Opinion
DOCKET NO. A-3888-13T3
08-04-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DAVID I. TAYLOR, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. McLane, Assistant Deputy Public Defender, of counsel and on the briefs). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti, St. John and Guadagno. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-03-0857. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret R. McLane, Assistant Deputy Public Defender, of counsel and on the briefs). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant David I. Taylor appeals from his conviction, after a jury trial, for simple assault and second-degree robbery. Having reviewed the arguments in light of the record and applicable law, we affirm.
I.
At around 6:30 a.m. on August 10, 2011, the victim, Jose Garcia, arrived for work at a construction site on James Street in Newark. About five minutes later, defendant entered the gate and approached Garcia. Defendant asked Garcia a question, whereupon Garcia, who had limited English comprehension at the time, took out his cell phone to call his supervisor. Defendant grabbed the cell phone and threw it at the ground, breaking the cell phone in two pieces. He then started beating Garcia.
In the meantime, Garcia's supervisor, Wallace Drew, arrived at the worksite. Drew saw defendant kicking Garcia, who lay motionless in a pool of blood on the ground. He testified he thought Garcia might be dead. Upon seeing Drew, defendant fled on foot. Drew got back in his vehicle, called 9-1-1, and started following defendant. He described defendant as a "black male, about six foot tall," wearing jeans with one pant leg ripped all the way up, "and a black t-shirt."
Drew followed defendant in his truck for a one-mile-long chase that lasted about fifteen minutes. Defendant periodically attempted to hide under cars and in bushes. Drew took photographs of defendant during the chase, but the photographs were lost prior to trial.
Eventually, Drew encountered Officer Milton of the University of Medicine and Dentistry of New Jersey Police Department (UMDNJPD), and showed him the photographs on his cell phone. Defendant's description was broadcast, and two more officers responded. Minutes later, defendant was arrested nearby by UMDNJPD Officer Tiano. Milton and Drew drove to Tiano's location. About twenty yards from defendant, Drew identified defendant as the attacker without any prompting or questioning.
Meanwhile, Newark Police Department (NPD) Officer Caraballo and another NPD officer arrived at the construction site to find Garcia conscious, but wounded. Defendant's wallet was later discovered on the ground, though nothing was found to be missing, and it is not clear how the wallet got on the ground.
Garcia described his attacker as a black male with a black shirt and pants that were ripped to the point of being open. Beyond that, he could provide no further description because he turned his back to the defendant during the attack.
Garcia was taken to a hospital. Before he entered the hospital, the officers told him they would show him someone in the back of a police car "that may be or may not be the person that attacked him." Upon seeing defendant in the car, Garcia positively identified him as the attacker.
Indictment No. 12-03-0857 charged defendant with first-degree robbery, N.J.S.A. 2C:15-1(a)(1), and second-degree aggravated assault with serious bodily injury, N.J.S.A. 2C:12-1(b)(1). A Wade hearing was held over three days before the motion judge, during which defendant challenged the admissibility of Drew and Garcia's out-of-court identifications. Defendant's motion was denied with respect to both identifications.
A three-day trial was held in October before a different judge (the trial judge). At the conclusion of trial, the jury convicted defendant of the lesser-included offenses of second-degree robbery, N.J.S.A. 2C:15-1, and simple assault, N.J.S.A. 2C:12-1(a)(1).
Defendant applied to drug court following his conviction. He was given a substance abuse evaluation, which stated he had been diagnosed with severe methylenedioxymethamphetamine (MDMA) use disorder and severe marijuana use disorder. The evaluation stated that defendant had smoked marijuana the evening prior to the attack, and had last taken MDMA a few weeks prior to the incident. The evaluator noted that defendant has "a history of [a]ttention deficit hyperactivity disorder (ADHD) and uncontrolled anger," and opined that, "defendant can safely meet the treatment recommendation by being placed in Level III.7, Medically Monitored Intensive Inpatient Treatment."
A hearing was held before a third judge, the drug court supervising judge, on January 17, 2014. The judge found that defendant was drug dependent at the time of the incident, but was not under the influence of any drug at that time. She expressed skepticism that defendant's use of marijuana the night before the incident caused his behavior, stating, "[i]n the six years I've been in drug court I haven't had anyone who's had such an erratic, aggressive behavior by being on marijuana." As further evidence that the attack was not spurred by addiction, the judge noted that defendant broke, rather than stole, Garcia's cell phone, and then gratuitously beat Garcia beyond what was necessary to rob him.
The drug court judge also found that, based on defendant's aggressive tendencies, he would put other drug court participants in danger if admitted to the community. She reached that decision after reviewing an admitted photograph of Garcia's wounds, and reviewing testimony regarding the attack. She ultimately denied defendant's application.
At sentencing, the trial judge found aggravating factor three (risk for recidivism), N.J.S.A. 2C:44-1(a)(3), due to his drug addiction and noted lack of remorse. The judge also applied aggravating factor nine (the need for deterrence), N.J.S.A. 2C:44-1(a)(9). The judge found mitigating factor seven, N.J.S.A. 2C:44-1(b)(7) (no history of prior delinquency or criminal activity), and rejected the other mitigating factors proposed by defendant. Defendant's judgment of conviction (JOC) includes aggravating factor eleven (imposition of mere fine would be seen as cost of doing business), N.J.S.A. 2C:44-1(a)(11).
After merging the simple assault into the robbery conviction, the trial judge imposed a mid-range sentence of seven years subject to an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(c), (d)(10).
On appeal, defendant presents the following issues for our consideration:
POINT I
THE TRIAL JUDGE DENIED THE DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW BY INSTRUCTING THE JURY ON ATTEMPTED THEFT AS A BASIS FOR ROBBERY, BUT DID NOT DEFINE THE ELEMENTS OF A CRIMINAL ATTEMPT. (Not Raised Below).
POINT II
THE FAILURE TO SUPPRESS THE SUGGESTIVE AND UNRELIABLE SHOW-UP IDENTIFICATIONS REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT III
THE COURT ERRED IN REJECTING DEFENDANT'S DRUG COURT APPLICATION.
POINT IV
DEFENDANT'S SENTENCE IS EXCESSIVE BECAUSE THE COURT FAILED TO CONSIDER HIS SEVERE DRUG ADDICTION AND ERRONEOUSLY FOUND AGGRAVATING FACTORS 3 AND 11.
II.
We first address defendant's argument, made for the first time on appeal, that the trial judge committed reversible error in failing to define the elements of a criminal attempt in her instructions to the jury regarding robbery. Because defendant did not request a jury charge on attempt, we review the court's jury instruction for plain error. See State v. Docaj, 407 N.J. Super. 352, 362 (App. Div. 2009), cert. denied, 200 N.J. 352 (2009); R. 2:10-2. In performing this review, we must determine whether the failure to give an attempt charge, "when read in the context of the jury instructions as a whole, possessed a clear capacity to bring about an unjust result." State v. Reddish, 181 N.J. 553, 621 (2004). We determine that it did not.
Where there is no evidence that the defendant took any object of value from a victim the defendant has injured or threatened, an instruction on attempted theft is generally required. See State v. Dehart, 430 N.J. Super. 108, 119-20 (App. Div. 2013). However, the failure to give such a charge is not necessarily plain error.
In determining whether a jury charge is erroneous, the instruction must be read as a whole. State v. Torres, 183 N.J. 554, 564 (2005). "[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation but the charge should be examined as a whole to determine its overall effect." State v. Figueroa, 190 N.J. 219, 246 (2007) (quoting State v. Wilbely, 63 N.J. 420, 422 (1973)).
In State v. Timothy J. Smith, 322 N.J. Super. 385, 400 (App. Div.), certif. denied, 162 N.J. 489 (1999), the trial judge never instructed the jury on attempt specifically with regard to the robbery charge, but he did define attempt in the course of his instruction on burglary. We affirmed the conviction, in part because of "the appearance elsewhere in the jury instructions of a proper charge on attempt." Ibid.
We find the same result here. The trial judge in this case defined "attempt" during the course of the robbery instruction, while instructing the jury on the meaning of serious bodily injury. The court stated, "[a] person is guilty of an attempt to inflict serious bodily injury if he purposely commits an act which constitutes a substantial step towards the commission of inflicting serious bodily injury."
While the trial judge did not provide the jury with the verbatim definition of attempted theft, she did provide the critical element, namely, that the act must constitute "a substantial step" toward the commission of the offense. Given these facts, we are satisfied that the jury was provided all the information it needed to properly understand the definition of attempted theft.
III.
We next turn to defendant's argument that the two out-of-court identifications should have been suppressed because the officers failed to record the identifications as required by State v. Delgado, 188 N.J. 48, 63 (2006), and because they were highly suggestive and unreliable. When reviewing a trial court's decision on a motion to suppress evidence, we defer to the trial court's factual findings "so long as those findings are supported by sufficient credible evidence in the record." State v. Elders, 192 N.J. 224, 243 (2007) (citations and internal quotation marks omitted). However, the trial court's legal conclusions are subject to de novo review. State v. Stanley C. Smith, 212 N.J. 365, 387 (2012), cert. denied sub nom. Smith v. New Jersey, ___ U.S. ___, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).
Defendant's argument fails because the out-of-court identifications were sufficiently reliable to be admitted at trial. A show-up identification, such as the two identifications in this case, is essentially a single-person lineup that occurs at, or near the scene of the crime shortly after its commission. State v. Henderson, 208 N.J. 208, 259 (2011). The circumstances of a show-up identification are, to some extent, inherently suggestive. Nonetheless, a show-up identification may be admitted at trial if it is otherwise reliable. State v. Adams, 194 N.J. 186, 204 (2008).
The reliability of an identification is determined by analyzing the totality of the circumstances, including: (1) the witness' opportunity to view the criminal during the commission of the crime; (2) the witness' degree of attention; (3) the accuracy of the witness' prior description of the criminal; (4) the witness' level of certainty at the time of the identification; and (5) the time between the crime and the identification. State v. Madison, 109 N.J. 223, 239-40 (1988) (citing Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154). Furthermore, officers are required to "make a written record detailing the out-of-court identification procedure, including the place where the procedure was conducted, the dialogue between the witness and the interlocutor, and the results." Delgado, supra, 188 N.J. at 63. Wherever feasible, the record should contain a verbatim account of any exchange. Ibid. "If after the evaluation of those factors the court is convinced that, notwithstanding the suggestive nature of the procedure, the witness's identification is reliable, then the identification may be admitted into evidence." Adams, supra, 194 N.J. at 204 (citing State v. Herrera, 187 N.J. 493, 503-04 (2006)).
Here, it is undisputed that the officers failed to memorialize the identification procedure, as required by Delgado. Indeed, that failure was the reason a Wade hearing was held to determine the reliability of the out-of-court identifications. At the three-day Wade hearing, defendant had the opportunity to cross examine the State's witnesses about the reliability of the identification procedures. After weighing the totality of the circumstances and applying the five-factor Manson/Madison reliability test, the court determined the identifications were sufficiently reliable and therefore admissible at trial.
In support of its decision, the court noted that the show-ups occurred within two hours of the incident, and both Garcia and Drew immediately identified defendant without any uncertainty, prompting, or questioning. The court also noted that Drew had the composure to give a detailed description of defendant to police, and to photograph defendant.
We agree with the court's conclusion that the identifications were sufficiently reliable to be admitted at trial. We therefore reject defendant's assertion that the out-of-court identifications were erroneously admitted into evidence.
IV.
Next, we turn to defendant's argument that the drug court judge abused her discretion by denying defendant's application to the drug court program. A judge's "application of the [d]rug [c]ourt [s]tatute and [m]anual to a defendant involves a question of law[,]" and is therefore reviewed de novo. State v. Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014).
Defendant contends that, because the jury acquitted him of aggravated assault, and only convicted him of simple assault, the drug court judge "was not permitted to conclude that [defendant] was a danger to the community." He also contends that the court gave insufficient consideration to the recommendation of the substance abuse evaluator. Having reviewed the decision of the drug court judge, we disagree with defendant's arguments.
Defendant correctly points out that he was acquitted of aggravated assault and convicted of simple assault. Aggravated assault applies where the defendant "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" N.J.S.A. 2C:12-1(b). However, simple assault only requires that the defendant "[a]ttempt[] to cause or purposely, knowingly or recklessly cause[] bodily injury to another[.]" N.J.S.A. 2C:12-1(a).
Contrary to defendant's assertion, the fact that he was convicted of simple assault does not preclude the drug court judge from finding that defendant committed a violent offense, and would pose a danger to the drug court community if admitted. The record contains ample evidence of the violence of defendant's assault. Indeed, at trial, defense counsel conceded the violence of defendant's assault, and argued that Garcia "was beaten so badly that he could not have made a reliable identification . . . ."
Likewise, there is nothing in the record to support defendant's argument that the court failed to give proper consideration to the recommendation of the substance abuse evaluation. A drug court judge must consider all of the relevant information available, including any substance abuse evaluations. State v. Clarke, 203 N.J. 166, 182 (2010). However, the "judge is not bound by a substance abuse evaluator's recommendation . . . ." Id. at 183.
Here, there is no question that the drug court judge considered the substance of the report because she referred to it in her oral opinion. Because the drug court judge's conclusion was supported by ample evidence in the record, we see no reason to disturb her decision.
V.
Finally, we consider defendant's argument that his sentence was excessive. Defendant contends that the trial judge erroneously considered his severe drug addiction as support for aggravating factor three, N.J.S.A. 2C:44-1(a)(3), because his addiction should have been regarded as a mitigating factor. He also contends that the court erroneously found aggravating factor eleven, N.J.S.A. 2C:44-1(a)(11), because that factor is only applicable where the judge is balancing a custodial term against a noncustodial term.
Sentencing decisions are generally reviewed under the abuse of discretion standard. State v. Robinson, 217 N.J. 594, 603 (2014). We are not permitted to "second-guess" a sentence that is in accordance with statutory mandates, or substitute our own judgment for that of a sentencing judge. See State v. Blackmon, 202 N.J. 283, 297 (2010).
[We] must affirm the sentence of a trial court unless: (1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not "based upon competent credible evidence in the record;" or (3) "the application of the guidelines to the facts" of the case "shock[s] the judicial conscience."
[State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant's argument with respect to aggravating factor three is meritless. See State v. Bieniek, 200 N.J. 601, 610 (2010) (affirming the application of aggravating factor three because "people with substance abuse problems struggle with such problems for a long time."); State v. Ghertler, 114 N.J. 383, 390 (1989) (refusing "to adopt the proposition that one who demonstrates that the motive for unlawfully acquiring the funds of another was to purchase cocaine has satisfied . . . mitigating factor [four], namely, 'substantial grounds tending to excuse or justify one's conduct . . . .'"). Furthermore, defendant's argument with respect to aggravating factor eleven is irrelevant because the trial judge did not rely upon aggravating factor eleven in her sentencing.
The JOC lists aggravating factor eleven in its statement of reasons, however, the sentencing transcript reveals that the judge did not find that factor relevant. "In the event of a discrepancy between the court's oral pronouncement of sentence and the sentence described in the judgment of conviction, the sentencing transcript controls and a corrective judgment is to be entered." State v. Abril, 444 N.J. Super. 553, 564 (App. Div. 2016) (citing State v. Rivers, 252 N.J. Super. 142, 147 n.1 (App. Div. 1991)). The transcript reflects that the trial judge considered applying factor eleven, but decided against it. Following her discussion of factor eleven, the judge stated "strike that[,]" and provided a reason for the inapplicability of aggravating factor eleven.
We therefore find no error in the court's application of the mitigating and aggravating factors in this case, and will not disturb the judge's imposition of a mid-range seven-year sentence, subject to NERA. However, we remand to the Law Division for correction of the JOC to remove aggravating factor eleven.
Affirmed; remanded for correction of the JOC.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).