September 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
YUSEF STEELE, a/k/a STEELE YUSEF, a/k/a STEELE YUSIF, Defendant-Appellant
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-10-1809.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
Before Judges Harris and Guadagno.
Tried to a jury, defendant Yusef Steele appeals from his conviction for third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree distribution of heroin, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count two); second-degree distribution of heroin on or near a public museum, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1 (count four); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five); third-degree possession of heroin with intent to distribute on or near school property, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7 (count six); second-degree possession of heroin with intent to distribute on or near a public housing facility, N.J.S.A. 2C:35-5(a) and N.J.S.A. 2C:35-7.1 (count seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count eight).
On August 23, 2010, the court merged counts one, five, and six with count seven and sentenced defendant to an extended term of five years with parole ineligibility for three years. The judge then merged count two with count four and imposed a seven-year term with three years of parole ineligibility to run consecutive to count seven. Finally, the judge imposed an eighteen-month sentence on count eight to run concurrent with the other counts. On September 3, 2010, the judge corrected her prior sentence and re-sentenced defendant to nine years with three years of parole ineligibility on count seven. The rest of the sentence remained the same.
On appeal, appellant raises the following arguments:
THE CUSTODIAL STATEMENT ALLEGEDLY MADE BY DEFENDANT AT THE HOSPITAL VIOLATED DEFENDANT'S FIFTH AMENDMENT RIGHT AND SHOULD HAVE BEEN SUPPRESSED.
THE DEFENDANT'S PRE-TRIAL MOTION TO DISMISS COUNT TEN WITNESS TAMPERING SHOULD HAVE BEEN GRANTED BY THE COURT.
THE COURT'S INSTRUCTION TO THE JURY DURING VOIR DIRE DILUTED THE STATE'S BURDEN OF PROOF AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
THE CONSECUTIVE SENTENCE IMPOSED UPON DEFENDANT WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (NOT RAISED BELOW).
We have considered these arguments in light of the record and applicable legal standards, and we affirm.
On August 15, 2008, Lieutenant Paul Schuster of the New Brunswick Police Department's (NBPD) Anti-Crime Unit (ACU), was engaged in street surveillance on Remsen Avenue, a high crime area in New Brunswick. Schuster had positioned his surveillance vehicle about ten feet from the intersection of Remsen and Townsend Street.
At around 6:30 a.m., Schuster observed defendant standing in front of 57 Remsen Avenue, speaking with some men in a taxi. Two women walked toward defendant and had a very brief conversation with him. The women continued walking to the intersection of Remsen and Townsend, where Schuster was standing, they turned onto Townsend, walked about a third of the block, and stopped. Defendant then followed the women toward Townsend Street. Schuster saw defendant lean over and grab something from his sock. One of the women approached him and defendant gave her the item he had removed from his sock and received cash from the woman. Schuster, who had taken part in over 1000 drug surveillance investigations in his thirty-six years with the NBPD, concluded defendant had just completed a drug transaction.
Schuster radioed three ACU backup officers positioned a few blocks away and told them to arrest the woman while he continued to observe defendant. Based on Schuster's description, the ACU backup officers arrested Chere Walker who had a packet of heroin in her left hand that she handed over to the officers.
A short time later, Schuster observed defendant get into the passenger side of a red pickup. When the pickup drove away, Schuster radioed the backup officers, who had just arrested Walker, and told them they had to follow the red truck and arrest defendant.
After a brief search, the backup officers spotted the truck parked on George Street. As defendant was getting out of the pickup, Detective Michael Yurkovic and another officer approached and attempted to arrest him. Defendant began to run with the two officers in close pursuit. The officers chased defendant down the street and through the Hope Manor apartment complex, a public housing facility. Detective Yurkovic identified himself as a police officer and yelled for defendant to stop. During the chase, Yurkovic saw defendant throw several packets to the ground and jump a fence into a cemetery. Defendant eventually stopped running and turned towards Yurkovic and positioned himself in a combative posture with clenched fists. Yurkovic struggled with defendant until another officer arrived and helped Yurkovic subdue and handcuff defendant.
Yurkovic returned to the fence area and found twelve packets of heroin, all bearing the distinctive name "snIper" printed on them. The packet recovered from Walker also bore the "snIper" logo. Defendant was then read his Miranda rights.
During the struggle, defendant sustained an injury and asked to be taken to a hospital. While there, defendant continually asked the officers accompanying him "who actually got the buyer?" When the officers did not respond, defendant stated "yeah, yeah, you probably got that girl I just sold to. [T]hat's all right, I'll handle that, she's going to show up at court and say that she bought it from someone else."
Chere Walker was taken to the police station and questioned. Walker identified defendant as the person who sold her heroin. As defendant predicted, Walker testified at trial and denied buying the drugs from defendant.
Defendant argues that when he began talking about the earlier drug sale, "the police had an affirmative responsibility to warn him of the consequences of speaking." Essentially, defendant maintains that, even after being given the Miranda warnings, it was the responsibility of the police to stop defendant from volunteering information until they could re-advise him of his right to remain silent. We disagree.
In order to violate a defendant's constitutional right against self-incrimination, a defendant's incriminating statement must be "the product of words or actions on the part of the police that they should have known were reasonably likely to elicit an incriminating response." Rhode Island v. Innis, 446 U.S. 291, 303, 100 S.Ct. 1682, 1691, 64 L.Ed.2d 297, 309 (1980). "[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation. 'Interrogation, ' as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself." State v. Ward, 240 N.J.Super. 412, 418 (App. Div. 1990) (quoting Innis, supra, 446 U.S. at 300, 100 S.Ct. at 1689, 64 L.Ed.2d at 307).
Here, defendant's statements were not the product of police action or part of a premeditated investigatory tactic designed to elicit an incriminating response. Defendant himself initiated the conversation with the police in an effort to obtain information about the woman he sold drugs to prior to his arrest. The incriminating statements defendant made in the course of these encounters were the product of his own conduct not anything said or done by the police. There is no requirement that a defendant be "re-Mirandized" before each questioning. "[B]arring intervening events, '[o]nce a defendant has been apprised of his constitutional rights, no repetition of these rights is required.'" State v. Nyhammer, 197 N.J. 383, 401 (quoting State v. Melvin, 65 N.J. 1, 14 (1974)), cert. denied, 558 U.S. 831, 130 S.Ct. 65, 175 L.Ed.2d 48 (2009).
We are satisfied that the unsolicited statements made by defendant while in police custody were properly admitted into evidence because they were not the product of police interrogation or its functional equivalent.
Defendant argues the court erred in denying his pre-trial motion to dismiss the witness tampering count and "there was insufficient evidence for the charge to be presented to the jury." We are perplexed by this argument because the count was dismissed by the court and was not submitted to the jury. We conclude that this argument lacks sufficient merit to warrant any further discussion. R. 2:11-3(e)(2).
Defendant argues that the trial court's supplementation to the jury voir dire questionnaire diluted the prosecution's burden of proof and deprived him of a fair trial. The statement in question occurred during the jury selection process when the judge was reading the voir dire questionnaire to the potential jurors. One of the questions, requested by the prosecutor, inquired as to whether a juror could "accept the fact that the law provides that a verdict can be reached based solely on the testimony of the witnesses without any further forensic or physical evidence, provided the testimony convinces you beyond a reasonable doubt of the defendant's guilt[?]" In permitting this voir dire question, the trial court made note of the "CSI effect, " or the effect of television shows about forensics on laypersons who then serve on juries. The judge found the addition of the question simply re-affirmed that, unlike the television shows, "every case does not require the type of investigation that they see on TV."
We note the judge made specific mention of the prosecutor's burden of proving each element beyond a reasonable doubt in the supplemental question. When giving the jury preliminary instructions, the court stated that "defendant has pled not guilty to all these charges, and he is presumed to be innocent unless each and every essential element of each offense charged is proven beyond a reasonable doubt." He restated this same instruction three additional times through the preliminary jury instructions.
During the jury charge, the court instructed the jury that "[a] reasonable doubt may arise from the evidence itself or from a lack of evidence." Later, the judge explained that "the reverse is also true, a defendant may be found not guilty by reason of direct evidence, circumstantial evidence, or a combination of the two or a lack of evidence if it raises in your mind a reasonable doubt as to his guilt."
The trial judge is vested with a great amount of discretion in selecting a jury. See State v. Fortin, 178 N.J. 540, 575 (2004). "[A] trial court's exercise of its broad discretionary powers in conducting voir dire will ordinarily not be disturbed on appeal, " unless the court makes a mistake which "undermine[s] the very foundation of a fair trial - - the jury selection process." Fortin, supra, 178 N.J. at 575 (internal quotations marks and citation omitted). Additionally, the jury is presumed to understand and follow the court's instructions. See State v. Miller, 205 N.J. 109, 126 (2011).
Here, the trial court did not dilute the State's burden by the voir dire questions and thoroughly and continually explained the concept of proof beyond a reasonable doubt throughout the trial.
Finally, defendant challenges his sentence as excessive and claims the court's basis for imposing consecutive sentences was inadequate.
"Appellate review of the length of a sentence is limited." Id. at 127. We assess whether the aggravating and mitigating factors were based upon "competent credible evidence in the record." Ibid. (internal quotation marks omitted). We do not "'substitute [our] assessment of aggravating and mitigating factors' for the trial court's judgment." Ibid. (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364 (1984); accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Our Supreme Court set forth guidelines to assist sentencing courts when deciding whether to impose a consecutive sentence. See 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). The Yarbough factors, reaffirmed many times since their introduction, serve as a guidepost, not a mandate, and are enumerated as follows:
(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;
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and
(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.
[Ibid. (footnotes omitted); State v. Carey, 168 N.J. 413, 422-23 (2001).] These factors should be applied qualitatively, not quantitatively. Carey, supra, 168 N.J. at 427. The focus is on the gravity of the offense. Id. at 422. A court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences. Id. at 427-28; see also State v. Swint, 328 N.J.Super. 236, 264 (App. Div.) (Even when offenses are connected by a "unity of specific purpose, " "somewhat interdependent of one another, " and "committed within a short period of time, " concurrent sentences need not be imposed.) (internal quotation marks omitted), certif. denied, 165 N.J. 492 (2000).
The judge found aggravating factors three, six, and nine applied. During the re-sentencing, the judge explained why she imposed a consecutive sentence:
Additionally, I find that [defendant] has demonstrated, as a result of his prior record, pure contempt for the rules of law, and the rights and safety of others, as is exhibited by the pattern of his behavior. I find, and I am sentencing this defendant, in a consecutive manner, because the crimes and the objectives of the defendant were predominantly independent of each other. Separate and distinct crimes committed. However, very, very close in time. The crimes, of intent to distribute, within five hundred feet of a public museum, are separate and distinct with the distribution within five hundred feet of public housing.
The judge's reasoning for imposing consecutive sentences was appropriate and in accord with the principles articulated in Yarbough, supra, 100 N.J. at 643-44. We find no mistaken exercise of the judge's discretion.