Opinion
DOCKET NO. A-5614-12T3 DOCKET NO. A-0252-13T1
11-06-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALI IBN KARIM, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANWAR T. CROCKETT, a/k/a ANWAR WILLIAMS, KYLE H. WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Ali Karim (Michael J. Confusione, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Anwar Crockett (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Kennedy and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 11-06-01110, 11-06-01111 and 11-06-01112. Joseph E. Krakora, Public Defender, attorney for appellant Ali Karim (Michael J. Confusione, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Anwar Crockett (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (LeeAnn Cunningham, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Co-defendants Ali Karim and Anwar Crockett appeal from judgments of criminal convictions and the sentences imposed following a jury trial. We affirm both convictions. We are, however, compelled to remand for the trial court to resentence defendants consistent with the Supreme Court's holding in State v. Robinson, 217 N.J. 594 (2014).
We summarize only the facts and procedural history relevant to the issues raised on these appeals and derive this summary from the record. We discuss certain facts and procedures in more detail in conjunction with specific arguments raised by defendants.
I.
Karim and Crockett were indicted and tried for crimes arising out of two incidents. The first incident happened on September 15, 2010, when a double homicide occurred outside a bar in Newark. Crockett and Karim were charged with committing those murders and related crimes, including first-degree armed robbery and first-degree carjacking.
The second incident took place several days later on September 19, 2010. Police officers from Elizabeth engaged in a high-speed car chase that began in Elizabeth and ended with the fleeing car crashing in Newark. During the chase, occupants of the fleeing car fired guns at the pursuing police vehicles. Crockett was alleged to be the driver of the fleeing car and Karim was alleged to be the passenger. As a result of the car chase, Karim and Crockett were charged with a number of crimes, including second-degree eluding, second-degree conspiracy to commit aggravated assault, second-degree and fourth-degree weapons-related charges, and third-degree possession of controlled dangerous substances.
Defendants were indicted and tried together on all charges. The jury found Crockett and Karim not guilty of the double homicide and related charges from the incident on September 15, 2010. The jury found Karim and Crockett guilty of nine of the charges related to the car chase on September 19, 2010. Specifically, Crockett and Karim were found guilty of one count of second-degree eluding, in violation of N.J.S.A. 2C:29-2(b), one count of second-degree conspiracy to commit aggravated assault, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:12- 1(b), four counts of second-degree weapons-related crimes in violation of N.J.S.A. 2C:39-4(a), N.J.S.A. 2C:39-5(b) and (f), two counts of fourth-degree possession of a defaced firearm, in violation of N.J.S.A. 2C:39-3(d); and one count of third-degree possession of controlled dangerous substances (cocaine), in violation of N.J.S.A. 2C:35-10(a)(1). In a separate bench trial, Crockett and Karim were found guilty of two counts of second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).
Crockett was sentenced to aggregated prison terms of 30 years, with 22 years of parole ineligibility. Karim was sentenced to aggregated prison terms of 24 years, with 19 years of parole ineligibility. The periods of parole ineligibility were imposed in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
II.
In the evening of September 15, 2010, two men were shot and killed outside a bar in Newark. Witnesses testified that the two men had been sitting in a parked blue Audi. The Audi was purportedly driven away by an alleged shooter, and was later found burnt in Elizabeth.
At trial, a salesperson employed by a BMW dealership in Newark (the BMW Salesperson), testified that a silver BMW was stolen during the afternoon of September 15, 2010. In a photo array and at trial, the BMW Salesperson identified Karim as the person who stole the BMW. Another witness testified that he was driving a box truck in Newark at approximately 9:30 p.m. on September 15, 2010 (the Truck Driver), when he veered away from a speeding silver BMW. The Truck Driver identified Karim as the driver of the BMW through a photo array and at trial.
An acquaintance of both defendants (the Acquaintance) testified that he knew both defendants before the incidents that led to their arrests on these charges. On September 16, 2010, Karim told the Acquaintance that he and Crockett had been involved in a shooting the night before. According to the Acquaintance, Karim said that the shooting resulted from a "robbery gone bad." The Acquaintance also testified that Karim told him that Karim had taken a BMW on September 15, 2010.
On September 19, 2010, at approximately 3:00 a.m., police were advised that gunshots had been fired at a red Pontiac in Elizabeth. Shortly thereafter, Elizabeth police officers saw a red Pontiac, activated their overhead lights and sirens, the Pontiac began to flee, and the police pursued. During the chase both the driver and the passenger fired guns at the police officers. The car chase continued into Newark. The Acquaintance testified that he saw Crockett and Karim in a red Pontiac "flying down the street." According to the Acquaintance, Crockett was driving and Karim was on the passenger side, hanging out the window with a gun in his hand.
The car chase ended in Newark when the red Pontiac crashed. The driver of the Pontiac exited the car and, according to testifying police officer Meagher, the driver assumed "a tactical position to fire" at the officers. In response, several officers shot the driver, took him into custody, and transported him to a hospital. The driver was later identified as Crockett. Meagher also testified that he saw the passenger of the red Pontiac climb out of the car after the crash, but thereafter the passenger was not located at the scene of the car crash.
Several days later, on September 24, 2010, Karim was arrested for two robberies. Karim was shot by police in the course of that arrest. The Acquaintance was also arrested for those robberies and later he agreed to become a cooperating witness and testified against Karim and Crockett. After Karim's arrest on the robbery charges, Meagher identified Karim through a photo array conducted on September 28, 2010.
Crime scene investigators inspected the Pontiac and the scene of the crash. Two firearms, a handgun and a .9mm sub-machine gun, were recovered from the Pontiac. Ballistic evidence of a .9mm shell casing collected from the scene of the double-homicide matched the .9mm sub-machine gun collected from the Pontiac. Investigators also recovered DNA material, which was later matched to Karim, from the front passenger door and passenger airbag of the Pontiac. Crockett's DNA was also recovered from the driver's side airbag. A third person's DNA was also found on both the passenger side and the driver's side of the Pontiac. Finally, investigators collected cocaine from the front driver's area of the Pontiac.
Police internal affairs officers investigated the shooting of Crockett on September 19, 2010. A police tribunal later found that at least one of the officers acted properly in connection with the shooting of Crockett on September 19, 2010.
III.
On appeal, Karim asserts the following arguments:
POINT I
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR SEVERANCE OF COUNTS.
POINT II
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO EXCLUDE PRETRIAL IDENTIFICATIONS.
POINT III
THE TRIAL COURT ERRED IN PERMITTING AN AUDIO TAPE OF THE SEPTEMBER 19 ELUDING INCIDENT INTO EVIDENCE.
POINT IV
THE TRIAL COURT ERRED IN PERMITTING DR. LILAVOIS TO TESTIFY ABOUT AN AUTOPSY PERFORMED BY DR. HUA, WHO DID NOT TESTIFY AT TRIAL BELOW (PLAIN ERROR).
POINT V
THE TRIAL COURT ERRED IN PERMITTING INTO EVIDENCE UNFAIRLY PREJUDICIAL OTHER CRIMES OR WRONGS PROOFS.
POINT VI
THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR ACQUITTAL OF THE SECOND-DEGREE ELUDING CHARGE.
POINT VII
DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
Crockett makes the following arguments on his appeal:
POINT I
THE STATE SHOULD NOT HAVE BEEN PERMITTED, OVER OBJECTION, TO BOLSTER THE CREDIBILITY OF THE POLICE BY ASKING A QUESTION OF ANY OFFICER THAT WAS DESIGNED TO INFORM THE JURY THAT THE POLICE INTERNAL AFFAIRS TRIBUNAL HAD NOT DEEMED ANY OF THE POLICE CONDUCT TO HAVE BEEN IMPROPER.
POINT II
THE STATE PRESENTED INSUFFICIENT EVIDENCE TO PROVE A CONSPIRACY TO COMMIT SECOND-DEGREE AGGRAVATED ASSAULT. (NOT RAISED BELOW).
POINT III
THE JURY INSTRUCTIONS INAPPROPRIATELY INCLUDED REPEATED REFERENCE TO ALLOWING THE INFERENCE THAT THE OCCUPANTS OF A MOTOR VEHICLE ALL POSSESS ANY CONTRABAND FOUND IN
A CAR; MOREOVER, THE PROSECUTOR IMPROPERLY REFERENCED THAT INFERENCE AS A "PRESUMPTION" THAT COULD BE APPLIED AGAINST DEFENDANT. (NOT RAISED BELOW).
POINT IV
THE JURY INSTRUCTIONS INCORRECTLY FAILED TO SPECIFY THAT FOR THERE TO BE A CONVICTION FOR SECOND-DEGREE ELUDING, THE JURY WOULD HAVE TO UNANIMOUSLY AGREE ON THE VICTIM OF THAT CRIME, I.E., THE "PERSON" FOR WHOM THE DEFENDANT'S CONDUCT CREATED A "RISK OF DEATH OR INJURY." (NOT RAISED BELOW).
POINT V
THE SENTENCE IMPOSED IS ILLEGAL AND MANIFESTLY EXCESSIVE.
We first address Karim's arguments concerning the pre-trial motions he filed to sever certain counts and to suppress identifications. We will then address Karim's and Crockett's other arguments in groups related to evidentiary rulings, sufficiency of the evidence, jury instructions, and sentencing.
Before trial, Karim moved to sever the counts that related to the September 15, 2010, double-homicides from the counts related to the September 19, 2010, eluding incident. The motion judge (Judge Peter J. Vazquez) denied that motion. We affirm the denial of the motion to sever substantially for the reasons set forth in the well-reasoned written opinion issued by Judge Vazquez on January 10, 2012. The arguments for severance do not merit further discussion. See R. 2:11-3(e)(2).
Karim argues the trial court erred in denying a Wade hearing with respect to the identifications made by the BMW Salesperson and Truck Driver. Karim also argues that the trial court erred when, following a Wade hearing, the trial court refused to suppress the identification of Karim made by Officer Meagher.
United States. v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
The out-of-court identifications of Karim by the BMW Salesperson, the Truck Driver, and Officer Meagher were made in September 2010 through photo arrays. The motion to suppress the identifications of Karim was heard and decided in June and July 2012. Thus, the initial issue is the appropriate standard applicable to the suppression of the identifications of Karim.
In 2011, our New Jersey Supreme Court revised the standards for determining the admissibility of eyewitness identification. State v. Henderson, 208 N.J. 208 (2011). The Henderson standard replaced the Manson/Madison standard previously applied by New Jersey courts. Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977); State v. Madison, 109 N.J. 223 (1988). The Court in Henderson expressly stated that its ruling would apply only prospectively, taking effect thirty days from the approval date of the new model jury charges. Henderson, supra, 208 N.J. at 300-02. The new model jury charges were approved in July 2012, and became effective on September 4, 2012. Additionally, in State v. Micelli, 215 N.J. 284 (2013), the Court applied the Manson/Madison standard "because the out-of-court identifications were completed prior to our August 24, 2011 decision in State v. Henderson . . . ." Id. at 287. Accordingly, the Manson/Madison test applies here.
The Manson/Madison test is a two-part test. The first part requires the defendant to prove by a preponderance of the evidence that the police procedures were so "impermissibly suggestive" as to result in a "substantial likelihood of misidentification." Madison, supra, 109 N.J. at 232; see Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 10 L. Ed. 2d 1247, 1253 (1968). If the defendant proves "suggestiveness," then the second part requires the State to demonstrate that the subsequent identification was nonetheless "reliable." Madison, supra, 109 N.J. at 240; see State v. Carter, 91 N.J. 86, 129-30 (1982); see also Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 386, 34 L. Ed. 2d 401, 412 (1972). The defendant bears the ultimate burden of proving a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232; Simmons, supra, 390 U.S. at 384, 88 S. Ct. at 971, 10 L. Ed. 2d at 1253.
Here, the BMW Salesperson and Truck Driver were separately shown photo arrays. Those arrays were put together and presented in accordance with the then governing guidelines issued by New Jersey Attorney General's Office. The officer who administered the photo arrays was not involved in the investigation, did not know the identity of Karim, and showed the photographs sequentially. The trial court found that there was no suggestiveness during the photo array procedures. Accordingly, the trial court ruled Karim was not entitled to an evidentiary hearing.
When analyzed under the Manson/Madison test, the trial court did not abuse its discretion in allowing the identifications in this case. The BMW Salesperson and Truck Driver identified Karim in connection with the double-homicide that took place on September 15, 2010. The trial court finding that the photo arrays shown to those witnesses were not suggestive is supported by substantial credible evidence, and we affirm.
The trial court conducted an evidentiary hearing regarding the identification made by Officer Meagher related to the eluding incident on September 19, 2010. In this appeal, and before the trial court, Karim argued that the photo array shown to Meagher on September 28, 2010, was impermissibly suggestive. More particularly, Karim argues that there was circumstantial evidence that officers in Elizabeth were discussing the fact that there had been two police shootings, one on September 19, 2010, and another when Karim was shot on September 24, 2010, in connection with his arrest for robbery. Karim, therefore, argues that Meagher must have had some information concerning his identification before he was shown the photo array.
The trial court, however, found that there was no evidence supporting that Meagher knew of Karim's connection to the September 19, 2010 eluding incident before he was shown the photo array. Specifically, the trial court found that Meagher's testimony was credible and that no evidence supported the contention that Meagher knew of Karim's involvement in the eluding or that Meagher was shown Karim's photograph before the photo array. We see no basis to disturb those fact findings and affirm the trial court's denial of the motion to suppress the identification made by Meagher. See State v. Elders, 192 N.J. 224, 244 (2007).
We turn next to arguments claiming the trial court erred in (1) admitting an audiotape related to the September 19, 2010 incident; (2) allowing a forensic pathology expert to testify about an autopsy report prepared by a separate medical examiner; and (3) admitting evidence of other bad acts or wrongs committed by Karim. We also address Crockett's argument challenging the admissibility of testimony describing the results of an internal affairs tribunal that found no police misconduct in the shooting incident on September 19, 2010.
The admissibility of evidence is a matter within the discretion of the trial court. State v. Kuropchak, 221 N.J. 368, 385 (2015). Our review is limited and reversal is only warranted when the trial court has abused its discretion. State v. Nantambu, 221 N.J. 390, 402 (2015).
Karim challenges the trial court's decision to admit into evidence the police dispatch audiotape concerning the car chase and shootings that took place on September 19, 2010. The trial court conducted a N.J.R.E. 104 hearing and a Driver hearing. The trial court found that the tape was admissible subject to authentication at trial. At trial, the trial court then found that the tape was authenticated through testimony of two Elizabeth police officers. We see no abuse of discretion and affirm the ruling admitting the audiotape.
State v. Driver, 38 N.J. 255 (1962). --------
The trail court also permitted, without objection, testimony from a forensic pathology expert and evidence that before the police began pursuing the red Pontiac, gunshots had been fired at the Pontiac in the area of Madison Avenue in Elizabeth. Both these arguments are facially without merit and do not warrant discussion in an opinion. R. 2:11-3(e)(2).
Crockett argues that the trial court erred in allowing the State to present testimony about the results of a police internal affairs investigation related to the police shooting on September 19, 2010. Both Crockett and Karim made the credibility of the Elizabeth police officers a central part of their defense. Defense counsel thoroughly explored the police internal affairs investigation during cross-examination of Elizabeth Police Officer Alvarez. During re-direct, the prosecutor asked the officer whether internal affairs had found he did anything wrong concerning the incident on September 19, 2010. Over Karim's trial counsel's objection, Alvarez was allowed to testify that internal affairs found that he had done nothing wrong.
Crockett analogizes this situation to the case of State v. Ridout, 299 N.J. Super. 233 (App. Div. 1997). In Ridout, this court ruled that it was improper for a trial court to instruct the jury that it had previously ruled that identification procedures were reliable. Id. The facts and rationale of Ridout are inapplicable to Crockett's arguments about the internal affairs testimony. Here, defense counsel attempted to impeach the officer's testimony during cross-examination by challenging the propriety of his conduct in the course of the officer's interaction with Crockett. We discern no abuse of discretion in the trial court's decision to allow the prosecutor to rehabilitate the officer's credibility by introducing evidence of the findings of a related internal affairs investigation.
Karim argues that the trial court erred in denying his motion to dismiss the second-degree eluding charges. The State argues that, as a passenger in the fleeing Pontiac, there was evidence Karim acted as Crockett's accomplice when he fired at the pursuing police officers. The evidence also showed Karim continued to fire at the pursuing police officers when the Pontiac proceeded at high speeds through residential neighborhoods, until the pursuit ended with the Pontiac crashing.
A person is guilty of eluding if he or she operates
a motor vehicle on any street . . . of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.
[N.J.S.A. 2C:29-2(b) (emphasis added).]
A person is an accomplice of another person in the commission of a crime if "with the purpose of promoting or facilitating the commission of the offense; he [or she] . . . aids or agrees or attempts to aid such other person in planning or committing it." N.J.S.A. 2C:2-6(c)(1)(b). An accomplice must have the purpose that someone else engage in the conduct that constitutes the particular crime charged and share in the same intent that is required for the commission of the substantive offense. State v. White, 98 N.J. 122 (1984).
In deciding whether to grant a motion for a judgment of acquittal under Rule 3:18-1, a court must view
the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, [must find that] a reasonable jury could [not] find [defendant] guilt[y] of the charge beyond a reasonable doubt.We review a trial court's decision on a motion for acquittal de novo applying the same standard. State v. Bunch, 180 N.J. 534, 548-49 (2004).
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Here, the trial court denied Karim's motion finding the State had presented sufficient evidence to support a finding that Karim acted as an accomplice to the eluding committed by Crockett. The evidence showed Crockett was the driver of the Pontiac that eluded the police. The car chase exposed the pursuing police officers, innocent pedestrians and motorists, as well as Crockett and Karim themselves to a substantial risk of death or serious injury. As stated earlier, Karim's culpability in this respect was manifested by his actions as Crockett's accomplice. Given these facts, the trial court correctly denied Karim's motion for acquittal of the charge of second-degree eluding.
Crockett argues that the trial court committed plain error by failing to sua sponte acquit Crockett of conspiracy to commit second-degree aggravated assault. Crockett also raises two arguments about the jury instructions, but there were no objections to those instructions at trial. None of these plain error arguments merit discussion in a written opinion. R. 2:11-3(e)(2).
Crockett and Karim both argue that the trial court erred in sentencing them. Crockett was sentenced to aggregated prison terms of thirty years, with twenty-two years of parole ineligibility. Karim was sentenced to aggregated prison terms of twenty-four years, with nineteen years of parole ineligibility.
Specifically, under Indictment 11-06-01111, Crockett was sentenced: to ten years in prison, with five years of parole ineligibility on the second-degree eluding conviction; to an extended term of twenty years in prison, with 85% (approximately seventeen years) parole ineligibility under NERA on the second-degree conspiracy to commit aggravated assault conviction; to extended terms of twenty years in prison, with ten years and fifteen years of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(g), on the four second-degree weapons convictions; to four years in prison, with two years of parole ineligibility on the third-degree possession of CDS conviction; to eighteen months in prison for the two fourth-degree defacing weapons convictions. The trial court directed that the sentence for eluding was to run consecutively to all other sentences, and all other sentences were to run concurrently to each other. Under Indictment No. 11-06-01112, Crockett was sentenced to extended terms of twenty years in prison, with ten years of parole ineligibility for the two second-degree certain persons not to have weapons convictions. Those sentences were to run concurrent to each other and concurrent to the sentences under Indictment 11-06-01111.
Karim was specifically sentenced on Indictment 11-06-01111: to ten years in prison, with five years of parole ineligibility on the second-degree eluding conviction; to an extended term of twenty years in prison, with 85% parole ineligibility under the NERA on the second-degree conspiracy to commit aggravated assault conviction; to extended terms of twenty years in prison, with ten years and fifteen years of parole ineligibility in accordance with the Graves Act on the four second-degree weapons convictions; to four years in prison, with two years of parole ineligibility on the third-degree possession of CDS conviction; to eighteen months in prison on the two fourth-degree defacing weapons convictions. The trial court ordered that the sentences on the weapons convictions were to run consecutively to the other sentences, and all other sentences were to run concurrently. Under Indictment 11-06-01110, Karim was sentenced to extended terms of twenty years in prison, with ten years of parole ineligibility on the two second-degree certain persons not to have weapons convictions. Those sentences were to run concurrent to each other and concurrent to the sentences under Indictment 11-06-01111.
Appellate review of a sentence is generally guided by the abuse of discretion standard. State v. Roth, 95 N.J. 334, 364-65 (1984). Whether a sentence violates sentencing guidelines, however, is a question of law that is reviewed de novo. State v. Robinson, 217 N.J. 594, 604 (2014) (citing Roth, supra, 95 N.J. at 364); State v. Gandhi, 201 N.J. 161, 176 (2010). "At the time of sentencing, the court must 'state reasons for imposing such sentence including . . . the factual basis supporting a finding of particular aggravating or mitigating factors affecting sentence.'" State v. Fuentes, 217 N.J. 57, 73 (2014) (quoting R. 3:21-4(g)); see also State v. Case, 220 N.J. 49, 54 (2014); State v. Lawless, 214 N.J. 594, 608 (2013).
Crockett and Karim argue that the trial judge erred in determining the aggravating and mitigating factors, imposing consecutive sentences, and in explaining the reasons for the sentences. We find no merit in those arguments. We also find that those sentencing contentions do not merit further discussion in a written opinion. R. 2:11-3(e)(2).
The sentences imposed on both Crockett and Karim, however, will be remanded for new sentencing consistent with the decision by our Supreme Court in State v. Robinson, 217 N.J. 594 (2014). Crockett and Karim were sentenced on May 5, 2013. In 2014, the New Jersey Supreme Court held that "the plain language of N.J.S.A. 2C:44-5(a)(2) bars the imposition of a discretionary extended term" and mandatory extended term in the same sentence proceedings. Id. at 598, 610. In Robinson, the Supreme Court considered whether "a trial judge may impose a mandatory extended term and a discretionary extended term in the same sentence proceedings." Id. at 598. The Court noted that the question was one of first impression. Id. at 597. Ultimately, the Court concluded that the clear language of N.J.S.A. 2C:44-5(a)(2) prohibits the imposition of a discretionary extended term and a mandatory extended term in the same sentence. Id. at 599. The Court went on to hold that when a defendant is illegally sentenced to discretionary and mandatory extended terms in the same sentencing proceedings, on remand, an entirely new sentencing hearing is required and the State should be afforded the opportunity to elect on which counts to seek a mandatory or discretionary extended term. Id. at 611.
Both Crockett and Karim were sentenced to mandatory and discretionary terms. The extended terms for the convictions for second-degree conspiracy to commit aggravated assault (Count 23) were discretionary, while the extended terms for the weapons convictions (Counts 30 to 33) were mandatory under the Graves Act.
On these appeals, the State argues that the Supreme Court's decision in Robinson should be applied purely prospectively. We disagree. The threshold question is whether a new rule of law has been announced. State v. Feal, 194 N.J. 293, 307 (2008). "[W]here a new rule is not at issue, a retroactivity inquiry is unnecessary." Id. at 308. "Courts will simply construe the rule as 'one that has always applied'" and apply that rule to any pending case. Ibid. (quoting State v. Colbert, 190 N.J. 14, 22 (2007)).
A case announces a new rule of law for retroactivity purposes if there is a "'sudden and generally unanticipated repudiation of a long-standing practice.'" Ibid. (quoting State v. Purnell, 161 N.J. 44, 53 (1999)). A new rule exists if "'it breaks new ground or imposes a new obligation on the States or the Federal Government . . . [or] if the result was not dictated by a precedent existing at the time the defendant's conviction became final.'" State v. Lark, 117 N.J. 331, 339 (1989) (alteration in original) (emphasis omitted) (quoting Teague v. Lane, 489 U.S. 288, 301, 109 S. Ct. 1060, 1070, 103 L. Ed. 2d 334, 349 (1989)). In contrast, a new rule of law does not exist if there is no "appreciable past from which the rule departs." State v. Afanador, 151 N.J. 41, 58 (1997).
Robinson did not promulgate a new rule of law. Instead, Robinson clarified the interpretation of the statutory provision N.J.S.A. 2C:44-5(a)(2). Specifically, the Robinson court held that the language of N.J.S.A. 2C:44-5(a)(2) was "plain" and "unambiguous[]." Robinson, supra, 217 N.J. at 598, 605. In examining the plain language of the statute, the Court in Robinson stated: "N.J.S.A. 2C:44-5(a)(2) expressly and unequivocally states that no more than one extended term sentence may be imposed in a single sentencing proceeding." Id. at 605. The Court in Robinson went on to explain that it was "not writ[ing] on a clean slate" and its decision in State v. Hudson, 209 N.J. 513 (2012), supported and foreshadowed the interpretation to be given to N.J.S.A. 2C:44-5(a)(2). Ibid. Accordingly, we hold that the interpretation of N.J.S.A. 2C:44-5(a)(2) announced in Robinson should be applied to defendants' sentences since Robinson was issued while defendants' appeals were pending.
We affirm defendants' convictions. We remand for the trial court to resentence defendants in accordance with the Supreme Court's holding in Robinson.
Affirmed and remanded for resentencing. 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