framework for evaluating eyewitness identification evidence, set forth in State v. Henderson, 208 N.J. 208, 287-91 (2011), should have been utilized by the court. However, the trial of defendant's case occurred in 2008. Henderson was decided in August 2011 and declared to be applicable to future cases only. Id. at 302. The court's instructions in the present matter conformed to the law as it then existed, and therefore were not erroneous.
As a final matter, defendant challenges his sentence, arguing that the imposition of four consecutive sentences to which NERA applied was improper under standards set forth 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). That decision offers, in relevant part, the following criteria for use in determining whether to impose concurrent or consecutive sentences:
(1) there can be no free crimes in a system for which the punishment shall fit the crime;
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different 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;
(e) the convictions for which the sentences are to be imposed are numerous;
(4) there should be no double counting of aggravating factors[.] [Ibid. (footnote omitted.]
In sentencing defendant, the court merged certain offenses, as previously stated, and then addressed the factors set forth in Yarbough, concluding:
In looking at this incident I think these acts and these crimes that remain are clearly independent of each other. And there are multiple acts with respect to those different crimes. . . .
[I]n looking at this overall crime one of our most sacred rights as citizens of the United States is the right to be secure in one's home. . . .
. . . I've had victims tell me on many different occasions that once your home is burglarized you're never safe. You never feel safe in your home. . . . [B]urglary in itself is a horrible crime because it forever deprives the victim of that security, which is one of the most basic and inalienable rights that we can have. The right to be secure in one's home.
So I take that as a given in this case and I'm speaking to Ms. Rabb and to Mr. Crawford. And what I can't imagine is how much more horrific it must be to be present when that crime - when armed gunmen force their way . . .*fn1 duct tape and then they assault you and your loved ones in front of you. Four generations of the same family were victimized there and the harm inflicted upon them I think can't truly be calculated.
The court then found aggravating factors (1) (the nature and circumstances of the offense, including whether it was committed in an especially heinous, cruel, or depraved manner);
(2) (whether the victim of the harm was particularly vulnerable or incapable of resistance), citing Crawford's baby and his seventy-year-old grandmother; (3) (the risk that defendant will commit another offense); and (9) (the need for deterrence). The court found no mitigating factors, but did take into account defendant's youth when imposing sentence. As a consequence, he sentenced defendant on his conviction for first-degree kidnapping of Crawford and Brantley at the bottom of the sentencing range to fifteen years and imposed a consecutive sentence of five years on defendant's conviction for the second-degree kidnapping of Rabb, Kee and the baby. Similarly, the court imposed consecutive sentences at the bottom of the sentencing range on defendant's convictions for first-degree robbery of Crawford and Rabb.
We find nothing improper in those sentences. In reaching that conclusion, we concur with the court's reasoning that defendant's acts affected multiple victims and that the kidnapping by means of confinement for a period of three hours was, effectively, a crime separate from that of first-degree robbery. Because defendant's sentences were set at the bottom of the sentencing range, the effect of NERA was, to an extent, minimized. Having found that the sentences conformed to Yarbough's precepts, those sentences are affirmed. See also State v. Bieniek, 200 N.J. 601, 607-08 (2010) (precluding appellate "second-guessing" when sentencing courts exercise discretion in accordance with the principles set forth in the Code of Criminal Justice); State v. Marinez, 370 N.J. Super. 49, 59 (App. Div.), certif. denied, 182 N.J. 142 (2004) (recognizing NERA's real-time consequences).
Defendant's convictions and sentences are affirmed.