Opinion
DOCKET NO. A-4760-10T3
03-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent/Cross-Appellant, v. WILLIAM JOYCE, Defendant-Appellant/Cross-Respondent.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent/cross-appellant (Robert J. Hawkes, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 09-04-0257.
Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent/cross-appellant (Robert J. Hawkes, Assistant Prosecutor, on the brief). PER CURIAM
Defendant William Joyce appeals his conviction on several weapons charges, and the State cross-appeals the court's sua sponte downgrade of defendant's sentence. We affirm defendant's conviction and vacate and remand for resentencing.
I.
Somerset County Indictment Number 09-04-0257 charged defendant and co-defendant Stacey Wooden with third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7 (counts one and two); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count three); fourth-degree underage possession of a handgun, N.J.S.A. 2C:58-6.1b (count four); and third-degree possession of a shotgun without an identification card, N.J.S.A. 2C:39-5c (count five).
Pursuant to a severance order, the defendants were to be tried separately. Wooden pled guilty to count one on March 9, 2011 and was sentenced on July 8, 2011. She is not involved in this appeal.
A jury convicted defendant of the three weapons charges (counts three, four, and five). On May 27, 2011, the court sentenced defendant on the second-degree weapons possession offense as a third-degree offender, and imposed a three-year custodial term with a three-year parole disqualifier. The court imposed the same term on the shotgun offense, and a one-year custodial term on the possession of a firearm by a minor, both concurrent to the second-degree conviction. Appropriate fees, fines, and penalties were also imposed.
II.
The following testimony and evidence was presented at trial. On March 3, 2009, Ronald Elizondo, a teenager, and two friends burglarized a home in Bridgewater Township and stole eight firearms. Elizondo eventually turned over six of the guns to police. Subsequently, the other two guns were found in Raritan Borough. A motel manager in Raritan received a phone call from an unidentified woman who reported that someone had just thrown a package into his parking lot and fled. The manager discovered a bag with a handgun in it, which turned out to be the pistol that had been stolen from the residence during the burglary and had not yet been recovered. He called the police who came and retrieved the pistol. While there, the police learned that a shotgun had been found at a nearby park. When police arrived, they found the gun and shells, which they determined was likewise stolen during the burglary. Co-defendant Wooden, who lived about one block away, was also present nearby.
After his arrest, one of Elizondo's accomplices told police that Elizondo had kept two of the guns from the burglary. When confronted with this information and the recent recovery of the two guns, Elizondo told police he had given the shotgun and handgun to defendant, his godson's father, and asked him "just hold them here for now" because Elizondo could not take them home. Elizondo elaborated that he was going to give defendant a "couple dollars" for holding the guns.
After being Mirandized, defendant explained that Elizondo brought a package to defendant's house, which he said contained a shotgun, and asked defendant to hold it for a little while, and defendant reluctantly agreed. When defendant learned about the robbery and the arrest of Elizondo and his accomplices, defendant wrapped the handgun in bags, tossed it over the fence of the motel, and told Wooden to call the manager about a suspicious article. Wooden then put the shotgun in a stroller, placed it in the park, and called the police.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At trial, Elizondo testified that he had committed the burglary and stolen the guns. He discussed his guilty pleas, which form was marked into evidence, his sentence, and his agreement to testify truthfully against his co-defendants, Wooden and defendant. He then testified that defendant had nothing to do with the burglary. According to Elizondo, he entered defendant's house, heard someone in the shower, went upstairs, hid the guns inside the bedroom closet, and left. Elizondo claimed he did not tell anyone he put the guns in the closet.
Pursuant to a ruling following an earlier N.J.R.E. 104 hearing, the court permitted the State to use Elizondo's statement to police as substantive evidence. Thus, during the testimony of Detective Sean O'Neill, the entirety of Elizondo's statement was played. Defendant did not testify. The jury deadlocked on the first two theft counts and convicted defendant on the remaining three weapons charges.
III.
On appeal, defendant asserts, as plain error, that the absence of a limiting instruction that Elizondo's guilty pleas to burglary and weapons offenses could not be treated as substantive evidence of defendant's guilt deprived defendant of due process and a fair trial. According to defendant, the strength of the State's case was unfairly enhanced by the absence of limiting instructions concerning Elizondo's guilty pleas to charges involving the same firearms at issue in defendant's trial. We are not persuaded by this argument.
At trial, during the charge conference, the court offered to charge the jury that Elizondo's guilty pleas in a separate proceeding could be considered as to his credibility, but not as evidence of defendant's guilt, and that such testimony should be given "careful scrutiny." See "Testimony of a Cooperating Co-Defendant or Witness," Model Jury Charge (Criminal) (Revised 2/6/06). The prosecutor noted that the charge expressly provides that it "should not be given except upon the request of defense counsel." Defense counsel, commenting that "in some ways [] Elizondo's testimony exculpates the defendant," expressly declined to have the charge given.
We discern no error, let alone plain error, in the judge's decision to comply with defense counsel's strategy and not give this instruction to the jury. Defendant fails to explain how the absence of the limiting instruction was "clearly capable of producing an unjust result." State v. Adams, 194 N.J. 186, 207 (2008) (quoting Rule 2:10-2). Considering defendant admitted to police that he possessed the guns, the omission of the charge about Elizondo's guilty pleas had a minimal effect, if any, on the outcome of trial.
We turn now to the State's appeal of defendant's sentence. The State contends the court erred both in its assessment of the aggravating and mitigating factors and in its decision to sentence defendant as a third-degree offender.
The State proposed aggravating factors three (risk defendant would commit another offense), six (defendant's criminal record), and nine (need for deterring defendant and others from violating the law), N.J.S.A. 2C:44-1a(3),(6),(9), and no mitigating factors, N.J.S.A. 2C:44-1b. The prosecutor recommended that defendant be sentenced on the second-degree conviction to an eight-year custodial term with a four-year Graves Act parole disqualifier. The court only found aggravating factor nine, but found four mitigating factors, stating:
The following mitigating factors apply, one, your conduct neither caused nor threatened serious harm. Two, you didn't contemplate that it would do so. Eight, your conduct was the result of circumstances unlikely to recur, and eleven, your imprisonment will entail excessive hardship to the three year old son you have [,] given his mother's being sentenced shortly to a negotiated custodial term for her part in this incident.
[See N.J.S.A. 2C:44-1b(1), (2), (8), and (11).]
The court then sua sponte downgraded defendant's second-degree conviction for unlawful possession of a handgun to a third-degree offense, and sentenced him to a three-year custodial term with a three-year Graves Act parole disqualifier. The court's rationale was:
The court also considers the circumstances of this case whereby you were selected randomly by the person who stole the guns, and but for your poor judgment in
not calling the police immediately you would not have incurred these convictions. The mitigating factors outweigh the aggravating factors substantially. Moreover, the
interests of justice demand leniency in this case.
A trial court has broad discretion in sentencing provided it properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record and follows the sentencing guidelines. State v. Roth, 95 N.J. 334, 364-65 (1984); State v. O'Donnell, 117 N.J. 210, 215 (1989). However, "[m]erely enumerating those factors does not provide any insight into the sentencing decision, which follows not from a quantitative, but from a qualitative, analysis." State v. Kruse, 105 N.J. 354, 363 (1987).
Here, the trial court failed to address the two aggravating factors raised by the State and merely provided a conclusory recitation of three of the mitigating factors without citation to anything in the record. Nor did the court explain how the impending incarceration of defendant's child's mother to 364 days in county jail constituted an excessive hardship justifying mitigating factor number eleven. On remand, the court shall make such findings as required by the case law.
Sentencing a first or second-degree offender to a sentence one degree lower is governed by N.J.S.A. 2C:44-1(f)(2), which provides:
In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.In State v. Megargel, 143 N.J. 484, 505 (1996), the Supreme Court summarized the "two-pronged" analysis as follows: "first, the court must be 'clearly convinced' that the mitigating factors 'substantially' outweigh the aggravating ones, and second, the court must find that the 'interest of justice' demands that the sentence be downgraded." The Court observed that "the standard governing downgrading is high" and "[t]he reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Id. at 500, 505.
Even assuming the trial court correctly found the aggravating and mitigating factors, there was no compelling reason in the record for a downgraded sentence. Contrary to the court's explanation, defendant was not selected at random; to the contrary, he had a longstanding relationship with Elizondo, who was the godfather of defendant's son. Moreover, "poor judgment" is not sufficient for a downgrade. Defendant is required as a matter of law to be sentenced as a second-degree offender on his conviction for unlawful possession of a handgun with a mandatory Graves Act parole disqualifier.
We affirm defendant's convictions. We remand for resentencing consistent with this opinion. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION