Opinion
DOCKET NO. A-4042-12T4 DOCKET NO. A-5558-12T3
07-18-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEROY TUTT, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRUCE DUETTE, a/k/a BRUCE DEWITT, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant Leroy Tutt (Michael C. Kazer, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Bruce Duette (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent State of New Jersey (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Koblitz and Gilson (Judge Gilson concurring). On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 10-07-0090 and Accusation No. 13-01-0034. Joseph E. Krakora, Public Defender, attorney for appellant Leroy Tutt (Michael C. Kazer, Designated Counsel, on the brief). Joseph E. Krakora, Public Defender, attorney for appellant Bruce Duette (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Robert Lougy, Acting Attorney General, attorney for respondent State of New Jersey (Daniel I. Bornstein, Deputy Attorney General, of counsel and on the briefs). PER CURIAM
We write one opinion to resolve the appeals of co-defendants Bruce Duette and Leroy Tutt, both of whom appeal their convictions and sentence after pleading guilty to different counts of the same superseding indictment. In accordance with the plea agreement, Duette pled guilty to Count Twenty of the indictment as amended to the charge of first-degree conspiracy to murder less than five people, in exchange for the dismissal of the remaining counts. He was sentenced to twenty years in prison with an 85% parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, to be served concurrent with the sentence he was then serving. Tutt pled guilty to Count Seventeen of the indictment, second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), as well as an accusation. In accordance with his plea agreement, the remaining charges against Tutt were dismissed and he was sentenced on the indictment to a term of seven years with an 85% parole disqualifier pursuant to NERA; and to a concurrent five-year term with three years of parole ineligibility on the accusation. On appeal, both Duette and Tutt contend the trial court erred in denying their motions to dismiss based on insufficient evidence before the grand jury. Additionally, Duette appeals the denial of jail credits and Tutt appeals the denial of his motion to suppress wiretapped recordings of his phone calls. We affirm on all issues raised by defendants. After receiving requested supplemental briefs, we reverse Duette's illegal, bargained-for award of fifty-six days of jail credit and remand for resentencing to a reduced term that will honor the intended effect of the plea agreement.
Rather than return a separate indictment against two other co-defendants, the Attorney General chose to seek a superseding indictment on July 21, 2010.
The accusation charged Tutt with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a).
A State grand jury returned a seventy-four count superseding indictment naming fifteen defendants, including co-defendants Duette and Tutt. Duette was charged with seven out of the seventy-four counts of the indictment: 1) first-degree racketeering, N.J.S.A. 2C:41-2(c)-(d) (Count One); 2) second-degree conspiracy to distribute heroin, cocaine, and marijuana, N.J.S.A. 2C:35-5(a)(1), (b)(3), (b)(11), within 500 feet of certain public property, N.J.S.A. 2C:35-7.1, and within 1000 feet of school property, N.J.S.A. 2C:35-7 (Count Three); 3) second-degree conspiracy to unlawfully dispose, possess, acquire, and use firearms, N.J.S.A. 2C:5-2, :39-4(a), :39-5(b), :39-9(d) (Count Four); 4) first-degree conspiracy to commit murder of five or more persons, N.J.S.A. 2C:5-2, :11-3(a)(1)-(2) (Count Twenty); 5) second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), :2-6 (Count Twenty-One); 6) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), :2-6 (Count Twenty-Two); and 7) second-degree possession of a handgun by certain persons, N.J.S.A. 2C:39-7(b)(1) (Count Sixty-Seven). Tutt was also charged with Count One and Count Four, as well as the following six additional counts: first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, :11-3(a)(1)-(2) (Count Fifteen); first-degree attempted murder, 2C:11-3, :2-6, :5-1 (Count Sixteen); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), :2-6 (Count Seventeen); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), :2-6 (Count Eighteen); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); :2-6 (Count Nineteen); and first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2, :11-3(a)(1)-(2) (Count Twenty-Three).
Testimony before the grand jury revealed the following.
The Gangster Killer Bloods
The Gangster Killer Bloods (GKB) had approximately 200 members and was the "enforcement end" of the Bloods gang, making sure that the members followed the gang rules. The GKB was known to sell drugs and commit robberies in Trenton.
In the summer of 2005, the GKB was at war with the Crips gang for control of Trenton. In March 2005, Bernard Green, known also as Petey Black, became the sole leader of the gang.
Between January and August 2005, the Major Narcotics Bureau of the Division of Criminal Justice participated in a Trenton drug wiretap investigation that involved wiretaps of GKB leader Green's phone conversations.
The Bystander Shooting Involving Tutt
A shooting occurred in an area in Trenton known as "Bum's Alley" on July 23, 2005 at 6:30 p.m. At that time, a call was intercepted between Green and Tutt. The transcript of the tape contained the following conversation:
[Green]: Yo.
[Tutt]: Yo.
[Green]: Where Cherokee at?
[Tutt]: He up Donnelly Homes. You just...what, you were just (inaudible) to Droop?
[Green]: No, I wasn't talking to Droop, I was talking to Cherokee.A police gang expert, Detective L., explained that "P Funk" was Paul Jiles, "a known Crip in the Trenton area." The expert further explained that, when Tutt stated he would "get" P Funk, he meant that he was going to shoot him, and the request for a "g-ride" referred to a car that could not be traced by law enforcement. At 6:58 p.m., less than a half hour after the first call, Trenton police were dispatched to the area near Bum's Alley for a report of shots fired. When police responded, they found R.S., the victim, bleeding from a gunshot wound to her upper chest, near her right shoulder.
[Tutt]: I'm about to get this nigger P Funk right now.
[Green]: Where?
[Tutt]: Just told me this nigger, ummm, sittin' out, out there. Droop about to come out Donnelly Homes, T Rogers right here, we need a g-ride.
We use initials for law enforcement, informants, and the victim to preserve their confidentiality.
Following the shooting, additional calls were intercepted from Green's phone discussing the P Funk shooting attempt. Later that evening at 7:08 p.m., Green made a call to spread a warning to other members of the gang to be safe, acknowledging that members of his GKB gang were shooting at P Funk. At 7:31 p.m. another call from Green was intercepted. In this call, Green reprimands a senior gang member who provided the gun used in the shooting for not ensuring the gun was loaded with a full magazine.
The Shooting Involving Duette
Four days later, on July 27, phone calls were intercepted that indicated Green and Duette were targeting members of the Crips gang, who were congregating close to a bar in Bum's Alley. At 2:36 a.m., Duette called Green, telling Green to "clip up," which means to get his gun ready, because "there[ was] something going on." Duette told Green members of the Crips were at Bum's Alley "throwing up" gang signs in disrespect of the Bloods, and he needed a high-powered gun because many Crips were present:
[Duette]: Man, clip the fuck up, man. Them Crips in Bum's Alley right now. Them nigga's throwin C's and shit up at us man, clip the fuck up.Green told Duette that Jamal Goss, another member of GKB, had guns and was on Monmouth Street. Duette asked if Goss had a "Tommy," a Thompson .45 caliber sub-machine gun. Green stated that Goss only had a TEC-9 firearm and a .357 caliber handgun. At 2:37 a.m., Green called Duette, who assured Green that he would get the "Tommy." A minute later, Green called Duette and told him that Curtis Hawkins had the Tommy gun. Green then called Hawkins and told him to get the Tommy gun and meet Duette:
. . . .
[Green]: You just rolled past there?
[Duette]: Ay yeah, it's too, it's too many of them though. There is too many of them! We need something big there's to[o] many of them. I ain't just doin' a ride by shooting, I want to get out and run down on them niggas, man.
[Green]: Aight go get it meet Black Magic and them out in Wilbur section. Um meet them on Monmouth St. they said they got on Logan St. were them brabs be at right. Said about fifteen of em right there gambling. He's says he only got the four five on em, he wants something so that he can hit all of them.At 2:45 a.m., Duette called Green to say they needed a van. Green told Duette other GKB members may have already shot the Crips members. A minute later, Green called Duette to say the other GKB members were probably at the Crips's location. In response, Duette emphasized how many Crips were at the location:
[Duette]: Yo it's too many of them niggas just to send somebody, It's too many of them, Pete [(Green)], it's, there's like twenty of 'em, yo.
Responding to the scene after being alerted, the police heard approximately ten to twelve gun shots and observed a gray four-door car fleeing from the area.
At 2:50 a.m., Green and Duette had another conversation, discussing that four people had been shot with an A-K 47 before Duette could shoot anyone. Duette expressed disappointment that he was too late to shoot the Crips.
Duette's Arrest
During a narcotics distribution investigation the following day, the police used the master key to enter an apartment, which was vacant, and found Duette hiding behind a couch. The police also found a Thompson .45 caliber sub-machine gun, a Llama .45 caliber handgun, an "M-A-R" .32 caliber handgun, one "brick" of heroin, four separate bags of heroin, a bulletproof vest, and bullets. On March 10, 2006, Duette pled guilty to a charge of certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(2), and was sentenced to seven years in prison with a mandatory minimum term of five years. He was entitled to jail credit on that sentence from July 28, 2005, the date he was arrested.
Duette raises the following issues on appeal:
POINT I: THE TRIAL COURT ABUSED ITS DISCRETION IN REFUSING TO DISMISS THE INDICTMENT OR, IN THE ALTERNATIVE, TO AMEND COUNT THREE TO CHARGE A THIRD-DEGREE CONSPIRACY.
B. COUNT THREE SHOULD HAVE BEEN DISMISSED OR AT MINIMUM, REDUCED TO CHARGE A THIRD-DEGREE CONSPIRACY.
1. [K.]'S STATEMENT COULD NOT HAVE BEEN EVALUATED PROPERLY BY THE GRAND JURORS WITHOUT AN APPROPRIATE JURY CHARGE REGARDING TESTIMONY OF A COOPERATING CO-DEFENDANT OR WITNESS.
2. THE PHONE CONVERSATIONS BETWEEN DUETTE AND GREEN REGARDING HOW MANY BRICKS OF HEROIN THEY SHOULD PURCHASE DID NOT ESTABLISH A CONSPIRACY.
3. EVIDENCE THAT GREEN AND [K.] SOLD DRUGS IN PROXIMITY TO A SCHOOL AND PUBLIC HOUSING DID NOT ESTABLISH A CONSPIRACY ON DUETTE'S PART.
4. EVEN IF THE STATE ESTABLISHED THAT DUETTE PARTICIPATED IN A CONSPIRACY TO DISTRIBUTE DRUGS, THERE WAS NO PROOF THAT DUETTE PARTICIPATED IN A SECOND-DEGREE CONSPIRACY.
C. COUNT FOUR SHOULD HAVE BEEN DISMISSED.
D. COUNT TWENTY SHOULD HAVE BEEN DISMISSED.
E. COUNTS TWENTY-ONE AND TWENTY-TWO AND SIXTY-SEVEN SHOULD HAVE BEEN DISMISSED.
F. COUNT ONE SHOULD HAVE BEEN DISMISSED.
POINT II: DUETTE IS ENTITLED TO JAIL CREDIT UNDER RULE 3:21-8 FOR TIME SERVED FROM HIS JULY 28 2005 ARREST UNTIL HIS MARCH 10, 2006 SENTENCING.
Tutt raises the following issues on appeal:
POINT I: THE ORDER DENYING DEFENDANT'S MOTION TO DISMISS COUNT SEVENTEEN OF THE INDICTMENT SHOULD BE REVERSED AND DEFENDANT'S CONVICTION VACATED BECAUSE THE STATE FAILED TO PRESENT SUFFICIENT EVIDENCE TO THE GRAND JURY THAT DEFENDANT COMMITTED THE CRIME CHARGED.
POINT II: THE ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS THE INTERCEPTED WIRETAP RECORDINGS OF DEFENDANT'S PHONE CALLS SHOULD BE REVERSED AND DEFENDANT'S CONVICTION VACATED BECAUSE THE STATE DID NOT IDENTIFY DEFENDANT'S VOICE AT THE DRIVER HEARING.
I
"A trial court's decision on a motion to dismiss an indictment involves an exercise of discretion." State v. L.D., 444 N.J. Super. 45, 55 (App. Div. 2016). The trial court's discretion to dismiss an indictment "should not be exercised except on 'the clearest and plainest ground' and an indictment should stand 'unless it is palpably defective.'" State v. Luzhak, ___ N.J. Super. ___, ___ (App. Div. 2016) (slip op. at 4) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 18 (1984)); see also State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004) ("Dismissal is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake."). "As long as the State presents 'some evidence establishing each element of the crime to make out a prima facie case,' a trial court should not dismiss an indictment." State v. Feliciano, 224 N.J. 351, 380 (2016) (quoting State v. Saavedra, 222 N.J. 39, 57 (2015)).
II
Duette appeals from the denial of a motion to dismiss all of the counts naming him in the indictment. The State asserts the appeal of the court's refusal to dismiss Counts One, Three, Four, Twenty-One, Twenty-Two, and Sixty-Seven are moot because the counts were already dismissed at the time of sentencing. We agree for the reasons expressed in State v. Davila, 44 3 N.J. Super. 577 (App. Div. 2016). "[I]f a pre-trial motion only affects a dismissed count, an appeal of that pre-trial motion presents a moot, non-justiciable question." Id. at 585.
Rule 3:9-3(f) sets forth the requirements for entering a conditional guilty plea reserving the right to appeal an adverse determination "of any specified pretrial motion." The Rule requires both "the approval of the court" and "the consent of the prosecuting attorney." R. 3:9-3(f). Pursuant to our holding in Davila, supra, even if Rule 3:9-3(f) was satisfied, to retain viability, the appeal must relate to a count to which Duette pled guilty. See 443 N.J. Super. at 587 ("Even if the record had been sufficient to preserve defendant's right to appeal the pre-trial motion relating only to a dismissed count of the indictment, we hold that the issue is moot.").
Duette pled guilty to Count Twenty, as amended to conspiracy to murder less than five people, and the State agreed to dismiss the remaining counts. Duette also preserved the right to appeal the denial of his pretrial motions. In response to the question on the plea form, "Do you further understand that by pleading guilty you are waiving your right to appeal the denial of all other pretrial motions except the following," was handwritten: "Motion to dismiss and motion to sever." At the plea hearing, the trial court failed to explicitly approve of the conditional plea, but merely "recognize[d]" that Duette was "preserving the right to file appeals":
THE COURT: And I do recognize [defense counsel has] been very active in filing motions, a motion to dismiss the indictment, a motion to sever. You are preserving the right to file appeals to my decisions.Nonetheless, as in Davila, we will review the motion to dismiss that relates to the count to which Duette pled guilty, as that was his reasonable expectation. See Davila, supra, 443 N.J. Super. at 584 ("A defendant has the right not to be 'misinformed' about a material element of a plea agreement, and to have his or her 'reasonable expectations' fulfilled." (quoting State v. Bellamy, 178 N.J. 127, 134 (2003))).
We note that the trial court carefully reviewed the grand jury proceedings, finding in his thorough written opinion that the grand jury was presented with sufficient evidence to indict on each count Duette faced.
III
Count Twenty charged Duette with first-degree conspiracy to commit murder of five or more people on July 27, 2005. Under the New Jersey Statutes, a defendant "is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he" or she either agrees to commit the crime or agrees to aid the other in the commission of the crime. N.J.S.A. 2C:5-2(a). A defendant is guilty of murder if he or she knowingly or purposely "causes death or serious bodily injury resulting in death." N.J.S.A. 2C:11-3(a)(1)-(2). The trial court provided a thorough written opinion supporting his denial of Duette's motion to dismiss this count:
The court concludes that the State demonstrated some evidence to demonstrate a prima facie case that [Duette] conspired to commit murder of five unknown Crips at North Logan Avenue. First, [Duette] initiated the phone call to Green and Hawkins, and informed them that Crips were located in Bum's Alley at 15 North Logan Avenue, that they were throwing up gang signs, but they need a big gun, because a lot of them were present. Second, the intercepted wiretap communications and Detective [L.]'s testimony illustrated that [Duette] attempted to obtain a high powered gun to shoot at the Crips on North Logan Avenue, but Green did not possess one. Nevertheless, [Duette] informed Green that he was going to travel to North Trenton to acquire a Thompson sub-machine gun, but Green informed him that it might take too long and that he should just get the sub-machine gun from Hawkins. Third, intercepted conversations and Detective [L.]'s testimony demonstrate that Green ordered Hawkins to procure the Thompson sub-machine gun and meet [Duette] by Logan Street to shoot at the Crips, because [Duette] only possessed a .45 caliber handgun. Fourth, Green ordered other unidentified males to travel to Logan to shoot the Crips, and report back to Green once they completed this assignment. Fifth,
police that responded to the scene heard ten to twelve gunshots and observed an old, gray four door car speeding away from the area, but lost it in pursuit. However, investigation at the scene uncovered three .9 mm shell casings, a Winchester 30/30 shell casing, two .9 mm shell casings, two suspended bullets, a black Cadillac with a shattered window, an electric meter with bullet holes in it, and bullet hole in the aluminum siding at 15 North Logan Avenue. Lastly, and most importantly, [Duette]'s conversation with Green after the shooting transpired illustrates a prima facie case of [Duette]'s intent regarding murdering unknown Crips. Specifically, [Duette] complained that Green instructed other people to shoot the Crips, Green informed him they shot four Crips, and [Duette] responded, "I'm sayin', fuck you, I been waitin' for it, man, it was twenty of them in the crowd..." Based on this grand jury testimony and intercepted communications, the court concludes that the State demonstrated a prima facie case that [Duette] intended to murder unknown Crips at 15 North Logan Avenue. Under the doctrines of accomplice liability and co-conspirator liability, [Duette] can be guilty of purposely or knowingly causing the death of five unknown Crips, even though he was not present when the shooting occurred. Specifically, [Duette]'s statement to Green after the shooting occurred illustrated his mental state regarding this shooting. Thus, the court will not dismiss Count Twenty.
Duette argues that the indictment should have been dismissed because the grand jury was not instructed as to self-defense, an affirmative defense codified in N.J.S.A. 2C:3-4. Pursuant to statute, "the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself [or herself] against the use of unlawful force by such other person on the present occasion." N.J.S.A. 2C:3-4(a). However, "[t]he use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm." N.J.S.A. 2C:3-4(b)(2). The use of deadly force is unavailable if the actor "provoked the use of force against himself [or herself] in the same encounter." N.J.S.A. 2C:3-4(b)(2)(a). "Justification by self-defense is similarly unavailable if a lesser degree of force could have been used to respond to an attack." State v. Galicia, 210 N.J. 364, 390 (2012).
The State has a limited duty to charge the grand jury on possible defenses. See Saavedra, supra, 222 N.J. at 65-66. "[I]t is only when the facts known to the prosecutor clearly indicate or clearly establish the appropriateness of an instruction that the duty of the prosecution arises." Id. at 66 (quoting State v. Hogan, 336 N.J. Super. 319, 343-44 (App. Div.), certif. denied, 167 N.J. 635 (2001)). Duette was not entitled to a grand jury instruction on self-defense because the facts do not clearly show that Duette was acting in self-defense. Duette directed the GKB members to the site where the Crips were located. Thus, not only was the possession of a firearm not for a "precautionary, self-protective purpose," as Duette argues, but the grand jury also had sufficient evidence to find that Duette was the initial aggressor, participating in a plan to kill rival gang members without any immediately preceding provocation.
IV
Although Tutt moved initially to dismiss all counts in which he was named, he appeals only from the denial of his motion to dismiss Count Seventeen, as we determined appropriate in Davila, supra. See 443 N.J. Super. at 585. As with Duette, the court did not sufficiently express his approval of the preservation of Tutt's right to appeal. At Tutt's plea hearing, the court did not even mention the preservation of Tutt's right to appeal pre-trial motions, although the plea form specifically reserves that right as to both his motion to dismiss and motion to preclude the audio recordings.
Tutt argues that insufficient admissible evidence was presented to the grand jury to support Count Seventeen, second-degree aggravated assault. A defendant commits second-degree aggravated assault if he purposely or knowingly attempts to cause serious bodily injury to another. N.J.S.A. 2C:12-1(b); State v. Morgan, 217 N.J. 1, 17 (2013). Because no physical evidence was presented identifying Tutt as the shooter, he argues that the grand jury did not have sufficient evidence to indict him.
The gang expert testified that in the first recorded conversation, Tutt requested permission from Green to kill P Funk. After receiving permission, a shooting occurred a short time later. Police responded and found R.S. bleeding from a gunshot wound. Minutes later, an intercepted phone call revealed Green warning a GKB member to be careful because shots had been fired at P Funk. In a subsequent call, Green was upset because the gun used to shoot at P Funk did not contain sufficient bullets. This circumstantial evidence was sufficient to sustain the grand jury indictment against Tutt for aggravated assault. See State v. Price, 108 N.J. Super. 272, 276 (Law Div. 1970) (finding that "[a]lthough there was no eyewitness testimony before the grand jury, there was substantial and rationally persuasive circumstantial evidence upon which to find a true bill"); State v. Cagno, 211 N.J. 488, 512 (2012) ("Juries are routinely instructed that they may draw logical inferences from the evidence presented to them and that circumstantial evidence is of as equal weight as direct evidence."), cert. denied, ___ U.S. ___, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013).
Tutt argues the testimony of the police gang expert regarding her involvement with the investigation of GKB was inadmissible hearsay. The use of hearsay before a grand jury, however, is entirely proper and therefore this argument has no merit and will not be addressed further. See Saavedra, supra, 222 N.J. at 80-81; R. 2:11-3(e)(2).
V
In his final argument, Tutt claims the State failed to satisfy its preliminary evidentiary burden for admission of sound-recorded evidence. Tutt asserts because Detective K., the only witness presented at the hearing, was unable to personally identify Tutt as the speaker in the recordings, the State could not meet the identification requirement of State v. Driver, 38 N.J. 255 (1962).
As with other evidentiary rulings, the admissibility of an audio recording is within the discretion of the trial court. See State v. Zicarelli, 122 N.J. Super. 225, 239-40 (App. Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973). In Driver, our Supreme Court outlined the applicable standards for admissibility of an audio recording and held that, as a condition of admissibility,
the speakers should be identified and it should be shown that: (1) the device was capable of taking the conversation or statement, (2) its operator was competent,
(3) the recording is authentic and correct, (4) no changes, additions or deletions have been made, and (5) in instances of alleged confessions, that the statements were elicited voluntarily and without any inducement.
[Driver, supra, 38 N.J. at 287.]
"[T]he trial judge should listen to the recording out of the presence of the jury" to ensure that "it is sufficiently audible, intelligible, not obviously fragmented, and, also of considerable importance, whether it contains any improper and prejudicial matter which ought to be deleted." Id. at 287-88.
Importantly, "a judge hearing a suppression motion relating to the admissibility of evidence may consider hearsay or other inadmissible proof." State v. Wright, 431 N.J. Super. 558, 565 n.3 (App. Div. 2013), rev'd on other grounds, 221 N.J. 456 (2015). "The weight such testimony should be given, however, is a matter left to the trial judge as factfinder, with the prosecution running the risk that the factfinder may draw an inference adverse to the prosecution's interests when a key fact is supported only by hearsay." State v. Bacome, 440 N.J. Super. 228, 239-40 (App. Div.), certif. granted in part, 223 N.J. 279 (2015).
Tutt challenges only the first prong of the requirements under Driver; whether the speaker was identified. The identification was made by Detective B., who did not testify at the hearing, but had listened to all the tapes and identified Tutt. Detective K. stated, however, that corroboration of the identity of Tutt was also made by matching the entry under "L. Tutt" on Green's phone contact list to the telephone number recorded on the wiretap. The transcript of two sessions also revealed that a speaker identified himself as "Leroy," Tutt's first name. Thus, the State presented other corroborating evidence of Tutt's identity at the Driver hearing. See Bacome, supra, 440 N.J. Super. at 239-40. Further, as the trial court noted, Detective B. would be available for trial. See State v. Harte, 395 N.J. Super. 162, 172 (Law Div. 2006).
VI
Finally, Duette argues that he is entitled to jail credit under Rule 3:21-8 for time served from his July 28, 2005 arrest for the certain persons crime to his March 10, 2006 sentencing on that charge. Duette argues if he was "arrested for all of the charges that were known in 2005, the[] charges would have been disposed of in a timely manner along with the July 28, 2005 matter, and Duette would have accrued jail credit on all of the offenses from the date of his arrest until his sentencing on March 10, 2006." Duette further contends "the prosecutor's decision to seek the instant indictment a full five years after investigators became aware that the crimes charged had been committed, should have no adverse effect on Duette's entitlement to jail credits."
"Jail credits are 'day-for-day credits' that are applied to the 'front end' of a defendant's sentence, meaning that he or she is entitled to credit against the sentence for every day defendant was held in custody for that offense prior to sentencing." State v. Hernandez, 208 N.J. 24, 37 (2011) (citations omitted) (first quoting Buncie v. Dep't of Corr., 382 N.J. Super. 214, 217 (App. Div. 2005), certif. denied, 186 N.J. 606 (2006); then quoting Booker v. N.J. State Parole Bd., 136 N.J. 257, 263, 265 (1994)). The purpose of jail credits are to prevent "double punishment" for "the time spent in custody before sentencing." State v. Rawls, 219 N.J. 185, 193 (2014).
