Opinion
DOCKET NO. A-5241-09T3
08-15-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARCUS PETTIFORD a/k/a ARSENIO MERCADO, MARCUS JONES, Defendant-Appellant.
Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief). Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Catherine Healy, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Baxter and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-07-1367.
Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent (Catherine Healy, Assistant Prosecutor, on the brief). PER CURIAM
Defendant, Marcus Pettiford, appeals from his conviction by a jury for second-degree robbery, N.J.S.A. 2C:15-1, as a lesser-included offense of first-degree robbery, and from his sentence of eight years in custody, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant raises the following issues for our consideration:
POINT IWe affirm.
THE TRIAL COURT ERRED IN FAILING TO SUPPRESS MR. PETTIFORD'S STATEMENT TO POLICE.
POINT II
THE TRIAL COURT ERRED IN PERMITTING PREJUDICIAL TESTIMONY CONCERNING THE SEIZURE OF NARCOTICS AND A HANDGUN FROM 156 GRANT AVENUE ON THE NIGHT THAT THIS DEFENDANT WAS FOUND AT THAT ADDRESS. (NOT RAISED BELOW.)
POINT III
THE TRIAL COURT ERRED BY FAILING TO STRIKE TESTIMONY CONCERNING DEFENDANT'S NICKNAME, "LIE," AND IN FAILING TO PROVIDE A CURATIVE INSTRUCTION TO THE JURY, THEREBY PREJUDICING MR. PETTIFORD'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
POINT IV
THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL.
POINT V
THE PROSECUTOR ENGAGED IN MISCONDUCT DURING ITS SUMMATION BY COMMENTING ON MR. PETTIFORD'S POST-ARREST SILENCE. (NOT RAISED BELOW.)
POINT VI
THE TRIAL COURT ERRED IN FAILING TO ADEQUATELY CHARGE THE JURY REGARDING
CREDIBILITY OF WITNESSES. (PARTIALLY RAISED BELOW.)
POINT VII
THE TRIAL COURT ERRED IN FAILING TO CHARGE THE JURY ON THEFT AS A LESSER INCLUDED OFFENSE OF ROBBERY. (NOT RAISED BELOW.)
POINT VIII
THE TRIAL COURT ERRED IN PROVIDING A SUPPLEMENTAL INSTRUCTION TO THE JURY WHICH DIRECTED A VERDICT. (NOT RAISED BELOW.)
POINT IX
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW.)
POINT X
THE TRIAL COURT MISAPPLIED ITS DISCRETION IN REFUSING TO ALLOW MORE THAN ONE OF MR. PETTIFORD'S FAMILY MEMBERS TO SPEAK AT HIS SENTENCING AND IN FAILING TO SET FORTH ITS REASONS FOR ITS DECISION. (NOT RAISED BELOW.)
POINT XI
THE TRIAL COURT MISAPPLIED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS. (NOT RAISED BELOW.)
I.
Evidence was presented at trial that, on November 10, 2006 at approximately 8:00 p.m., defendant and Benjamin Wilson, armed with a handgun, robbed a bodega in Jersey City of $800, scratch- off lottery cards, and two cigar boxes of calling cards. They were followed by one of the store's owners to a nearby apartment building located on Grant Avenue. The building was surrounded by the police who were called to the scene, and consent to search was obtained from the occupants of all apartments other than apartment two. Nailah Mayweathers, a fifteen-year-old occupant of apartment two, refused consent to a police search of the premises. However, her brother Jaliyl consented, as did Jaliyl's mother, Rhonda Martin.
A search of the premises revealed six people to be present. Defendant and Wilson were found in the back bedroom of the apartment. The two cigar boxes were found in a closet off of the rear bedroom; the calling cards were on the bed in the rear bedroom; and the lottery tickets, substantial amounts of wet cash, and two bandanas used in the robbery were found in the rear bedroom's closet. Following his arrest, defendant was found to have $300 in wet cash in his pants pocket. Apparently an unsuccessful attempt had been made to flush the cash down the toilet. Elsewhere in the apartment, the police found clothing identified by the bodega's owners as having been worn during the robbery, a loaded nine-millimeter handgun identified as having been used in the robbery, a loaded .22 caliber long rifle handgun, and seventy-seven vials of cocaine.
