August 2, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANGELO RICHARDSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-02-0140.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 17, 2012
Before Judges Sabatino and Kennedy.
Following a jury trial, defendant Angelo Richardson was convicted of third-degree burglary, N.J.S.A. 2C:18-2; third-degree theft, N.J.S.A. 2C:20-3; and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a). At sentencing, the trial judge granted the State's motion for imposition of an extended term pursuant to N.J.S.A. 2C:44-3(a) and imposed a sentence of ten years imprisonment, with a five year period of parole ineligibility, on the burglary charge, merged the theft charge, and imposed a sentence of eighteen months imprisonment on the resisting arrest charge, to run consecutively to the sentence on the burglary charge. Defendant appeals from the judgment of conviction and the sentence.
We discern the following facts from the trial record.
On November 4, 2009, at approximately 1:25 p.m., Hillside police officers were dispatched to a residence on Williamson Avenue because a burglar alarm at the residence had been activated. Hillside Police Lieutenant Michael Katsoudas responded to the dispatch and arrived at the residence in less than a minute. He was in full uniform at the time. He observed a male carrying a plastic bag walking away from the residence toward the backyard.
At this point, Hillside Police Detective Michael Ricci arrived and Katsoudas indicated to him that someone was in the backyard. Katsoudas and Ricci entered the backyard from opposite sides of the residence and saw the male going through the contents of the bag. The officers identified themselves as police and the male immediately fled through the backyard toward another street behind the residence. The male, later identified as defendant, fled with the bag and jewelry fell from the bag as he ran.
Hillside Police Officer Francisco Vega had also responded to the dispatch and positioned his police vehicle on the street behind the residence. He saw defendant running in "full sprint" toward the street with a bag and blocked his passage. Katsoudas then tackled defendant and placed him under arrest. The officers recovered the bag and thereafter collected the trail of jewelry that had fallen from the bag as defendant fled.
Upon returning to the residence where the alarm had been activated, police saw that a window in the back door was broken and that the interior of the house had been "rummaged." The resident of the house thereafter returned and entered the house with police. She indicated that the back door window had not been broken when she left for work that morning and that the house had been locked. She observed overturned furniture inside the house and her bedroom had been "rummaged through." She told police she had not given anyone permission to be in the house that day.
The victim identified jewelry and other items recovered by police from the bag and yards as belonging to her and her husband and estimated the value of the items to be in excess of $500. Later that day, she discovered a glove in her bedroom and called the police. They retrieved the glove, which matched a single glove defendant had when he was arrested.
At trial, the resident was shown other items found with defendant at the time of his arrest - i.e., a lottery ticket, keys, dice, a digital watch, a cell phone, and a pair of sunglasses - and she stated that those items did not belong to her or her husband. Also, the officers stated at trial that they had never seen defendant actually in the residence on November 4, 2009. No DNA evidence or fingerprints was offered at trial.
Defendant raises the following arguments on appeal:
THE TRIAL COURT'S FAILURE TO EXCUSE A JUROR WHO EXPRESSED A HARDSHIP IMMEDIATELY AFTER OPENING STATEMENTS DEPRIVED MR. RICHARDSON OF A FAIR TRIAL (NOT RAISED BELOW)
THE TRIAL COURT ERRED IN ADMITTING TESTIMONY INTO EVIDENCE REGARDING OTHER UNCHARGED CRIMES, WRONGS OR ACTS THAT WERE PURPORTEDLY COMMITTED BY MR. RICHARDSON (NOT RAISED BELOW)
THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY THAT HE RESPONDED TO 141 WILLIAMSON AVENUE BECAUSE THE POLICE HAD RECEIVED INFORMATION FROM A NON-TESTIFYING WITNESS THAT A BURGLARY HAD OCCURRED IN THE AREA (NOT RAISED BELOW)
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW) POINT VI
THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. RICHARDSON (NOT RAISED BELOW)
Having considered these arguments in light of the applicable legal principles, we affirm defendant's conviction, but we remand for resentencing. We conclude that Points I through V are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Defendant contends that the trial court erred in not excusing a juror who, after the jury was sworn and opening statements were completed, asked to speak to the judge and stated at sidebar: "I feel very honored to be picked on this jury. But as you know I'm a father of two kids. Your Honor, I'm self employed." When asked why he had not mentioned the issue during voir dire, the juror replied "I told the guy upstairs." The judge decided not to excuse the juror and the trial proceeded to completion and verdict the next day.
"Trial courts possess considerable discretion in determining the qualifications of prospective jurors," and removal of a juror for cause or hardship "will not be reversed unless the court has abused its discretion." State v. DiFrisco, 137 N.J. 434, 459 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); see also State v. Mance, 300 N.J. Super. 37, 54 (App. Div. 1997)("A trial court exercises its discretion when it voir dires a jury, and the exercise of that discretion is subject to reversal only if defendant meets the burden of showing prejudice."). Defendant shows no prejudice and the judge did not mistakenly exercise her discretion in refusing to excuse the juror who expressed time concerns, particularly given the short duration of the trial.
Next, defendant asserts the trial court erred in allowing testimony that defendant at the time of his arrest possessed items not belonging to the resident whose premises was the subject of the burglary. This testimony, claims defendant, "allowed the jury to infer that [defendant] had committed additional uncharged criminal acts of theft." The items in question are the lottery ticket, the keys, the dice, the sunglasses, the digital watch and a cell phone we adverted to earlier.
We reject this argument. The State never claimed or suggested in any manner that these items had been stolen from someone else. Indeed, the items in question were never even mentioned in the State's summation. Rather, the testimony, which was received without objection, merely indicated that not everything found with defendant belonged to the burglary victim. While the relevance of that testimony may have been marginal, it certainly did not support the implication defendant now urges for the first time on appeal.
Citing State v. Bankston, 63 N.J. 263 (1973), defendant next argues that he was convicted on the basis of hearsay testimony in violation of the Confrontation Clause of the federal and state constitutions and the New Jersey Rules of Evidence. He contends that when the officers testified they responded to a "burglar alarm," the State, in effect, elicited "information from a non-testifying declarant." We disagree.
Under Bankston, "the Confrontation Clause and the hearsay rule are violated when, at trial, a police officer conveys, directly or by inference, information from a non-testifying declarant to incriminate the defendant in the crime charged."
State v. Branch, 182 N.J. 338, 350 (2005) (citing Bankston, supra, 63 N.J. at 268-69); see U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10; N.J.R.E. 801, 802. The Bankston rule is triggered "[w]hen the logical implication to be drawn from [police] testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt." Bankston, supra, 63 N.J. at 271; see State v. Frisby, 174 N.J. 583, 592-93 (2002); State v. Irving, 114 N.J. 427, 445-46 (1989).
A police witness can testify, however, that he took action "based on information received" as long as the testimony does not lead to an inference that the out-of-court information was specifically about defendant. See State v. Vandeweaghe, 177 N.J. 229, 240-41 (2003); Bankston, supra, 63 N.J. at 268; see also State v. Luna, 193 N.J. 202, 217 (2007) ("testimony should be limited in a manner that allows the witnesses to provide appropriate context but not secondhand details about the crime or the defendants").
A police officer may, without violating the hearsay rule or the defendant's right of confrontation, explain the reasons he apprehended a suspect or went to the scene of the crime by stating that this was done based "upon information received." Bankston, supra, 63 N.J. at 268. However, when the witness becomes more specific by repeating what some other person told him concerning a crime by the accused, that testimony constitutes inadmissible hearsay and a violation of the accused's right of confrontation. Id. at 268-69. "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." Id. at 271. Thus, a police officer may not imply to the jury that he possesses superior knowledge, outside the record, that incriminates the defendant. Branch, supra, 182 N.J. at 351.
It is clear that the testimony about responding to an active "burglar alarm" was advanced merely to explain the police presence at the scene and implied nothing about defendant. Moreover, the mechanical operation of an alarm is not a person's assertion that constitutes hearsay. See N.J.R.E. 801. Consequently, such testimony did not contravene defendant's constitutional right of confrontation.
We find it unnecessary to address defendant's argument that the verdict is against the weight of the evidence. Not only did defendant not move for a new trial on that basis, R. 2:10-1, State v. McNair, 60 N.J. 8 (1972), but also our review of the record does not support the claim. Defendant was caught in possession of jewelry and valuables from a private residence that had been broken into and ransacked shortly before he was apprehended. When confronted by uniformed police, who announced their presence, defendant fled and had to be apprehended through a foot chase. The fact that the State marshaled no DNA or fingerprint evidence in such circumstances is of no moment.
Lastly, defendant argues - and the State agrees - that the trial judge erred in finding as an aggravating factor that defendant committed an offense against a law enforcement officer, N.J.S.A. 2C:44-1a(8), because police involvement is an essential element of one of the underlying offenses - resisting arrest by flight. We agree. In a case involving eluding, we have previously held that N.J.S.A. 2C:44-1a(8) cannot constitute an aggravating factor. State v. Nataluk, 316 N.J. Super. 336, 350 (1998). We reached that conclusion in light of the well-settled principle that a circumstance that is an element of an underlying crime "cannot be considered as an aggravating factor for sentencing purposes." State v. Pineda, 119 N.J. 621, 627 (1990).
Here, although the trial judge appears to have given less weight to N.J.S.A. 2C:44-1a(8) than to the other aggravating factors identified, because the judge considered that factor, we cannot be certain that she would not have imposed a lesser sentence had she followed Nataluk. Accordingly, we remand so that the judge may reassess the entire sentence in light of applicable aggravating and mitigating factors without relying on N.J.S.A. 2C:44-1a(8).
Remanded for resentencing in conformity with this opinion; affirmed in all other respects. We do not retain jurisdiction.
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