Under Rule 3:21-8, "[t]he defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." "When the Rule preconditions for the application of jail credits are satisfied, the award of such credits is mandatory, not discretionary." Rawls, supra, 219 N.J. at 192-93 (quoting Hernandez, supra, 208 N.J. at 37).
"[A] defendant is entitled to 'credits against all sentences "for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence" on each case.'" Rawls, supra, 219 N.J. at 194. "Rule 3:21-8 requires that a defendant receive jail credit even though the charges are not directly responsible for his or her incarceration." Ibid. The defendant is only entitled to jail credits in relation to charges pending at the time of incarceration. Hernandez, supra, 208 N.J. at 47 ("Prior to sentencing on pending charges, a defendant accrues and is entitled to jail credits for time spent in custody, but once the first sentence is imposed a defendant is only entitled to gap-time credits for time accrued thereafter when sentenced on other charges." (emphasis added)). "After the first sentence is imposed . . . a defendant is not entitled to jail credits for time spent in custody when later sentenced on other pending charges." State v. Rippy, 431 N.J. Super. 338, 349 (App. Div. 2013), certif. denied, 217 N.J. 284 (2014).
"The gap-time statute provides that 'when a person is sentenced at different times for two offenses, both committed prior to the sentencing on the first, he is to be given credit against the aggregate of both sentences for any time served on the first.'" State v. L.H., 206 N.J. 528, 529 (2011) (quoting Cannel, New Jersey Criminal Code Annotated, comment 4 on N.J.S.A. 2C:44-5 at 1130 (2010)); N.J.S.A. 2C:44-5(b)(2).
The purpose of gap-time credit is "to avoid manipulation of trial dates to the disadvantage of defendants and to put defendants in the same position that they would have been had the two offenses been tried at the same time." L.H., supra, 206 N.J. at 529 (quoting State v. Franklin, 175 N.J. 456, 462 (2003)). "[W]here gap-time credits are applicable, the judge has no discretion to award jail credits instead." Rippy, supra, 431 N.J. Super. at 348 (emphasis added).
The trial court awarded Duette 2555 days of gap-time credit from March 10, 2006, the date of sentencing on Duette's prior offense, to March 7, 2013, the day before the date Duette pled guilty to Count Twenty of the superseding indictment. Duette satisfied the three-prong test for an award of gap-time credits. First, Duette was previously sentenced to a term of imprisonment on March 10, 2006. Second, Duette also was sentenced to a subsequent term of imprisonment on May 3, 2013. As to the third prong, both offenses — the certain persons offense and conspiracy to commit murder — occurred before the initial sentencing date of March 10, 2006. Thus, because Duette is entitled to gap-time credits, he is not entitled to jail credits.
Pursuant to the plea agreement, the court also awarded Duette fifty-six days of jail credit, dating from March 8, 2013, the date of Duette's guilty plea, to May 2, 2013, the day before the date his sentence was imposed, although Duette was serving another sentence during this time. An illegal sentence is a sentence "not imposed in accordance with law." State v. Zuber, 442 N.J. Super. 611, 617 (App. Div. 2015) (quoting State v. Acevedo, 205 N.J. 40, 45 (2011)), certif. granted, 224 N.J. 245 (2016). A sentence "not imposed in accordance with law" includes sentences that "may not be a disposition authorized by the Code." State v. Murray, 162 N.J. 240, 247 (2000). "If a judgment of conviction is reversed for error in or for excessiveness or leniency of the sentence, the appellate court may impose such sentence as should have been imposed or may remand the matter to the trial court for proper sentence." R. 2:10-3. "Parties may not negotiate an illegal sentence, and a defendant may not accept one as part of a plea agreement." State v. French, 437 N.J. Super. 333, 335 (App. Div. 2014) (citations omitted), certif. denied, 220 N.J. 575 (2015). "We must consider whether defendant's sentence is illegal," State v. Drake, 444 N.J. Super. 265, 271 (App. Div. 2016) (emphasis added), and may "correct the illegal sentence sua sponte," State v. Jurcsek, 247 N.J. Super. 102, 111 n.3 (App. Div.), certif. denied, 126 N.J. 333 (1991). At the plea hearing, the Deputy Attorney General recognized that "[o]rdinarily, [Duette] . . . would not be entitled to jail credits at all under the law." Nonetheless, the State offered Duette jail credit of fifty-six days. Duette and the State thus agreed to an illegal sentence.
The State suggests that we should convert Duette's improper jail credits to gap-time credits. In his supplemental brief, Duette cites to Richardson v. Nickolopolous, 110 N.J. 241, 251-52 (1988), where our Supreme Court stated, "A judge desiring to afford maximum concurrence of sentences can reduce the base term" rather than award jail credits improperly. Duette urges us to instruct the sentencing court on remand to fashion a practical sentencing alternative that honors the intent of the plea agreement without violating legal strictures. We agree with Duette that he is entitled to enforcement of the provisions of his agreement. See Bellamy, supra, 178 N.J. at 134. We therefore vacate Duette's sentence and remand for the imposition of a term that would result in a reduction of the mandatory minimum NERA sentence by fifty-six days. We calculate a term of nineteen years and 299 days would accomplish that result because 85% of sixty-six is approximately fifty-six. Thus, reducing the maximum sentence by sixty-six days would reduce Duette's mandatory minimum term by fifty-six days. The convictions of both defendants are affirmed. We reverse Duette's sentence and remand for resentencing to a legal sentence that conforms in its practical effect to the terms of the plea agreement by amending the judgment of conviction to reflect a sentence of nineteen years and 299 days with NERA.
Affirmed as to Tutt. As to Duette, affirmed in part, reversed in part and remanded to modify the sentence only. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION GILSON, J.S.C. (temporarily assigned), concurring.
I concur in the well-reasoned opinion of the court, except for section II. I do not join in the holding that any portion of the appeal by defendant Bruce Duette is moot. Thus, I disagree with the majority when they opine that Duette's appeal of the motion to dismiss counts one, three, four, twenty-one, twenty-two and sixty-seven is moot. I concur because the trial court correctly denied the motion to dismiss all counts of the indictment that charged crimes against Duette.
The majority addressed all of the issues raised by defendant Leroy Tutt, and I join in the majority's opinion that all of the issues he raised on his appeal are without merit. --------
In accordance with Rule 3:9-3(f), Duette entered into a conditional plea of guilt preserving his right to appeal the denial of his motion to dismiss all counts of the superseding indictment that charged him with crimes. The superseding indictment charged Duette with seven crimes in counts one, three, four, twenty, twenty-one, twenty-two and sixty-seven. Specifically, in those counts, Duette was charged with crimes of racketeering, conspiracy to commit murder, conspiracy to distribute illegal drugs and weapon-related crimes. After his motion to dismiss the indictment against him was denied, Duette pled guilty to an amended count twenty, admitting that he conspired to commit murder.
The majority addresses and holds that the trial court correctly denied Duette's motion to dismiss count twenty of the indictment. I agree and join in that holding. The majority also holds that Duette's appeal of the denial of his motion to dismiss the other counts of the indictment are moot because those counts were dismissed as part of the plea agreement. I disagree for the reasons set forth in my concurrence in State v. Davila, 443 N.J. Super. 577, 591-96 (App. Div. 2016).
As I explained in greater detail in my concurrence in Davila, when a defendant preserves the right to appeal the denial of specified pretrial motions as part of his or her plea agreement, the dismissal of certain counts does not make the right to appeal as to the dismissed counts moot. Id. at 593, 596. Rule 3:9-3(f) does not limit what motions can be preserved. Instead, the Rule expressly states that "any" motion can be preserved for appeal: "[A] defendant may enter a conditional plea of guilty reserving on the record the right to appeal from the adverse determination of any specified pretrial motion." R. 3:9-3(f). When a defendant enters into a conditional guilty plea, he or she preserves his or her right to withdraw the plea if the preserved motion is reversed on appeal. Ibid. Thus, just as defendant's guilty plea is conditional, the dismissal of the counts to which defendant has not pled guilty is also conditional. See Davila, supra, 443 N.J. Super. at 593 (Gilson, J., concurring).
Here, Duette preserved his right to appeal the denial of his motion to dismiss all seven counts of the indictment charging him with crimes. The trial court reviewed the grand jury proceedings and found that the grand jury was presented with sufficient evidence to indict Duette on all seven counts. Having considered Duette's arguments in light of the record, the applicable law, and our standard of review, I would affirm because the trial court did not abuse its discretion in denying Duette's motion to dismiss all seven counts. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION