Opinion
DOCKET NO. A-6069-12T2
02-17-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HOZAY A. ROYAL a/k/a CARLOS JOHNSON, Defendant-Appellant.
Hozay A. Royal, appellant pro se. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Ostrer. On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 12-08-0930. Hozay A. Royal, appellant pro se. Fredric M. Knapp, Morris County Prosecutor, attorney for respondent (John McNamara, Jr., Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Hozay Royal, who is self-represented in this proceeding as he was during the trial, appeals from his convictions for fraudulent use of a credit card, N.J.S.A. 2C:21-6(h) (count one); criminal impersonation, N.J.S.A. 2C:21- 17(a)(4) (count two); identity theft, N.J.S.A. 2C:21-17(a)(1) (count three); and attempted theft, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:20-3 (count four). The convictions arose from the fraudulent purchase of goods from a retail appliance center in Flanders, New Jersey. The trial judge, on June 6, 2013, sentenced defendant to a discretionary extended term as a persistent offender, N.J.S.A. 2C:43-7(a)(4), on count one, to eight years imprisonment subject to a four-year term of parole ineligibility. A concurrent sentence of five years imprisonment was imposed on count two, and concurrent sentences of four years each on counts three and four. Appropriate assessments and penalties were imposed. Defendant appeals, and we affirm.
At the trial, defendant had the assistance of stand-by counsel.
I.
We summarize the following circumstances from the trial record. On July 17, 2010, E.K., the owner of a retail appliance center in Flanders, received a call from a person who identified himself by the last name of "Eldridge." The caller purchased a television, stereo system, and a "dvd/vcr combo" for a total of $1612.49. "Eldridge" provided an American Express credit card number as payment. The card was later found to belong to a resident of Switzerland who had not authorized the purchase. Because the items were not available in store, arrangements were made for the merchandise to be picked up by the caller's nephew two days later.
On July 19, when the man claiming to be "Eldridge's" nephew arrived, the televisions were just outside the store in the parking lot, and E.K. told him to drive the vehicle to the back. When E.K. saw the vehicle was a white Ryder rental van, he became suspicious and asked to see identification. The individual, whom E.K. identified in court as defendant, stepped back into the van to supposedly look for his license but then drove away. E.K. contacted the authorities, gave them the license plate number as well as the credit card transaction paperwork.
In a separate incident, not at issue in this appeal, a few days earlier, on July 12, 2010, a buyer identifying himself as "Tom Hanson" had called an appliance center in Rutherford regarding an $850 television set. The phone number he gave the store clerk was the same number Eldridge gave E.K. The first credit card "Hanson" provided to pay for his purchase was declined, but the second was accepted. A few days later, "somebody" picked up the television from the store while driving a white Ryder rental van.
On July 16, "Tom Hanson" placed a second phone order with the Rutherford appliance center for two additional televisions using the card that had been approved on July 12. This time, the card was declined. "Hanson" then gave the clerk a third number, told her to allocate $300 to that card, and said he would pay the balance when he picked up the merchandise. The clerk immediately called police.
On July 20, "Hanson" called the Rutherford store and provided a fourth credit card number to be used to pay the balance on the televisions. That card was declined, but at the officer's instruction, when "Hanson" gave a fifth card number, the clerk told him the purchase was approved even though it too was actually declined. Defendant, identifying himself as "Hanson's" nephew, appeared at the store that afternoon, he drove the same white Ryder rental van that had been used to pick up the July 12 order. The store clerk testified defendant was the person who picked up both of "Tom Hanson's" orders.
When defendant came for the televisions, police officers posing as store employees told him to drive around to the back parking lot to load them into his vehicle. Defendant, who was also identified by the undercover police officers as the person claiming to be "Hanson's" nephew, was driving a white Ryder van bearing the same license plate numbers as the one E.K. had reported. While defendant was loading the merchandise, one of the detectives directed him to get on the ground, at which point he fled on foot.
Defendant was taken into custody and Mirandized. Subsequent to defendant's arrest resulting from the Rutherford incident, police searched the Ryder rental van and seized a number of documents. On July 26, 2010, Sergeant Anthony Nunziato drafted a "Critical Reach Flyer" (flyer) intended to inform other jurisdictions of the charges against defendant. The flyer was based on an interview of defendant as well as information derived from the documents seized from the van.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). --------
During the drive to the police station, Nunziato asked defendant about the kind of living he made "doing this kind of stuff." On the witness stand, the officer began to repeat defendant's response, defendant objected and the judge, who was on notice regarding the testimony, overruled the objection. The officer said that defendant reported that "[i]n his best year he made approximately $500,000."
Shortly afterwards, the witness was excused and a lengthy colloquy took place in the jury's absence. Because it was not clear whether that portion of the statement should have been redacted, the judge reversed himself.
When the jury returned, the judge told them that he had sustained defendant's objection and struck the testimony regarding the $500,000. He said "I want you to remember that you can't use that in deciding the issues in this case." The judge repeated "I just struck those words, ladies and gentlemen. That's all I struck."
At trial, the State called an employee of American Express to testify that a credit card number issued to a resident of Switzerland was charged $1612.49 at E.K.'s electronics store on July 17, 2010. The date and amount charged matched the July 17 purchase of three television sets from that store by the man who identified himself as "Eldridge."
The State also called a Ryder employee, who established the foundation for the admission of the van rental agreement between defendant and Ryder. That agreement, regarding the rental of the truck described by E.K., was admitted into evidence as a business record. Defendant made no objection.
At the close of the State's case, defendant moved for a mistrial on the basis that the testimony that he made $500,000 in his best year was unduly prejudicial. The motion was denied, and the judge found that his curative instruction corrected any error.
Defendant also moved for acquittal on counts one, two, and three of the indictment, contending the State had not presented sufficient evidence to establish that he was the person who made the purchases at issue.
Before trial, a first judge granted defendant's motion to suppress evidence seized from the van in part. Also before trial, defendant filed a motion to suppress E.K.'s identification and all the evidence related to the Flanders transaction as fruit of the poisonous tree on the basis that those charges came from investigative leads officers developed from the flyer. The second judge, who presided over defendant's motion to suppress the identification and the trial, granted the application in part. He decided that although a portion of the information contained in the flyer would be excluded because it was obtained from the suppressed materials,
the remaining information on the Critical Reach Flyer plus communications between the Rutherford and Mount Olive Police Departments are sufficient to establish probable cause to effectuate an arrest. The remaining information provides that the accused picked up a large television that was purchased using the stolen credit card. The modus operandi of the individual described in the Flyer is, therefore, similar to the circumstances surrounding the [Flanders] case.In deciding the motion, the judge noted that Detective Annecchiarico of the Mount Olive Police Department testified that his attention was drawn to the statement on the flyer that said: "credit card fraud" and that the perpetrator had attempted to purchase a large television using a stolen credit card, precisely the same scenario as occurred at E.K.'s store. As a result, the judge ruled that E.K.'s identification and the Flanders transaction could be presented to the jury.
On appeal, defendant raises the following points, which he characterizes as "argument" and a basis for the reversal of his convictions:
The Critical Reach Flyer Is Fruit From The Illegal Search And Should Have Been Suppressed In Its Entirety
The State Did Not Prove The Essential Element That Defendant "Obtained Money, Goods, Services Or Anything Else Of Value" For A Conviction For Count One
The State Did Not Prove The Essential Element That Defendant "Knowingly Obtained Personal Identifying Information"
There Was No Proof Adduced That Defendant Committed A Crime Of The Third Degree For Count Three Of The Indictment
The Trial Court's Improper Remarks During Jury Instructions Denied Defendant A Fair Trial. U.S. Const. Amend XIV; N.J. Const. (1947), Art. I, Para. 10
The State's Witness Testimony That Defendant Told Him He Made $500,00[0] In A Year Was Beyond The Scope Of N.J.R.E[.] 404(b), And Outweighed Any Probative Value And Unduly Prejudiced The Defendant, And Denied Him A Fair Trial
Admission Of The Ryder Rental Agreement Was Inadmissible Hearsay
II.
Defendant contends that the flyer should have been suppressed in its entirety, and that the error means that any evidence regarding the Flanders transaction must also be suppressed as fruit of the poisonous tree. We consider the point to be so lacking in merit as to not warrant much discussion. R. 2:11-3(e)(2).
Annecchiarico testified unequivocally that the information that he thought connected his investigation to the other was the title of the flyer and the fact it referred to the fraudulent use of a credit card to purchase a large television, precisely the circumstances of the transactions that occurred at E.K.'s store. The information in the flyer that drew his attention to defendant, ultimately resulting in the arrest, indictment, and conviction, was unrelated to the suppressed details regarding defendant's other activities from other jurisdictions. There is simply no factual basis for defendant's contention of error.
III.
Defendant asserts in his second point of error that the State "did not prove the essential element that defendant 'obtained money, goods, services or anything else of value'" necessary to convict him of fraudulent use of a credit card (count one). The text of defendant's brief, however, challenges not the State's proofs, rather it argues the court's instruction to the jury regarding the fraudulent use of a credit card was erroneous.
The judge followed the model jury charge, Model Jury Charge (Criminal), "Fraudulent Use of Credit Cards" (2011), and in doing so, did not define "obtain." Defendant appears to be asserting that since he did not actually take the merchandise from E.K., and the jury sent a question regarding the meaning of the word in the context of that offense, the judge erred and the error was prejudicial. Defendant seems to be claiming that had the judge defined "obtain," he would have been acquitted of the charge.
By way of sidelight, we note that the judge did define the term when instructing the jury as to the offense of identity theft. The judge told the jury that "obtain" meant "in relation to property, to bring about a transfer or purported transfer of the legal interest in the property, whether to oneself or another."
Defendant did not object to the instruction when given, even after the jury sent out the question. Therefore, we review his contentions employing the plain error standard of review. R. 2:10-2. Because defendant did not object to the charge at trial, we presume it was not error and that it was unlikely to prejudice defendant's case. See State v. Singleton, 211 N.J. 157, 182 (2012).
Plain error in the context of jury instructions requires a defendant demonstrate a "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error produced a clear capacity to bring about an unjust result." Id. at 182-83 (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).
Even if the court did not define "obtain," the court's failure to do so as to the fraudulent use of a credit card, did not bring about an unjust result. In State v. Gaikwad, 349 N.J. Super. 62 (App. Div. 2002), the defendant was convicted of computer theft, N.J.S.A. 2C:20-25(c), and unlawful access to stored communications, N.J.S.A. 2A:156A-27(b). The charges arose from the defendant's improper access into an AT&T computer system while employed with another company. Id. at 70-72. As a result of the unauthorized access, AT&T expended substantial sums to correct the problem the defendant created and its customers were unable to access service for weeks. Id. at 73. In that case, like this one, no objection was made to the judge's failure to define obtain. Id. at 74.
We found in Gaikwad that there is little difference between the statutory definition of obtain and the dictionary definition. Id. at 76. Assuming the jury in this case, like in Gaikwad, applied the everyday, commonplace meaning of the term, no additional instruction was necessary. Hence no unjust result flowed from the trial court's failure to define the term.
We also note that although defendant did not physically remove the items from E.K.'s store, they had been paid for, specially ordered, and were outside awaiting defendant's arrival. That he drove away, fearing arrest, before he actually put the items in the vehicle was inconsequential. He obtained the goods and then chose to leave them behind.
IV.
Defendant also contends that there was insufficient evidence to convict him of criminal impersonation (count two) because the State did not prove that he "knowingly obtained personal identifying information pertaining to another person." The relevant statute states that a person is guilty of the crime when the actor
Obtains any personal identifying information pertaining to another person and uses that information, or assists another person in using the information, in order to assume
the identity of or represent himself as another person, without that person's authorization and with the purpose to fraudulently obtain or attempt to obtain a benefit or services[.]The statutory definition of such personal identifying information includes a victim's credit card numbers. N.J.S.A. 2C:20-1(v).
