STATE OF NEW JERSEY VS. KENNETH HUTCHINS(12-08-2119, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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