In a statement to the police, Nailah Mayweathers said that around 8:30 p.m. defendant and Wilson had arrived at the apartment, out of breath and carrying money. They proceeded first to the rear bedroom, and then to the living room where they counted the cash. Defendant and Wilson then returned to the rear bedroom, where Nailah observed the lottery tickets and a Dutch Masters cigar box before defendant and Wilson closed the door. Shortly thereafter, she heard the police sirens. When the police asked her consent to search the apartment, she refused, not knowing what to do in the circumstances.
A grand jury returned an indictment against defendant, charging him with first-degree armed robbery, N.J.S.A. 2C:15-1, third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a, fourth-degree possession of armor-piercing hollow-nose bullets, N.J.S.A. 2C:39-3f, fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d, and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. However, defendant was acquitted by a jury of all weapons charges, and he was convicted only of the lesser-included offense of second-degree robbery. This appeal followed.
The statute was amended effective February 2, 2009 to make the offense a second-degree crime.
II.
On appeal, defendant first argues that statements made by him to the police while in custody should not have been admitted at trial, because they were taken in violation of his Miranda rights.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
At a Miranda hearing conducted by the trial judge, Detective Marc Lavelle testified that, on the night of the robbery, he was called in to the police's East District headquarters to assist in conducting interviews and taking statements in connection with the robbery of the bodega. Detective Lavelle was assigned to interview defendant, and he was advised that defendant was a suspect in the robbery. Upon entering the room, the detective advised defendant orally of his Miranda rights, which defendant stated that he understood. He further stated that he wished to waive his rights. However, defendant refused to sign an acknowledgment of his rights or a proffered waiver form.
Thereafter, the detective noticed that defendant had a lump in his pocket which, upon investigation, was determined to be a large amount of crumpled-up wet cash. When asked why it was wet, defendant responded that "people" were flushing money down the toilet and that he took it out. However, defendant did not identify those who were disposing of the cash in that fashion.
Detective Lavelle additionally asked defendant "if he was wearing the clothing that he had on." Defendant responded that "somebody had borrowed his clothing while he was in the apartment." "[T]hey asked him to borrow his clothing, they took his clothes. He took his clothes off, gave it to them and then at some point later on they returned them and he put them back on." Defendant did not identify who had requested this exchange. Thereafter, the detective's interview yielded no more "fruitful" responses, and defendant declined to give a formal statement.
Following cross-examination that disclosed that the detective had not marked on the Miranda form that defendant had refused to sign it, and he did not mention Miranda in his supplemental report, the judge nonetheless ruled defendant's statements admissible. The judge found the detective to have been "extremely credible." Additionally, he stated:
At the time, Rule 3:17, requiring electronic recordation of a custodial interrogation when a defendant had been charged with robbery, was not in effect. See Pressler and Verniero, Current N.J. Court Rules, comment on R. 3:17 (2011). That rule became effective on January 1, 2007.
I've had many instances that I've seen both in trials, as an assistant prosecutor years and years ago, where people are
willing to talk, but not willing to sign anything.
I mean, it is a phenomena, it does happen, I do not find that unusual. I find that Detective Lavelle clearly gave the defendant his Miranda rights and I find that the defendant waived those rights by voluntarily answering certain questions of the detective.
We review the trial judge's determination of the admissibility of evidence for an abuse of discretion. State v. Buda, 195 N.J. 278, 295 (2008). In that regard, the trial judge's factual findings are binding upon us if they are supported by competent evidence in the record, which they were in this case. State v. Locurto, 157 N.J. 463, 470-71 (1999). Deference to the judge's findings is particularly warranted when, as here, "'the significant evidence is largely testimonial rather than documentary, and the trial court has had the opportunity to observe the witnesses and determine their credibility.'" State v. Warmbrun, 277 N.J. Super. 51, 62 (App. Div. 1994) (quoting Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)), certif. denied, 140 N.J. 277 (1995). We review the judge's interpretation of the law anew. State v. Ugrovics, 410 N.J. Super. 482, 487-88 (App. Div. 2009), certif. denied, 202 N.J. 346 (2010). Under these standards, we find no abuse of the judge's discretion, concluding that his factual findings were adequately supported by the evidence and that his legal conclusion was in accordance with the law.
"'The voluntariness of [a] defendant's waiver is tested by the totality of all the surrounding circumstances.'" State v. Burno-Taylor, 400 N.J. Super. 581, 603 (App. Div. 2008) (quoting Warmbrun, supra, 277 N.J. Super. 62). We have held that "Miranda does not require a written waiver." Warmbrun, supra, 277 N.J. Super. at 62. For that reason, a "defendant's refusal to sign a waiver form does not necessarily equate to an assertion of the right to remain silent; it is one factor to be considered." Burno-Taylor, supra, 400 N.J. Super. at 603.
In Warmbrun, the defendant, who had been convicted of reckless manslaughter after killing a pedestrian while under the influence of alcohol, challenged the admissibility of statements that he made to the police about the amount of alcohol he had consumed. As in this case, he argued that the statements were inadmissible because he had refused to sign a Miranda waiver. We found the absence of his signature not to be dispositive. Id. at 62-63. After a review of the evidence, we concluded that the defendant had "willingly discussed his drinking without any indication that he intended to invoke his right to remain silent." Id. at 64. Accordingly, we rejected defendant's argument. Ibid.
Similarly, in the present matter, defendant refused to sign the Miranda rights form or the waiver, but he willingly spoke to Detective Lavelle, explaining to him why his cash was wet and offering to him his claim that he had exchanged clothes with another unidentified person. Thereafter, defendant refused to give further information and the interview was terminated.
In this case, there is no evidence, such as that present in Burno-Taylor, 400 N.J. Super. at 593-602, that the nature of the investigation was withheld, that the significance of Miranda warnings was misrepresented to be a mere formality, or that defendant had refused to sign a waiver form on multiple occasions, yet the interrogating officers persisted in seeking his assent to questioning. In our view, the totality of the circumstances, as found by the trial judge and as supported by the record, disclose that defendant's statements were knowingly and voluntarily offered. They were properly admitted at trial.
III.
In his opening, defense counsel argued that defendant was not one of the persons who had robbed the bodega. In support of that position, counsel stated:
What I expect you will hear from some of the witnesses is that a black baseball hat was left at the scene by one of the robbers. That baseball hat is not linked in any way to Marcus Pettiford. In fact, I anticipate you'll hear testimony that thatAt this point, the prosecutor objected, claiming that unless Naije Ford was called as a witness, the statement was inadmissible hearsay. Following argument, counsel did not further address the gun ownership evidence.
black baseball hat was worn that day by another person in the apartment, Naije Ford, and Naije Ford, interestingly enough, also admitted to owning a gun that was found in the apartment. He admitted that to detectives at the scene.
However, after the first witness had testified and the jury had been excused for the day, the subject of the admissibility of Naije Ford's statement was again raised. At that time, defense counsel stated:
There was — referring to specifically what happened inside the apartment when the premises was searched by the police officers. During the course of that search a — another handgun, a 22 long rifle was recovered. It was not identified by these witnesses as being the gun in question in this case. But it was recovered and one of the persons that was in the apartment at the time the police arrived, Naije Ford, admitted to Detective Ludwig that the .22 the long rifle was his.
And I want to introduce that through Detective Ludwig when he testifies that — first, that there was a gun recovered and second that Mr. Ford admitted that it was his gun.
When asked why this evidence was relevant, counsel stated:
It's relevant for a couple of reasons, Judge. First, the search that took place in
that apartment was not just a matter of finding clothes and lottery tickets and money. There were other items found.
In one bedroom there were 50 vials of crack cocaine that another individual, Mr. Sessoms, was charged with. He's not part of the robbery.
. . . .
In another bedroom there were 27 vials of crack cocaine found, which apparently no one was charged with. And there's this gun that's found, well two guns are found. One that the witnesses identify and —
THE COURT: A revolver — or a handgun.
[COUNSEL]: Right. And this .22 long rifle. . . . I think the jury should be allowed to see what exactly is going on in that apartment.
After further argument, the judge barred as irrelevant to matters in issue questioning about the admission of gun ownership by Naije Ford as well as any out-of-court statements regarding the narcotics found on the premises. However, the judge did permit counsel to question police witnesses regarding what was found in their search of the apartment.
On the following day, defense counsel elicited testimony from Police Sergeant Edward Nestor on cross-examination that the police had found twenty-seven vials of cocaine in the back of a television in the rear bedroom of the apartment, and that no charges had resulted. Additionally, fifty vials of cocaine had been found in the middle bedroom, and as a result, Eric Sessoms was charged. Defense counsel also elicited the fact that two handguns were discovered, a black semiautomatic and the .22 long rifle handgun, and that Naije Ford was charged with possessing the .22.
Without disclosing that defense counsel was the first to elicit this testimony, defendant argues on appeal that he was unduly prejudiced by the testimony regarding the drugs and second gun. We decline to find plain error, concluding that any error that took place was invited. State v. Jenkins, 178 N.J. 347, 358-60 (2004). There, the Court stated
a "defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial." State v. Pontery, 19 N.J. 457, 471 (1955). Thus, when a defendant asks the court to take his proffered approach and the court does so, we have held that relief will not be forthcoming on a claim of error by that defendant.
[Ibid.]
Further, we note that defendant was not charged with a drug offense, and he was acquitted of all gun-related charges, including first-degree robbery. As a result, we find no grounds for concluding that defendant was prejudiced by this evidence.
IV.
On one occasion during the course of trial, the prosecutor solicited testimony from a witness regarding defendant's street name, which was transcribed as "Lie (phonetic)." On appeal, defendant claims that the reference was unduly prejudicial. We disagree.
We have previously held that nicknames, particularly if pejorative, should be kept from the jury unless relevant for some purpose. State v. Paduani, 307 N.J. Super. 134, 147 (App. Div.), certif. denied, 153 N.J. 216 (1998). While it would have been preferable for the prosecutor to have refrained from asking the witness what defendant's nickname was, we cannot conclude that the one reference — which may or may not have been accurately transcribed — could have had the capacity to produce an unjust result. State v. Salaam, 225 N.J. Super. 66, 76 (App. Div.), certif. denied, 111 N.J. 609 (1988); R. 2:10-2. Even if the transcription was accurate, it could not have been used by the jury to undermine defendant's credibility since he did not testify at trial.
V.
Defendant argues additionally that the trial judge erred in failing to grant his motion for acquittal. In that regard, he alleges that evidence pointing to his guilt was insufficient because the owners of the bodega did not identify him, his skin color was different from the description given to the police, he was not the source of DNA found on bandanas recovered by the police, when defendant was arrested he was not wearing the grey hoodie that the victims described, his fingerprints were not found on the stolen items, and none of the witnesses said that he was ever in possession of the stolen cigar box, lottery tickets or gun.
Nonetheless, we agree with the trial judge that the evidence was sufficient, when viewed in a light most favorable to the State, to convict defendant under standards established by Rule 3:18-1 and State v. Reyes, 50 N.J. 454, 458-59 (1967). As the trial judge observed:
We have testimony of one of the, quote, "victims of the robbery," saying he followed two individuals into the apartment building, not three, two individuals at the apartment building. We have testimony that Mr. Pettiford and another individual entered the building together seemingly out of breath, went back to the back room, back bedroom, of the apartment[.] [I]tems and proceeds of that robbery were found at the back bedroom . . . . Wet cash was found on Mr. Pettiford's co-defendant and found on him.On that basis, we find that defendant's motion was properly denied.
Based upon all the circumstances and inferences that could be drawn and the fact that testimony also indicates that DNA evidence is not always available on certain items, the jury very easily could find beyond a reasonable doubt the defendant is guilty of all of the crimes charged . . . .
VI.
During his closing argument, the prosecutor argued to the jury that defendant's statements to Detective Lavelle that "someone" had taken his clothes on the night of the robbery and later returned them, and that "someone" had tried to flush money down the toilet were self-serving attempts to escape culpability. On appeal, defendant claims that by commenting on the fact that he did not identify the actors involved in the two incidents, the prosecutor was improperly commenting on his silence. We do not interpret the prosecutor's arguments in the manner that defendant suggests.
