Opinion
DOCKET NO. A-4928-13T1
10-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. EDWARD E. DANCY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and Suter. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-12-1627. Joseph E. Krakora, Public Defender, attorney for appellant (Michele E. Friedman, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the briefs). Appellant filed a pro se supplemental brief. The opinion of the court was delivered by SUTER, J.S.C. (temporarily assigned).
Defendant Edward Dancy appeals his convictions and sentence. We affirm.
I.
On February 16, 2005, Ms. Alexander was returning alone to her third floor apartment with groceries, when upon reaching the landing, she saw defendant standing there holding a bag. She recognized defendant because, a year earlier, he had dated her roommate and occasionally would stay at the apartment. Defendant asked Alexander questions about her roommate's current dating status, the details of which Alexander declined to reveal. Alexander refused to let defendant into the apartment when he asked. After that, she watched him leave.
As she unlocked the door to the apartment, defendant reappeared. This time, he pointed a gun at her neck, grabbed her jacket and demanded to enter the apartment, saying he did not want to "make this messy," and that he wanted to talk. Defendant forced her into the kitchen and onto her knees where he used zip ties to secure her hands behind her back. For the next forty-five minutes, while he nervously paced back and forth, defendant asked Alexander questions about her roommate.
Unknown to defendant, Alexander worked one of her hands free. At a point when defendant looked away, and knowing he had a prosthetic leg, she ran out the door, and out of the building to the superintendent's office, where she screamed for help. The police arrived in five minutes. Alexander told them about defendant. They searched for him, but he could not be found.
The indictment was returned against the defendant in December 2005. He was arrested on these charges in June 2007 while in jail. While this case proceeded to trial, he was free on bail. Defendant's motion for a speedy trial was denied in July 2011.
Following trial in January 2013, he was convicted of first-degree kidnapping, N.J.S.A. 2C:13-1b; a disorderly persons offense of false imprisonment, N.J.S.A. 2C:13-3; and third-degree burglary, N.J.S.A. 2C:18-2. He was sentenced in June 2013 on the kidnapping charge to a term of twenty years in prison with an 85% period of parole ineligibility. He was sentenced to a concurrent term of five years on the burglary charge.
Defendant was acquitted on other charges, including third-degree unlawful possession of a weapon, second-degree possession of a weapon for an unlawful purpose and certain persons not to have weapons.
On appeal, defendant raises the following claims:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ISSUING AN UNWARRANTED, FLAWED, AND HIGHLY PREJUDICAL FLIGHT INSTRUCTION (Partially Raised Below)
A. The Trial Court Erred in Issuing a Flight Instruction
B. The Flight Instruction Erroneously Advised the Jury to Find that Mr. Dancy Left the Scene to Evade Accusation or Arrest, and Improperly Shifted the Burden of Proof to the Defense
C. The Cumulative Effect of the Aforementioned Errors Requires Reversal
POINT II
THE TRIAL COURT ERRED IN DENYING THE MOTION TO DISMISS THE INDICTMENTS, AS MR. DANCY WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL
A. Length of the Delay
B. Reasons for the Delay
C. Assertion of the Speedy Trial Right
D. Prejudice to the Defendant
POINT III
MR. DANCY'S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE
A. The Sentencing Court Accorded Undue Weight to Aggravating Factors Three, Six, and Nine
B. Mr. Dancy's Sentence Should Be Reduced Given NERA's Real-Time Consequences
C. The Sentence Imposed on the Kidnapping Offense Was Not Offense-Oriented, as Required by State v. Roth and State v. Hodge
Defendant's supplemental pro se brief raises these additional issues:
POINT I
THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY FAILING TO PROPERLY INSTRUCT THE JURY ON THE DISTINCTION BETWEEN HARM AND RELEASED UNHARMED IN THE CRIME OF KIDNAPPPING. (Not Raised Below)
POINT II
THERE WAS INSUFFICIENT EVIDENCE OF PURPOSE TO TERRORIZE TO SUPPORT A CONVICTION FOR FIRST DEGREE KIDNAPPING
POINT III
THE TRIAL COURT ERRED BY GIVING THE JURY A RECHARGE ON THE SAME VERDICT SHEET THAT WAS CONTRARY TO R. 3:19-1, NEW JERSEY AND UNITED STATES CONSTITUTION
POINT IV
THE GUILTY VERDICTS FOR KIDNAPPING AND DISORDERLY PERSONS OF FALSE IMPRISONMENT WERE LOGICALLY INCONSISTENT WITH THE ACQUITTAL ON THE WEAPON OFFENSE AND HARM ELEMENT WITHIN THE FIRST DEGREE KIDNAPPING
POINT V
THE TRIAL COURT ERRED IN FAILING TO GRANT THE R. 3:20-1 MOTION TO SET ASIDE THE JURY VERDICT
II.
A.
Defendant claims the judge erroneously charged the jury on the issue of "flight as consciousness of guilt" and that the charge itself was improper by shifting the burden to the defendant. In reviewing the adequacy of the judge's charge to the jury, we must consider the charge as a whole in determining whether it was prejudicial. State v. Figueroa, 190 N.J. 219, 246 (2007); State v. Wilbely, 63 N.J. 420, 422 (1973). "[A]ppropriate and proper charges to a jury are essential for a fair trial." State v. Collier, 90 N.J. 117, 122-23 (1982) (internal citations omitted).
With respect to the instruction on flight, evidence of flight from custody is generally admissible to draw an inference of guilt if the flight is done with a motive such as avoiding arrest or prosecution. State v. Mann, 132 N.J. 410, 421 (1993). The decision to issue a flight instruction is discretionary. See State v. Melendez, 129 N.J. 48, 60 (1992).
We are satisfied there was sufficient evidence to warrant an instruction on flight. Defendant knew Alexander could identify him. Because she had escaped, defendant reasonably could anticipate the arrival of police. The police arrived in five minutes and by then defendant already was gone.
We also reject defendant's contention the charge on flight impermissibly shifted the burden of proof to the defendant. The charge, as given by the judge, provided:
There has been some testimony in the case from which you may infer that the defendant
fled shortly after the alleged commission of the crime, or crimes. The defendant denies any flight, he denies that he was involved in any way shape or form. The question of whether the defendant fled after the commission of the crime is another question of fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant, fearing that an accusation or arrest would be made against him, on the charge involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all the other evidence in the case, as an indication or proof of consciousness of guilt.
Flight may only be considered as evidence of consciousness of guilt. You should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense — or offenses charged in the indictment.
There has been some testimony in the case from which you may infer that the defendant fled shortly after the alleged commission of the crime. Defense — indicates that Mr. Dancy was not there.
If you find the defendant's explanation credible, you should not draw any inference of the defendant's consciousness of guilt from defendant's departure. If, after a consideration of all the evidence, you find that the defendant, fearing that an accusation or arrest would be made against him on the charge or charges involved in the indictment, took refuge in flight for the purpose of evading the accusation or arrest, then you may consider such flight in connection with all the other evidence in the case, as an indication or proof of a consciousness of guilt.
It is for you, as judges of the facts, to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given such evidence in light of all the other evidence in the case.
Defendant objected that the charge caused the jury to assess defendant's credibility about whether he was present, when his defense simply was that the State had not met its burden of proof. We reject defendant's contention because the judge recharged the jury on the State's burden of proof to which the defense did not object. Also, the portion of the charge on flight followed immediately after the instruction that defendant had not testified and had a constitutional right to remain silent. Reading the charge as a whole, we do not agree the burden was shifted.
The charge was clear and followed the model charge, providing both alternatives for the jury's consideration. See Mogull v. CB Commercial Real Estate Grp., Inc., 162 N.J. 449, 466 (2000) (instructions given in accordance with the model charge, or which closely track the model charge are generally not considered erroneous). The judge re-emphasized the burden of proof was on the State on all issues. The judge clearly left the factual issues to the jury to decide, instructing the jury, "It is for you, as judges of the facts, to decide whether or not evidence of flight shows a consciousness of guilt and the weight to be given such evidence in light of all the other evidence in the case." We find nothing unclear or capable of affecting substantial rights. B.
Defendant contends the judge should have dismissed the indictments because defendant was deprived of his right to a speedy trial.
We will sustain a trial judge's determination that defendant was not deprived of his constitutional right to a speedy trial unless that determination was "clearly erroneous." State v. Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977). When evaluating a speedy trial claim, a court must review and balance the four factors identified in Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101 , 117 ( 1972 ). See State v. Szima, 70 N.J. 196, 201 (adopting the standard from Barker), certif. denied, 429 U.S. 896, 97 S. Ct. 259, 50 L. Ed. 2d 180 (1976).
These factors include: (1) length of delay, (2) reasons for delay, (3) assertion of a speedy trial claim, and (4) prejudice to the defendant. Ibid. --------
Delays caused by "the trial court itself . . . are attributable to the State and not to the defendant." State v. Farrell, 230 N.J. Super. 425, 451 (App. Div. 1999) (citing Barker, supra, 407 U.S. at 531, 92 S. Ct. at 2192, 33 L. Ed. 2d at 117). However, any delay caused or requested by the defendant "would not weigh in favor of finding a speedy trial violation." State v. Gallegan, 117 N.J. 345, 355 (1989). There is no bright-line rule for what constitutes excessive delay. State v. Cahill, 213 N.J. 253, 258, 277 (2013).
Although defendant's trial did not commence until June 2013, the delay was attributable both to the defendant and the State. The defense attorney sustained a disabling injury; the judge suffered a stroke and motor vehicle accident; the defendant was hospitalized with a gunshot wound from an unrelated matter. Defendant was a fugitive on these charges until June 2007. He did not file a motion for a speedy trial until June 2011. Then, when the case had a firm trial date, defendant retained new counsel which accounted for the delay from 2011 to 2013. He remained free on bail. He did not demonstrate prejudice because the major witness, Ms. Alexander, remained available as a witness. On these facts, we are satisfied the trial court did not err in denying defendant's speedy trial motion. C.
We reject defendant's claim the judge erred in sentencing defendant to a term of twenty years. Our review of the judge's sentencing determination is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We ordinarily will not disturb a sentence imposed unless
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting Roth, supra, 95 N.J. at 364-65); see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989).]
Defendant's sentence conformed with the statute. The sentencing range for first-degree kidnapping was fifteen to thirty years. N.J.S.A. 2C:13-1c. Defendant was sentenced below the mid-range. The court appropriately considered the aggravating and mitigating factors. We have no quarrel with the court's analysis that the defendant's record reflected the risk he would re-offend and needed to be deterred from violating the law. The court properly considered the defendant's record. There was nothing shocking about the sentence given the offense. The court considered that the victim had been taken prisoner, bound, and then held for 45 minutes in order to "terrorize her so she would give up the information about her roommate." This certainly warranted the sentence that was imposed.
III.
Defendant filed a supplemental brief raising additional issues. These issues warrant only brief comment.
Defendant contends his conviction for kidnapping was not supported by, and was against the weight of, the evidence. However, because Ms. Alexander testified that until she was able to escape, defendant held a gun to her, tied her hands behind her back in her apartment while stating "we don't want to make this messy," we do not hesitate to reject defendant's contentions, finding instead there was ample evidence to support the verdict.
Defendant contends the instruction on kidnapping and the verdict sheet contained error. We have reviewed the charge and find it substantially reflective of the Model Jury Charge. Model Jury Charge (Criminal), § 2C:13-1(b)(1) to (3). Additionally, we are satisfied the judge appropriately answered the jury's questions and explained the verdict sheet.
We conclude that defendant's further arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION