NOT FOR PUBLICATION WITHOUT THE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-3354-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KENNETH HUTCHINS,
Defendant-Appellant.
___________________________
Submitted May 16, 2017 — Decided June 30, 2017
Before Judges Koblitz & Sumners.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 12-
08-2119.
Joseph E. Krakora, Public Defender, attorney
for appellant (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on the
brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Camila
Garces, Special Deputy Attorney General,
Acting Assistant Prosecutor, of counsel and
on the brief).
PER CURIAM
Defendant Kenneth Hutchins appeals from his convictions after
trial in connection with the robbery of a laundromat. He argues
the investigating detective's trial testimony that defendant's
picture bore a "striking resemblance" to the man in the
laundromat's surveillance tape coupled with the trial judge's
comments to defense counsel deprived him of a fair trial. We
disagree and affirm the convictions. We remand, however, for
resentencing, because in his effort to correct an illegal sentence,
the judge resentenced defendant to a significantly longer real-
time prison term without an adequate explanation of the reasons.
A jury convicted defendant of second-degree conspiracy to
commit armed robbery, N.J.S.A. 2C:5-2 and 2C:15-1(b), and second-
degree robbery as a lesser-included offense of armed robbery,
N.J.S.A. 2C:15-1(b). Defendant was found not guilty of first-
degree robbery and the related gun charges.
The trial testimony revealed the following facts. On October
27, 2011, at approximately 7:20 a.m., a man entered the laundromat,
looked around and left. The man was not carrying any laundry and
was in the store for about a minute. The owner greeted the man
and got a good look at his face. The man was black with white
facial hair and wore a hat.
A few minutes later, the man came back into the store through
the front door, this time with a handkerchief covering the bottom
2 A-3354-14T2
half of his face. The owner could still see the white hair on the
man's beard. The man put a gun to the owner's forehead.
Another man wearing a "hoodie" and carrying a bag entered the
store through the middle door. The man with the gun removed money
from the owner's pockets, and directed the owner to open the cash
register. After the owner opened the cash register, the second
man took the cash and a jar of coins, totaling $3000. The police
arrived five minutes later.
Detective James Iaiosa of the South Orange Police Department
responded to the laundromat and copied the video surveillance onto
a thumb drive. The owner reported that the two men left in a car
that was parked in the parking lot. Iaiosa went to the parking
lot and saw that it was relatively empty and clean and only the
owner's car was parked. He noticed a single plastic cigar tip
close to the exit. Iaiosa thought the cigar tip was "freshly
discarded" because it had rained the night before and the ground
was still wet, but the cigar tip "wasn't wet" and "wasn't
squashed." The DNA on the cigar tip matched defendant's DNA. The
video surveillance was played for the jury during Iaiosa's
testimony and Iaiosa narrated what the video depicted. Iaisoa
compared defendant's photo with the image in the video surveillance
and testified that "there was a striking resemblance between the
two."
3 A-3354-14T2
The shop owner picked defendant's photograph from a lineup
and testified he was 80% sure that defendant was the man with the
gun. After his arrest, defendant was brought into the holding
area of the jail. Iaisoa testified that he noticed that defendant
was wearing "similar sneakers [to those] that were used by the
person in the robbery."
Defendant raises the following issues on appeal:
POINT I: AS IDENTIFICATION WAS THE MAIN ISSUE
IN THE CASE, THE DETECTIVE'S TESTIMONY
NARRATING THE EVENTS ON THE VIDEO SURVEILLANCE
AND OPINING THAT DEFENDANT BORE A STRIKING
RESEMBLANCE TO ONE OF THE PERPETRATORS INVADED
THE PROVINCE OF THE JURY, AND USURPED THE
JURY'S ROLE OF DETERMINING THE IDENTITY OF THE
PERPETRATOR, IN VIOLATION OF N.J.R.E. 701 AND
DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR
TRIAL. ADDITIONALLY, THE TRIAL COURT'S
IDENTIFICATION CHARGE WAS DEFICIENT,
NECESSITATING REVERSAL. (Not Raised Below)
A. IAIOSA'S IMPROPER LAY WITNESS OPINION
TESTIMONY.
B. THE TRIAL COURT'S INCOMPLETE IDENTIFICATION
INSTRUCTION.
POINT II: DEFENDANT'S RIGHT TO A FAIR TRIAL
WAS VIOLATED WHEN THE TRIAL JUDGE MADE A
PREJUDICIAL COMMENT ABOUT DEFENSE COUNSEL'S
CROSS-EXAMINATION OF THE VICTIM IN THE
PRESENCE OF THE JURY.
POINT III: THE SENTENCING COURT ERRED IN
RESENTENCING DEFENDANT TO AN EIGHTY-FIVE
PERCENT PAROLE DISQUALIFIER WITHOUT FIRST
CONDUCTING A FULL RESENTENCING HEARING OR
CONSIDERING THE IMPACT OF THAT PAROLE
DISQUALIFIER ON THE SEVENTEEN YEAR BASE TERM
ORIGINALLY IMPOSED BY THE COURT. MOREOVER,
4 A-3354-14T2
THE SENTENCE IMPOSED IS MANIESTLY EXCESSIVE
AND MUST BE REDUCED.
I
Defendant argues for the first time on appeal, in Point I of
his brief, that reversal is required because Detective Iaiosa
offered lay opinion witness testimony in violation of N.J.R.E. 701
when he testified at trial that defendant bore a "striking
resemblance" to one of the perpetrators in the surveillance video
and that the shoes defendant was wearing when he was arrested were
similar to those "that were used by the person in the robbery."
Defendant cites State v. Lazo, 209 N.J. 9 (2012) in support of his
position.
Because defendant did not raise this issue at trial, we must
review the issue for plain error. Plain error is "error possessing
a clear capacity to bring about an unjust result and which
substantially prejudiced the defendant's fundamental right to have
the jury fairly evaluate the merits of his [or her] defense."
State v. Timmendequas, 161 N.J. 515, 576-77 (1999) (quoting State
v. Irving, 114 N.J. 427, 444 (1989)), cert. denied, 534 U.S. 858,
122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "[A]ny finding of plain
error depends on an evaluation of the overall strength of the
State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
N.J.R.E. 701 permits lay opinion testimony that is
"rationally based on the perception of the witness" and "will
5 A-3354-14T2
assist in understanding the witness' testimony or in determining
a fact in issue." Lay opinion testimony "is not a vehicle for
offering the view of the witness about a series of facts that the
jury can evaluate for itself or an opportunity to express a view
on guilt or innocence." State v. McLean, 205 N.J. 438, 462 (2011)
(reversing the defendant's possession with intent to distribute
convictions because a police officer, who observed the defendant
hand an item to an individual in exchange for money, testified as
to his opinion that a drug transaction had occurred).
In State v. Lazo, the issue was whether it was proper for a
detective who had no personal knowledge of the crime to testify
at trial that he included the defendant's photo in a photo array
because defendant's photo resembled the composite sketch of the
assailant. Lazo, supra, 209 N.J. at 12. In Lazo the issue had
been fully raised and argued at trial and thus was not raised as
plain error as it is here. Our Supreme Court noted that "[t]he
victim's identification was the only evidence linking defendant
to the crime. No physical evidence or other corroboration of the
identification was presented." Id. at 15. The jury in Lazo
convicted the defendant of second-degree robbery and second-degree
conspiracy to commit robbery. Id. at 16.
The Court held that the detective's testimony violated
N.J.R.E. 701 because his opinion was not based on personal
6 A-3354-14T2
knowledge and the testimony only served to bolster the victim's
identification, which was the sole basis of the defendant's
conviction. Id. at 24. The Court reversed, holding that
"[n]either a police officer nor another witness may improperly
bolster or vouch for an eyewitness' credibility and thus invade
the jury's province." Ibid. Because the identification was the
only evidence against the defendant, the Court could not "conclude
that the error was harmless." Id. at 27.
Here, Iaiosa's testimony that he believed defendant's photo
closely resembled the man in the surveillance video also violated
N.J.R.E. 701 because his opinion was not based on personal
knowledge and defendant's resemblance to the man in the videotape
was within the province of the jury to determine. Unlike Lazo,
however, the issue was not raised at trial, and thus we know it
did not appear a problem to defense counsel at the time the
testimony was elicited. See Timmendequas, supra, 161 N.J. at 576.
Also unlike Lazo, the victim's identification of defendant was not
the only evidence in this case. Defendant's DNA was found on a
cigar tip found in the parking lot of the crime scene. The error
of the detective opining as to the resemblance of defendant to the
man in the surveillance video did not deprive defendant of a fair
trial. The jury could see the video and decide for itself.
7 A-3354-14T2
Defendant also argues as plain error in Point I that if we
determine Iaiosa's testimony was not harmful error, reversal must
still be granted because the trial court's instruction on
identification was incomplete. The first perpetrator covered the
bottom portion of his face with a handkerchief. Defendant argues
that the trial court failed to instruct the jury that it could
consider the effect this disguise may have had in evaluating the
reliability of the owner's identification.
"Clear and correct jury instructions are essential for a fair
trial." State v. Randolph, 441 N.J. Super. 533, 558 (App. Div.
2015) (quoting State v. Brown, 138 N.J. 481, 522 (1994)), aff'd
by, ___ N.J. ___ (2017). "'[E]rroneous instructions on material
points are presumed to' possess the capacity to unfairly prejudice
the defendant." State v. Baum, 224 N.J. 147, 159 (2016) (quoting
State v. Bunch, 180 N.J. 534, 541-42 (2004)). However, "[n]o
party is entitled to have the jury charged in his or her own words;
all that is necessary is that the charge as a whole be accurate."
State v. Jordan, 147 N.J. 409, 422 (1997). The plain error
analysis of an erroneous jury charge mandates that the reviewing
court examine the charge as a whole to determine its overall
effect. State v. McKinney, 223 N.J. 475, 494 (2015).
Here, the court provided the jury with the Model Jury Charge
for out-of-court identifications. Model Jury Charge (Criminal),
8 A-3354-14T2
"Identification: Out-of-Court Identification Only" (2012). The
instruction on "disguises/changed appearance" was not sought or
given. The owner testified that defendant came into his store
with his face in plain view just minutes before he returned with
his face partially covered. The owner said he recognized defendant
as the same man who had entered originally. Under these
circumstances, the court's failure to tell the jury that a disguise
"can affect a witness's ability both to remember and identify the
perpetrator" did not constitute plain error. Model Jury Charge
(Criminal), "Identification: Out-Of-Court Identification Only –
Disguises/Changed Appearance" (2012).
II
After defense counsel asked the owner what percentage of
customers used each door in the laundromat, the judge had a sidebar
conference during which he complained to defense counsel that she
was not asking relevant questions. The judge then said to the
witness in front of the jury, "Alright, you can answer that
question. Then we'll move on to something else, something that
may have some relevancy." At another point, after defense counsel
repetitively cross-examined the owner, the judge said, "Asked and
answered. Next question. Let's move on to something else . . . .
We've beat this -- beaten this dead horse enough."
9 A-3354-14T2
At that point, defense counsel requested a sidebar. During
sidebar, defense counsel stated that the judge's characterization
of her cross-examination as "beating a dead horse" was prejudicial
to defendant. The court and defense counsel then had the following
exchange:
THE COURT: Number 1, it's not prejudicial to
anyone because you've drawn out this cross-
examination for about 35, 40 minutes now, and
you keep repeating the same question over and
over again. So, move on to something else.
If you have an application to make, I will
hear the application. If not, move on to
something else.
(End of discussion at sidebar).
THE COURT: Alright, [defense counsel], you
have any other questions to ask, uh, --
DEFENSE COUNSEL: Yes, I do, Your Honor.
THE COURT: -- that you haven't previously
covered, please?
Defendant argues that the court's comment in front of the
jury that defense counsel was "beating a dead horse" during defense
counsel's cross-examination had the capacity to prejudice
defendant and deprived him of a fair trial.
The trial judge charged the jury that "any remarks made by
me to counsel or by counsel to me, or between counsel are not
evidence and must not affect or play any part in your
deliberations." We presume the jury follows the court's
10 A-3354-14T2
instructions. State v. Martini, 187 N.J. 469, 477 (2006), cert.
denied, 549 U.S. 1223, 127 S. Ct. 1285, 167 L. Ed. 2d 104 (2007).