In support of his argument, defendant relies on State v. Muhammad, 182 N.J. 551 (2005). However, we find Muhammad distinguishable. In that case, it was alleged that defendant, a police officer, raped the victim, who then insisted that she be taken to a police station. Defendant complied, but once there, he stated that the victim had been harassing his brother and sister, and he had picked her up to scare her into altering her conduct. The victim, in contrast, claimed rape and offered defendant's used condom as evidence. Id. at 559-61. At trial, defendant asserted that the victim was a prostitute and that their sex had been consensual. Id. at 562. The prosecutor argued that defendant had not offered that defense while at the police station with the victim. Id. at 562-64. On appeal, the Court found that the prosecutor had impermissibly used defendant's silence at police headquarters as evidence of his guilt in violation of his state-law privilege against self-incrimination. Id. at 565-74.
In contrast to Muhammad, in the present case, defendant offered the same defense at trial that he had offered to Detective Lavelle: that "someone" had borrowed his clothes, and that "someone" had attempted to flush the money that was found on defendant's person down the toilet. Thus, the prosecutor did not use words that defendant could have spoken against him, but instead emphasized the word that he did use, "somebody," to argue that the evidence did not support defendant's version of events. There was thus no constitutional violation. See State v. Tucker, 190 N.J. 183, 190 (2007) (holding that the State may impeach statements voluntarily given to law enforcement).
VII.
Defendant next argues that it was plain error for the judge to have failed to charge the jury on prior contradictory statements of witnesses. Such a charge was necessary, he contends, because on direct examination Marcel Hogan, one of the people who was in the Grant Avenue apartment at the time the police commenced their search, testified that he had met up with his friends, defendant and Ben Wilson, upon Hogan's return from school in Long Island City at approximately 5:00 or 6:00 p.m. — a time considerably before the robbery. Hogan had then gone into the apartment building, leaving the other two outside.
Following this testimony, the prosecutor refreshed Hogan's recollection by use of a statement given by Hogan to the police, in which he stated that he had met defendant and Wilson at about 7:30 or 8:00 p.m. Once his memory was refreshed, Hogan agreed that the later time was correct. However, on cross-examination, the following exchange occurred:
Q What time did your last class let out on Friday?
A 2:45.
Q 2:45. And how long did the trip take to Jersey City?
A Two, two and a half hours.
Q All right, so about five o'clock, 5:15 you end up in Jersey City, right?
A Yeah.
Q And that's when you saw [defendant] and [Wilson]?
A Yeah.
Q Well, it was 7:30, eight o'clock, right?
A It was — the sun was going down so I would say right about that time.
Q Okay, And that's six o'clock then, five, six?
A Something like that.
Defendant argues that the time given by Hogan was significant because, if the jury believed that the three men met at 7:30 or 8:00 p.m., that placed defendant near the scene of the crime around the time that it occurred, whereas if the jury believed the earlier time, the fact that defendant was in the area lacked any particular significance. Thus, he argues, it was plain error not to give the jury a prior contradictory statement charge.
However, as part of his credibility charge, the judge instructed the jury that it should examine each witness's testimony and consider the witness's ability to "observe, recollect, and relate," the witness's possible bias, "the extent to which, if at all, each witness is either corroborated or contradicted, supported or discredited by other evidence," and "whether the witness made any inconsistent or contradictory statements." Viewing the judge's instruction as a whole, State v. Gartland, 149 N.J. 456, 473 (1997), we do not find plain error in the judge's failure to, sua sponte, elaborate on his instruction regarding inconsistent statements.
Unlike State v. Allen, 308 N.J. Super. 421 (App. Div. 1998), upon which defendant relies, an inconsistent statement charge was not requested and rejected by the trial judge. Id. at 425-26. Further, in Allen, one of the inconsistencies at issue concerned the number of drug sales witnessed by the testifying officer. His report mentioned only one, whereas in his testimony he referred to multiple transactions. Thus, we found, the testimony "went directly to the issue of 'intent to distribute.'" Id. at 429. Here, the allegedly inconsistent testimony was not of similar import. As a consequence, we conclude that the charge as given provided adequate guidance to the jury in its deliberations.
Defendant also claims that because Hogan testified that, on the night in question, he drank three shots of forty-proof brandy, whereas the brandy was eighty-proof, the judge erred in rejecting defense counsel's request that a false-in-one, false-in-all charge be given. However, at the charge conference, counsel did not identify the false statement on which his request was predicated, even after the judge observed, "I don't see any specific indicia that's been an admission that there has been a false statement." Further, when the judge observed that the standard credibility charge contained "basically the same language," counsel agreed, admitting that he had just "throw[n]" the request "out there." We find no error to have occurred.
A trial judge in his discretion may instruct the jury in accordance with the false-in-one, false-in-all charge "in any situation in which he reasonably believes a jury may find a basis for its application." State v. Ernst, 32 N.J. 567, 583-84 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961); State v. Fleckenstein, 60 N.J. Super. 399, 408 (App. Div.), certif. denied, 33 N.J. 109 (1960). However, in order for the charge to be applicable, there must be evidence that suggests a witness "knowingly and willfully testified falsely as to a material fact." Ernst, supra, 32 N.J. at 583. Here, there was no suggestion that Hogan's statement constituted a conscious falsity. Rather the testimony appears to reflect a mere misstatement of a fact with no particular relevance to matters at issue.
VIII.
In yet another argument, defendant contends that the judge committed plain error in not, sua sponte, instructing the jury on theft as a lesser included offense of robbery. However, we find no "rational basis for a verdict convicting . . . defendant of the included offense." N.J.S.A. 2C:1-8e. In this case, the evidence established that a man wearing a bandana entered a bodega and that he physically threw the bodega's owner onto the ground and "struggled" with him, demanding money. When the owner did not satisfy the man's demand, a second man, also wearing a bandana, entered the store, pointed a gun at the owner, and then struck the owner in the arm with the gun as the owner shielded his face. Evidence at trial established that defendant was one of the men, and based on his acquittal on the charge of armed robbery, the jury evidently found that he had been the one who entered the store first. See State v. Whitaker, 200 N.J. 444, 459 (2009) (an "accomplice who does not have a shared purpose 'to commit a robbery with a weapon' is guilty of robbery — not armed robbery.").
Based on these facts, there is no basis for a charge of theft. Defendant used force to steal money and other items. See State v. Cassady, 198 N.J. 165, 179 (2009) (finding no rational basis to charge theft when the defendant entered a bank, demanded money from the teller, and when the teller refused, leaped over the bullet-proof glass to obtain it). Thus the judge did not err in failing to instruct the jury as defendant now suggests was required.
IX.
During the course of its deliberations, the jury submitted the following hypothetical question to the judge:
Dick and Jane plan to rob a store by demanding the money, but not using a weapon. During the robbery Dick pulls out a gun. Is Jane guilty of armed robbery?
The judge responded:
Now, I'm assuming, based upon your example, that Jane doesn't know about the existence of the weapon, has no idea that Dick is going to use the weapon in any way, so they — Jane would not have the same intent walking into that store as Dick has. Remember I said that both parties have to have the same intent.
Now, if Jane and Dick plan to rob a store, she has no clue about the weapon, she cannot be having the same intent of the armed robbery, she has the intent of the robbery.
So she could be guilty as the accomplice because she's helping him perform the robbery, but she's guilty of robbery, but not armed robbery because she had no knowledge and no intent of committing an armed robbery. Okay.
So the answer is, is Jane guilty of the armed robbery? In your scenario way of — no. She's guilty of robbery, not armed robbery in this example. Okay. Does that help? I'll send you back in to continue deliberations. Thank you.
We find no error in what took place, since in responding to the jury's question, the judge was in essence repeating the accomplice liability charge as it related to intent. We reject the argument that by answering the jury's question as he did, the judge directed a verdict of second-degree robbery against defendant. The judge expressed no opinion as to defendant's guilt. He merely instructed the jury as to the law, using their hypothetical question as a framework.
Having found no error resulting from the matters that defendant has raised, we likewise find no cumulative error, and we affirm defendant's conviction.
X.
Addressing his sentence, defendant first argues that the judge erred in permitting only one family member to speak on his behalf. At the sentencing hearing, defense counsel argued that defendant had a strong family support system, and then he requested, "if your Honor allows, at least one or two of them would just like to be heard very briefly before your Honor imposes sentence. They've asked me to make that request." The judge responded: "I'll hear from one." At the conclusion of counsel's comments regarding the sentence, the judge asked: "Do you wish somebody to speak?" Counsel replied: "Judge, I do. I would call up — one person, Judge? Grandma? I guess not." Defendant's aunt then testified on his behalf.