[N.J.S.A. 2C:21-17 (emphasis added).]
The State's proof of defendant's use of a credit card number not his own, through the American Express employee, sufficed to establish the statutory elements of this offense. The point does not warrant further discussion in a written opinion. R. 2:11-3(e)(2).
V.
In challenging the adequacy of the State's proofs on the charge of identity theft (count three), defendant again argues that he neither obtained anything of value from E.K. or deprived him of property and therefore could not have been found guilty. For purposes of the statute, it suffices that defendant special ordered the items, the seller believed he had secured payment through defendant's unauthorized and fraudulent use of another's credit card, and the goods were shipped to the store as a result. We do not address the point further. R. 2:11-3(e)(2).
VI.
Defendant claims the judge's instruction on identification was erroneous, alleging that in giving the instruction, the judge told the jury defendant was guilty. The judge substantially tracked the model jury charge, Model Jury Charge (Criminal), "In-Court and Out-of-Court Identifications" (2011). He said the following:
The State has presented testimony of [E.K.], who identified the defendant. You'll recall that this witness identified the defendant in court as the person who committed the charged offenses. All right?
. . . .
But the State has also offered other evidence that you can consider in making a determination whether or not this defendant is the defendant who committed the offenses.
. . . .
A fair reading of the judge's instruction makes clear that the judge was not personally saying that defendant was the perpetrator, but only that the State's witness had done so. The point does not merit further discussion in a written opinion. R. 2:11-3(e)(2).
According to the witness, identification of the defendant was based upon the observations and perceptions that he made of the perpetrator at the time of the offense— or at the time the offense was being committed.
[(emphasis added).]
VII.
Defendant asserts that he should be granted a new trial because the jury heard testimony that he told the officer that he made approximately $500,000 in his best year, and that the judge striking the testimony and issuing a curative instruction did not dissipate the potential for prejudice. As a result, defendant argues, his motion for a mistrial should have been granted.
"[A]n appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent an abuse of discretion that results in a manifest injustice." State v. Jackson, 211 N.J. 394, 407 (2012) (alteration in original) (quoting State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000)). The decision whether to issue a curative instruction "is one that is peculiarly within the competence of the trial judge, who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." State v. Winter, 96 N.J. 640, 646-47 (1984).
When inadmissible evidence is erroneously admitted at trial, the error "shall be disregarded by the appellate court 'unless it is of a nature as to have been clearly capable of producing an unjust result.'" Id. at 648 (quoting State v. LaPorte, 62 N.J. 312 (1973)). Defendant claims that the statement impermissibly prejudiced him because the jury would have believed he was "a bad man," in violation of the principles enunciated in State v. Cofield, 127 N.J. 328 (1992).
The curative instruction given here, however, made within minutes of the offending testimony, was sufficient. Generally, a curative instruction eliminates prejudice if it instructs jurors to disregard a specific statement and is "accomplished without delay." State v. Vallejo, 198 N.J. 122, 134-35 (2009). In this case, where the State's proofs were overwhelming, and the curative instruction prompt, we see no abuse of discretion resulting in a manifest injustice. See Jackson, supra, 211 N.J. at 407. We agree that no mistrial should have been granted.
VIII.
Defendant did not object at trial to the introduction of the Ryder rental van agreement. He now argues the admission was error, and we review the point under the plain error rule. We disregard it "unless it is of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.
In order to introduce the contract, the State established the foundation by calling a Ryder employee who testified the relevant documents are generated in the regular course of business. It was not necessary for the witness, contrary to defendant's assertion, to have had personal knowledge of his contract for it to be admitted into evidence.
For evidence to be admitted under the business records exception, N.J.R.E. 803(c)(6), it must be demonstrated that "the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy." In this case, the employee's testimony met that foundational requirement. The rule is specifically designed to admit records of this type even where the witness has no personal knowledge regarding the particular transaction.
The witness testified that the contracts are signed in the regular course of business, would have been signed incidental to the rental of the van, and were on a form the company used. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 347 (2010). Admission of the contract was unobjectionable.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION