NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4021-14T2
A-4026-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
COBY T. RICHARDSON,
a/k/a COLBY RICHARDSON, COLBY
TIMOTHY RICHARDSON,1
Defendant-Appellant.
_______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFERY RICHARDSON, a/k/a
JEFFERY OSBORNE RICHARDSON,
JEFFREY RICHARDSON, JEFFERY O.
RICHARDSON, JEFFREY RICHRARDSON
Defendant-Appellant.
_______________________________
Submitted May 25, 2017 - Decided June 23, 2017
1
Co-defendants' names are spelled differently throughout the
transcripts and record on appeal. Although the judgment of
conviction uses "Coby," it was established defendant's birth name
is "Colby." Regarding co-defendant, we use the spelling adopted
in his supplemental pro se brief, "Jeffery."
Before Judges Lihotz, Hoffman and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No.
12-04-1144.
Joseph E. Krakora, Public Defender, attorney
for appellant Colby T. Richardson (Jack L.
Weinberg, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney
for appellant Jeffery Richardson (Louis H.
Miron, Designated Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Stephen
A. Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
In these back-to-back appeals we consider the arguments by
co-defendants, who appeal from their respective convictions
following a joint jury trial and the sentences imposed. More
specifically, Colby Richardson appeals from a March 6, 2015
judgment of conviction for these offenses: third-degree receiving
stolen property, N.J.S.A. 2C:20-7 (count two); second-degree
unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count
three); fourth-degree possession of a defaced firearm, N.J.S.A.
2C:39-3(d) (count four); second-degree unlawful possession of an
assault firearm, N.J.S.A. 2C:39-5(f) (count six); fourth-degree
possession of hollow point bullets, N.J.S.A. 2C:39-3(f) (count
seven); fourth-degree possession of an illegal ammunition
2 A-4021-14T2
magazine, N.J.S.A. 2C:39-3(j) (count eight); and fourth-degree
resisting arrest, N.J.S.A. 2C:29-2(a) (count nine). Defendant was
acquitted of eluding police (count one) and possession of hollow
point bullets (count five). On appeal, Colby argues:
POINT I
THE TRIAL COURT ERRED IN RULING ADMISSIBLE THE
9-1-1 TAPE BECAUSE THE STATE FAILED TO
ESTABLISH THAT THE CALLER WAS UNAVAILABLE AND
BECAUSE THE STATEMENTS WERE TESTIMONIAL AND
OFFERED IN VIOLATION OF THE SIXTH AMENDMENT'S
CONFRONTATION CLAUSE. (Raised below.)
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT
REFUSED TO DISMISS JUROR NO. TWO FOR
COMMENTING OUT LOUD ON DEFENSE TACTICS IN THE
JURY ROOM. THE COURT FURTHER ERRED WHEN IT
DENIED THE DEFENSE MOTION FOR A MISTRIAL BASED
ON THE JUROR'S COMMENT. (Raised below.)
POINT III
THE STATE FAILED ITS BURDEN OF PROVING ALL THE
ELEMENTS OF RECEIVING STOLEN PROPERTY. THE
COURT ERRED IN DENYING THE DEFENDANT'S MOTION
FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE
STATE'S CASE PURSUANT TO RULE 3:18-1. THE
COURT FURTHER ERRED IN PERMITTING THE STATE
TO AMEND COUNT TWO OF THE INDICTMENT REGARDING
RECEIVING STOLEN PROPERTY. (Raised below.)
POINT IV
THE PROSECUTOR'S COMMENTS AND ACTIONS DURING
THE COURSE OF THE TRIAL CONSTITUTED
PROSECUTORIAL MISCONDUCT DEPRIVING THE
DEFENDANT OF A FAIR TRIAL. THE COURT'S
FAILURE TO ISSUE CURATIVE INSTRUCTIONS FURTHER
AGGRAVATED THE SITUATION. (Partially raised
below.)
POINT V
3 A-4021-14T2
THE TRIAL COURT'S RULINGS AND BEHAVIOR DURING
THE COURSE OF THE TRIAL DEMONSTRATED THAT THE
COURT DID NOT MAINTAIN AN IMPARTIAL DEMEANOR
THEREBY DEPRIVING THE DEFENDANT OF A FAIR
TRIAL. (Raised below.)
POINT VI
THE COURT IMPOSED AN EXCESSIVE SENTENCE WHICH
DID NOT TAKE INTO CONSIDERATION ALL
APPROPRIATE CODE SENTENCING GUIDELINES. THIS
SENTENCE SHOCKS THE JUDICIAL CONSCIENCE.
Jeffery Richardson, Colby's brother, appeals from an amended
February 27, 2015 judgment of conviction for the same criminal
offenses charged in counts two, three, four, six, seven, and eight.
In addition, he was found guilty of fourth-degree resisting arrest,
N.J.S.A. 2C:29-2(a) (count ten). On appeal, Jeffery argues:
POINT I
THE TRIAL COURT ABUSED ITS DISCRETION BY
SEVERELY LIMITING THE SUBSTANCE OF THE OPENING
STATEMENT MADE BY [JEFFERY'S] COUNSEL AND
THESE RULINGS UNDULY PREJUDICED [JEFFERY] BY
INFERRING THAT COUNSEL WAS ACTING IN AN
IMPROPER MANNER.
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION IN NOT
PERMITTING [JEFFERY'S] ATTORNEY TO CROSS-
EXAMINE THE STATE'S KEY WITNESS IN VIOLATION
OF [JEFFERY'S] CONSTITUTIONAL RIGHT TO
CONFRONT WITNESSES.
POINT III
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING [JEFFERY'S] MOTION TO DISMISS THE
RECEIVING STOLEN GOODS CHARGE OF THE SECOND
COUNT AT THE CLOSE OF THE STATE'S CASE.
POINT IV
4 A-4021-14T2
[JEFFERY'S] CONVICTION SHOULD BE VACATED AND
THIS COURT SHOULD ORDER A NEW TRIAL BASED UPON
THE CUMULATIVE EFFECT OF THE TRIAL COURT'S
ERRORS THROUGHOUT [JEFFERY'S] TRIAL.
POINT V
THE TRIAL COURT ABUSED ITS DISCRETION IN
SENTENCING [JEFFERY] TO SUCH A DRACONIAN AND
UNJUST SENTENCE BASED UPON THE RECORD AND,
THEREFORE, [JEFFERY'S] SENTENCE SHOULD BE
VACATED.
We have reviewed all arguments raised by each defendant, in
light of the record and applicable law. We affirm.
I.
On July 21, 2011, at approximately 5:20 p.m., Newark Police
received a 9-1-1 call from an unidentified woman, reporting armed
men, wearing gloves, in a red vehicle in the area of 600 Irvine
Turner Boulevard. Detective Jimmy Rios and Officer Steven Maresca
responded to the scene in separate police vehicles. Detective
Rios saw a red Ford Taurus with three occupants and noticed the
driver was wearing gloves. After making a K-turn, he pulled his
patrol car behind the Taurus, which immediately sped off.
After a car chase, involving the two police vehicles and the
suspects, the occupants of the vehicle "bailed out," exiting the
Taurus while it was still moving. The Taurus struck a parked car
and a tree, as the occupants fled on foot. Detective Rios radioed
dispatch, reported the fleeing suspects, and provided their
5 A-4021-14T2
descriptions and the direction each fled.2 He requested back-up
and positioned his vehicle to establish a perimeter to apprehend
the suspects.
Detective Rios saw the rear-seat passenger and began to pursue
him on foot. He trapped the suspect in the rear yards of the 900
block of Belmont Terrace. He arrested the suspect, who was later
identified as co-defendant Jeffery.
Back-up officers, Detective Kevin Wright and Patrolman Walter
Melvin, arrived at the scene within two minutes and participated
in the search for the other two suspects. Detective Wright spotted
a black male "emerge from the side of one house and run across the
street into an alleyway of another house." The officers pursued
the man into an alleyway near Hawthorne Avenue and arrested him
as he attempted to hide behind bushes. This suspect was identified
by Detective Rios and Officer Maresca as the driver of the Taurus,
was determined to be Jeffery's brother, Colby.
Examining the 1998 Taurus, police noted its ignition was
damaged, and they found a .45 caliber handgun, a rifle, a high
2
In his reply brief, Colby argues defendants' description
provided by testifying police officers was taken from their reports
prepared after defendants were in custody. The argument was not
raised on appeal and will not be addressed. Rule 2:6-2; Drinker
Biddle & Reath LLP v. N.J. Dep't of Law and Pub. Safety, 421 N.J.
Super. 489, 496 n.5 (App. Div. 2011).
6 A-4021-14T2
capacity magazine, and a screwdriver. Police also recovered
gloves, bandanas, cellphones, and a cap at the scene.
At trial, Detective Antonio Badim, the State's ballistics and
firearms expert, testified both guns were operable and their serial
numbers were obliterated. Robert Irizarry, the previous owner of
the Taurus, also testified. Five months earlier, in February
2011, he traded the Taurus for a different car with C & J Auto
Sales.
Other witnesses for the State testifying during the nine-day
trial included the dispatch officer, the 9-1-1 operator, and
forensic scientists from the State DNA laboratory, who linked
Colby to a bandana and Jeffery to a glove recovered at the scene.
Also admitted were various documents including transcripts of the
9-1-1 call and radio dispatches, maps, photographs of the crime
crash scene, the damaged Taurus, and its contents.
Co-defendants presented an expert forensic scientist, who
challenged the "outdated" methods and misleading conclusion of a
DNA match drawn by the State's DNA experts. Additionally, each
defendant testified on his own behalf.
Colby testified he worked as a driver for his brother's
roadside assistance company, which responded to service calls for
customers of companies such as AAA and All America. On July 21,
2011, at approximately 3 p.m., Jeffery arrived in a company van
7 A-4021-14T2
to take Colby to work. Colby was to start work at 5 p.m., when
Jeffery's shift ended. Sometime after 4 p.m., the van overheated
so Jeffery took it for repair at a local mechanic shop. While the
two waited, they walked to a nearby neighborhood near Hawthorne
Avenue because Colby wanted to buy marijuana.
At some point, Jeffery separated from Colby because he desired
to purchase Percocet. After his transaction was completed, Colby
emerged from an alleyway and saw police. He became nervous, as
he just purchased marijuana, so he ran. A police officer,
searching on foot, saw Colby hiding behind a bush and arrested
him. Colby stated the officer who placed him in handcuffs hit him
on the side of the head with his gun. Also he admitted he tossed
the marijuana during the chase and lost his bandana. Colby denied
he was driving a red Ford Taurus or that he possessed guns.
Jeffery's testimony mirrored his brother's, as he explained
how he picked up Colby from East Orange to go to work in the
roadside assistance business, and the van overheated. The two
began walking, then separated to purchase drugs. Jeffery testified
as he emerged from where he purchased the painkillers, and as he
walked on the street, a police car pulled alongside of him.
Believing the police watched the drug transaction, he turned and
ran. He tossed the purchased Percocet during the foot chase and
lost his work gloves. Jeffery hid from police for several minutes,
8 A-4021-14T2
but ultimately was cornered and arrested. Jeffery denied owning
or using a Ford Taurus, or possessing weapons.
II.
Co-defendants raise some identical challenges, many that are
similar and others that are dissimilar. We will first consider
the issues the two appeals have in common, then, address the
remaining matters raised individually. In Section III, we examine
the separate challenges advanced to the imposed sentences.
A. Issues Raised by Both Defendants.
1.
Co-defendants argue, in POINT III of their respective merits
briefs, the State's evidence failed to sustain a conviction for
receiving stolen property. Specifically, they assert there was
no proof the red Taurus was stolen; therefore, a judgment of
acquittal should have been granted at the end of the State's case
on that charge. See R. 3:18-1.
When considering a defendant's motion for acquittal at the
close of the State's evidence, the trial judge must determine
whether "viewing the State's evidence in its entirety, be that
evidence direct or circumstantial, and giving the State the benefit
of all its favorable testimony as well as the favorable inferences
which reasonably could be drawn therefrom, a reasonable jury could
find guilt of the charge beyond a reasonable doubt." State v.
9 A-4021-14T2
Reyes, 50 N.J. 454, 459 (1967). In other words, viewing only the
evidence of record at the time of the motion, State v. Moffa, 42
N.J. 258, 263 (1964), could a jury properly convict. State v.
Spivey, 179 N.J. 229, 236 (2004).
Before considering the State's evidence, we review the
charged offense.
A person is guilty of theft if he knowingly
receives or brings into this State movable
property of another knowing that it has been
stolen, or believing that it is probably
stolen. It is an affirmative defense that the
property was received with purpose to restore
it to the owner. "Receiving" means acquiring
possession, control or title, or lending on
the security of the property.
[N.J.S.A. 2C:20-7(a).]
Reduced to its elements, the State must prove knowledge,
possession of the property, if the property is stolen, and the
defendant knew or believed it was stolen at the time of receipt.
See State v. Hodde, 181 N.J. 375, 384-85 (2004).
Co-defendants argue the State failed to prove the Taurus was
actually stolen, highlighting the undisputed fact no one reported
the car stolen. State v. Tindell, 417 N.J. Super. 530, 549-50
(App. Div. 2011) (holding the State's burden requires it establish
the vehicle in the defendant's possession was stolen). Although
the trial evidence contained no direct evidence proving the Taurus
10 A-4021-14T2
was stolen, the circumstantial evidence was sufficient to allow
the jury to reasonably conclude the Taurus was a stolen vehicle.
The State proved: the Taurus's former owner transferred the
car to C & J Auto Sales five months prior to the incident; the car
had a temporary tag in the rear window; C & J Auto Sales had ceased
doing business; a screw driver was found on the front seat of the
vehicle; the ignition was damaged; no car keys were found; Colby
was observed driving the Taurus with Jeffery as its passenger; and
when police attempted a traffic stop, the driver of the Taurus
accelerated, in an attempt to flee. From these facts, the trial
judge denied Colby's motion to dismiss, as joined by Jeffery,
stating:
[T]he testimony of both officers is that the
ignition of that automobile was damaged. That
there was a flathead screwdriver found on the
front seat of that car. And again, certainly,
from that observation, Mr. Colby Richardson
certainly knew or had reason to believe that
that automobile was in fact stolen. . . .
[P]eople . . . usually don't go around
starting their own automobiles . . . by a
flathead screwdriver. Again, I refer to the
testimony of Officers Rios and Maresca as to
their observations of the driver of that car,
condition of the car, et cetera, et cetera.
And for those reasons, again, I find that the
State has provided more than ample testimony
upon which a reasonable jury could find Mr.
Colby Richardson guilty of the charge of
receiving stolen property.
11 A-4021-14T2
The judge's factual analysis is solidly grounded in
sufficient credible evidence found in the record, which properly
correlated with the law to support his legal conclusion. "That
the case may be a close one or that the trial court decided all
evidence or inference conflicts in favor of one side has no special
effect." State v. Johnson, 42 N.J. 146, 162 (1964). We have no
basis to interfere with the denial of the jointly made acquittal
motions.
Further, Colby argues the trial judge erred by permitting the
State to amend the indictment charge of receiving stolen property,
to include: "or believing that [the car] was probably stolen."
Conceding Rule 3:7-4 allows the court to amend an indictment to
"correct an error in form," Colby argues permitting the State's
amendment "lowered the State's burden of proof" and "placed an
additional burden on the defense," and asserts the rule states an
amendment to an indictment must be denied if the defendant will
be prejudiced. We are not persuaded.
The trial judge determined the State's request for amendment
"merely adopts or conforms the citation of the offense to the
statutory language contained in the law," and "does not charge any
additional offense." Further, defendants articulated no
prejudice. We agree. The indictment as originally issued provided
defendants notice of the charge. We also reject the suggestion
12 A-4021-14T2
the amendment altered the defense strategy, which attacked that
the vehicle was stolen. The State's case on this issue was
circumstantial and the amendment in no way prejudiced defendant's
position the evidence was insufficient or changed the burden of
proof. We find no error.
2.
Each defendant (Colby in POINT V and Jeffery in POINTS I and
II) asserts the trial judge abused his discretion, depriving co-
defendants of a fair trial, inasmuch as the judge's demeanor and
conduct was not impartial and his "rulings and behavior" placed
limitations on counsels' cross-examination. Colby alleges the
trial judge was zealous in limiting defense counsel's cross-
examination, and interposed, sua sponte, his own objections rather
than ruling upon the State's objections. Jeffery also suggests
the judge's bias "permeated the entire trial" and was prejudicial.
He also suggests this precluded counsel from "presenting a very
important portion of his intended opening statement."
The accusation of prejudicial actions by a
trial judge is properly reviewable by an
appellate court considering the entire
transcript. In reviewing the transcript our
function is to ascertain the validity of the
claim of prejudice, and we are not to reach a
conclusion of harmless error because we may
believe that the defendant in fact was guilty
as charged.
13 A-4021-14T2
[State v. Zwillman, 112 N.J. Super. 6, 20
(App. Div. 1970), certif. denied, 57 N.J. 603
(1971).]
The defense presented by both brothers was they were not
present in the Taurus and Detective Rios falsely accused them.
Colby argues his attempts to challenge the detective's credibility
were thwarted. However, this assertion was unaccompanied by a
specific reference to the record. Absent this, we are unable to
assess the claim, which is therefore rejected.
Next, Colby refers to the judge's "overzealous" limitation
of cross-examination, giving only record citations without a
discussion of the substance of the claimed error. He argues the
judge "specifically instructed defense counsel that he could not
question on cross-examination an area covered by co-counsel,"
prevented examination on areas not raised on redirect, and
repeatedly called counsel to sidebar to repeat the limiting
instructions.
We first note the failure to pinpoint the judge's prejudicial
conduct and explain how it adversely affected defendants' case,
is improper. It is of little value for an appellant's brief to
list transcript citations without articulating the specific
challenge to what occurred at that point in the trial and omit an
explanation of what counsel was prevented from presenting. Cf.
14 A-4021-14T2
Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 298-99 (App.
Div. 2016) (discussing minimum standards required by Rule 2:9-9).
We have read the transcript sections cited. It is clear the
judge repeated admonishments to defense counsel to avoid
repetitive questions when examining the officers. For example,
Officer Rios's testimony started on September 10, 2014, and
continued with cross-examination by Jeffery's counsel, beginning
the afternoon of September 11. Counsel's cross-examination
continued on the next trial date, several days later on September
16. When counsel began asking the same questions already asked
on the prior trial date, the judge stated: "I think we covered
this last week, counsel." Despite this subtle comment, counsel
proceeded to retrace general testimony already established. The
judge grew firm, stating: "We don't need to rehash testimony that's
been given." As counsel continued to retrace similar substance
already established by the witness, the judge requested a sidebar.
THE COURT: If I give you instruction
follow the instruction. Okay?
[JEFFERY'S COUNSEL]: Judge, I have to disagree
here.
THE COURT: I don't care if you disagree
or not, follow the instructions.
[JEFFERY'S COUNSEL]: I never asked any
questions –
15 A-4021-14T2
THE COURT: Follow the instruction move
onto something else. Let's move on.
[COLBY'S COUNSEL]: Excuse me, Judge, so
because he covers something (indiscernible).
THE COURT: You can't cover the same
thing, yes.
[COLBY'S COUNSEL]: I can't cover in my cross
the things he covered?
THE COURT: Exactly
[COLBY'S COUNSEL]: How does my client . . .
get representation, then?
[JEFFERY'S COUNSEL]: Exactly.
[COLBY'S COUNSEL]: I should just fold then.
. . . .
THE COURT: I just explained it to you.
You want to argue?
[COLBY'S COUNSEL]: No --
THE COURT: There's no argument. If he
covers something like he did last week he's
not permitted to cover it again, because if
that happens this trial will last until
January. If he covers something, you cannot
cover the same thing again.
[COLBY'S COUNSEL]: Even if he didn't make the
point I want to make, and he missed something,
I can't bring that up?
THE COURT: Then it's not the same thing.
"[A] trial judge has broad discretion in determining the
proper limitations of cross-examination of a witness whose
credibility is in issue." Zwillman, supra, 112 N.J. Super. at 17-
16 A-4021-14T2
18. Further, N.J.R.E. 611(a) requires a trial judge to "exercise
reasonable control over the mode and order of interrogating
witnesses . . . so as to (1) make the interrogation and
presentation effective for the ascertainment of the truth, (2)
avoid needless consumption of time, and (3) protect witnesses from
harassment or undue embarrassment." Indeed, "[c]ross-examination
should be limited to the subject matter of the direct examination
and matters affecting the credibility of the witness[,]" and in
the judge's discretion, "inquiry into additional matters as if on
direct examination." N.J.R.E. 611(b). It is important to allow
wide latitude during cross-examination, which must not be unfairly
cramped by the trial judge. This is especially true where the
witness involved is a principal witness against the defendant.
Zwillman, supra, 112 N.J. Super. at 18.
Having reviewed the transcript references, we cannot agree
the judge abused his discretion by requiring Jeffery's counsel not
repeat questions already posed. There is no argument made in the
brief nor presented during the sidebar conferences showing an area
of inquiry Colby's counsel was precluded from presenting. Unlike
the facts in State v. Bass, 224 N.J. 285 (2016), where counsel was
stopped from asking questions regarding the plea agreement of co-
defendant, turned State's witness, id. at 307, here, counsel was
17 A-4021-14T2
curtailed from engaging in repetitive examination to "avoid
needless consumption of time[.]" N.J.R.E. 611(a).
We also reject the notion the judge's statements reflect
bias. Although the judge's sidebar comments might be read to
suggest impatience, we conclude his reaction was not unexpected,
as counsel ignored suggestions then warnings to move to a new area
of testimony. "[J]udges are not potted plants," In re State ex
rel. A.D., 212 N.J. 200, 231 (2012), nor are they immune from
common causes of frustration. Having reviewed the entirety of the
record, we discern no basis which portrays judicial bias.