Defendant argues generically that if other family members had testified on his behalf, "they would have undoubtedly imparted information to the court concerning . . . his positive attributes." He argues additionally that, as in State v. Blackmon, 202 N.J. 283, 307 (2010), when exercising his discretion to limit the number of family members testifying on defendant's behalf, the judge failed to explain the reason for his limitation, and as a result, failed to create an adequate record for review.
We do not interpret counsel's request at sentencing as a clearly articulated demand that more than one family member be heard, and thus do not interpret the judge's response as a denial of an explicit request. Further, it appears to us from the testimony that we have set forth that when asked by defense counsel, defendant's grandmother declined to speak, ceding that role to defendant's aunt. In the circumstances presented, we perceive no basis for requiring a new sentencing proceeding to occur.
Defendant also argues that his sentence was excessive, and that the court erred in finding aggravating factors and no mitigating ones. We do not accept defendant's arguments in this regard. As we have stated defendant was sentenced to eight years in custody, subject to NERA. In imposing that sentence, the judge found aggravating factors 3 (the risk of reoffense), 6 (the extent of defendant's prior record) and 9 (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). The judge found no mitigating factors.
On appeal, defendant argues that the judge's finding of aggravating factor 6 was unsupported by the evidence. Additionally, he contends that the judge did not express his reasons for citing the aggravating factors that he found to exist, and thus he did not offer the required qualitative assessment of defendant's record that was required by the Court in State v. Thomas, 188 N.J. 137, 153 (2006). Defendant also argues that the judge should have found mitigating factors 8 (defendant's conduct was the result of circumstances unlikely to recur), 9 (defendant's character is such that he is unlikely to commit another offense), and 11 (his imprisonment would entail excessive hardship on his dependents). See State v. Dalziel, 182 N.J. 494, 504-05 (2005) (requiring a sentencing judge to consider mitigating factors supported by the record).
As the Court observed in State v. Miller, 205 N.J. 109 (2011), "sentences can be upheld where the sentencing transcript makes it possible to 'readily deduce' the judge's reasoning." Id. at 129 (citing State v. Bieniek, 200 N.J. 601, 609 (2010)). Here, there had been an extensive discussion on the record regarding the fact that, when the robbery occurred, defendant had been released from custody occurring as the result of a 1000-foot drug conviction and he was subject to the State's intensive supervision program (ISP). Thus, he was found to have violated his parole. Additionally, the prosecutor noted on the record that defendant had been arrested for three drug offenses as a juvenile in 2002 although in each case he was diverted to intake. The prosecutor argued that defendant's record was therefore serious, and that he was likely to re-offend.
Moreover, at the hearing, defendant spoke at length on his own behalf, arguing that Detective Lavelle violated his constitutional rights, that the prosecutor failed to prove his case, that the police witnesses lied to obtain a conviction as they were trained to do, and that he was simply in the wrong place at the wrong time and not the perpetrator of a robbery.
In sentencing defendant, the judge took into account the fact that this was his first violent offense. Additionally, he addressed in detail the jury's finding of second-degree robbery instead of the more serious crime of armed robbery. As a result, we are satisfied that the judge properly assessed defendant's history in finding the aggravating factors that he did and imposing a sentence near the middle of the sentencing range.
We are also satisfied that the record did not support the mitigating factors that defendant now urges. Given defendant's record and his statement prior to sentencing, it is difficult for us to conclude that defendant's conduct was the result of circumstances unlikely to recur or that his character and attitude were such that he was unlikely to commit yet another offense. And while defendant's aunt did state that defendant gave her insulin injections and otherwise assisted her, there was no evidence that his imprisonment would cause her excessive hardship.
As a consequence of our review, we find that the trial judge properly identified the aggravating factors that were supported by competent credible evidence in the record and that he appropriately declined to find mitigating factors; that the judge followed the sentencing guidelines; and that he imposed a sentence that does not shock our judicial conscience. Cassady, supra, 198 N.J. at 180 (quoting State v. O'Donnell, 117 N.J. 210, 215-16 (1989)). We thus affirm that sentence.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
__________
CLERK OF THE APPELLATE DIVISION