October 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
FRANK J. SMITH, a/k/a JERRY STEELE, JAMES SMITH, NELSON SUAREZ, STEVEN WYCHE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 9, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-04-0818.
Joseph K. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Ashrafi, St. John and Leone.
Bergen County Indictment No. 06-04-0818 charged defendant with first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts two and eight); first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count six); fourth-degree receiving stolen property, N.J.S.A. 2C:20-7 (count seven); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts nine, ten, eleven, twelve, thirteen, and fourteen); and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count fifteen).
Co-defendants Bryan Wright and Cornelle Primus were also charged under the same indictment with first-degree robbery, N.J.S.A. 2C:15-1 (count three); second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) (count four); third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count five); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (counts nine, ten, eleven, twelve, thirteen and fourteen).
Prior to trial, the motion judge granted the State's motion to sever counts one and two. Thereafter, on June 4, 2007, defense counsel moved to vacate the severance, which was denied. However, the judge precluded the State from introducing evidence related to the other, non-severed counts.
A jury trial on counts one and two ensued and defendant was convicted on both counts. Subsequently, defendant pled guilty to counts six, seven and eight pursuant to a negotiated plea agreement in exchange for the State's recommendation of a five-year maximum sentence on each count, to be served concurrently with the sentences on counts one and two.
Defendant was sentenced on December 7, 2007. On count one, defendant received an extended term of life imprisonment, N.J.S.A. 2C:44-3(a), including an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant was sentenced to a concurrent five-year term on count two,  and concurrent five-year terms on counts six, seven and eight. The remaining counts in the indictment were dismissed.
We briefly summarize the facts and procedural history based on the pre-trial proceedings and evidence presented at trial.
On November 21, 2005, John Calderio, Michael Pindilli and Rory Cornetto were robbed inside the Riverview Sunoco in Elmwood Park. At around 3:00 a.m., an African-American man entered the gas station wearing a ski mask, hat, winter jacket, dark bodysuit and yellow gloves. The man pointed a silver .9 mm semiautomatic handgun at the three men and ordered them to empty their pockets. They placed the station's shift money on the counter, as well as their own wallets, cell phones and keys, and then turned around as instructed by the intruder. After counting to ten, Calderio turned back around and discovered the man had fled, and then immediately called the police. Detective Vincent Scillieri of the Elmwood Park Police Department was assigned to investigate the robbery.
Pindilli's stolen wallet contained his Bank of America credit card. After the incident, Pindilli visited the bank's Elmwood Park branch to report that his card had been stolen. The bank produced a report showing that the card had been used after the robbery to make a purchase at a Pathmark. After Pindilli notified the police, Detective Scillieri went to the local Pathmark in Elmwood Park and showed an employee the information from the bank. The employee determined that the credit card purchase was made at the Pathmark in Paterson. Detective Scillieri went to that location and spoke with Gina Campuzano, the store's loss prevention security officer. Using information from the credit card receipt, Campuzano was able to pinpoint, on the store's surveillance video, the individual who made that purchase. The video footage showed two other individuals with the purchaser, one of whom was bagging the items. The receipt indicated that one of the items purchased was "a 12-pack" box of Yoo-hoo. Campuzano turned over the video footage to Detective Scillieri.
On December 3, Campuzano was working at the Paterson Pathmark when she recognized a customer as the purchaser from the surveillance video. The individual attempted to make a purchase with a credit card but Campuzano instructed the cashier to request identification. The individual responded that he did not have any, and departed without buying anything. Campuzano followed him into the parking lot and wrote down his license plate number. Campuzano then gave that information to Detective Scillieri. She identified defendant in court as the person attempting the purchase that day.
Scillieri identified defendant as the person who regularly drove the black Honda matching the license plate number provided by Campuzano. On December 9, 2005, law enforcement officers travelled to defendant's residence at an apartment complex in Paterson and observed the black Honda parked nearby. The officers then knocked on the front door of the apartment, which was answered by defendant's girlfriend, Tara Andrews. Andrews told the officers that defendant was not there. In response to the officers' request, Andrews permitted them to enter the apartment to search for defendant. She then consented to a more extensive search of the apartment, signing a consent-to-search form. The officers discovered pants and a black, hooded sweatshirt in the apartment, which were collected because they resembled the items worn by the purchaser in the Pathmark video. They found an opened and partially empty case of Yoo-hoo under defendant's bed, and keys to the Honda in defendant's bedroom. The officers also searched a locked closet across from defendant's apartment and uncovered several firearms, including a silver handgun in the pocket of a light-gray, hooded sweatshirt.
The police officers then searched the Honda. A black jumpsuit was recovered from the car, which matched the description of the assailant's bodysuit provided by the robbery victims. The officers also found a black ski mask, blue undershirt, black sweatshirt, yellow gloves and a black glove inside the vehicle.
During the search of the apartment, one of the officers peeked outside an open window and noticed the tips of brown work-boots sticking out against the wall. The officer informed the others that defendant was on the roof and then asked defendant to come down. Defendant was on the phone, but eventually came back into the apartment and was placed in custody.
A DNA analysis of the seized clothing was performed. Saliva on the ski mask revealed the presence of one or more contributors, and defendant could not be excluded as a contributor. Defendant admitted that the mask belonged to him. Defendant was also identified as the source of the DNA profile obtained from the black jumpsuit.
Defendant testified at trial and denied committing the Sunoco robbery. He maintained that he was at his apartment when Wright and Primus called and asked him to meet them at the Paterson Pathmark. According to defendant, after entering the store and selecting items, Wright gave him a credit card–the stolen Bank of America card belonging to Pindilli–to make the purchase. Defendant then drove back to his apartment, with Wright and Primus following in a separate car. Once they arrived, he paid the pair $40 for use of the card and handed it back to them.
Defendant further testified that on December 9, 2005, after someone banged on his apartment door, he looked out the window and saw the police around the black Honda. Defendant then exited through the third-floor landing and onto the roof, where he made a telephone call. Defendant explained that "[t]he first person I called, I called Wright because you know he drives the car a lot. . . . Well, you know, I asked Wright what he had did because there was a lot of police around the car[.]" Defendant told the police that he was aware of the guns in the locked closet. He said that he did not put them there, but rather had allowed others to store the firearms in the closet.
Defendant was found guilty on both counts, and this appeal ensued.
On appeal, defendant raises the following issues for our consideration:
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S DECISION TO INSTRUCT THE JURY WITH RESPECT TO CONSPIRATORIAL LIABILITY REGARDING COUNT I DESPITE THE ABSENCE OF A FACTUAL FOUNDATION IN THE TRIAL RECORD TO SUPPORT SUCH A CHARGE.
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE PROSECUTOR'S SUMMATION WHICH EXCEEDED THE BOUNDS OF PROPRIETY AS WELL AS BY HIS CROSS-EXAMINATION OF THE DEFENDANT REPEATEDLY REFERENCING THE DEFENDANT'S PRIOR CONVICTIONS (NOT RAISED BELOW).
THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S ERRONEOUS RULING PERMITTING THE STATE TO SEVER COUNTS I AND II FROM THE REMAINING COUNTS OF THE INDICTMENT, AND THE TRIAL COURT EQUALLY ERRED BY DENYING THE DEFENDANT'S SUBSEQUENT ATTORNEY'S MOTION TO UNSEVER.
A. FACTUAL BACKGROUND.
B. THE RECONSTRUCTED RECORD DEMONSTRATED THE ABSENCE OF ANY LEGAL JUSTIFICATION FOR THE COURT TO PERMIT THE STATE TO SEVER COUNTS I AND II OF THE INDICTMENT OVER DEFENSE COUNSEL'S OBJECTION, AND FURTHER DEMONSTRATED THE ABSENCE OF ANY LEGAL JUSTIFICATION TO DENY THE DEFENDANT'S REQUEST TO UNSEVER THE COUNTS, SINCE ANY SEVERANCE WAS PREJUDICIALLY DAMAGING TO THE DEFENSE.
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant contends that the trial court erred by instructing the jury, over timely objection, on conspiracy with respect to count one because there was no evidentiary basis to support that charge. We must first examine whether that instruction was error and, if so, whether such error requires reversal. Under the harmless error standard, there must be ""some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. R.B., 183 N.J. 308, 330 (2005) (alterations in original) (quoting State v. Bankston, 63 N.J. 263, 273 (1973)).
Defendant asserts that the conspiracy instruction confused the jurors and possessed the capacity to taint the deliberation process. According to defendant, that confusion was evident from the jury's request during deliberations for clarification of the difference between "own conduct and co-conspirator." In response, the judge again instructed the jurors on the conspiracy charge. He then returned them to the jury room with written jury instructions, counsel for both sides having consented.
As the Court recently stated:
Certain principles pertain in the review of jury instructions. Jury charges must provide a comprehensible explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find. The charge as a whole must be accurate.
[State v. Singleton, 211 N.J. 157, 181-82 (2012) (citations and internal quotation marks omitted).]
In State v. Walker, 203 N.J. 73 (2010), the Court determined that an instruction request should be granted if "there is a rational basis in the record to give it . . . . On the other hand, if counsel does not request the instruction, it is only when the evidence clearly indicates the appropriateness of such a charge that the court should give it." Id. at 87.
We draw guidance from cases addressing instructions on accomplice liability, which, like conspiratorial liability, is a basis for legal accountability for the acts of others. See N.J.S.A. 2C:2-6. "[O]ne indicted as a principal may be found guilty as an accomplice if the evidence produced at trial supports that finding." State v. Mancine, 124 N.J. 232, 256 (1991). Further, "accomplice liability need not be alleged in the indictment." State v. Hakim, 205 N.J.Super. 385, 388 (App. Div. 1985). "[T]he proofs must warrant presentation of the case to the jury on accomplice liability, " ibid., and "[w]here the facts warrant such an instruction, the court may give it even without request of either party, " id. at 389. Here, the prosecutor requested the conspiracy charge over the objection of defense counsel.
Where a defendant alleges no involvement in the crime and the State only prosecuted the crime against him or her as a principal, accomplice liability instructions are generally unwarranted and failure to provide them is not error, much less plain error capable of producing an unjust result. See, e.g., State v. Crumb, 307 N.J.Super. 204, 221-22 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998).
In State v. Crumb, we rejected the defendant's argument on appeal that an accomplice-liability instruction was required where the trial record purportedly "indicated" that the defendant "may have" acted as an accomplice. Id. at 220-22. The record clearly showed that the State's theory of the case was that defendant acted alone as the principal, while defendant's theory was that he was not involved and someone else must have committed the crime. Id. at 221. We found that neither the prosecutor's nor the defendant's version of what occurred warranted an instruction on accomplice liability because "there was no evidence from which the jury could have differentiated between" the defendant's culpability and that of the supposed principal. Id. at 221-22. Under the plain error standard, we determined that the defendant did not meet his burden of showing a rational basis for the Bielkiewicz charge, noting further that such a charge would have detracted from the theory of defense. Id. at 222; see also State v. Oliver, 316 N.J.Super. 592, 597 (App. Div. 1998) (doubting whether accomplice liability instructions were required where defendant maintained he was not present during the offense, while the State contended that defendant was the principal actor), aff'd, 162 N.J. 580 (2000).
Here, as in Crumb, defendant contended at trial that he had nothing to do with the charged crimes and the State presented the theory that defendant was a principal, rather than a co-conspirator. However, there were additional circumstances here not present in Crumb. Defendant was at the Pathmark shortly after the robbery. He was in possession of the stolen credit card purportedly received from one of his co-defendants. Moreover, the police search of the Honda, which defendant testified was often used by co-defendant Wright, revealed a black jumpsuit, black ski mask, blue undershirt, black sweatshirt, yellow gloves, and a black glove allegedly utilized during the robbery. Further, defendant acknowledged that the silver handgun was found in his closet. Although he denied storing it himself, he explained that he allowed others to place guns there. The jury, therefore, was presented with sufficient facts from which it could infer that defendant was a co-conspirator to the crime, if not the actual perpetrator of the robbery.
However, assuming arguendo that the charge was improvidently given, such error was harmless and does not require reversal. The trial judge provided the jurors with a jury verdict sheet instructing them to indicate whether defendant was guilty or not on the robbery charge. If the jury found defendant guilty, it was required to indicate on the form whether that finding resulted from defendant's own conduct or co-conspirator liability. As the jury verdict sheet reflects, the jurors found defendant guilty on the robbery count based on his own conduct, and not as a co-conspirator. Accordingly, we see no real possibility that the challenged instruction led the jury to a verdict it might not otherwise have reached. State v. Lazo, 209 N.J. 9, 26 (2012); R.B., supra, 183 N.J. at 330.
Defendant also asserts that, after defendant admitted his prior convictions on direct, the prosecutor repeatedly elicited defendant's criminal history during cross-examination, and therefore violated State v. Johnson, 65 N.J. 388 (1974). Since defense counsel did not timely object to the line of questioning at trial, defendant's claim is reviewed under the plain error standard. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).
Johnson held that once prior criminal convictions are disclosed on a defendant's direct examination, a prosecutor exceeds the bounds of fair play by using cross-examination solely to review the defendant's criminal record and then harping on that record during summation to show defendant was a hardened criminal and to have the jury infer guilt from that fact. See 65 N.J. at 391-92.
That is not what happened here. The prosecutor's sparse questions did little more than reiterate defendant's prior offenses. Those sporadic questions were interspersed among a prolonged cross-examination concerning things like defendant's story about the credit card, the clothing and Yoo-hoo discovered in his car and apartment, and the gun found in the closet.
While the prosecutor also referenced defendant's criminal history in summation, that history was discussed solely in the context of an anticipated instruction regarding defendant's credibility. The State did not use that history to argue or suggest criminal propensity.
We turn next to defendant's contention that the motion judge erred by severing the first two counts of the indictment. Defendant was charged in counts one and two with armed robbery and receiving stolen property arising out of the November 21, 2005 robbery of the Riverview Sunoco. Counts three, four and five charged all three defendants for a separate robbery that occurred on December 3, 2005. They were also charged with various theft and weapons offenses, while defendant alone was charged with counts six, seven and fifteen. At a September 2006 status conference before the motion judge, the parties briefly discussed severance and concerns about the admission of non-testifying co-defendant statements under Bruton. During a November 2006 conference, the judge asked, "What case are we going to trial on first, Primus or this one?" The prosecutor confirmed that defendant would be tried first. Defense counsel then stated, "In terms of severing, Mr. Smith has a question of are we severing all the cases?" The judge replied in the affirmative, and then stated, "In the first two counts. The State is going to try all the charges against [defendant] together. Then we have Mr. Primus. The State plans to use statements so, therefore, you can't try them together. So we try each one separately. Does Mr. Smith object to that?" Defendant then stated, "No sir" and went on to state, "I don't want to be tried with any of my codefendants. I want to be alone."
At another status conference on January 4, 2007, the prosecutor reiterated that the first and second counts had been severed from the other counts in the indictment. On February 28, 2007, defense counsel moved to rejoin the severed counts to the other counts in the original indictment. On June 4, 2007, after listening to arguments, the motion judge decided not to rejoin the counts. Defendant, at this point representing himself, had argued that everything came from one incident and one indictment. The facts belie defendant's assertions, since the severed counts arose from the Sunoco robbery, and the non- severed counts resulted from a separate armed robbery and firearms possession.
During preparation of his appeal, defendant discovered that transcripts of the conferences addressing the severance and rejoinder motions were missing. We therefore granted a temporary remand for reconstruction of the record. The remand judge, who was also the trial judge, determined that the prosecutor did not file a formal severance motion but "announced her intentions to sever Counts One and Two from the remainder of the indictment at a status conference before [the motion judge] in late 2006 or early January 2007." Defendant's initial counsel confirmed that no formal motion was made, and maintained that she would have objected to one. The judge determined that "[i]t is unclear whether the objection was made." However, the motion judge "granted the request to sever the indictment." On February 28, 2007, defendant's second attorney had filed a motion for re-joinder, which was argued before the motion judge and denied. Prior to trial, counsel again objected and the trial judge "ensured that procedures were in place to prevent the jury from being influenced by the severed counts during the trial."
It is apparent that the motion judge severed the counts because of Bruton concerns. R. 3:15-2(a). The constitutional Bruton right is subject to an intermediate level of protection, and may be waived by a defendant. State v. Buonadonna, 122 N.J. 22, 46 (1991). Here, however, defendant knowingly consented to severance of the two counts and was particularly adamant that he not be tried with his co-defendants.
Given that the severed and non-severed counts were not based on the same conduct or arising from the same episode, the counts were subject to the rules regarding permissive, rather than mandatory, joinder. R. 3:15-1. Defendant argues that rejoinder was "extremely necessary for the proper defense" and the charges were intertwined in both the prosecution and defense of defendant. However, no facts sufficiently support this contention and we see no prejudice to defendant, who does not identify any evidence or argument he was precluded from presenting. Accordingly, we hold that the motion judge acted within his sound discretion in denying defendant's motion. See State v. Sterling, 215 N.J. 65, 73 (2013); State v. Chenique-Puey, 145 N.J. 334, 341 (1996); State v. Erazo, 126 N.J. 112, 131 (1991).
Finally, defendant asserts that the sentence imposed was manifestly excessive. The prosecutor sought and was granted the imposition of a discretionary extended term on the basis that defendant was a persistent offender. N.J.S.A. 2C:44-3(a). Once that threshold is met, a judge is at liberty to sentence a defendant from the minimum of the ordinary-term range through the maximum of the extended-term range. In accord with State v. Pierce, 188 N.J. 155 (2006), the discretionary decision by a trial judge to sentence a defendant within that range will not be reversed so long as credible evidence exists to support the judge's finding, weighing and balancing of aggravating and mitigating factors. 188 N.J. at 169. Although defendant does not dispute his eligibility for an extended sentence, he contends that the judge abused his discretion in imposing a term of life imprisonment on count one.
Our review of sentencing determinations "is relatively narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). A reviewing court may only modify a sentence if "the application of the facts to the law [constitutes] such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984). We may not substitute our "assessment of aggravating and mitigating factors for that of the trial court." State v. Bieniek, 200 N.J. 601, 608 (2010).
Here, the sentencing judge found no mitigating factors. The judge found applicable aggravating factors one and two, N.J.S.A. 2C:44-1(a)(1)-(2), adverting during sentencing to "the nature of the offense" and the "seriousness of harm" in terms of the "emotional trauma . . . visited upon the victim." We conclude, however, that there was insufficient evidence to support those findings.
With regard to the nature of the offense, the judge did not specify the circumstances on which he relied. We note that placing the victims in fear of imminent harm was an element of the robbery charge and, pursuant to N.J.S.A. 2C:15-1(b), defendant's use of a deadly weapon escalated the charge to a first-degree offense. Accordingly, the fact that defendant pointed a firearm at the victims in the commission of the crime had already been factored into the seriousness of the charged offense, and a court "may not again consider or double-count the use of a firearm as an aggravating factor." State v. Pillot, 115 N.J. 558, 564 (1989).
As to the judge's finding that a victim suffered emotional trauma as a basis for aggravating factor two, the record evinces only that the victims were frightened at the time of the robbery, and one of the victims exhibited emotional distress during his testimony. No other evidence supported the finding of the gravity and seriousness of harm inflicted on the victim necessary for a finding of aggravating factor two. Since placing the victims in fear of imminent harm was an element of the robbery charge under N.J.S.A. 2C:15-1(a), the record does not support the judge's finding of aggravating factor two.
The judge also applied aggravating factors three, six and nine in the sentencing decision. The judge found factor three satisfied, N.J.S.A. 2C:44-1(a)(3)(risk that defendant will commit another offense), based on defendant's "long history dating back to 1983" and noted that defendant had numerous prior convictions in support of his finding on factor six, N.J.S.A. 2C:44-1(a)(6)(extent of prior criminal history and seriousness of convicted crimes). The judge also applied aggravating factor nine, the "need for deterring the defendant and others from violating the law, " N.J.S.A. 2C:44-1(a)(9).
Defendant contends that the judge double-counted by applying aggravating factors three and six. Defendant further argues that the judge had already considered defendant's prior record when determining that he was a "three strikes" offender. Generally, a trial court may not "double-count" aggravating factors in sentencing. In other words, if the court applies certain aggravating factors in setting an extended-term sentence, it may not later also consider those factors in balancing the aggravating and mitigating factors. See State v. Vasquez, 374 N.J.Super. 252, 267 (App. Div. 2005). However, the judge did not impermissibly double-count aggravating factor three here. That factor involves the likelihood that a defendant will commit another offense, which is not necessarily connected solely to convictions. Consequently, an offender's entire criminal record, including arrests and juvenile offenses for instance, may be considered. See State v. McBride, 211 N.J.Super. 699, 704-05 (App. Div. 1986).
As to aggravating factor six, although the judge necessarily considered defendant's criminal record when sentencing defendant to a life term on count one, it was also appropriate for the judge to consider defendant's criminal record when sentencing him on the other counts of which he was convicted. Further, defendant had prior convictions in excess of those required to sentence him under the "three strikes" law, which, therefore, the judge appropriately considered. Consequently, unlike in State v. Vasquez, supra, the judge here did not utilize defendant's only prior conviction to find that an extended-term sentence was appropriate, and then also utilize that one conviction to set the length of that sentence. 374 N.J.Super. at 267.
We therefore remand for resentencing on counts one, two, six, seven and eight without consideration of aggravating factors one and two. We note that counts six and seven are fourth-degree offenses punishable by up to eighteen months incarceration. N.J.S.A. 2C:44-6(a)(4).
On remand, we instruct the trial judge to impose on count one the five-year mandatory period of parole supervision under NERA. We further instruct the judge that the JOC should reflect the amendment of count two to use of a stolen credit card, N.J.S.A. 2C:21-6(h).
Affirmed in part, reversed in part, and remanded for resentencing and for entry of a corrected judgment of conviction in accordance with this opinion. We do not retain jurisdiction.