"Our standard in reviewing a claim of prejudicial
intervention by a trial judge is whether 'it appears [the] trial
judge has turned the jury against the defendant.'" Hitchman v.
Nagy, 382 N.J. Super. 433, 452 (App. Div. 2006) (quoting Mercer
v. Weyerhaeuser, 324 N.J. Super. 290, 298 (App. Div. 1999)). We
consider the entire transcript when reviewing prejudicial conduct
of a judge. State v. J.J., 397 N.J. Super. 91, 102-03 (App. Div.
2007).
Trial courts have wide discretion in supervising conduct at
trial. State v. Zwillman, 112 N.J. Super. 6, 20 (App. Div. 1970),
certif. denied, 57 N.J. 603 (1971). Within that discretion is the
court's right to control the discussions of counsel to prevent an
"unreasonable consumption of public time and delay in the
transaction of the business of the courts." State v. Tilghman,
385 N.J. Super. 45, 54 (App. Div. 2006) (citation omitted)
(affirming defendant's conviction despite finding that the court's
comments during defense counsel's summation to "give these jurors
a break" and "this isn't a filibuster" were inappropriate because
the comments were not sufficiently prejudicial to deny defendant
a fair and impartial trial).
A defendant's Sixth Amendment rights to an
impartial jury and effective assistance of
11 A-3354-14T2
counsel act as a qualifying factor limiting
the court's otherwise broad superintending
control over the presentation of arguments at
trial. Time allotted to counsel "must be
reasonable and of such length as not to impair
the right of" a criminal defendant to present
his defense to the jury.
[Id. at 54-55 (citation omitted).]
Ultimately, the judge's exercise of discretion must insure a fair
trial. Id. at 54. "Where it appears that the trial judge has
turned the jury against the defendant by mistreating defendant's
counsel in front of the jury, a new trial is required." Zwillman,
supra, 112 N.J. Super. at 21.
Here, the court expressed some impatience with defense
counsel's cross-examination of the owner. Such expressed judicial
disapproval should be avoided. See Tilghman, supra, 385 N.J.
Super. at 59-62. Given the strength of the State's proofs,
however, and in light of the jury instruction to disregard any
such comments, the court's comments did not constitute reversible
error.
III
Defendant was sentenced on March 21, 2014, when the court
merged the two second-degree convictions. The court found
aggravating factors three, the risk that the defendant will re-
offend; six, the extent of the defendant's prior criminal record
and the seriousness of the offense of which he has been convicted;
12 A-3354-14T2
and nine, specific and general deterrence. N.J.S.A. 2C:44-
1(a)(3), (6) & (9). The court found no mitigating factors,
N.J.S.A. 2C:44-1(b), and sentenced defendant to a mandatory
extended prison term, requiring a prison term of ten to twenty
years. N.J.S.A. 2C:43-7.1(b)(1); N.J.S.A. 2C:43-7(a)(3).
Although defendant faced a maximum term of twenty years, the court
determined a seventeen-year term, subject to eight years of parole
ineligibility, was appropriate.
After the State filed a motion to correct an illegal sentence,
on July 1, 2016, the court changed the eight-year mandatory minimum
to an eighty-five percent parole disqualifier pursuant to the No
Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court maintained
the seventeen-year maximum prison term. In resentencing defendant
to the same base term subject to a harsher NERA parole-
ineligibility period, the sentencing court failed to consider the
defendant's eligibility for release as required by N.J.S.A. 2C:44-
1(c)(2). The court's only expressed rationale was that he had
been "mistaken" in not originally imposing an eighty-five percent
parole disqualifier. A remand for resentencing is necessary
because the court's explanation is inadequate. State v. Fuentes,
217 N.J. 57, 70 (2014). The court must explain why it imposed a
parole disqualifier approximately six and one-half years longer
than that originally imposed when it had the discretion to impose
13 A-3354-14T2
a sentence of ten years with NERA, which would have limited
defendant's real time to be served to approximately the same period
as the original sentence.
The convictions are affirmed. The sentence is reversed and
remanded for resentencing. The sentencing judge should give the
reasons for any change in real time consequences from the first
sentence imposed. We do not retain jurisdiction.
14 A-3354-14T2