Opinion
DOCKET NO. A-6001-12T3
02-05-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. L.K., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Koblitz and Gilson. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 11-03-0291 and 11-05-0554. Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a second jury trial, defendant L.K. was convicted of threatening his wife and beating her in the following charges: 1) second-degree aggravated assault, attempting to cause serious bodily injury, N.J.S.A. 2C:12-1(b)(1); 2) third-degree aggravated assault, attempting to cause bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2); 3) second-degree burglary, attempting to inflict bodily injury on another in the course of the burglary, N.J.S.A. 2C:18-2; 4) third-degree possession of a knife with a purpose to use it unlawfully against a person, N.J.S.A. 2C:39-4(d); and 5) fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d). After the jury verdict, defendant entered a guilty plea to third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and fourth-degree criminal contempt of a restraining order, N.J.S.A. 2C:29-9(b). He was sentenced to an aggregate extended term of sixteen years in prison with an 85% parole disqualifier. We affirm the convictions and sentence.
The judge declared a mistrial pursuant to State v. Chenique-Puey, 145 N.J. 334, 343 (1996), before this trial began.
We do not identify the names of both defendant and the victim to protect the confidentiality of the victim's identity. R. 1:38-3(c)(12) (requiring names of domestic violence victims to be kept confidential).
When he was incarcerated pending trial, defendant repeatedly contacted his wife by phone and mail. He asked his wife to drop the criminal charges and to change her prior statement detailing the incident. At a Rule 104 hearing, the trial judge found four of defendant's letters admissible.
N.J.R.E. 104(c).
Defendant and his wife, T.B., married in 2010. According to T.B., defendant threatened and hit her on multiple prior occasions. She eventually obtained a final restraining order, pursuant to N.J.S.A. 2C:25-29(b)(6), which prohibited defendant from having any contact with T.B. Approximately two months later, on December 9, 2010, defendant ran into the house of T.B.'s friend while T.B., her friend, and her friend's children were present. As soon as defendant entered the home, he kicked down the bathroom door where T.B. was hiding and began to punch and kick her. T.B.'s friend tried to intervene but she was unable to stop defendant. Defendant then grabbed a knife, continued to punch and kick T.B., took her wallet, and fled when the police were heard arriving. T.B. was then taken to the hospital and treated for facial contusions.
After telephone conversations and letter correspondence between T.B. and defendant, T.B. recanted her prior statements to the police in a written statement. Defendant then sent T.B. a written apology saying:
Hey, sending my love and blessings. By the time this letter reaches you and touches your hand, God's blessed you forever spiritually, mentally, and physically. Once again I'm truly honestly stating I apologize for all of the heavy burdens of all of your hardships and pain I've brought forth in the presence of your life. God knows I can truly and honestly say I feel and understand if you don't want me no longer in the presence of your life. I truly understand.
I know you' re not sure of my love for you or being in love with you. I truly know and can understand things from your side and your point of view. I know and can understand the bad energy I created amongst us isn't nothing good or exciting and a real man shouldn't put his wife in the position or in this situation, so I can truly understand and have to respect if you feel or think I am no longer the one for you, but I can honestly say I will never forget you and the good times that we blessed us to have.
Defendant also sent three other letters, with one asking T.B. to drop the charges against him. In the most recent letter, he told her:
You wasn't supposed to say I did anything 'cause if I'm found guilty on these charges, which it's first, second, and third-degree charges and they're going to hit me with extended term plea offers, which God forbid they're going to give me a life sentence, when you ask me what you should do, well, the only best thing now is to show up at my trial and tell them we just had an argument and I just mushed you on your face
and head, that's when your family jumped up to you and -- and when that happened you happened to fall to the ground, that's it, nothing, no more or no less say to them.
T.B. then went to the prosecutor's office and said that her prior recantation was not accurate, but she did not want her husband to serve a long prison sentence. She also gave the prosecutor four letters defendant had written to her from jail.
Defendant raises the following issues on appeal:
POINT I: ADMISSION OF LETTERS FROM DEFENDANT TO MS. BAKER WRITTEN AFTER DEFENDANT'S ARREST WAS ERROR.
POINT II: CERTAIN STATEMENTS MADE BY THE PROSECUTOR DURING SUMMATION WERE GROSSLY IMPROPER AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III: THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF SIXTEEN (16) YEARS WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED. (NOT RAISED BELOW).
I
Defendant argues that the letters he wrote from jail to T.B. should not have been admitted into evidence. "[A] trial court's ruling on the admissibility of evidence is reviewed on appeal for abuse of discretion." State v. Hess, 207 N.J. 123, 182-83 (2011) (quoting State v. Rose, 206 N.J. 141, 157 (2011)). When reviewing rulings made pursuant to Rule 404(b), our Supreme Court has previously held "that '[o]nly where there is a clear error of judgment should the trial court's conclusion with respect to that balancing test be disturbed.'" Rose, supra, 206 N.J. at 157-58 (alteration in original) (quoting State v. Barden, 195 N.J. 375, 391 (2008)). "[T]he decision to admit or exclude evidence is one firmly entrusted to the trial court's discretion." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010).
Our Supreme Court has previously "recognized the relevance of post-crime conduct to a defendant's mental state when the conduct demonstrates consciousness of guilt." State v. Williams, 190 N.J. 114, 125 (2007 ); see also State v. Goodman, 415 N.J. Super. 210, 233 (App. Div. 2010) (finding defendant's letter to an inmate "clearly relevant to demonstrate consciousness of guilt"), certif. denied, 205 N.J. 78 (2011). "[C]ertain conduct after the commission of a crime may indicate a defendant's consciousness of guilt." State v. Randolph, 441 N.J. Super. 533, 562 (App. Div. 2015). Additionally, "statements demonstrating consciousness of guilt are admissible in circumstances where the defendant was incarcerated at the time those statements were made." Goodman, supra, 415 N.J. Super. at 234.
To determine whether evidence of other conduct is admissible, the trial judge must find that defendant's conduct was "intrinsically indicative of a consciousness of guilt, such as unexplained flight, or an unusual exhibition of remorse for the victim of the crime, or the switching of clothes with a cell mate before a lineup." Randolph, supra, 441 N.J. Super. at 562 (quoting State v. Pindale, 249 N.J. Super. 266, 283 (App. Div. 1991)).
The trial judge did not abuse his discretion in finding that the four letters were admissible for the purpose of proving defendant's consciousness of guilt. The trial judge properly found that the letters were "relevant as to consciousness of guilt." The subject matter of the letters consisted of: 1) defendant's apology to T.B.; 2) defendant's request to T.B. to drop the criminal charges against defendant; and 3) defendant's request to T.B. to provide fabricated testimony.
The trial judge did not abuse his discretion when he found that the probative value of the letters was not outweighed by their prejudicial impact. See N.J.R.E. 403(a). To further dispel any prejudice, the judge redacted the letters to eliminate any indication that the letters were sent from jail. See Goodman, supra, 415 N.J. Super. at 234.
II
Defendant requests that his "convictions should be vacated and a new trial ordered" because the prosecutor's summation was "grossly improper and deprived defendant of a fair trial." Defendant points to two statements. First, defendant asserts that the prosecutor's statement, inquiring "what kind of a man does that," constituted an improper "ad hominem attack on defendant." Though the trial judge told the jury to disregard the statement and struck it from the record, defendant argues that "it generated substantial prejudice." Second, defendant contends that the prosecutor's statement, "we're lucky the victim is still here," had "a strong potential to cause a miscarriage of justice." Defendant argues that "it was grossly improper" to infer that T.B. suffered from potentially serious injuries because T.B. was merely "treated for facial contusions, given Tylenol and released from the hospital."
Although not appropriate, the prosecutor's remark, "what type of a man does that," was not sufficiently egregious to warrant a new trial. See State v. Smith, 212 N.J. 365, 403-04 (2012) (requiring an appellate court to consider whether the trial judge "struck the remarks and provided appropriate instructions to the jury"), cert. denied, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). The trial judge provided appropriate instructions to the jury to disregard that statement. The trial judge also instructed the jury that they should "weigh the evidence calmly, and without passion, prejudice or sympathy."
The prosecutor's other statement, "we're lucky the victim is still here," was clearly "prompted by comments in the summation of defense counsel." See ibid. During defense counsel's summation, defense counsel downplayed T.B.'s injuries, stating: "I will suggest to you that if he said I want to kill you, and held a knife over her, she would be dead. She would not be able to stop him, I suggest to you." In his closing remarks, the prosecutor stated "when [defense counsel] said if he wanted to she'd be dead, the State says thank God she turned out to be okay." Given the context of the prosecutor's summation, the prosecutor was responding to defense counsel's remarks. See State v. Morton, 155 N.J. 383, 416 (1998) (requiring us to "consider the summation within the context of the trial as a whole"), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).
III
Finally, defendant argues that his sentence was excessive given the absence of serious injury to the victim. If the State files an appropriate motion, R. 3:21-4(e), the court may sentence a person convicted of a first, second, or third-degree crime "to an extended term of imprisonment if it finds one or more of the grounds specified in subsection a., b., c., or f. of this section." N.J.S.A. 2C:44-3. Subsection a. concerns the imposition of an extended term for a persistent offender. See N.J.S.A. 2C:44-3(a). A persistent offender is a person who 1) committed the present crime when he or she was at least twenty-one years old; 2) while he or she was at least eighteen years old, "has been previously convicted on at least two separate occasions of two crimes, committed at different times"; and 3) committed his or her most recent prior conviction or was released from confinement within ten years from the date of the present crime for which he or she is being sentenced. Ibid.
First, "[t]he sentencing court must assess the defendant's prior convictions to determine whether the defendant meets" the requirements of N.J.S.A. 2C:44-3(a). State v. Hudson, 209 N.J. 513, 527 (2012). If a defendant satisfies the minimum statutory requirements and qualifies as a persistent offender, the range of permissible sentencing expands and "the court may consider, in addition to finding and weighing aggravating and mitigating factors, the 'protection of the public.'" Ibid. (quoting State v. Pierce, 188 N.J. 155, 170 (2006)).
The judge here correctly found defendant to be a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Defendant committed the present offenses when he was twenty-seven years old. The trial judge also thoroughly reviewed defendant's prior criminal history. See State v. Roth, 95 N.J. 334, 365 (1984). In his review, the judge noted that defendant committed, as an adult, "at least nine [prior] indictable convictions." The trial judge also noted that defendant's latest prior conviction, in 2007, was within ten years "of the crimes for which he's being sentenced."
N.J.S.A. 2C:43-7 provides the appropriate ranges for extended terms of imprisonment. See N.J.S.A. 2C:43-7. For second-degree crimes, the trial judge must fix an extended term between ten and twenty years. N.J.S.A. 2C:43-7(a)(3). "Higher or lower base terms are imposed depending on the balance of aggravating and mitigating factors." State v. Dunbar, 108 N.J. 80, 88 (1987). When the trial judge imposes a sentence, the judge shall, on the record, state the reasons for its imposition, including "the factual basis supporting its findings of particular aggravating or mitigating factors affecting the sentence." N.J.S.A. 2C:43-2(e). The judge must also "describe the balancing process leading to the sentence." State v. Kruse, 105 N.J. 354, 360 (1987).
The three aggravating factors found by the judge in the present case are:
(3) The risk that the defendant will commit another offense;
. . . .
(6) The extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; [and]
. . . .
(9) The need for deterring the defendant and others from violating the law . . . .
[N.J.S.A. 2C:44-1(a)(3), (6), (9).]
The judge properly followed the sentencing guidelines when imposing a sentence of sixteen years in prison with an 85% parole ineligibility. See N.J.S.A. 2C:43-7(a)(3); Roth, supra, 95 N.J. at 365 (providing a three-part test for the appellate review of a sentencing decision).
IV
Without filing a cross-appeal, or seeking relief first in the trial court, the State argues that this case should be remanded for a correction of the judgment of conviction to reflect a finding of guilt as to the lesser-included offense of theft of movable property, N.J.S.A. 2C:20-3(a), and for sentencing on that count. The State maintains that the judge and prosecutor ignored the verdict sheet and pronouncement by the jury foreman; incorrectly allowing the verdict to be recorded as not guilty. The State argues that this is merely "an oversight."
We note that the verdict sheet reflects defendant's guilt of the lesser-included offense of theft of movable property, "a wallet and its contents." No monetary value is provided. Without a finding of the value of the property taken, the theft would be a disorderly persons offense. See N.J.S.A. 2C:20-2(b)(4).
An issue of this nature, which seeks to instate a conviction rather than merely correct an illegal sentence, should be brought in the first instance to the attention of the trial court. We therefore refrain from ruling on this issue, nor do we intend to imply that the State is or is not within time to bring such a motion in the trial court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973) (recognizing that we "will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available").
Illegal sentences "may be corrected at any time." State v. Harris, 439 N.J. Super. 150, 161 (App. Div.) (quoting State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014), certif. denied, 220 N.J. 575 (2015)), certifs. denied, 221 N.J. 556 (2015). --------
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION