October 2, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANTHONY A. RODRIGUEZ, a/k/a ANTHONY ARMONDO RODRIGUEZ WILLOW, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 05-05-0164.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fasciale and Maven.
A Warren County grand jury returned Indictment No. 2005-05-0164 charging defendant Anthony Rodriguez with fourth-degree attempted theft by deception, contrary to N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-4 (count one); and third-degree uttering forged money, contrary to N.J.S.A. 2C:21-1a(3) (count two). Following a jury trial, defendant was convicted on both counts and sentenced to an aggregate term of one-year probation conditioned on 364 days to be served in county jail. Defendant appeals the conviction and sentence. We affirm, except that we remand for merger of counts one and two.
The facts as adduced in the record are as follows. On February 1, 2005, defendant went to the Greenwich Township Home Depot Store (the "store") to buy carpeting. He paid the store clerk $217 using ten twenty-dollar bills and an additional seventeen dollars. Confirming her suspicions, the store clerk, Lauren Nolt, identified the ten twenty-dollar bills as counterfeit by using a counterfeit detecting pen and a black light. A store employee called the police to report a purchase using counterfeit bills. Pohatcong Township Police Sergeant Scott Robb was the first police officer to respond to the store.He testified that, because the store was not in his jurisdiction, his role was to secure the scene until a Greenwich Township police officer arrived, and then assist that officer as requested.
Upon receiving a brief explanation from Nolt as to defendant's activity, Robb approached defendant and asked him for identification. Defendant presented his New Jersey identification card. Robb asked defendant if he had anything on him that he should know about, at which point defendant handed him a knife. Robb then conducted a safety pat-down on the outside of defendant's clothing. Robb felt a bulge in defendant's front pants pocket. When asked what it was, defendant said it was money. Robb then reached into defendant's pocket and removed a large billfold of money, which Robb testified did not feel like normal U.S. currency. It was later determined that, in total, defendant had $1854 in genuine bills and $380 in counterfeit twenty-dollar dollar bills in his possession.
Greenwich Township Sergeant David Voll arrived at the store while Robb was questioning defendant. Voll testified that he had a brief conversation with Robb, at which time Robb gave him defendant's identification and the money retrieved from defendant's pocket. Voll spoke to Nolt who gave him the money she received from defendant, and explained that she determined the bill were counterfeit after she had checked the bills with a black light and pen. Voll then spoke to defendant who told him that he was a tattoo artist and that "he may have unknowingly received the counterfeit bills from one of his customers." Voll placed defendant under arrest for passing counterfeit money.
At police headquarters Voll read defendant his Miranda rights. Thereafter, Voll interviewed defendant and told him that "it was obvious that [defendant] had knowledge of the counterfeit bills." Defendant invoked his right to remain silent and requested an attorney.
Following a Miranda hearing, the motion judge issued an oral opinion denying defendant's motion to suppress his statements and the currency recovered from his pocket. The judge determined that defendant's statements about his tattoo business, made in response to Robb's initial inquiry for identification, were voluntarily made and therefore admissible. The judge further found that once defendant handed Robb the knife, defendant was effectively under arrest and Robb, therefore, justifiably conducted a pat-down search. The judge stated:
I feel that he was . . . under arrest at that particular point in time, even though there was no formal saying that you're under arrest or wasn't cuffed. It is very obvious that he was not free to leave. So I feel that the pat down was a search lawful to an arrest. The officer did it really primarily for his own safety.
The judge concluded that under the circumstances, the money seized from defendant's pocket was admissible as the fruit of either a search incident to a lawful arrest, or a lawful pat-down initiated for Robb's safety.
At trial the State presented Nolt, Robb, Voll, and United States Secret Service Agent Dan Gallagher. Defendant did not testify. This appeal followed in which defendant raises the following arguments:
I. DEFENDANT'S CONVICTION FOR ATTEMPTED THEFT BY DECEPTION ON COUNT ONE SHOULD BE REVERSED BECAUSE THE TRIAL COURT'S JURY INSTRUCTIONS ON THE LAW OF ATTEMPT WERE FATALLY DEFECTIVE. (Not Raised Below)
II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY PERMITTING SERGEANT VOLL TO READ THE CONTENTS OF HIS POLICE REPORT INTO THE RECORD IN THE GUISE OF "TESTIMONY."
III.THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AND STATEMENTS BECAUSE SERGEANT ROBB DID NOT HAVE PROBABLE CAUSE TO ARREST DEFENDANT AT THE TIME HE REACHED INTO THE DEFENDANT'S POCKET AND SEIZED THE FOLD OF MONEY.
IV. THE TRIAL COURT MISAPPLIED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO IMPEACH CREDIBILITY.
V. THE DEFENDANT'S CONVICTION FOR FOURTH DEGREE ATTEMPTED THEFT BY DECEPTION ON COUNT ONE SHOULD HAVE BEEN MERGED INTO THE CONVICTION FOR THIRD DEGREE UTTERING FORGED MONEY ON COUNT TWO.
We first turn to defendant's contentions raised in Point III to determine whether the suppression motion was appropriately denied. Defendant contends that the search conducted by Robb was not incident to a lawful arrest.
Our standard of review in suppression hearings is firmly established. Factual findings made by a trial judge during a suppression hearing are upheld "so long as those findings are supported by sufficient credible evidence in the record." State v. Handy, 206 N.J. 39, 44 (2011) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). Such factual determinations will not be disturbed, even if an opportunity for independent review could lead to a different conclusion. State v. Johnson, 42 N.J. 146, 162 (1964). We "must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.'" State v. Mann, 203 N.J. 328, 336-37 (2010) (alteration in original) (quoting Johnson, supra, 42 N.J. at 161)(internal quotation marks omitted).
We recognize that "[a] police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity." State v. Stovall, 170 N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889, 906 (1968)); see State v. Pineiro, 181 N.J. 13, 20 (2004). An investigatory stop is characterized by a detention in which the person approached by a police officer would not reasonably feel free to leave, even though the encounter falls short of a formal arrest. Stovall, supra, 170 N.J. at 355-56.
Based on the factual findings of the trial court, Robb had a reasonable, articulable suspicion to initially detain defendant. In a sequence of events over a short period of time, Robb obtained information from a store employee regarding defendant's actions, briefly questioned defendant, and received the knife prior to conducting the search that disclosed more counterfeit bills. We conclude that in this instance the detention was lawful.
We further conclude that the search was lawful. The Terry exception to the warrant requirement
permit[s] a reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.
[Terry, supra, 392 U.S. at 27, 88 S.Ct. at 1883, 20 L.Ed.2d at 909.]
Here, Robb became concerned for his safety after defendant turned over his knife. Robb testified that
He voluntarily handed it to me. And he was very cooperative. But even after that's when I did my pat[-]down because I've had a lot of people be cooperative in the beginning, but then afterwards they can become combative. So I need to make sure that I'm safe and the public is safe and that's why I conducted the pat[-]down.
Upon our careful review of the record, we are satisfied that sufficient credible evidence exists to support the search. We discern no reason to disturb the judge's factual findings.
Defendant contends that the trial court erred by permitting Voll to read his police report during his trial testimony. We disagree.
To best assess defendant's argument, we first define the two applicable evidentiary principles: recollection refreshed and past recollection recorded. N.J.R.E. 612 governs the use of writings to refresh witnesses' memories. The rule provides, in pertinent part:
Except as otherwise provided by law in criminal proceedings, if a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness.
For a trial court to permit a witness to refresh his or her recollection by reviewing a writing, the proponent must establish that "the witness had prior knowledge that could be refreshed by the information, " Lautek Corp. v. Image Business Sys. Corp., 276 N.J.Super. 531, 545 (App. Div. 1994), but that the witness' memory of that knowledge is presently impaired. Id. at 545-46; State v. Williams, 226 N.J.Super. 94, 103-04 (App. Div. 1988). Once the threshold requirement of impaired memory has been established, "a witness may examine any document to refresh his [or her] memory." State v. Caraballo, 330 N.J.Super. 545, 557 (App. Div. 2000); Williams, supra, 226 N.J.Super. at 103; Biunno, Current N.J. Rules of Evidence, comment 3 on N.J.R.E. 612 (2013). The writing is not admitted as substantive evidence. See Biunno, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 612 (2013).
Secondly, N.J.R.E. 803(c)(5), provides as follows:
RECORDED RECOLLECTION. A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy . . . .
The rule also provides that if a witness remembers only part of writing's contents, "the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection." Ibid. It is that last restriction in N.J.R.E. 803(c)(5) that is the focus of this appeal.
On appeal, "[a] trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion . . . .'" State v. Harris, 209 N.J. 431, 439 (2012) (quoting State v. Brown, 170 N.J. 138, 147 (2000)).
Here, the record clearly demonstrates that the proper foundation was laid to permit Voll to refer to and read from the police report. On the day of his testimony, Voll testified that he could not recall the details pertaining to the Home Depot incident that had occurred five years earlier, and stated that he prepared his report one day after the incident. The elements of N.J.R.E. 612 and 803(c)(5) had been satisfied. We are satisfied that the trial judge's ruling that permitted Voll to read portions of his police report as his testimony was not a mistaken abuse of discretion.
Defendant asserts that the judge erred by failing to properly charge the jury with respect to the crime of attempted theft by deception. Defendant contends that the trial judge did not properly instruct the jury that it could not find defendant guilty without finding that he had taken a substantial step toward completing the crime. Since there was no objection at trial to the charge as given, we review the claim under the plain error doctrine, R. 2:10-2, and disregard an error unless it is "clearly capable of producing an unjust result[.]" Ibid; see State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied, Wakefield v. New Jersey, 552 U.S. 1146, 128 S.Ct. 1074, 169 L.Ed.2d 817 (2008).
"An essential ingredient of a fair trial is 'that a jury receive[s] adequate and understandable instructions." State v. Afanador, 151 N.J. 41, 54 (1997). "Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" Ibid. (quoting State v. Alexander, 136 N.J. 563, 571 (1994)).
At a conference on the record, the judge stated that he and counsel discussed the jury charges on numerous occasions. Specifically with regard to the fourth-degree attempted theft by deception charge, defense counsel acknowledged that he drafted the proposed charges and stated "it's really hard for me to object to my proposed jury instruction[s] . . . I believe [the Court] gave me everything I asked for . . . as far as both a theft by deception and the attempt charge." The judge thereafter instructed the jury consistent with the New Jersey Model Criminal Charges on attempt and theft by deception.
Defendant now challenges the very instruction that he requested. We conclude that defendant is barred from contesting a jury instruction to which he consented at trial under the invited error doctrine. "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal." State v. A.R., 213 N.J. 542, 561 (2013) (quoting State v. Corsaro, 107 N.J. 339, 345 (1987) (alteration in original) (internal quotation marks omitted). "[I]f a party has invited the error, he is barred from raising an objection for the first time on appeal." Ibid. (citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 342 (2010)).
We also reject defendant's claim that his prior convictions were too remote to be admissible to impeach his credibility at trial. N.J.R.E. 609 states: "For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." In State v. Sands, 76 N.J. 127, 144 (1978), the Court held that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge, " and that such discretion is "broad." The Sands Court further held that "[o]rdinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Ibid.
Defendant's reliance on the federal counterpart to our N.J.R.E 609 is misplaced.
In contrast to N.J.R.E. 609, the federal analog, Fed.R.Evid. 609(b), expressly prohibits a prosecutor from seeking to impeach a defendant's credibility with evidence of a conviction if "more than ten years has elapsed since the date of the conviction or of the release from confinement imposed for that conviction, whichever is the later date" unless the judge determines that "the probative value of the conviction . . . substantially outweighs its prejudicial effect." Thus, unlike Fed.R.Evid. 609(b), Sands and N.J.R.E. 609 contain no benchmark or brightline rule to assist trial judges in making the determination of when a conviction has become so remote that its probative value for impeachment purposes is outweighed by its potential for undue prejudice.
[State v. Murphy, 412 N.J.Super. 553, 564 (App. Div. 2010).]
In this case, defendant's adult criminal history contains two convictions. Defendant's arrest for possession of a controlled dangerous substance (CDS) cocaine, and possession with intent to distribute occurred in February 1998. He was later arrested for unlawful possession of a firearm in April 1999. On January 28, 2000, defendant was convicted and sentenced on all of the offenses. Although the convictions occurred ten years prior to the start of the instant trial in April 2010, the trial judge considered that defendant could not be located by the courts from 2006 to 2010, thereby delaying the proceedings in this case. Relying on Sands, supra, 76 N.J. at 144-147, the judge employed a proper analysis and determined that the convictions were not remote, and therefore would be admissible.
Evidentiary decisions are within the "sound discretion of the trial judge." State v. Hutson, 211 N.J.Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). A judge's decision warrants reversal only where it results in a "manifest denial of justice." State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004)). We see no abuse of the court's exercise of discretion.
As the State concedes, the merger issue raised in Point V is meritorious. We agree with defendant that his conviction for fourth-degree attempted theft by deception should have been merged into his conviction for third-degree uttering forged money, inasmuch as the charges arose out of a common set of evidence. State v. Streater, 233 N.J.Super. 537, 544 (App. Div.), certif. denied, 117 N.J. 667 (1989). ("[T]he evidence relied upon by the State to support the two convictions was identical. Merger is required under these circumstances.") Accordingly, count one, fourth-degree theft by deception must merge into count two, third-degree uttering of forged money. The merger, however, does not impact defendant's sentence.
We affirm the convictions but remand for the judge to amend the Judgment of Conviction to reflect the proper merger of counts one and two in accordance with this opinion.