July 24, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERENCE ZIMMERMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-12-3324.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2012
Before Judges Payne and Messano.
Defendant, Terence Zimmerman, appeals from his conviction, pursuant to a plea agreement, for first-degree aggravated manslaughter, N.J.S.A. 2C:11-4a, and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, and from his sentence of eighteen years in custody, subject to the eighty-five percent period of parole ineligibility required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the manslaughter conviction, into which the weapons offense was merged. On appeal, defendant raises the following arguments for our consideration:
THE COURT ERRED IN ITS FINDING OF PROBABLE CAUSE, AND AS A RESULT, REVERSAL IS REQUIRED.
BECAUSE THE RECORD DOES NOT INDICATE THAT THE PROSECUTOR PROVIDED A WRITTEN STATEMENT OF REASONS FOR WAIVER AS REQUIRED, THE MATTER MUST BE REMANDED TO THE FAMILY COURT FOR RECONSIDERATION. (Not Raised Below.) POINT III
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We affirm defendant's conviction and sentence.
In a complaint filed in this matter, defendant was charged with acts of delinquency that, if he had been an adult, would have constituted murder of Hassan Miller, N.J.S.A. 2C:11-3a, unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. At the probable cause hearing that took place on June 4, 2009, testimony was offered for the State by Detective Rudy Correa, a member of the East Orange Police Department's violent crimes task force.
Det. Correa testified that, on February 11, 2009, during the 9:00 p.m. to 5:00 a.m. shift, he was on a plain-clothes robbery suppression patrol with Det. Joseph Guilano in an unmarked police vehicle. At 2:00 a.m., they heard a call of a motor vehicle accident approximately two blocks away, to which they responded. Once at the scene, they observed a grey taxi whose driver was slumped backward. Defendant, a juvenile whom Det. Correa had known for some time, was sitting, bleeding from his forehead, just outside the front passenger seat door, which was open, whereas all of the other doors on the vehicle were closed, with the windows up. When asked what happened, defendant stated that the car had crashed. He stated additionally that there had been two other occupants in the rear seat of the vehicle whom he later identified as "Ashley" and Mark Fisher. However, Det. Correa did not see any other people or vehicles in the area. The driver had been shot in the right side of his head and later died.
Shortly thereafter, another responding officer stated that a gun had been found on the driver's side of the vehicle in the roadway, with the magazine missing and the trigger guard broken off. However, the magazine was later discovered near the gun. Using his flashlight to see inside the vehicle, Det. Correa saw two spent casings, one in the front and one in the back compartment of the cab.
Det. Correa spoke to defendant again while he was being treated by paramedics, and at that time, defendant stated that he had been picked up in Orange by the victim, known to him as Hass, and that they had gone to McDonald's and a gas station. The victim was driving defendant home when the accident occurred.
Later, at the hospital, to which defendant was transported, the detective took a formal statement from him in the presence of his mother. In that statement, given after defendant had been informed of and waived his Miranda*fn1 rights, defendant stated that, after he was picked up by the victim, they picked up two additional people before going to McDonald's and an Exxon station, at which point defendant fell asleep, awaking only when the accident took place.
The police were unable to corroborate defendant's statement that the four had gone to McDonald's because the restaurant surveillance system was not working at the time. Examination of a surveillance tape from the Exxon station did not disclose any evidence of the taxi coming there.
Several days after the accident, a resident in a house close to the accident scene produced a surveillance tape that captured the entire accident. That tape disclosed two flashes occurring just before the accident, but no evidence of anyone fleeing the vehicle once it came to rest. Additionally, the police spoke to a father and son who resided in the area of the accident. In a statement, the son said that he had heard some crunching or popping noises and then what seemed to be a motor vehicle accident. He looked out of his window and saw the victim's vehicle at rest, and the front passenger side door open. He saw no one fleeing the vehicle. The son alerted his father, who looked out of the window and saw defendant, but no one else.
Two batting gloves that defendant was wearing when examined by the paramedics had been seized by the police and sent for a gunshot residue examination. However, the results had not been received at the time of the hearing.
Following arguments by counsel, including defense counsel's argument that there was no direct evidence of defendant's involvement in the shooting and thus no probable cause to believe he committed the crime, the court delivered its decision on the record. After making findings of fact, which included the observation that the police had found no exculpatory evidence other than defendant's statement, the court found that there was probable cause to believe that defendant was, in fact, involved in a homicide on the day in question. The court stated:
There's obviously no direct evidence in the form of eyewitnesses or anyone like that. However, the circumstantial evidence, which we know from our education in the adult courts, can sometimes be very [much] stronger even than direct evidence.
The circumstantial evidence in this case, even with the spin that the defense counsel would prefer to put on it, at this point the circumstantial evidence clearly satisfies the court that the State has met its burden of proof that Terence Zimmerman in fact was involved in the homicide on Hassan Miller at that point in time.
The court found that the location of and damage to the gun could be explained by the gun having been tossed over the car by defendant and hitting the hard pavement.
Accordingly, pursuant to the waiver provisions of N.J.S.A. 2A:4A-26a and e, the court referred the matter to the Grand Jury to consider indictment, which took place on December 18, 2009, at which time defendant, then age seventeen, was charged with murder, possession of a weapon for an unlawful purpose, and unlawful possession of a weapon.
On August 4, 2010, defendant entered a plea to first-degree aggravated manslaughter and possession of a weapon for an unlawful purpose upon the State's recommendation that an eighteen-year sentence subject to NERA be imposed. As a factual basis for the plea, defendant admitted that he was the only passenger in the cab, that he possessed a semi-automatic handgun, and that he "shot the cab driver" in the direction of his head. As stated previously, defendant was sentenced in accordance with the plea offer. This appeal followed.
On appeal, defendant first argues that the court erred in finding probable cause existed, thus permitting, upon the prosecutor's motion, waiver of the jurisdiction of the Family Part over defendant's case - an issue that he did not specifically preserve at the time of the plea, but which we nonetheless address. As defendant concedes, we must affirm a prosecutor's decision to seek waiver unless defendant demonstrates, clearly and convincingly, that decision constituted a patent and gross abuse of discretion. State in the Interest of R.C., 351 N.J. Super. 248, 259-60 (App. Div. 2002), certif. denied, 196 N.J. 85 (2008).
Addressing the evidence, defendant admits to having been in the cab at the time that the driver was shot. However, he claims that the evidence that he was the only passenger was "far more speculative," and that only the surveillance tape from the house near the accident's location provides contemporaneous evidence of what took place. Yet, defendant argues, the tape was not placed in evidence but was merely described by the detective, it was recorded from a location across the intersection from where the accident occurred, and it displayed only a "majority" of the vehicle after that vehicle came to rest. Further, defendant argues that his statement to the detective that two other people were in the cab, uttered shortly after the accident occurred, should have been deemed an excited utterance entitled to a presumption of reliability. That he persisted in claiming the presence of the two additional people, defendant argues, should also have been taken into account.
We reject defendant's arguments, determining that the State's proofs were sufficient to meet the low threshold of proof required for waiver, and that "a well-grounded suspicion or belief that the juvenile committed the alleged crime[,]" State v. J.M., 182 N.J. 402, 417 (2005) (citing State v. Moore, 181 N.J. 40, 45 (2004)), was established. Defendant did not clearly and convincingly establish that the prosecutor's decision to seek waiver was a patent and gross abuse of discretion. R.C., supra, 351 N.J. Super. at 259-60.
We decline to view defendant's statement to Det. Correa as an excited utterance pursuant to N.J.R.E. 803(c)(2) entitled to a presumption of reliability, determining that defendant had, as the court found, an opportunity to dispose of the murder weapon, and thus an opportunity to fabricate an exculpatory version of events prior to speaking with the detective.
We are further satisfied that, viewing the evidence as a whole, State v. Johnson, 171 N.J. 192, 215 (2002), it implicated defendant in the crime. Defendant, by his own admission, was seated to the right of the victim, who was shot on the right side of the head. At least one of the shell casings was found in the front compartment of the car, suggesting that the weapon was fired from there. Defendant was the only person, other than the victim, found at the scene of the accident by the police, and none of the evidence revealed through police investigation substantiated defendant's claim that others had been in the cab prior to the shooting. As a consequence, we affirm the court's ruling.
Defendant also argues that the case should be remanded to the Family Part because there is no evidence that the prosecutor filed the required statement of reasons for seeking waiver. Because that statement, stamped filed on March 5, 2009, has been produced, we will not address that argument further and turn to defendant's argument that his sentence was excessive - an argument that we also reject.
At sentencing, the court weighed the applicable aggravating and mitigating factors, finding no factors in mitigation of sentence and aggravating factors 3 (the risk of reoffense) and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3) and (9). The court did not find aggravating factor 6 (defendant's prior record), because he had no other disorderly persons or indictable convictions. N.J.S.A. 2C:44-1a(6). However, the court did "recognize" defendant's extensive juvenile history of delinquency. Determining that the aggravating factors preponderated, the court imposed the negotiated sentence of eighteen years in custody, subject to NERA.
On appeal, defendant argues that evidence of his strong family support should have served to weaken the finding that he was at risk of committing a further offense, and that the court should have taken into account defendant's youth. The court's sentence, thus, was an abuse of its discretion.
We disagree. In light of defendant's juvenile history, it is difficult to conclude that family support had acted as a deterrent on his delinquent conduct in the past, or that it would do so in the future. Further, defendant's youth was undoubtedly taken into account already as the result of the prosecutor's offer to reduce charges against from murder to aggravated manslaughter.
Having considered the record and the parties' arguments, we are satisfied that the sentence imposed upon defendant is not manifestly excessive or unduly punitive and does not constitute an abuse of the sentencing court's discretion. State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Roth, 95 N.J. 334, 356-66 (1984).