On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 10-09-2128.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2012
Before Judges Simonelli,*fn1 Accurso and Lisa.
The opinion of the court was delivered by ACCURSO, J.S.C. (temporarily assigned).
Following a bench trial, defendant John C. Blann was convicted of two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts one and two) and one count of second-degree robbery, N.J.S.A. 2C:15-1 (count three). The trial judge denied the State's motion for an extended term, merged counts two and three into count one, and sentenced defendant to eighteen years, subject to a mandatory eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant raises the following arguments on appeal:
THE TRIAL COURT ERRED IN GRANTING [DEFENDANT'S] REQUEST TO WAIVE HIS RIGHT TO A JURY TRIAL WITHOUT APPLYING THE TEST SET FORTH BY STATE V. DUNNE, 124 N.J. 303 (1991), FOR REVIEWING SUCH A REQUEST, THEREBY RESULTING IN A WAIVER THAT WAS NOT VOLUNTARY OR KNOWING. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 9 & 10). (Not Raised Below)
POINT II: BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT [DEFENDANT] POSSESSED A DEADLY WEAPON OR PURPOSELY LED MITCHELL TO REASONABLY BELIEVE BY HIS GESTURES THAT HE POSSESSED A DEADLY WEAPON, THE TRIAL COURT SHOULD HAVE ACQUITTED [DEFENDANT] OF THE FIRST-DEGREE ROBBERY CHARGES.
THE SENTENCE IMPOSED, AN EIGHTEEN-YEAR STATE PRISON TERM SUBJECT TO NERA, WAS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
Although we find no error in the trial judge's assessment of the proofs or in his imposition of sentence, the absence of a signed jury waiver in accordance with Rule 1:8-1(a), coupled with the judge's failure to question defendant on the record regarding his request to waive a jury and the judge's failure to state his reasons for granting defendant's request, make it impossible for a reviewing court to assess whether defendant's waiver was knowing and voluntary. Accordingly, we are constrained to reverse.
The facts as found by the trial judge can be briefly summarized. Walter Mitchell, a thirty-year resident of Atlantic City, was in his car, a white Mercedes, on his way for coffee at about 7:00 a.m. on August 6, 2010. While stopped at a red light at Kentucky and Pacific Avenues, Blann approached Mitchell's car, demanding money. Although Mitchell had his windows closed, his sunroof was open, and he could clearly hear Blann ranting at him from the sidewalk along the passenger side of his car.
Mitchell initially determined to ignore Blann, and stared out ahead of his car waiting for the light to change. Blann, however, became more agitated, starting off the sidewalk toward Mitchell's car while screaming profanities at Mitchell and still demanding money. When the light did not change, Mitchell finally yelled back at Blann, using equally profane language, that he did not have any money and that Blann should go bother someone else. Blann, who had walked to the front of Mitchell's car and returned to the sidewalk, again started toward Mitchell's car. This time, however, as he did so, Blann put his hand under his shirt as if reaching for something in his waistband, and screamed at Mitchell that he would "blow him away" if Mitchell did not give him money.
Mitchell, afraid that Blann had a gun and intended to use it, accelerated through the red light and fled. Mitchell flagged down a police car a few blocks away and excitedly told the officers that he had just been approached by a man yelling and screaming, and that the man had a gun. The officers directed Mitchell to get into their patrol car and direct them to where the incident had happened. When the officers neared the scene, Mitchell identified Blann and he was arrested. Although the officers searched the area, they found no gun.
Blann, who had several prior convictions, testified in his own behalf. He claimed that he was homeless, had been on the street for two days, and had not slept the night before. He admitted approaching Mitchell for money, but claimed that he was simply panhandling and that Mitchell swore at him first. Blann admitted that he yelled profanities at Mitchell when he refused to give him money, but denied that he had a gun or that he had threatened to blow Mitchell away. Blann claimed that he never made any threatening gestures toward Mitchell, other than "giving him the finger" as he walked away.
Although Blann claims that the State failed to prove that he possessed a gun or purposely led Mitchell to reasonably believe by his gestures that he possessed one, we disagree and find no error in the trial judge's assessment of the evidence. Our review of the factual findings of a trial judge is a deferential one. Our role is limited to a consideration of "whether the findings made could reasonably have been reached on sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). We defer "to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (quoting Johnson, supra, 42 N.J. at 161).
Here, the trial judge noted that Blann and Mitchell were in substantial agreement about the altercation that took place between them. The only significant difference in their testimony was whether Blann threatened to "blow away" Mitchell while reaching a hand under his shirt as if going for a gun at his waist. In his thorough and well-reasoned written opinion, the judge explained the basis for his determination that Mitchell was the more credible of these witnesses on the only two issues that divided them.
Blann confirmed Mitchell's account that he had demanded money from Mitchell in a loud and argumentative manner, replete with shouted profanities and, in Blann's words, "street talk." The judge found Blann's testimony self-serving, contradicting Mitchell only on the two facts most crucial to the State's case, and in his own interests. Further, the judge found Blann's description of his behavior as "aggressive begging," and his repeated admissions of guilt to that offense, in the precise language of the Atlantic City ordinance, suggested that Blann's "recollection may have been colored" by a desire to conform his conduct to that less serious offense.
In contrast, the judge found Mitchell's testimony free of any motive of untruthfulness. Mitchell's command of nuanced details of a quickly progressing and stressful situation, which he relayed consistently from his immediate notification of the police to his testimony at trial, convinced the court that he was a credible witness telling a credible narrative. The judge noted that encountering a person begging for money on a street in Atlantic City would probably not impel an average resident to seek immediate assistance from the police. Being reasonably certain, however, that one was being threatened by a man with a gun would likely impel that same person to run a red light and go immediately to the police for help.
We likewise find no error in the trial court's imposition of sentence. A trial court possesses considerable discretion in sentencing. State v. Dalziel, 182 N.J. 494, 500 (2005). Consequently, our review of a sentence is limited. State v. Miller, 205 N.J. 109, 127 (2011). Our basic responsibility is to assure that the aggravating and mitigating factors the trial judge found are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010).
Applying those standards, we discern no error in defendant's sentence. There is no dispute that defendant was eligible for an extended-term sentence based on his prior criminal convictions. N.J.S.A. 2C:44-3a. The trial judge, however, determined that Blann was a drug addict who commits crimes "in order to feed his drug habit" and "that while he need[ed] to be kept off the streets in order to protect the public for a substantial period of time, based on his present age," it was not necessary "to impose an extended term to achieve the two goals of the sentence, which are protection of the public and to give [defendant] access through the New Jersey State Prison system to all possible drug programs." The judge determined that a sentence on the high end of the ordinary term would suffice to achieve those goals. In addition, the record amply supports the application of aggravating factors three, N.J.S.A. 2C:44-1a(3) (the risk that defendant will commit another offense), six, N.J.S.A. 2C:44-1a(6) (extent of defendant's prior criminal record), and nine, N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others from violating the law), and mitigating factor two, N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). The sentence imposed was within the statutory guidelines, and it does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).
We turn now to the jury waiver. Rule 1:8-1(a), the provision in the Court Rules relating to non-jury trials in criminal cases, requires that a defendant put in writing his request to waive trial by jury and obtain the approval of the court for such waiver. The State concedes that there is no written waiver in this record as required by Rule 1:8-1(a). Over forty years ago in State v. Paolino, 110 N.J. Super. 284 (App. Div.), certif. denied, 57 N.J. 127 (1970), we determined that the absence of the written consent to waiver required by the rule "does not go to the jurisdiction of the court to try the case without a jury," so long as the "trial record indicates a thorough understanding of, and unequivocal assent in open court by the defendant, personally, to his attorney's agreement to waive jury trial." Id. at 285.
The trial judge addressed Blann two times on the record regarding the waiver. The first time was at the pre-trial conference. We quote the portion of the exchange relating to the jury waiver in full.
[Defense Counsel]: Judge, I have discussed with Mr. Blann his right to a jury trial on this matter. Mr. Blann has advised me that he is willing to waive his right to a jury trial in this matter. Judge, I have completed the pretrial memorandum. Mr. Blann has initialed it and the Prosecutor has signed it as well.
THE COURT: All right. And you wish to have a bench trial to the Court?
THE DEFENDANT: Yes, sir. Yes, sir. THE COURT: Yes?
The second time was a month later on the first day of trial. Again, we quote the portion of the exchange relating to the jury waiver in full.
THE COURT: All right. I understand that, [counsel], you discussed this matter with your client and he hereby has waived a jury.
[Defense Counsel]: That's correct, Judge.
THE COURT: All right. Is that correct, sir?
THE COURT: All right. Call the first witness.
The State contends that the quoted colloquies are sufficient to confer jurisdiction on the court to try Blann ...