We also find no error sustaining the State's objections,
which required narrowing questions posed on recross to topics
covered in redirect. N.J.R.E. 611. Co-defendants admit the judge
imposed similar requirements during each side's examination,
refuting suggestions of bias. Accordingly, we reject as lacking
merit the claim of error because the judge instructed the jury to
disregard questions posed that elicited a sustained objection. We
also cannot agree the judge's rulings "telegraphed" a "personal
belief that he did not believe the defense." R. 2:11-3(e)(2).
Finally, we find unremarkable the judge's basis to sustain
objections during Jeffery's counsel's opening, which attempted to
portray Jeffery's good character. Contrary to the suggestion on
appeal by Jeffery, opening argument is not without limitations.
18 A-4021-14T2
State v. Tilghman, 385 N.J. Super., 45, 56-57 (App. Div. 2006).
"[A]n opening statement should set forth only a succinct statement
of what a party proposes to prove. The jury, having been given an
overview of the State's and defendant's positions, will understand
the nature of the action and be able to follow the evidence more
intelligently." Tilghman, supra, 385 N.J. Super. at 55 (alteration
in original) (quoting State v. Stamberger, 209 N.J. Super. 579,
581 (Law. Div. 1985)). "Counsel is also cautioned that the
'[p]roposed evidence should not be detailed,' and when evidence
is addressed, it should appear as little more than a 'fairly
indefinite' outline." Ibid. (quoting Passaic Valley Sewerage
Comm'rs v. Geo M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960)).
Preventing what amounted to counsel's character testimony was
proper, and the notion the judge "impermissibly prevented counsel
from pursuing a chosen strategy" is specious.3
B. Jeffery's Arguments.
Jeffery separately urges reversal and the grant of a new
trial based on cumulative error (POINT IV). However, our
3
Jeffery also argues the judge's sidebar warning that
continued disregard of instructions would result in sanctions
displayed prejudice. Not so. The judge very clearly outlined the
parameters he required counsel to abide. He also advised counsel
may disagree and resolution of that disagreement is left to this
court. We do not find the judge erred in outlining his
expectations and demanding counsel meet them.
19 A-4021-14T2
discussion of co-defendants' challenges reveals no error. See
State v. Conway, 193 N.J. Super. 133, 174 (App. Div.) (finding
cumulative error doctrine did not apply as the verdict was
consistent with weight of evidence presented), certif. denied, 97
N.J. 650 (1984).
In his pro se reply brief, Jeffery also raises matters
discussed in detail in Colby's merits brief, which are discussed
below. These include the judge's determination not to dismiss
juror two (see section C.2. below), and a claim the prosecutor
improperly bolstered the credibility of witnesses (see section
C.3. below). In part, this latter issue cites what he believes
are factual inaccuracies uttered by Detective Rios, apparently
challenging his credibility, a matter not raised in the merits
brief, which therefore will not be considered. R. 2:6-2(a)(6).
C. Colby's Separate Challenges.
1.
Colby first challenges the admissibility of the 9-1-1 tape,
arguing his rights of confrontation were infringed because the
State never attempted to produce the caller. See U.S. Const.
amend. VI ("In all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against
him[.]"); N.J. Const. art. I, ¶ 10 ("In all criminal prosecutions
20 A-4021-14T2
the accused shall have the right . . . to be confronted with the
witnesses against him[.]").
Prior to trial, the State moved to admit the audio tape of
the 9-1-1 call, arguing it provided non-testimonial information
to police for the purposes of receiving assistance in an emergency.
The caller described a man standing outside a car putting on
gloves, with a gun in his hand and a gun in the vehicle. The
caller then recounts the vehicle driving away and when asked,
responded with a description of the Taurus and noted its temporary
tags.
Jeffery filed opposition to the State's motion. He argued
any statements that followed the statement the vehicle was driving
away represented past events, not events as they unfolded. Thus,
the testimonial evidence must be excluded because the witness was
not made available for cross-examination. Colby orally joined in
this position and was permitted to argue. The trial judge granted
the State's motion. He concluded the call was non-testimonial,
and, although hearsay, provided the caller's present sense
impression and represented an excited utterance.
We review evidentiary rulings to determine whether the trial
judge abused his discretion. State v. Ates, 426 N.J. Super. 521,
537 (App. Div. 2012), aff'd, 217 N.J. 253 (2014), cert. denied,
__ U.S. __, 135 S. Ct. 377, 190 L. Ed. 2d 254 (2014). The State
21 A-4021-14T2
bears the burden to prove admissibility. State v. Basil, 202 N.J.
570, 596 (2010).
Under both our federal and state constitutions, "[a] criminal
defendant has the right 'to be confronted with the witnesses
against him' and 'to have compulsory process for obtaining
witnesses in his favor.'" State v. Garron, 177 N.J. 147, 168-69
(2003) (quoting U.S. Const. amend. VI; N.J. Const. art. I, ¶ 10),
cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204
(2004). "[T]he Confrontation Clause of the United States
Constitution bars the 'admission of testimonial statements of a
witness who did not appear at trial unless he was unavailable to
testify, and the defendant had had a prior opportunity for cross-
examination.'" State v. Slaughter, 219 N.J. 104, 116-17 (2014)
(quoting Crawford v. Washington, 541 U.S. 36, 53-54, 124 S. Ct.
1354, 1365, 158 L. Ed. 2d 177, 194 (2004)).
An out-of-court testimonial statement is the
equivalent of "bear[ing] testimony" against an
accused. Crawford, supra, 541 U.S. at 51, 124
S. Ct. at 1364, 158 L. Ed. 2d at 192-93
(citation and internal quotation marks
omitted). The Court made clear that the
ultimate goal of the Confrontation Clause is
to test the reliability of testimonial
evidence in "the crucible of cross-
examination." Id. at 61, 124 S. Ct. at 1370,
158 L. Ed. 2d at 199; see also [In re] J.A.,
[] 195 N.J. [324,] 342-43 [(2008)]. The Court
reasoned that the Clause "reflects a judgment,
not only about the desirability of reliable
evidence . . ., but about how reliability can
22 A-4021-14T2
best be determined." Crawford, supra, 541
U.S. at 61, 124 S. Ct. at 1370, 158 L. Ed. 2d
at 199.
[Basil, supra, 202 N.J. at 591 (alteration in
original).]
Importantly, this constitutional guarantee only grants a
criminal defendant "an opportunity for effective cross-
examination, not cross-examination that is effective in whatever
way, and to whatever extent, the defense might wish." State v.
Williams, 184 N.J. 432, 454 (2005) (citing Delaware v. Fensterer,
474 U.S. 15, 20, 106 S. Ct. 292, 294, 88 L. Ed. 2d 15, 19 (1985)).
Therefore, the right to confront witnesses "may, in appropriate
cases, bow to accommodate other legitimate interests in the
criminal trial process, such as established rules of evidence and
procedure designed to ensure the fairness and reliability of
criminal trials." Garron, supra, 177 N.J. at 169 (quotations
omitted).
The crucial issue is whether the statement sought to be
admitted is "testimonial," as "[o]nly statements of this sort
cause the declarant to be a 'witness' within the meaning of the
Confrontation Clause." Davis v. Washington, 547 U.S. 813, 821,
126 S. Ct. 2266, 2273, 165 L. Ed. 2d 224, 237 (2006). Non-
testimonial statements are "exempted . . . from Confrontation
Clause scrutiny," Crawford, supra, 541 U.S. at 68, 124 S. Ct. at
23 A-4021-14T2
1374, 158 L. Ed. 2d at 203, but remain limited by the rules of
evidence, particularity "traditional limitations upon hearsay
evidence," Davis, supra, 547 U.S. at 821, 126 S. Ct. at 2273, 165
L. Ed. 2d at 237.
When examining whether a statement is testimonial, New
Jersey's "confrontation jurisprudence has followed the federal
approach." State v. Roach, 219 N.J. 58, 74 (2014).
Statements are nontestimonial when made in the
course of police interrogation under
circumstances objectively indicating that the
primary purpose of the interrogation is to
enable police assistance to meet an ongoing
emergency. They are testimonial when the
circumstances objectively indicate that there
is no such ongoing emergency, and that the
primary purpose of the interrogation is to
establish or prove past events potentially
relevant to later criminal prosecution.
[Davis, supra, 547 U.S. at 822, 126 S. Ct. at
2273-274, 165 L. Ed. 2d at 237.]
More specifically, "interrogations by law enforcement
officers fall squarely within [the] class of testimonial
evidence[,]" Crawford, supra, 541 U.S. at 53, 124 S. Ct. at 1365,
158 L. Ed. 2d at 194; however, the United States Supreme Court has
concluded 9-1-1 calls, although statements to police or their
agents, are generally "not designed primarily to 'establis[h] or
prov[e]' some past fact, but intended to describe current
circumstances requiring police assistance." Davis, supra, 547
24 A-4021-14T2
U.S. at 827, 126 S. Ct. 2276, 165 L. Ed. 2d 240 (alterations in
original) (quoting Crawford, supra, 541 U.S. at 53, 124 S. Ct.
1354, 158 L. Ed. 2d 177). The Court in Davis concluded the 911
call was not testimonial, and the information was not presented
to evade confrontation. Id. at 840, 126 S. Ct. at 2284, 165 L.
Ed. 2d 248.
As in Davis, here, the 9-1-1 caller reported events as they
actually happened; she was not recounting past events. The facts
were necessary to "resolve the present emergency." Davis, supra,
547 U.S. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d at 240. Also,
the call was introduced to show why and how police action was
initiated. The statements were not a "weaker substitute for live
testimony." United States v. Inadi, 475 U.S. 387, 394, 106 S. Ct.
1121, 1126, 89 L. Ed. 2d 390, 398 (1986).
Defendant also argues the vehicle's description was a
testimonial statement. Davis also rejected a similar argument,
stating, "even the operator's effort to establish the identity of
the assailant, so that the dispatch officers might know whether
they would be encountering a violent felon" was non-testimonial.
Davis, supra, 547 U.S. at 827, 126 S. Ct. at 2276, 165 L. Ed. 2d
at 240 (citing Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177,
186, 124 S. Ct. 2451, 2457, 159 L. Ed. 2d 292, 302 (2004)).
25 A-4021-14T2
Accordingly, guided by Davis, we conclude the statements at
issue were nontestimonial and not governed by the Confrontation
Clause. We therefore reject Colby's insistence the tape's
admission was dependent on the State's efforts to locate the
caller.
Here, as mentioned by the trial judge, "there is no indication
that the statement is being offered by the State for the truth of
the contents contained in that statement," but rather to explain
why the police went to the area in question. We conclude the
judge properly admitted the tape, citing N.J.R.E. 803(c)(1).4 We
defer to the trial judge's findings the caller "made statements
while the declarant was perceiving the events . . . to the 9-1-1
operator."5 "Trial judges are entrusted with broad discretion in
making evidence rulings[,]" State v. Muhammad, 359 N.J. Super.
361, 388 (App. Div.) certif. denied, 178 N.J. 36 (2003), and since
an appellate court "should overrule a trial court's evidentiary
ruling only where a clear error of judgment is established[,]" we
determine no compelling reason is presented by any of these
4
N.J.R.E. 803(c)(1) defines a present sense impression as: "A
statement of observation, description or explanation of an event
or condition made while or immediately after the declarant was
perceiving the event or condition and without opportunity to
deliberate or fabricate."
5
The transcript of the tape has not been included in the record
by either co-defendant, or the State.
26 A-4021-14T2
arguments to disturb the trial judge's ruling. State v. Loftin,
146 N.J. 295, 357 (1996).
2.
Colby argues the judge erred by denying his motion for a
mistrial when he learned of a juror's comment. Specifically, when
the defense requested to move a television away from the jury to
aid defendants' view, juror two commented, "[t]he defendants
didn't look at the screen so I don't know why they had to move the
screen away from us[,]" as she re-entered the jury room. Knowledge
of the statement surfaced when juror eleven mentioned he overheard
juror two, during his voir dire regarding a different allegation
of trial discussions in the jury room. Juror two had already been
examined and never mentioned her comment about the television.
When she was re-questioned, she advised she spoke aloud, but was
not talking to anyone but herself.
We reject Colby's contention attempting to infer bias by
juror two. We conclude juror two's comment, even if overheard by
another, suggested neither impartiality nor bias and lacked the
capacity to prejudice defendant's right to a fair trial. Further,
the trial judge acted properly to immediately follow up when he
learned of the comment. He considered the testimony of juror two
and juror eleven, and satisfied himself the statement complained
27 A-4021-14T2
about an inconvenience and did not discuss the trial or expose
other jurors to extraneous information that might impact
deliberations. The judge also rejected Colby's suggestion juror
two was rolling her eyes and gesturing. Finally, he determined
juror two could remain fair and impartial and evaluate the
evidence.
The trial court is in the best position to
determine whether the jury has been tainted.
That determination requires the trial court
to consider the gravity of the extraneous
information in relation to the case, the
demeanor and credibility of the juror or
jurors who were exposed to the extraneous
information, and the overall impact of the
matter on the fairness of the proceedings.
[State v. R.D., 169 N.J. 551, 559 (2001).]
When the record is reviewed in total, it is clear the trial
judge understood his obligations "to safeguard the rights of the
accused and vindicate societal interests in the fair and efficient
administration of the criminal justice system." State v. Bey, 112
N.J. 45 89-90 (1988). The judge properly reacted to possible
juror discussions, and took appropriate action.6 There is no abuse
of discretion.
6
Juror five was removed after voir dire when he asked a court
officer to speak to the judge and asked the jurors whether a
document was entered into evidence. This comment directly went
to the nature of the trial and violated the juror's oath not to
discuss the trial until deliberations.
28 A-4021-14T2
3.
Next, Colby cites six comments by the prosecutor alleged to
rise to prosecutorial misconduct, which were not met with a
necessary curative instruction. He seeks reversal claiming these
missteps deprived him of a fair trial.
The guarantee of a fair trial before an impartial jury, see
U.S. Const. amends. VI, XIV; N.J. Const. art. 1, ¶ 10, "includes
the right to have the jury decide the case based solely on the
evidence presented at trial, free from the taint of outside
influences and extraneous matters." R.D., supra, 169 N.J. 551,
557 (citing Bey, supra, 112 N.J. at 75). Indeed, "securing and
preservation of an impartial jury goes to the very essence of a
fair trial." Bey, supra, 112 N.J. at 75 (quoting State v.
Williams, 93 N.J. 39, 60 (1983)).
In presenting a case to a jury, the State is "not to obtain
convictions but to see that justice is done." State v. Ramseur,
106 N.J. 123, 320 (1987); see also Berger v. United States, 295
U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935) ("[A
prosecutor] may prosecute with earnestness and vigor -- indeed,
he should do so. But, while he may strike hard blows, he is not
at liberty to strike foul ones. It is as much his duty to refrain
from improper methods calculated to produce a wrongful conviction
as it is to use every legitimate means to bring about a just
29 A-4021-14T2
one."). The prosecutor may not impassion a jury or incite a
verdict based on emotions, but may only comment on the evidence
presented. State v. Black, 380 N.J. Super. 581, 594-95 (App. Div.
2005), certif. denied, 186 N.J. 244 (2006).
In pursuing this role, a prosecutor has great leeway in his
or her opening comments, and he or she is allowed to be forceful.
See State v. Wakefield, 190 N.J. 397, 443 (2007) (quoting State
v. DiFrisco, 137 N.J. 434, 474 (1994)), cert. denied, 552 U.S.
1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). During an opening
statement, a prosecutor may reference facts she or "he intends in
good faith to prove by competent evidence." Id. at 442 (quoting
State v. Hipplewith, 33 N.J. 300, 309 (1960)).
A similar standard guides the State's presentation in
summation.
Prosecutors are expected to make a vigorous
and forceful closing argument to the jury, and
are afforded considerable leeway in that
endeavor. Nevertheless, there is a fine line
that separates forceful from impermissible
closing argument. Thus, a prosecutor must
refrain from improper methods that result in
wrongful conviction, and is obligated to use
legitimate means to bring about a just
conviction.
[State v. Ingram, 196 N.J. 23, 43 (2006)
(quoting State v. Jenewicz, 193 N.J. 440, 471
(2008)).]
30 A-4021-14T2
"[N]ot every suspected deviation from perfection on the part
of a prosecutor will justify a reversal of a conviction." State
v. Bozeyowski, 77 N.J. Super. 49, 63 (App. Div. 1962) (quoting
State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78
S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). "[The] infraction must be
clear and unmistakable and must substantially prejudice the
defendant's fundamental right to have the jury fairly evaluate the
merits of his defense." Ibid. Accordingly, in our review of a
prosecutor's statements, we evaluate the alleged improper comments
to determine "the severity of [any] misconduct and its prejudicial
effect on the defendant's right to a fair trial." Wakefield,
supra, 190 N.J. at 437.
"[P]rosecutorial misconduct is not grounds for reversal of a
criminal conviction unless the conduct was so egregious as to
deprive defendant of a fair trial." Ibid. Claimed errors are not
considered in isolation, but viewed in the context of the entire
trial. State v. Negron, 355 N.J. Super. 556, 576-77 (App. Div.
2002). To warrant reversal, the remarks must be "clearly and
unmistakably improper" and "substantially prejudiced the
defendant's fundamental right to have a jury fairly evaluate the
merits of his [or her] defense." State v. Papasavvas, 163 N.J.
565, 625 (2000) (quoting Wakefield, supra, 190 N.J. at 576-77);
see also Ingram, supra, 196 N.J. at 43.
31 A-4021-14T2
First, Colby contends the following statement during the
opening statements violated his Fifth Amendment right to remain
silent by drawing the jury's immediate attention to whether he
would testify on his own behalf:
I ask you to scrutinize all the witnesses.
Consider all their statements. Consider their
credibility. And, even though it's true that
the defendant[]s have no burden to testify,
no burden to speak, no burden to even appear
in court for their trial, if they do decide
to speak, if they do decide to say anything
or testify[,] I ask you to give them equal
amount of scrutiny as you would all of the
witnesses for the State.
There was no objection requiring we find plain error, State
v. Hightower, 120 N.J. 378, 410 (1990), that is an error which was
"clearly capable of producing an unjust result." R. 2:10-2. "The
possibility of an unjust result must be 'sufficient to raise a
reasonable doubt as to whether the error led the jury to a result
it otherwise might not have reached.'" State v. Williams, 168
N.J. 323, 336 (2001) (quoting State v. Macon, 57 N.J. 325, 336
(1971)).
Notably, "a failure to object, as here, indicates that in the
atmosphere of the trial the defense did not believe that the
prosecutor's remarks were prejudicial." State v. Wilson, 57 N.J.
39, 51 (1970). The failure of trial counsel to object to the
prosecutor's remarks is an "ordinarily controlling
32 A-4021-14T2
consideration[]." Id. at 50. See also State v. Frost, 158 N.J.
76, 83 (1999) (holding generally, "remarks will not be deemed
prejudicial[,]" if no objection was made at trial). Moreover,
failure to object "deprives the court of an opportunity to take
curative action." Id.
In light of the failure to object and the lack of articulated
prejudice, we reject this assertion. The prosecutor's statement
neither misstated the law nor impugned the defendant's right to
remain silent. Her comments were carefully crafted to merely ask
the jury to focus on the credibility of any testifying witness.
Second, Colby alleges the prosecutor impermissibly bolstered
the credibility of Irizarry on redirect. After stating he was
sentenced to probation for a prior criminal conviction, Irizarry
was asked on cross-examination to confirm the crime charged
occurred eighteen months following his imposed two-year
probationary sentence, noting he was on probation in July 2011.
The witness stated, "I think I wasn't on probation at that time"
and stated he was "dismissed early." After redirect and recross
on different issues, the prosecutor's redirect asked whether
Irizarry was released early from probation "for good behavior."
Colby uttered a delayed objection, arguing the question was not
within the scope of defense counsel's cross-examination. The
trial judge overruled the objection, finding no error.
33 A-4021-14T2
We determine any error was harmless. The question related
to the issues raised on cross-examination and the objection was
voiced after the fact. Moreover, the witness's testimony was not
critical, as it merely established he previously owned the Taurus,
which he transferred to a used car dealer.
The third and fourth items focus on the cross-examination of
Colby. He claims the prosecutor's questions essentially asked why
he did not tell police his van was being repaired at a local
mechanic shop to explain why he was found in the area when
arrested. The exact comment by the prosecutor was, "And you knew
everyone in the mechanic shop. And you, now give us the name and
address[,] right?" Colby answered and prior to the next question,
his counsel objected. At sidebar the judge asked the prosecutor
whether she planned to ask why the information was not revealed
earlier. She said no and when pressed said, "there is no plan,
actually. I'm just asking questions." Defense counsel objected,
arguing the question implied Colby had a duty to provide the police
information about the mechanic shop. The judge firmly instructed
the prosecutor avoid any suggestion defendant was obliged to
provide evidence. Then, the judge told the jury to disregard the
prosecutor's last question.
The prosecutor's next question was: "You have no duty to
speak to the police, as you know, and nor did you correct?" This
34 A-4021-14T2
triggered an immediate objection. At sidebar, Colby insisted on
a curative instruction. The judge sustained the objection and
directed the jury to disregard the question.
Given the judge's firm, clear jury direction to disregard the
questions, prior to Colby's response, which he issued immediately,
without delay, State v. Vallejo, 198 N.J. 122, 134 (2009) (citing
State v. Winter, 96 N.J. 640, 649 (1984)), we conclude the
prosecutor's error was harmless. Additionally, the judge's
general charge informed the jury on the State's burden of proof,
a defendant's right not to provide any evidence, and reminded them
counsel's statements were not evidence. "[T]he most basic
assumption [is] that a jury follows the charges given to it by the
court." State v. Wilder, 193 N.J. 398, 416 (2008). Reversal is
not warranted.
Fifth, during cross-examination of Jeffery, the prosecutor
asked him if he disputed Officer Rios's testimony regarding how
long it took to apprehend him. Defense counsel objected. The
judge noted the question was improper, so the prosecutor moved on.
There is no error. R. 2:11-3(e)(2).
Finally, Colby attacks comments during the State's summation;
discussing the time from the Taurus crash to co-defendants' arrest,
the prosecutor stated: "And [co-defendants'] testimony, ladies and
gentleman, is narrowly tailored to that little window because they
35 A-4021-14T2
have discovery. They have everything that we have." In context,
the prosecutor was noting co-defendants' testimony regarded a
period of time when police were unable to directly observe the
pursued suspects. No objections were made. Reviewing Colby's
contentions the comments improperly impugn a defendant's right to
discovery, we conclude there was no error, let alone plain error.
4.
In his reply brief, Colby argues defendants' descriptions
provided by testifying police officers were taken from their
reports prepared after defendants were in custody. The argument
was not raised on appeal and will not be addressed. R. 2:6-2.
III.
Each defendant was separately sentenced. Each argues the
sentence imposed represents an abuse of judicial discretion, was
excessive and shocks the judicial conscience. We disagree.
Our "review of sentencing decisions is relatively narrow and
is governed by an abuse of discretion standard." State v.
Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114
N.J. 394, 401 (1989)). "In conducting the review of any sentence,
appellate courts always consider whether the trial court has made
findings of fact that are grounded in competent, reasonably
credible evidence and whether 'the factfinder [has] appl[ied]
correct legal principles in exercising its discretion.'" Ibid.
36 A-4021-14T2
(alterations in original) (quoting State v. Roth, 95 N.J. 334, 363
(1984)). The traditional articulation of this standard limits our
review to situations where application of the facts to law has
resulted in a clear error of judgment leading to sentences that
"shock the judicial conscience." Roth, supra, 95 N.J. at 364-65.
If the sentencing court has not demonstrated a clear error of
judgment or the sentence does not shock the judicial conscience,
appellate courts are not permitted to substitute their judgment
for that of the trial judge. Ibid.
Colby and Jeffery were subject to consecutive sentences. The
decision to impose concurrent or consecutive sentences is subject
to guidelines identified in State v. Yarbough, 100 N.J. 627 (1985),
cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308
(1986), which are as follows:
(1) there can be no free crimes in a system
for which the punishment shall fit the crime;
(2) the reasons for imposing either a
consecutive or concurrent sentence should be
separately stated in the sentencing decision;
(3) some reasons to be considered by the
sentencing court should include facts relating
to the crimes, including whether or not:
(a) the crimes and their
objectives were predominately
independent of each other;
37 A-4021-14T2
(b) the crimes involved separate
acts of violence or threats of
violence;
(c) the crimes were committed at
different times or separate places,
rather than being committed so
closely in time and place as to
indicate a single period of aberrant
behavior;
(d) any of the crimes involved
multiple victims;
(e) the convictions for which the
sentences are to be imposed are
numerous;
(4) there should be no double counting of
aggravating factors;
(5) successive terms for the same offense
should not ordinarily be equal to the
punishment for the first offense . . . .7
[Id. at 643-44.]
"[T]he Yarbough guidelines are just that--guidelines. They
were intended to promote uniformity in sentencing while retaining
a fair degree of discretion in the sentencing courts." State v.
Carey, 168 N.J. 413, 427 (2001). "It follows that a sentencing
court may impose consecutive sentences even though a majority of
the Yarbough factors support concurrent sentences." Id. at 428
7
What was guideline six was superseded by a 1993 amendment to
N.J.S.A. 2C:44-5(a), which provides there "shall be no overall
outer limit on the cumulation of consecutive sentences for multiple
offenses."
38 A-4021-14T2
(concluding the trial court properly imposed consecutive sentences
even though four of Yarbough's five factors militated in favor of
concurrent sentences) (see also State v. Perry, 124 N.J. 128, 177
(1991)).
"When a trial court is faced with the decision whether to
impose consecutive or concurrent sentences, the court must
determine whether the Yarbough factor under consideration
"'renders the collective group of offenses distinctively worse
than the group of offenses would be were that circumstance not
present.'" Carey, supra, 168 N.J. at 428 (quoting People v. Leung,
7 Cal. Rptr. 2d 290, 303 (1992)).
A.
Colby maintains his sentence was excessive, disproportionate
and arbitrary. He cites errors by the trial judge when evaluating
the aggravating and mitigating factors and by imposing consecutive
sentences.
The judge imposed an aggregate seventeen-year prison term,
as follows: count two - third-degree receiving stolen property,
an automobile, four years; count three - second-degree unlawful
possession of a .45 caliber handgun, six years, subject to a three-
year period of parole ineligibility, to run consecutively to the
sentence in count two; count four - fourth-degree possession of a
defaced firearm, eighteen months with an eighteen-month period of
39 A-4021-14T2
parole ineligibility, to run concurrent to the sentence imposed
on count two; count six - second-degree possession of an assault
firearm, subject to the Graves Act, N.J.S.A. 2C:43-6, six years
with three-and-one-half years parole ineligibility, to run
consecutive to counts two and three; count seven - fourth-degree
unlawful possession of hollow point bullets, eighteen months to
run concurrent to counts two, three, four, and six; count eight -
fourth-degree illegal possession of a large capacity ammunition
magazine, eighteen months concurrent to counts two, three, four,
six, and seven; count nine – fourth-degree resisting arrest,
eighteen months concurrent to counts two, three, four, six, seven
and eight.
Colby was also convicted of the disorderly persons offense
of possession of burglary tools and sentenced to 180 days
incarceration to be served concurrently and acquitted of the
offense of obstruction. Finally, the judge adjudicated the motor
vehicle summonses issued, finding Colby guilty of reckless
driving, leaving the scene of an accident, and not guilty of
failure to wear a seatbelt. The judge imposed applicable fines
and penalties for these, as well as the criminal convictions and
suspended his driving privileges for six months.
Here, the trial judge evaluated the applicable factors
qualitatively not quantitatively, Carey, supra, 168 N.J. at 427,
40 A-4021-14T2
and entered specific findings. He noted the there are no "free
crimes" and these convictions were for "distinctly different"
crimes, "independent of each other," which had separate
objectives. Violence and the "potential to cause some very serious
harm and/or damage" was present, as defendant possessed more than
one firearm, one of which was an assault rifle, loaded with hollow
point bullets. The guns were "loaded and ready to go." The
conduct in the car chase had the potential to endanger the lives,
and did damage the property, of others. Further, the judge found
the crimes were committed at different times and places: the
automobile was stolen and the weapons and ammunition were obtained
separately;8 the handgun was defaced making it untraceable and not
possible to discern when it was obtained, and whether Colby defaced
it.
The judge concluded the "failure to impose consecutive
sentences . . . would be a failure to impose adequate consequences"
for Colby's criminal acts and would not provide "adequate
protection for the public." He ordered consecutive sentences for
counts two, three and six was "appropriate to afford . . .
protection to the general public."
8
The judge stated the assault rifle was registered to an
individual in the western United States.
41 A-4021-14T2
Next, the judge stated his findings regarding applicable
aggravating and mitigating factors. N.J.S.A. 2C:44-1(a), (b). He
applied aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk
of re-offense, and nine, N.J.S.A. 2C:44-1(a)(9), the need for
deterrence. In doing so, the trial judge stated Colby, who was
twenty-two when the offenses occurred, had several juvenile
adjudications, a disorderly persons conviction, non-indictable
adult convictions, and four pending indictable charges. He also
weighed the seriousness of the instant seven convictions, all of
which showed Colby was likely to reoffend. Also, the need for
specific deterrence and general deterrence from possession and use
of assault and illegal weapons weighed heavily.
The judge rejected Colby's suggestion for application of
mitigating factors. Without question, possession of a loaded
handgun and an assault rifle had the potential to cause, and was
intended to threaten, "some very grave and serious harm to a lot
of different people." Further, the car chase, which was "reckless
and irresponsible," endangered the occupants in the area,
pedestrians, other motorists, police, Colby, and the other
occupants of his vehicle. In rejecting mitigating factor seven,
the judge acknowledged Colby had no adult criminal convictions,
but had four juvenile adjudications and a number of arrests and
disorderly persons convictions.
42 A-4021-14T2
Next, the judge rejected the suggestion the conduct was
unlikely to reoccur. The evidence presented at trial along with
his criminal history were found to strongly suggest prior minor
brushes with the law failed to deter Colby from engaging in more
serious offenses, reflecting the likelihood of reoccurrence of
criminal conduct. For these same reasons, the judge also rejected
as unsupported Colby's claimed positive character as demonstrating
he was unlikely to commit another offense and would respond
affirmatively to probation. As to suggested hardship to his family
and newborn child, the record showed "a scattered history of
employment," belying the assertion he is the sole source of their
financial support. The judge concluded the aggravating factors
preponderate over the non-existing mitigating factors, making a
custodial sentence appropriate.
On appeal, Colby argues the two aggravating factors did not
apply. We disagree. State v. Pindale, 249 N.J. Super. 266, 288
(App. Div. 1991) (holding juvenile records can be considered when
considering the risk of re-offense); Jarbath, supra, 114 N.J. at
405 (holding a sentence has both a general and personal specific
deterrent effect).
Colby also believes mitigating factors eight, nine, and
eleven should have applied and the judge's factual findings were
insufficient to reject their application. We disagree and defer
43 A-4021-14T2
to the articulated factual findings addressing the arguments
advanced.
We note, and the State concedes, the judgment of conviction
incorrectly included aggravating factor eleven. This was not
mentioned by the judge and its inclusion was an obvious error.
Following our review, we do not agree the sentence shocks the
conscience; we will not interfere. We do remand to correct the
judgment of conviction to remove aggravating factor eleven.
B.
Jeffery also challenges, as "draconian and unjust," the
aggregate sentence imposed of thirty-one years and six months of
incarceration, with twelve years and six months of parole
ineligibility. Jeffery argues the imposition of consecutive
sentences and the misapplication of the aggravating and mitigating
factors in fixing the length of his sentence was erroneous,
maintaining "the unique facts of the case and [his] personal
background" require the sentence be vacated in favor of
resentencing. He specifically states mitigating factor eleven was
improperly rejected as the judge found he was married, the primary
caregiver along with his wife of three young children, and suffers
from substance abuse.
The sentencing judge first considered the State's motion for
imposition of a discretionary term, N.J.S.A. 2C:44-3(a), which he
44 A-4021-14T2
concluded was appropriate and should be granted. He next reviewed
applicable aggravating and mitigating factors. The judge noted
defendant had ten convictions, five of which were for indictable
offenses; he served jail sentences, and has four pending indictable
charges. Accordingly, the judge found nothing would "detract from
the reasonable likelihood [Jeffery] will offend again."
The judge applied aggravating factor six, noting the extent
of his prior record and that Jeffery "expressed absolutely no
remorse." His previous arrests, convictions, and punishments did
not deter him from committing additional offenses, and considering
the current offenses, application of both general and specific
deterrence, factor nine, was required.
The judge also imposed aggravating factor thirteen, N.J.S.A.
2C:44-1(a)(13), providing "defendant, while in the course of
committing or attempting to commit the crime, including the
immediate flight therefrom, used or was in possession of a stolen
motor vehicle[.]"
Regarding the rejection of mitigating factor eleven, the
judge noted one of Jeffery's children was ill and he may well
provide support for his family, however, based on his criminal
history (including possession of and distribution of controlled
dangerous substances), incarcerations, and limited past
employment, any support appeared to result from criminal activity,
45 A-4021-14T2
which negated application. Looking at his prior arrests and
convictions, the judge rejected Jeffery's claim he was now changed
in the short period from arrest to sentencing.
In imposing consecutive sentences on counts two, three, four,
and six, the judge rejected the argument these crimes constituted
a single event. He found the identified crimes were "separate and
apart." Noting there are no "free crimes," the judge found it
would be "grossly unjust" were he to ignore the necessity to
"provide for the safety of the general public" and imposed a
consequence for the distinct offenses committed. The offenses of
receipt of a stolen automobile, unlawful possession of a handgun,
possession of a defaced firearm, and possession of an assault
rifle occurred at separate times, and were not a single
transaction, but each offense had distinct, independent objectives
and involved separate threats of violence.
The sentences imposed were as follows: count two - third-
degree receiving stolen property, an automobile, five years; count
three - second-degree unlawful possession of a .45 caliber handgun,
fifteen years, with a seven and one-half year period of parole
ineligibility, to run consecutively to the sentence in count two,
subject to the Graves Act, N.J.S.A. 2C:43-6; count four - fourth-
degree possession of a defaced firearm, eighteen months with an
eighteen-month period of parole ineligibility pursuant to the
46 A-4021-14T2
Graves Act, to run consecutive to sentences imposed on counts two
and three; count six - second-degree possession of an assault
firearm, subject to the Graves Act, ten years with a five-year
period of parole ineligibility, to run consecutive to counts two
and three; count seven - fourth-degree unlawful possession of
hollow point bullets, eighteen months to run concurrent to counts
two, three, four, and six; count eight - fourth-degree illegal
possession of a large capacity ammunition magazine, eighteen
months concurrent to counts two, three, four, six, and seven;
count ten - fourth-degree resisting arrest, eighteen months
consecutive to counts two, three, four, six, seven and eight.
The judge acquitted defendant of the disorderly persons
offense of obstruction and possession of burglary tools.
Applicable mandatory fines and penalties were imposed.
IV.
In summary, we have thoroughly reviewed the record and
considered the challenges raised by each defendant to his
respective conviction and sentence. We find no error warranting
a new trial. We have rejected as unfounded many of the claims
advanced and although identifying some errors, we conclude they
were harmless.
Trials, particularly criminal trials, are not
tidy things. The proper and rational standard
is not perfection; as devised and administered
47 A-4021-14T2
by imperfect humans, no trial can ever be
entirely free of even the smallest defect.
Our goal, nonetheless, must always be
fairness. "A defendant is entitled to a fair
trial but not a perfect one." Lutwak v. United
States, 344 U.S. 604, 619, 73 S. Ct. 481, 97
L. Ed. 593 (1953).
[State v. R.B., 183 N.J. 308, 333-34 (2005).]
This standard was more than met and defendants' convictions will
not be altered; nor will the imposed sentences be set aside, save
for the correction we noted to be made to Colby's judgment of
conviction. The factual findings by the trial judge were supported
by the record, and he properly applied the law.
Affirmed on both appeals. Remanded for a technical correction
of the judgment of conviction on A-4021-14.
48 A-4021-14T2