Opinion
DOCKET NO. A-3246-13T1
05-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ODELL M. ROY, a/k/a ROY ODELL, ODELL ROY, RAY ODELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino and Suter. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-09-2317. Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Linda A. Shashoua, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals his conviction for third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3), and third-degree aggravated assault-bodily injury, N.J.S.A. 2C:12-1(b)(7). We affirm the conviction, but vacate the restitution award and remand that issue to the trial court for further proceedings.
I.
In the early morning hours of March 14, 2012, two officers from the Winslow Township Police Department responded to a report of domestic violence at a residence in Sicklerville. The victim advised she and her husband had argued, that he put his hands around her neck and pushed her on the bed. The police found defendant in the second-floor bedroom. He was on the phone. Defendant was advised he was under arrest. After defendant delayed in putting the phone down at the officers' repeated requests and then telling them to "hold on," one of the officers grabbed for defendant's hand, whereupon defendant pulled away and punched the officer in the face. The officers ultimately were able to subdue defendant through a combination of the use of physical force, pepper spray and police batons after defendant refused their entreaties to stop resisting arrest. Defendant was arrested and taken to the police station. One officer was treated at the hospital for a hand injury and a cut on his face and was released.
Defendant's wife gave a tape-recorded statement to other officers at the police station, but at trial she claimed it was the second of such recordings and had followed coaching from the police about "what the police wanted me to say." She refused to sign a restraining order, and at trial, claimed she was witness to the police assault upon her husband. At trial defendant's wife denied telling the officers that she had been choked by her husband. Her daughter also claimed to witness the assault on her step-father.
Defendant raises the following issues on appeal:
POINT I
THE TRIAL JUDGE'S INEXPLICABLE FAILURE TO DECIDE THE ADMISSIBILITY OF, AND TO APPROPRIATELY SANITIZE, DEFENDANT'S PRIOR CONVICTIONS, WAS PER SE ERRONEOUS. IT PREVENTED MR. ROY FROM TESTIFYING ON HIS OWN BEHALF AND DENIED HIM A FAIR TRIAL. (Not Raised Below)
POINT II
THE PROSECUTOR COMMITTED MISCONDUCT BY INJECTING HIGHLY PREJUDICIAL INFORMATION THAT SERVED NO PURPOSE AND WAS NOT CONTAINED IN THE RECORD.
POINT III
THE PROSECUTOR COMMITTED MISCONDUCT BY REPEATEDLY ELICITING INFORMATION REGARDING AN OUTSTANDING WARRANT AND BY FAILING TO ADVISE AND CONTROL HIS WITNESSES FROM REPEATEDLY REFERENCING THE WARRANT. (Partially Raised Below)
POINT IV
THE TRIAL JUDGE SUBSTITUTED HIS BELIEF THAT MR. ROY WAS GUILTY OF THE CONDUCT THAT THE JURY ACQUITTED HIM OF AND
IMPOSED AN EXCESSIVE SENTENCE THAT VIOLATED SENTENCING PRINCIPLES.
POINT V
RESTITUTION WAS IMPROPERLY IMPOSED FOR MEDICAL BILLS FOR A VICTIM THAT THE JURY DID NOT BELIEVE HAD BEEN ASSAULTED BY MR. ROY.
II.
A.
Defendant's past criminal history consisted of five adult convictions, including third-degree resisting arrest in 2007, fourth-degree criminal mischief in 2006, third-degree resisting arrest in 2004, third-degree possession of CDS in 2002 and first-degree robbery in April 1995. All the convictions except the one from 1995 were within ten years from the date of the offense on March 14, 2012.
The trial judge determined that all five of defendant's prior convictions could be used for impeachment if defendant were to testify, including the 1995 conviction, but that information about the convictions would be "sanitized" by limiting it to the date of the conviction, the indictment or accusation number, the degree of the crime as well as the sentence received. This included the 1995 conviction for robbery, which the court determined was not too remote from the pending charges because of the serious nature of the first- degree robbery and because there were other intervening offenses after 1995.
Although acknowledging that a Sands/Brunson hearing was conducted by the trial court, defendant's appeal challenges the decision to admit the fact of the 1995 conviction, claiming it was too remote and that the potential for its admission negatively affected defendant's decision about testifying in his own behalf. We find no error in the manner in which the trial judge addressed the remoteness of the 1995 conviction or admissibility of the prior convictions following a Sands/Brunson hearing.
The reference is to State v. Sands, 76 N.J. 127 (1978), and State v. Brunson, 132 N.J. 377 (1993).
N.J.R.E. 609 allows the admission of prior convictions for impeachment purposes at the discretion of the trial court. State v. Hamilton, 193 N.J. 255, 256 (2008); Sands, supra, 76 N.J. at 144-45. Consideration is given to the age and nature of the offense in balancing the relevance of the conviction against the prejudice to defendant by its admission. Hamilton, supra, 193 N.J. at 257. The trial court can exclude convictions that are too remote, Sands, supra, 76 N.J. at 144-45, but if a prior similar conviction is introduced for impeachment or the defendant has multiple prior convictions, they must be "sanitized" to include "only the number, degree, and date of the defendant's prior similar convictions." Brunson, supra, 132 N.J. at 394. Sentencing information may also be presented to the jury. State v. Hicks, 283 N.J. Super. 301, 307-10 (App. Div. 1995).
N.J.R.E. 609 was amended on July 1, 2014 to reflect a different standard for the admissibility for impeachment of convictions more than ten years old, but this version of the Rule was not in effect when defendant was tried. We apply the version as it existed in 2013. --------
In determining whether a conviction is excluded from use for impeachment as too remote, "the passage of time alone" is not conclusive. Sands, supra, 76 N.J. at 144. "The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Id. at 144-45. Also, the court is to consider whether the conviction was related to a crime of dishonesty and whether there are "intervening convictions," meaning "convictions between the past conviction and the crime for which the defendant is being tried." Id. at 145.
Measured against these standards, the trial court did not err in permitting admission of the 1995 conviction for impeachment. Not only did the trial court consider the seriousness of the first-degree robbery conviction, but it also considered the other intervening crimes. The trial court did not err in considering that the "probative force" of this conviction, which reflected on the defendant's dishonesty, remained viable despite its age and that such value outweighed any undue prejudice to the defendant especially given his other intervening convictions, all of which, including this one, were to be sanitized in accordance with Brunson and then properly admissible.
B.
The parties stipulated to the introduction at trial of a statement by Lieutenant Kevin Richards regarding an internal complaint defendant made on February 28, 2013, nearly one year after the incident giving rise to his indictment. In the statement, Lieutenant Richards wrote that defendant wanted him "to sign criminal assault charges" against one of the patrolmen "for striking him with a police baton." Although Lieutenant Richards would not sign defendant's complaint against the officer, he did advise defendant of the steps needed to file a complaint. The statement continued as follows: "Mr. Roy was not satisfied with my actions. Mr. Roy stated he also wanted to file a lawsuit against Patrolman Ortiz, but not Patrolman Liss, Winslow Township Police or Winslow Township. I again advised Mr. Roy to contact an attorney for filing a lawsuit."
In his summation, the prosecutor referred to Lieutenant Richards' statement when he was commenting on the possible bias of the victim who also was the defendant's wife. In highlighting what he saw as an inconsistency between her statements to the police after the incident and the testimony she gave at trial, the prosecutor said it was "not what she testified to on the stand . . . . And the reason that she testified the way she did is she . . . has an angle. She wants him home. Or, maybe it's about the lawsuit the defendant wants to file. They're married; it'll benefit both of them. You heard about that."
On appeal, defendant asserts these comments constituted prosecutorial misconduct. There was no mention at trial that a "civil" lawsuit had been filed by defendant or was contemplated by him; the prosecutor's comment referred to material outside the record to inflame the jury and the trial judge did not give a curative instruction.
Not every improper comment or question by a prosecutor will warrant reversal and a new trial. State v. Feal, 194 N.J. 293, 312 (2008). Rather, the Supreme Court has observed that "[p]rosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999); see also State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). There is no error in making comments "reasonably to be inferred from the evidence" because it "was for the jury to decide whether to draw the inferences the prosecutor urged." State v. Wakefield, 190 N.J. 397, 457 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008) (quoting State v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Carter, 91 N.J. 86 (1982))).
We find no error by the prosecutor in his argument to the jury about the potential bias of the victim witness based on the stipulated record. His argument was not a misstatement of the record. The statement of Lieutenant Richards supports the reasonable inference that defendant was raising two different types of actions, namely criminal assault charges that the officer would not file but the defendant could, and some other type of lawsuit for which he would need to consult an attorney. It was not a stretch in logic to conclude this was a civil suit of some type given its context in the statement, juxtaposed as it was with reference to criminal assault charges. Moreover, the wife's potential bias plainly was an issue for the jury to determine in its evaluation of the evidence. The prosecutor's comment then was a reasonable inference based on the evidence about why defendant's wife and victim of the domestic incident might give testimony that favored the defendant despite the charges he had assaulted her.
The isolated comment did not so infect the trial as to deprive defendant of a fair trial nor did it unfairly appeal to emotions. State v. Jackson, 211 N.J. 394, 409 (2012). Although the jury convicted defendant on two charges, at the same time it also acquitted him on other charges. Because the comment was a fair inference based on the evidence, it did not then warrant the need for a curative instruction.
There likewise was no error in admitting by stipulation the statement from Lieutenant Richards that defendant now challenges on appeal for the first time. When error is raised for the first time on appeal, we will not reverse on the ground of such error unless it is "clearly capable of producing an unjust result." R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971).
The statement contained comments allegedly made by defendant about the case. It was admissible under N.J.R.E. 803(b)(1), which provides that a statement can be admitted into evidence if the "statement [is] offered against a party which is the party's own statement, made either in an individual or in a representative capacity[.]" Additionally, the statement set forth defendant's contention that he was assaulted by the officers and enabled him to put these facts before the jury.
We find no merit in defendant's claim on appeal that the prosecutor committed misconduct because certain witnesses mentioned that defendant's name "had been run" by the police and that there was an outstanding "warrant" for defendant. See State v. Alvarez, 318 N.J. Super. 137, 148 (App. Div. 1999) (holding repeated references in trial to an arrest warrant were capable of producing an unjust result). The information was not elicited by the prosecution, but arose during cross-examination of witnesses by the defense who then did not object to the testimony. The references were fleeting. The comments about the arrest warrant "did not imply that the State had any evidence in addition to that which was heard by the jury[.]" State v. Williams, 404 N.J. Super. 147, 168 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010). As such, these comments did not constitute reversible error.
C.
Defendant appeals the imposed extended-term sentence, claiming the court erred in its analysis by double-counting his prior convictions through the use of his prior record to impose an extended-term sentence and a mandatory minimum term. Defendant says the trial court failed to consider two mitigating factors. He seeks reconsideration of the sentence under the entire range of permissible sentences. We find no error in the trial court's sentencing determination.
Our review of the trial court's sentencing determination is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will ordinarily not disturb a sentence imposed unless "(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) 'the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience.'" State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65); see also State v. O'Donnell, 117 N.J. 210, 215-16 (1989).
The trial court sentenced defendant as a persistent offender on the third-degree resisting arrest conviction. Using two prior convictions, a third-degree CDS possession conviction in 2002 and a fourth-degree criminal mischief conviction in 2005, the court found defendant qualified for an extended term. Then, considering defendant's other convictions that included a conviction in 1995 for first-degree robbery, a third-degree conviction for resisting arrest in 2004, and a third-degree conviction for resisting arrest in 2007, the trial court found that aggravating factor 3, the "risk that the defendant will commit another offense", factor 6, the "extent of the defendant's prior criminal record" and factor 9, the "need for deterring the defendant and others from violating the law," applied, as did mitigating factor 11 because of "excessive hardship" to the defendant's wife arising from by defendant's imprisonment. N.J.S.A. 2C:44-1(a) to -(b). Based on these, defendant qualified for an extended term.
The trial court rejected application of mitigating factor 10 because he did not find the defendant was "likely to respond affirmatively to probation[.]" N.J.S.A. 2C:44-1(b)(10). The court found no other mitigating factors. In weighing these factors, the court found the aggravating factors outweighed the mitigating factor. The court then reconsidered the two additional convictions in reaching its decision that defendant was sentenced on count four to an extended ten-year term of imprisonment with five years without parole.
A persistent offender is a person who is at least twenty-one years old "who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 . . . if the latest . . . is within 10 years of the date of the crime for which the defendant is being sentenced." N.J.S.A. 2C:44-3(a). Defendant met this definition because he was convicted in 2002 of third-degree CDS possession and in 2005 of fourth-degree criminal mischief. As a "persistent offender," defendant was eligible to be sentenced for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(a).
For an extended term, the court not only must determine that defendant had convictions that qualified him to be sentenced in this manner, but then must "weigh the aggravating and mitigating circumstances to determine the base term of the extended sentence." State v. Pierce, 188 N.J. 155, 164 (2006) (quoting State v. Dunbar, 108 N.J. 80, 89 (1987)); see N.J.S.A. 2C:44-1(a) to -(b). The available sentence range "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169. Then the judge is to determine "whether to impose a period of parole ineligibility." Id. at 164 (quoting Dunbar, supra, 108 N.J. at 89).
We perceive no sentencing error on the part of the trial court. The term was the maximum under the extended term for third-degree resisting arrest. N.J.S.A. 2C:29-2(a); N.J.S.A. 2C:43-7(a)(4); N.J.S.A. 2C:44-3(a). It was supported by the defendant's history of repeated convictions, including two prior convictions for resisting arrest. The court isolated two qualifying convictions for eligibility, considered the remaining convictions for the extended term, then weighed the aggravating and mitigating factors for the sentence, finding that the aggravating factors that defendant would commit another offense, the extent of his criminal record and the need for deterrence outweighed the only mitigating factor. The parole bar was in keeping with the statute. N.J.S.A. 2C:43-6(b).
It was not error for the court to determine there were no other mitigating factors. The court rejected the notion that defendant would respond to probation because he had served three probationary terms in the past. Likewise, the record was that defendant had been the aggressor, which then undercut defendant's argument his conduct neither threatened serious harm nor contemplated it, as well as his contention that mitigating factors 1 and 2 should have applied. N.J.S.A. 2C:44-1(b)(1) to -(2). Here, not only were the sentencing guidelines followed, the aggravating and mitigating factors were determined and weighed, and the sentence also was an appropriate exercise of the court's discretion.
D.
We do find error, however, with the trial court's assessment of restitution against defendant because of a lack of findings. We review the trial court's restitution decision under an abuse of discretion standard. See State v. Rhoda, 206 N.J. Super. 584, 593-94 (App. Div.), certif. denied, 105 N.J. 524 (1986) (citing State v. Johnson, 42 N.J. 146, 159-62 (1964)).
Just prior to sentencing, the State requested that defendant's sentence include restitution in the amount of $1710.07 as reimbursement for the medical expenses of Officer Ortiz attributable to injuries he incurred during defendant's arrest. Defense counsel requested thirty days to review these expenses with her client, but the trial court advised her she could make the "appropriate motion after the fact." The trial court ordered restitution in the full amount requested, but made no findings supportive of the restitution order or defendant's ability to pay. This restitution order is challenged for the first time on appeal.
A court shall sentence a defendant to pay restitution if "[t]he victim . . . suffered a loss" and the defendant has the ability to pay. N.J.S.A. 2C:44-2(b). Pursuant to N.J.S.A. 2C:44-2(c)(2),
[i]n determining the amount and method of payment of restitution, the court shall take into account all financial resources of the defendant, including the defendant's likely future earnings, and shall set the amount of restitution so as to provide the victim with the fullest compensation for loss that is consistent with the defendant's ability to pay.A restitution hearing is not needed where there is no dispute as to how much restitution is necessary or whether defendant has the ability to pay. State v. Orji, 277 N.J. Super. 582, 589-90 (App. Div. 1994).
Although defendant was convicted of third-degree resisting arrest, the elements of that crime did not require a finding by the jury that physical force was used against the officer because the "threaten[ed]" use of physical force also would have supported a conviction under the statute. N.J.S.A. 2C:29-2(a)(3)(a). In fact, defendant was acquitted of assaulting the officer.
Certainly there was evidence that the defendant and the officer had a physical confrontation upon the arrest. However, the trial court made no finding the officer was a victim, that he was injured as a result of the defendant's resisting arrest, or that defendant had the present or future ability to pay, as contemplated by the statute, N.J.S.A. 2C:44-2(b), especially here, where defendant was acquitted of assaulting the same officer. It was not adequate for the defense simply to be presented with the restitution bill just before sentencing and told to make a motion after the fact to try to undo the restitution that would be ordered. It was a misapplication of discretion to order restitution in the absence of findings. We vacate the restitution award and remand that issue to the trial court.
Affirmed, except as to the restitution award, which is vacated and remanded to the trial court for further proceedings. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION