August 12, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
JAQUAN JULIUS LEE, a/k/a JACQUAN LEE, a/k/a JAQUEAN J. LEE, a/k/a JAKWAN J. LEE, a/k/a JAKWAN LARRY LEE, a/k/a JAKWAM L. LEE, Defendants-Appellants. STATE OF NEW JERSEY, Plaintiff-Respondent,
TONY LEE CANTY, a/k/a TONY L. CANTYREDDICK, a/k/a TONY REDDING, a/k/a TONY RIDDICK, a/k/a JASON JAMES, a/k/a TONY R. CANTY, a/k/a TONY L. REDDICK, Defendants-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2012
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 07-12-1019, 07-12-1018, 07-12-1017.
Joseph E. Krakora, Public Defender, attorney for appellant Jaquan Julius Lee (A-2842-10) (Karen E. Truncale, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent State of New Jersey (A-2842-10) (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Tony Lee Canty (A-3813-10) (Michele Adubato, Designated Counsel, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent State of New Jersey (A-3813-10) (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Before Judges Messano, Ostrer and Kennedy.
Defendants Jaquan Julius Lee and Tony Lee Canty appeal from their convictions, after a 2010 jury trial, of eight counts of first-degree armed robbery, N.J.S.A. 2C:15-1; two counts of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a(1); two counts of third-degree unlawful possession of a shotgun without a firearms purchaser identification card, N.J.S.A. 2C:39-5c(1) and N.J.S.A. 2C:58-3; two counts of third-degree unlawful possession of a loaded shotgun, N.J.S.A. 2C:39-5c(2); and two counts of third-degree unlawful possession of a sawed-off shotgun, N.J.S.A. 2C:39-3b.They were also convicted of being certain persons not to possess firearms, N.J.S.A. 2C:39-7, a second-degree offense. The convictions arose out of three robberies in the early morning hours of July 30, 2007 in Elizabeth, each robbery involving multiple victims.
The court sentenced defendants to fifteen-year terms for each robbery count. The sentences were concurrent as they related to multiple victims in the same incident, but consecutive as they related to each of the three incidents. Consequently, defendants were sentenced to aggregate terms of forty-five years. Pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, they were required to serve eighty-five percent of their sentence before parole eligibility. Concurrent terms were imposed for the remaining counts that were not merged into the robbery counts.
Defendants both argue the court should have excluded in-court identifications, and their sentences were excessive. Canty separately challenges the court's denial of a motion to suppress a search of a vehicle in which weapons and robbery proceeds were found; the admission of alleged other crimes evidence; and allegedly prejudicial comments by the assistant prosecutor. Lee separately challenges the adequacy of the jury charge.
We affirm defendants' convictions. However, we agree that the court did not adequately explain its reasoning for imposing three consecutive terms. We therefore remand for resentencing.
We begin with an overview of the facts. The first of the three robberies occurred shortly after midnight, July 30, 2007. The victims were two boys, sixteen-year-old Nikolai Alfred and fourteen-year-old German Larrahando. They were walking in Elizabeth when a white sedan stopped in the street and a passenger leaned out of the door. The car drove away and within minutes, three African-American men armed with at least one shotgun approached the boys and robbed them of their cell phones, an ipod, and some cash.
The second robbery occurred minutes later. Three friends, Jennifer Silva-Ferreira, Clive Marion and Wilmar Patino, were out to celebrate Silva-Ferreira's twentieth birthday. They were outside a liquor store. Three men approached them. The victims were threatened with shotguns. The men took a purse, car keys, a wallet and a passport.
The third robbery occurred shortly thereafter. Several teenagers had congregated outside on the sidewalk. They saw a white sedan drive around the block three or four times, then stop. The teens noticed an African-American female driver. Two or three African-American men emerged with shotguns. Phones, wallets, cash, and IDs were taken from Alexander Vigier, Quasim Allen, and Hollis Dryer. Also present were three women, Mara Davis, Ebony Jones, and Vigier's sister, Angelina.
Witnesses from each incident described the robbers. Among the robbers was a short, stocky man with dreadlocks who wore a tied blue bandanna to mask his mouth and nose, and a hoodie. During the third robbery, the man, who wielded a shotgun, pulled his bandanna down to kiss Jones on the cheek. The other two men were taller and slimmer. They were described as wearing t-shirts. One wore a blue Detroit Lions hat.
After the third robbery, Jones called the police and reported the license plate of the robbers' vehicle. Within minutes of each robbery, police had broadcast descriptions of the participants and their vehicle. Two Elizabeth police officers on patrol, Guillermo Valladares and Jose Torres, observed a white Toyota bearing the reported license plate number at the corner of Third and Bond Streets. There were three African-American men and an African-American woman standing in a group next to the car. The officers exited their car and ordered them to stop. One officer arrested Canty, and another arrested Lee as he was "high stepping it." The third man and the woman fled.
When he was arrested, Lee, five-foot-eight, was wearing a Detroit Lions hat and a white v-neck t-shirt. Canty, five-foot-two, was wearing a knotted blue bandanna, with the knot in the back of his neck, and the cloth in the front, where it could be pulled up to cover his face.
A search of the vehicle and defendants resulted in the seizure of two sawed-off shotguns and proceeds from the robberies, including Dryer's wallet. Three red bags of green vegetation were found in the car, which matched a red bag of vegetation found in Canty's pocket upon arrest. Also found in the car was a pocketbook containing the social security card of Sade Ingram, and a necklace engraved with her and Lee's names. A Detroit Lions jacket was also seized.
Ingram was the woman who drove the white Toyota during the robberies. She testified against Canty and Lee. Also testifying for the State was Tamara Vilsaint, who owned the Toyota and testified that she lent it to Lee. Both women were romantically involved with Lee at one point. After Lee was incarcerated, he wrote letters to Vilsaint and Ingram that, the State argued, demonstrated consciousness of guilt.
Each of the women had initially given statements to police denying involvement in the robberies. Vilsaint initially said her car was stolen and denied that she knew Lee. When Ingram retrieved her bag from Vilsaint's impounded car, she told police she left it there after a shopping trip with Vilsaint. Both were ultimately charged with offenses related to the incidents or their false statements. However, both were admitted to pre-trial intervention (PTI) conditioned on guilty pleas to relatively minor charges.
Neither defendant testified. They generally challenged the reliability of eye-witness identifications, and the credibility of Lee's two female friends, Ingram and Vilsaint. Lee questioned whether the three robberies were committed by the same persons, because they occurred so closely in time, according to victims' reports. Canty emphasized the absence of a prior connection between himself and Ingram and Vilsaint.
Both defendants challenge the robbery victims' in-court identifications. Canty argues in Point II:
THE IN COURT IDENTIFICAITON TESTIMONY PRESENTED AT TRIAL SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
Lee argues in his Point I:
IMPERMISSIBLY SUGGESTIVE SHOW-UPS TAINTED THE IN-COURT IDENTIFICATIONS OF WITNESSES, HENCE, THE IN-COURT IDENTIFICATIONS SHOULD HAVE BEEN EXCLUDED AS UNRELIABLE.
Both defendants also challenge their sentences as excessive. Lee argues in Point V:
THE DEFENDANT'S SENTENCE OF 45 YEARS, 85% TO BE SERVED BEFORE PAROLE UNDER NERA, WAS MANIFESTLY EXCESSIVE.
Canty argues in his Point V:
THE AGGREGATE SENTENCE IMPOSED UPON MR. CANTY OF 45 YEARS WITH 38 YEARS, 3 MONTHS AND ONE DAY OF PAROLE INEGLIBILITY WAS EXCESSIVE AND MUST BE MODIFIED AND REDUCED. (Not raise[d] below)
Lee separately raises the following additional points:
THE COURT FAILED TO CAUTION THE JURY THAT SADE INGRAM'S ADMISSION OF GUILT COULD NOT BE USED AS EVIDENCE OF THE DEFENDANT'S GUILT TO THOSE SAME CHARGES. (Not Raised Below).
IT WAS IMPROPER FOR THE COURT TO REFER TO SADE INGRAM'S TESTIMONY AS AN IDENTIFICATION BECAUSE SHE WAS AN ACCOMPLICE WHO KNEW THE DEFENDANT. (Not Raised Below).
THE ACCOMPLICE-LIABILITY CHARGE WAS NOT TAILORED TO THE FACTS OF THE CASE, AND FAILED TO EXPLAIN HOW THE ACCOMPLICE THEORY APPLIED TO THE LESSER-INCLUDED OFFENSES. (Not Raised Below).
Canty separately raises the following additional points:
THE WARRANTLESS SEIZURE OF THE SHOTGUNS FOUND IN THE WHITE TOYOTA VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL SEARCHES AND SEIZURES GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTIONS.
THE ADMISSION OF THE MARIJUANA FOUND IN THE VEHICLE AND THE LETTERS WRITTEN BY CO-DEFENDANT TO THE COOPERATING WITNESSES WAS OTHER CRIME EVIDENCE THAT SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE.
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO PERMIT AN ASSISTANT PROSECUTOR WITNESS TO PROVIDE OPINION TESTIMONY REGARDING WHETHER THE COOPERATING WITNESSES WERE GRANTED FAVORABLE TREATMENT BY THE STATE IN EXCHANGE FOR THEIR TESTIMONY. (Not raised below).
We turn first to defendants' challenge to the in-court identifications, which they claim were tainted by out-of-court show-up identifications that the court suppressed as impermissibly suggestive and unreliable.
Before trial, the court suppressed all the show-up identifications obtained by the police. Identifications were made by all the victims of the first two robberies — Alfred and Larrahando from the first, and Silva-Ferreira, Patino and Marion from the second — and Jones and Dryer from the third. However, as we discuss below, only three of those victims, Alfred, Patino and Marion, made in-court identifications.
The defendants were staged outside the white Toyota. Lee was dressed in a white t-shirt and baseball cap. Canty was wearing a black hoodie and blue bandanna around his neck. The trial court found the show-up was impermissibly suggestive. The court gave great weight to its finding — an erroneous one — that the police put the cap and bandanna on Lee and Canty before the identification. The judge stated, "The placement of the headgear . . . was very suggestive." The juxtaposition of defendants next to the Toyota and to each other added to the suggestiveness. Regarding reliability, the court emphasized the fact that the victims themselves did not testify at the pre-trial hearing, to personally address the reliability factors. Although deeming it a "close call, " the court suppressed the identifications.
In the midst of the trial, before Alfred, Patino and Marion each testified, the judge held a brief hearing pursuant to N.J.R.E. 104 outside the presence of the jury. Unlike at the pre-trial hearing, each victim testified regarding his ability to make observations during the robbery.
Alfred testified that he recognized both Lee and Canty in court because they both had familiar faces. He was eighty percent certain they robbed him. He testified the area was well lit, he saw them clearly as they approached, they ultimately stood two feet from him, and he observed them for five to six minutes. He said he recalled the shorter man held a shotgun and one of the men wore a blue bandanna around his face. He conceded that what he remembered most clearly was the robbers' apparel and their general physical description. He conceded that he could be mistaken in his identification.
The trial judge noted that the prior judge's determination was a "close call, " and was based in part on the mistaken finding that the police dressed defendants in the hat and bandanna. "[I]t certainly has to be taken into consideration by me in terms of just how suggestive this . . . show-up really was." The court also questioned how significant the show-up was in affecting the in-court identification, inasmuch as it occurred immediately after the crimes, and was much briefer than the observation during the robberies. The court contrasted the impact of the show-ups with an improper photo identification performed long after the crime, finding the latter more likely to taint an in-court identification. In view of the lighting, the court found that Alfred had sufficient opportunity to reliably observe defendants. Alfred's lack of certainty went to weight, not admissibility.
Patino testified in the 104 hearing that he was eighty percent certain that Canty participated in the robbery. He did not identify Lee. Patino testified that the street lights adequately illuminated the area. He said he was approached by a short and stocky African-American man with dreads, carrying a shotgun, and wearing a dark hoodie, jeans, a blue bandanna around his mouth and nose. He explained that during the robbery, "I was staring at his eyes . . . just so I could get a really good look at . . . his eyes[.] . . . And when I saw him just now it came back to me clearly that that was the eyes I saw under the mask." He testified his identification in court was also based on Canty's build.
He recalled there were two other men, one of whom wore a Detroit Lions hat and was thin. He testified he was focused on the man holding the shotgun, but was able to see the other men as well without distraction.
The court held that Patino's identification of Canty was not based on the show-up, but was based on his own recollection. The court reasoned that Patino had sufficient time and focus in order to make an identification.
Before the jury, Patino identified Canty with eighty-percent confidence, referring to his cheekbones and build. On cross-examination, Lee's attorney asked, "Now you don't recognize Jaquan Lee at all, correct?" Patino then responded, "Actually, as you show him to me right now, I know I saw him earlier, but from his side profile I did recognize him a bit." He then added, "See, I'm really good with faces. I'm really good." Defense counsel then asked Patino to confirm that, outside the jury's presence, he did not recognize Lee. Patino explained, "At first, yes, but my eyes were more glued to who I immediately recognized, " apparently referring to Canty. Patino explained that he had only a brief time to observe Lee during the 104 hearing, but after observing Lee at length, Patino was able to identify him.
Marion testified that he recognized Canty in court based on his height and build. When Marion saw Canty during the robbery, he was focused, he was wearing his glasses, and Canty stood directly in front of him for five to ten minutes. He testified that his identification was based on his recollection of the robbery and not the show-up.
The judge held his identification was "sufficiently reliable and not reliant upon the show up" in view of "his ability to observe the people who were robbing him, particularly Mr. Canty."
Before the jury, Marion testified he recognized Canty based on his height, build, and eye area. He conceded that he previously identified his robber as about five-nine or five-ten, but he said "everyone does look bigger when there's a weapon pointed in your face." He said he was ninety percent sure Canty was the individual who robbed him.
The other show-up participants were asked, outside the jury's presence, whether they could identify defendants. Once they stated they could not, the court did not proceed further. In a 104 hearing, Jones did not identify defendants, stating she did not see faces, but their height and build matched the robbers'. With the jury present, upon seeing Canty stand in court, she testified his height was consistent with one of the robbers, but he appeared stockier than the robber three years ago. She conceded she did not see the robbers' faces. She agreed that she could not say that Lee was one of the robbers. Dryer testified he could not recognize either defendant by "face, by appearance, by height, [or] weight[.]" He testified only that their "body and height" were consistent with the individuals who robbed him.
In evaluating defendants' challenge to the in-court identifications, we begin with a review of the principles that, at the time of trial, governed the admissibility of identifications. In determining the admissibility of identification testimony, "[r]eliability is the linchpin[.]" Manson v. Brathwaite, 432 U.S. 98, 114, 97 S.Ct. 2243, 2253, 53 L.Ed.2d 140, 154 (1977). To determine whether to exclude an identification, a court must "first . . . ascertain whether the identification procedure was impermissibly suggestive, and, if so, whether the impermissibly suggestive procedure was nevertheless reliable." State v. Herrera, 187 N.J. 493, 503-04 (2006). In considering the second step, the court must consider whether the procedure "resulted in a very substantial likelihood of irreparable misidentification." State v. Madison, 109 N.J. 223, 232 (1988) (citation and quotation omitted).
The test requires a court to consider the "totality of the circumstances" and weigh against the suggestive procedure five factors: "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Herrera, supra, 187 N.J. at 506-07 (quoting Manson, 432 U.S. at 114, 97 S.Ct. at 2253, 53 L.Ed.2d at 154).
An in-court identification may be admissible even if the witness was subjected to an out-of-court identification procedure excluded as impermissibly suggestive. Madison, supra, 109 N.J. at 242. If pretrial out-of-court identification procedures have been deemed impermissibly suggestive, the State must prove by clear and convincing evidence that a subsequent in-court identification has a "source independent of the police-conducted identification procedures." Id. at 245; see also State v. Miller, 159 N.J.Super. 552, 560-61 (App. Div.) ("[E]ven if a procedure is unduly suggestive, in-court identification can be allowed if there is sufficient evidence demonstrating an opportunity for independent recollection." (citation omitted)), certif. denied, 78 N.J. 329 (1978).
The general rule is that the court must exclude the in-court identification "[i]f . . . the out-of-court procedures were so impermissibly suggestive as to fix in the victim's mind an identity probably based upon photographs rather than upon an independent mental picture of the person gained from observations of him at the time of commission of the crime[.]" Madison, supra, 109 N.J. at 242-43 (citation and quotation omitted). Courts are to judge the independent reliability of the in-court identification by applying the five Manson factors. Id. at 243. Also, in considering the factors pertinent to the reliability analysis, the court must weigh the suggestiveness of the prior identification. State v. Adams, 194 N.J. 186, 203 (2008).
"[T]he trial court's findings at the hearing on the admissibility of identification evidence are entitled to very considerable weight." Ibid. (citation and quotation omitted). Thus, the trial court's findings regarding the reliability of an identification "should not be disturbed if there is sufficient credible evidence in the record to support the findings." Ibid. (citation omitted). Furthermore, error or omission by the trial court will be disregarded by an appellate court unless it was "clearly capable of producing an unjust result[.]" R. 2:10-2. Stated in terms of its effect in a jury trial, the magnitude of the error must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Applying these standards, we recognize the trial judge did not fully articulate and apply each of the Manson factors in determining that the in-court identifications by Alfred, Patino and Marion were based on their independent recollections of the crime, and not the impermissibly suggestive show-up. Nonetheless, we discern sufficient credible evidence in the record to support the judge's findings. Each witness had an adequate opportunity to view the identified defendant. The lighting conditions were adequate, and defendants stood close to the witnesses over the course of several minutes. Each victim testified that he was focused on the robbers. Their pre-show-up descriptions were generally accurate, notwithstanding discrepancies regarding defendants' precise height and details about their clothing. Their level of certainty was, concededly, qualified, and their in-court identifications occurred almost three years after the robbery. On the other hand, their in-court identifications were consistent with descriptions conveyed to police before defendants' arrest.
Moreover, the trial judge properly took into account that the pre-trial judge's finding of impermissible suggestiveness was a "close call" that relied, in significant part, on the erroneous conclusion that the police dressed defendants in incriminating headwear. We need not disturb the pre-trial order excluding the out-of-court identifications in order to conclude that the suggestiveness of the show-ups was not so substantial that, under the totality of circumstances, it tainted the witnesses' in-court identifications.
In particular, we find no merit to Lee's challenge to the identifications by Patino. The State did not seek to elicit Patino's identification of Lee. Instead, Lee's counsel invited the identification on cross-examination. Also lacking merit is his challenge to Jones's and Dryer's testimony, which did not include an identification at all. Instead, it included only a description of the robbers' physical characteristics, which matched those of defendants.
Defendants were arrested near the robbery vehicle. The car contained stolen items from the robberies, and weapons used in the robberies. It also contained personal property linking Ingram, Canty and Lee to the vehicle. Ingram's pocketbook and jewelry were found. The Detroit Lions jacket matched Lee's cap. Red plastic bags of green vegetation were found matching the bag found in Canty's pocket. Lee wrote letters to Ingram and Vilsaint reflecting consciousness of guilt. Thus, even if one assumes the identification testimony was improperly admitted, it would not have "led the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.
The defendants also challenge their sentences. On this point, we agree that the trial court did not make sufficient findings to support the imposition of three consecutive fifteen-year terms.
The judge found aggravating factors three, the risk of defendants committing future crimes; six, the extent of the defendants' prior record; and nine, the need to deter the defendants and others from committing future crimes. N.J.S.A. 2C:44-1a(3), (6), and (9). Each defendant had a significant record of juvenile adjudications and adult convictions. Although the court received letters of support from defendants' family members, the judge found no mitigating factors. In sentencing Canty, the court noted that there were multiple victims for each event. But, the court did not expressly address its reasons for imposing consecutive sentences for either defendant.
The court imposed fifteen-year terms for each of the eight first-degree robbery counts. The two counts pertaining to the first robbery were to run concurrent with each other; the three counts related to the second robbery were to run concurrent with each other; and the three counts pertinent to the third robbery were to run concurrent with each other; but, the concurrent terms for each incident were to run consecutive to the terms for the other incidents. The court imposed four-year terms on each of the weapons-related counts, to run concurrently with each other and with the robbery sentences, except that the counts involving possession of a weapon for an unlawful purpose were merged with robbery counts.
The court also denied Canty's subsequent motion for resentencing. The court reiterated that multiple victims were involved, and stated, "the intent was to keep [Canty] off the streets as long as possible, that's the main intent of a sentence to protect the public." The judge stated that Canty was "a dangerous man, " given the instant offenses and his prior record, which involved weapons-related offenses and crimes of violence. The court stated that forty-five years was an appropriate aggregate sentence, but sixty years would not have been inappropriate. The judge stated, "[T]here had to be at least three consecutive [sentences] because of the numbers of victims."
We review the sentence according to well-settled principles. Generally, our scope of review of the trial court's sentencing decision is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). Our focus is on the imposition of consecutive sentences. In determining whether to impose consecutive or concurrent sentences, a court may consider whether
(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; [and whether]
(e) the convictions for which the sentences are to be composed are numerous[.]
[State v. Yarbough, 100 N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed.2d 308 (1986).]
The court is also guided by the limiting principle that "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]" Id. at 644. Also, a court may not double-count aggravating factors. Ibid.
On the other hand, "there can be no free crimes in a system for which the punishment shall fit the crime[.]" Id. at 643. In addition, we have held that "[s]ometimes circumstances will indicate that defendant is the type of repetitive offender not likely to be rehabilitated and, therefore, should be incarcerated under consecutive sentences for the protection of the public." State v. Mosch, 214 N.J.Super. 457, 464 (App. Div. 1986) (citation omitted), certif. denied, 107 N.J. 131 (1987).
These standards should be used when "an offender . . . has engaged in a pattern of behavior constituting a series of separate offenses or committed multiple offenses in separate, unrelated episodes." Yarbough, supra, 100 N.J. at 644. "[W]hen it is foreseeable that multiple victims are likely to be injured by the defendant's conduct, ordinarily two consecutive sentences should be imposed under the sentencing guidelines set forth in State v. Yarbough, 100 N.J. 627 (1985)[.]" State v. Molina, 168 N.J. 436, 438 (2001).
A sentencing court must separately state "the reasons for imposing either a consecutive or concurrent sentence[.]" Yarbough, supra, 100 N.J. at 643. The separate statement is essential for appellate review. State v. Miller, 108 N.J. 112, 122 (1987). "When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal." State v. Miller, 205 N.J. 109, 129 (2011) (citation omitted). However, a remand for resentencing is required when the court fails to set forth a separate statement of reasons for imposing consecutive sentences. Ibid.; State v. Abdullah, 184 N.J. 497, 514-15 (2005); Miller, supra, 108 N.J. at 122. But see State v. Jang, 359 N.J.Super. 85, 97 (App. Div.) ("[W]e have where appropriate affirmed a consecutive sentence where the facts and circumstances leave little doubt as to the propriety of the sentence imposed." (citation omitted)), certif. denied, 177 N.J. 492 (2003).
Applying these principles, we discern no error in the court's findings regarding aggravating and mitigating factors. The court's findings were based on competent, credible evidence in the record.
However, with respect to its imposition of three fifteen-year terms for each incident, the court failed to provide a sufficient statement of reasons. We discern no error in the court's consideration of the public's protection. See Mosch, supra, 214 N.J.Super. at 464; see also State v. Pierce, 188 N.J. 155, 170 (2006) ("The court may consider the protection of the public when assessing the appropriate length of a defendant's base term as part of the court's finding and weighing of aggravating factors and mitigating factors." (footnote omitted)); N.J.S.A. 2C:1-2b(3) (stating that a general purpose of the Code's sentencing provision is to "insure the public safety by . . . confinement [of offenders] when required in the interest of public protection"). On the other hand, the court did not mention that factor in its sentence of Lee.
Also, the judge addressed only one of the Yarbough factors, that multiple victims were involved. The court stated, without explanation, "there had to be at least three consecutive [sentences] because of the numbers of victims." The court did not explain why the aggregate term for the second and third robbery incidents were equal to the terms for the first, particularly in light of the Yarbough dictate that "successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]" Supra, 100 N.J. at 644. The Court has required a trial judge to explain on remand why a shorter second sentence is not warranted for the same offense if consecutive sentences are imposed. State v. Pennington, 154 N.J. 344, 362 (1998).
We recognize that in this case, some of the Yarbough factors may favor consecutive sentences. Defendant's crimes involved "separate acts of . . . threats of violence;" multiple victims; and numerous sentences. 100 N.J. at 644. On the other hand, although the crimes were committed at three different places and three different times, a court may reasonably have concluded they were "committed so closely in time and place as to indicate a single period of aberrant behavior[.]" Ibid.
We remand for resentencing, so the court may expressly consider the facts in light of the Yarbough factors, and state its reasons for any consecutive sentences it deems are warranted. We emphasize that we do not intend to predetermine the appropriate sentence. Our role is not to substitute our judgment for that of the trial court.
We turn to address Canty's separate challenges to his conviction.
We first dispense with Canty's argument the court erred in denying his motion to suppress the fruits of the warrantless search of the robbery vehicle. The State established that after arresting Lee and Canty, Officer Valladares looked in the windows of the suspected robbery vehicle with his flashlight. He was able to see a pile of items and two sawed-off shotguns lying on the back seat in plain view. It was a particularly "hot corner" known for violent crimes and drug offenses. Present were Officers Valladares and Torres, and a sergeant who had arrived on scene. Two other officers stopped at the scene briefly and then departed in search of the two suspects who fled.
The officers called for a tow truck and asked that the driver bring a tool to open the car. The tow truck operator arrived within minutes and opened the car for the officers to retrieve the shotguns. Each shotgun was loaded with a single shell. The stack of objects was determined to be the proceeds of the robberies. When the tow truck operator was disconnecting the Toyota after it was towed, he noticed red bags which stood out against the grey interior. He alerted an officer who recovered reddish pink bags containing suspected marijuana.
In a thorough oral opinion, the pre-trial judge found that both probable cause and exigent circumstances justified the warrantless search. The court found the shotguns were in plain view, citing, among other authority, State v. Johnson, 171 N.J. 192, 206-07 (2002), and State v. Bruzzese, 94 N.J. 210, 236-37 (1983). The judge found exigent circumstances were present because of the immediate need to remove the weapons; the high-crime nature of the area; the presence of other citizens nearby; the fact that two participants were still at large; the need to protect the evidence from destruction or interference; the presence of only three officers to both guard the vehicle and the two arrestees; the absence of backup; and the substantial danger to the officers and public.
We defer to the trial's court's factual findings, which were amply supported by the credible evidence. See State v. Elders, 192 N.J. 224, 243 (2007). We also discern no error in the court's legal conclusions. The shotguns were in plain view. The officers were lawfully in the viewing area; they had probable cause to associate the shotguns with criminal activity; and they had no advance knowledge of the shotguns' specific location. See State v. Mann, 203 N.J. 328, 341 (2010) (approving search of vehicle to seize suspected drugs observed in plain view); Johnson, supra, 171 N.J. at 206-07 (stating a police officer may seize evidence in plain view without a warrant if the officer is "lawfully . . . in the viewing area, " he discovered the evidence inadvertently, and it is immediately apparent the object viewed is "evidence of a crime, contraband, or otherwise subject to seizure").
Also, the judge's finding of exigent circumstances comports with the standard set forth by the Court. The discovery of the vehicle was unplanned, and the officers had "articulable reasons to believe that the evidence would be at risk if a search was delayed." State v. Pena-Flores, 198 N.J. 6, 23-24 (2009) (citation and quotation omitted). "[P]olice safety and the preservation of evidence . . . are . . . preeminent determinants of exigency for purposes of applying the automobile exception." Id. at 28 (citations and quotations omitted). Other considerations include:
the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing the probable cause; the ratio of officers to suspects; the existence of confederates who know the location of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.
[Id. at 29.]
In this case, nearly all these circumstances weigh in favor of a finding of exigent circumstances. Most compelling is the fact that two unknown confederates who may have been armed remained at large and could have returned to the car to remove the weapons and any other evidence. It was impracticable and dangerous to have officers guard the vehicle on the "hot corner" while a warrant was sought, and it was also risky to have the tow truck driver transport the vehicle, with the contraband inside the car. See State v. Cooke, 163 N.J. 657, 675 (2000). "[T]he degree of exigency is heightened when the police are involved in an ongoing investigation of events occurring close in time to the search." Id. at 673. In sum, we discern no error in the court's denial of the motion to suppress the fruits of the automobile search.
We also find no merit in Canty's argument that the court erred in allowing testimony that he possessed a red bag of green vegetation — which Officer Valladares said he suspected was marijuana — similar to bags found in the vehicle. Canty argues the evidence should have been excluded as unduly prejudicial under N.J.R.E. 403, and as other crimes evidence under N.J.R.E. 404(b). We disagree.
The trial judge initially ruled that evidence of the green vegetation would be admissible for the limited purpose of tying Canty to the vehicle. The court stated it would instruct the jury not to consider whether the material was marijuana, defendant was not charged with possession of marijuana, and that was not an issue for the jury.
After Officer Valladares mentioned he suspected the vegetation was marijuana, the court instructed the jury:
All right. Ladies and gentlemen, I'm just going to tell you now something relating to the last things that were testified to. The officer testified suspected marijuana.
Neither one of these defendants is charged with possession of marijuana. It's really not relevant whether the substance is or isn't marijuana. It was admitted to be testified to at this point for a very limited purpose. It may or may not be relevant to an issue of identification of the defendant.
The court echoed this instruction in the final charge.
Now let me just tell you now so I don't forget, as to those pinkish red bags that are in evidence containing vegetation, and one was taken according to a police officer from Mr. Canty and then three were taken from the white Toyota Corolla according to a witness, they are only relevant on the issue of the identification of Mr. Canty.
They are irrelevant as to whether or not Mr. Canty actually had marijuana. It's not something he's charged with and there is no test results of whether this vegetation is marijuana or not for you in evidence. So it's only – it's more a question of the bags and what looks like marijuana, but could be another vegetation. It's irrelevant whether it is marijuana or not. That's what I'm saying to you. Don't hold that against Mr. Canty.
The probative value of the evidence was clear, as it tied Canty to the vehicle. We generally defer to the trial judge's determination under N.J.R.E. 403 that the probative value was not "substantially outweighed" by undue prejudice. State v. Covell, 157 N.J. 554, 569 (1999) (stating "[o]nly where there has been a clear error of judgment should a N.J.R.E. 403 determination be overturned" (internal quotation marks and citation omitted)). We do so here.
With respect to Canty's N.J.R.E. 404(b) argument, we recognize the court did not expressly address the four factors for the admission of other crimes evidence under State v. Cofield, 127 N.J. 328, 338 (1992) (citation omitted):
1.The evidence of the other crime must be admissible as relevant to a material issue; 2.It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; and 4. The probative value of the evidence must not be outweighed by its apparent prejudice.
Nonetheless, the evidence clearly supported the court's decision. As for the first prong, the evidence was relevant to a material issue — whether Canty was in the vehicle. The second prong applied in that the discovery of the marijuana on Canty was close in time to the discovery in the vehicle. The third prong was met because evidence that Canty possessed a bag similar to the bags found in the car was clear and convincing. Lastly, the probative value was not outweighed by its apparent prejudice. The judge reasonably questioned whether the possession of a single bag of marijuana would prejudice Canty by leading the jury to believe he had a propensity to commit the charged offenses, which were unrelated to drug offenses. We concur.
We find no merit to Canty's argument that the court erred in admitting letters from Lee to Vilsaint and Ingram, which arguably demonstrated Lee's consciousness of guilt. Lee does not challenge the admission of this evidence.
At a conference regarding which letters would be admitted and what portions of the admitted letters would be redacted, the assistant prosecutor addressed the court's intention to give a cautionary instruction that the letters had nothing to do with Canty. Canty's attorney expressed satisfaction with that instruction. Vilsaint and Ingram both testified that they did not know Canty and had never received correspondence from him. The court also properly instructed the jury that the letters did not involve Canty.
Okay. Ladies and gentlemen, before cross [of Ms. Vilsaint] I just wanted to advise you, although I'm sure you know this, that all the testimony that came from Ms. Vilsaint has related specifically to Mr. Lee, Jaquan Lee, and not to Mr. Canty, and you have to bear in mind there's two separate defendants on trial, and you must consider the evidence as to each defendant separately, okay?
As part of the final charge, the court reiterated:
Now there is also for your consideration in this case certain written statements allegedly made by Jaquan Lee in letters sent to Tamara Vilsa[i]nt and/or [Sade] Ingram. Now those statements are admitted for a limited purpose only. The State claims that there's an indication in those letters of Jaquan Lee's consciousness of guilt and also of implied threats to Ms. Ingram. Defendant Lee denies any such intent.
We discern no error. The evidence was not relevant to Canty. The court appropriately instructed the jury regarding its limited purpose. We assume the jury followed the court's instructions. State v. Martini, 187 N.J. 469, 477 (2006) (citation omitted), cert. denied, 549 U.S. 1223, 127 S.Ct. 1285, 167 L.Ed.2d 104 (2007).
Finally, we agree that it was improper for the State to elicit opinion evidence from another assistant prosecutor that Ingram and Vilsaint received "appropriate" but not "favorable" treatment by their admission into PTI. However, the issue was not raised below, and must satisfy the plain error standard. R. 2:10-2 (stating the appellate court may "notice plain error" when "it is of such a nature as to have been clearly capable of producing an unjust result"). This error falls far short of raising a reasonable doubt that the evidence led the jury to results it otherwise might not have reached. See Macon, supra, 57 N.J. at 336. We reach that conclusion given the substantial evidence of guilt and the unlikelihood that the jury was convinced by the assistant prosecutor's testimony, particularly in the case of Ingram, who admitted she participated in the robberies.
Lee's separate assertions of error warrant only brief comment. These claims of error must be considered under the plain error standard described above, as none were raised before the trial court.
He argues the court failed to caution the jury that Ingram's guilty plea could not be used as evidence of his guilt. Lee did not request a specific instruction. See Model Jury Charges (Criminal), Testimony of a Cooperating Co-Defendant or Witness (When witness is a co-defendant) (February 2006); see also Adams, supra, 194 N.J. at 207-08 (discussing such an instruction).
The Court has found it was not plain error for a court to omit the instruction under circumstances strikingly similar to those presented here. Adams, supra, 194 N.J. at 208-09. In Adams, the Court found no plain error where the pleading witness was "thoroughly cross-examined;" his lack of credibility "was a major theme" of the defense; the witness's detailed testimony "independently established his guilt of the crime and, therefore, his guilty plea added little weight to that testimony;" and the court delivered the standard charge on credibility. Id. at 208-09.
All those factors are present here. Moreover, the court did instruct the jury that evidence of Ingram's and Vilsaint's pleas "may be used only in determining their believability or credibility." We therefore find no plain error.
Lee also argues that the instruction regarding accomplice liability did not adequately inform the jury that it could convict an accomplice of a lesser crime than the principal. We agree that the court did not adequately charge this aspect of the law on accomplice liability when it first delivered its charge. However, in response to the jury's inquiry, the judge provided a sufficient clarification.
[N]ot only is the person who actually commits the criminal act responsible for it, but also one who is legally accountable as an accomplice. Now the responsibility as an accomplice may be equal and the same as he who actually committed the crimes or there may be responsibility in a different degree depending on the circumstances as you find them to be.
In this case the State alleges that each defendant is equally guilty of the crimes committed because he either acted as a principal or an accomplice of the others and with the purpose that the specific crimes, the robberies, be committed.
For you to find a defendant guilty of the specific crime charged the State has to prove beyond a reasonable doubt each of the following elements. That at least one of the defendants or the unknown person committed the crime of armed robbery and that this defendant who you're considering solicited him to commit the crime or aided or agreed or attempted to aid him in planning or committing the robbery.
Now in this case actually this is an alternative theory of the State. I want you to understand that. The State's theory is that both of these defendants acted as principals in the robbery, but an alternative theory is that if one or more acted as principal that the other acted as an accomplice.
So someone who you find was an accomplice, you would have to find that that person possessed the same criminal state of mind that is required to be proved against the person who actually committed the criminal act. In this case a purpose to commit robbery or armed robbery or the lesser-included offense of theft as I have described all of those to you.
Now as I tried to explain to you, to find a person or either defendant guilty of robbery, either as a principal or an accomplice, the State has to prove beyond a reasonable doubt not only that a robbery took place and that a defendant participated in it, but that the defendant had the same purpose and intent as the others or other, the intent to put the victim in fear of immediate bodily harm. And that's for robbery, second-degree robbery.
And to find a defendant guilty of armed robbery as an accomplice, rather than the principal, you would have to find that a defendant beyond a reasonable doubt even if he was not armed himself with a deadly weapon had the intent and purpose that the person or persons who were armed with shotguns had, he had the same purpose. He also intended and knew that the person or persons would be armed and he wanted them to commit the robbery.
But you may find an accomplice guilty of a lesser offense than a principal based on what the accomplice promoted, facilitated, and intended. And that's why I gave you armed robbery, robbery, and theft.
This supplemental charge adequately informed the jury that it could find a defendant guilty, as an accomplice, of a lesser offense than the one committed by the principal. See State v. Ingram, 196 N.J. 23, 41 (2008); State v. Bielkiewicz, 267 N.J.Super. 520, 531 (App. Div. 1993).
Lee's remaining argument regarding Ingram's identification lacks sufficient merit to warrant discussion in a written opinion R 2:11-3(e)(2)
Affirmed as to defendants' convictions Remanded for resentencing We do not retain jurisdiction.