STATE OF NEW JERSEY VS. CARLTON L. BAILEY(14-10-1112, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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-3084-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLTON L. BAILEY a/k/a
KARLTON L. BAILEY,

Defendant—Appellant.

_______________________________________________

Submitted November 2, 2016 – Decided December 4, 2017

Before Judges Fuentes and Gooden Brown.

On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
14-10-1112.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).

Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).

The opinion of the court was delivered by

GOODEN BROWN, J.A.D.
 Following a jury trial, defendant was convicted of third-

degree attempted escape, N.J.S.A. 2C:5-1 and 2C:29-5; third-degree

possession of escape implements, N.J.S.A. 2C:29-6; and fourth-

degree unlawful possession of a weapon, namely, a screw, N.J.S.A.

2C:39-5(d).1 He was acquitted of third-degree possession of a

weapon for unlawful purposes, N.J.S.A. 2C:39-4(d). Defendant was

sentenced as a persistent offender, N.J.S.A. 2C:43-7 and 2C:44-

3(a), to an aggregate extended term of seven years' imprisonment,

with a two-year period of parole ineligibility, to run

consecutively to a seventeen-year sentence with a five-year period

of parole ineligibility for an unrelated conviction.

On appeal, defendant raises the following contentions:

POINT I

THE PROSECUTOR'S IMPEACHMENT OF DEFENSE
WITNESSES BY THE USE OF UNSANITIZED PRIOR
CONVICTIONS IN THIS CASE WAS GROSSLY IMPROPER
AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT
RAISED BELOW).

1
The indictment alleged that defendant employed "a screw and/or
a shank" in the commission of the crimes, elevating the attempted
escape and the possession of escape implements offenses to second-
degree crimes. However, at the close of the State's case, the
trial court granted defendant's motion for a judgment of acquittal,
R. 3:18-1, and amended the indictment accordingly because the
State failed to establish any connection between defendant and "a
shank[.]" As a result, the charges submitted to the jury made no
mention of a shank. The jury found defendant guilty of the crimes,
but did not find that defendant used "a deadly weapon or dangerous
instrumentality to effect the attempted escape" or "possessed
. . . a deadly weapon[,]" resulting in third-degree convictions
for both crimes. See N.J.S.A. 2C:29-5(e) and N.J.S.A. 2C:29-6(a).

2 A-3084-14T3
 POINT II

THE EXTENDED TERM SENTENCE IMPOSED UPON
[DEFENDANT] OF [SEVEN] YEARS WITH [TWO] YEARS
OF PAROLE INELIGIBILITY[,] CONSECUTIVE TO
ANOTHER SENTENCE[,] WAS EXCESSIVE AND MUST BE
MODIFIED AND REDUCED. (NOT RAISED BELOW).

After considering the arguments presented in light of the record

and applicable law, we affirm.

We summarize the pertinent facts from the trial record. The

State’s proofs at trial demonstrated that defendant was involved

with three other inmates in a plot to escape from the Middlesex

County Jail, where he was awaiting sentencing. The plot also

involved inmate Steven Devine, along with his cellmate, Scott

Hornick, and defendant's cellmate, Eugene Hollins.

On May 3, 2013, Devine informed authorities about the plot,

in hopes of obtaining leniency. According to Devine, the plot was

Hornick's idea, and defendant "was the muscle" of the operation.

Following Devine's disclosure, a team of corrections officers

searched the inmates and the unit. In one of defendant's socks,

officers found a screw with "masking tape wrapped around the

top[.]" Inmates were not allowed to have screws in the jail

because they could be used as weapons.

In addition, in defendant's cell, the officers discovered

that the "window frame had been partially cut through[,]" and

3 A-3084-14T3
there was a gouge "right in the middle of it" that went "almost

completely through the metal." A piece of masking tape was placed

over the gouge and painted with blue paint to match the rest of

the windowsill. Under the desk in defendant's cell, the officers

found "some tape" and a "[m]ilk of [m]agnesia bottle full of blue

paint" that matched the window frame. Around that time, the jail

was being painted for an inspection, and certain inmates were

helping with the painting.

When the officers compared the screw found in defendant's

sock "to the gouge in the window[,]" they discovered that the

gouge was "the same depth and width of the screw," and that the

screw "fit right into the groove." It was later determined that

the screw "came from the back plate that was holding one of the

phones in the unit to the wall." The phone was located "a couple

of doors away" from defendant's cell.

Four inmates testified on defendant's behalf: Devine,

Hollins, Frank Ferraro, and Michael Barcalow. Devine admitted

informing the authorities about the escape plot in exchange for a

lesser sentence on his then pending charges for armed robbery,

burglary, drug possession, and resisting arrest. Devine was

ultimately sentenced to Drug Court instead of prison. Devine

described the plot in detail, including their plan to carjack cars

once they escaped the jail. According to Devine, both Hornick and

4 A-3084-14T3
defendant had screws; Hornick did some of the "etching . . . at

the window" in defendant's cell while he (Devine) and defendant

played cards.

Hollins denied being involved in the escape plot and denied

seeing defendant "messing with the window in [their] cell[.]"

Ferraro, who was housed in the adjacent cell, testified that,

although his cell shared a window with defendant's, he never heard

any noises coming from that window or noticed the window moving.

The trial court qualified Barcalow, an inmate at a different

facility, as an expert on tattooing in jail.2 He testified that

"a screw[,]" like the one seized from defendant's sock, could be

used for tattooing. Both Hollins and Ferraro acknowledged seeing

defendant tattoo other inmates. Hollins testified that defendant

had "darkened [his] tattoo for [him]" using "a tack" or "something

like a nail."

Following the guilty verdict, the trial court granted the

State's motion for an extended term, treated defendant as a

persistent offender pursuant to N.J.S.A. 2C:44-3(a), and sentenced

defendant to a term of seven years with a two-year period of parole

ineligibility for the attempted escape conviction, to run

consecutively to the sentence defendant was then serving. The

2
Barcalow admitted that tattooing in jail was a disciplinary
infraction. See N.J.A.C. 10A:4-4.1, .653.

5 A-3084-14T3
court imposed a concurrent eighteen-month term for the unlawful

possession of a weapon conviction and merged the possession of

escape implements conviction into the attempted escape conviction.

A memorializing judgment of conviction was entered on February 11,

2015, and this appeal followed.

Defendant argues for the first time on appeal that the court

erred in admitting without sanitization the prior convictions of

the three inmates who testified on his behalf. Defendant argues

"[t]he nature of the prior convictions was not[] relevant nor

material[] to the credibility issue[,]" and the prosecutor's sole

purpose "was to show each witness as a 'bad person' and prejudice

the defendant."

Because defendant did not raise this objection before the

trial court, we review his argument under the "plain error"

standard, which mandates reversal only for errors "of such a nature

as to have been clearly capable of producing an unjust result[.]"

R. 2:10-2; see also State v. Maloney, 216 N.J. 91, 104 (2013).

The test is whether the possibility of injustice is "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. Macon,

57 N.J. 325, 336 (1971).

N.J.R.E. 609 provides that "[f]or the purpose of affecting

the credibility of any witness, the witness's conviction of a

6 A-3084-14T3
crime, subject to [N.J.R.E.] 403, must be admitted unless excluded

by the judge" as remote or for other causes. Whether to admit

evidence of a prior conviction "rests within the sound discretion

of the trial judge[,]" State v. Sands, 76 N.J. 127, 144 (1978),

and we should not reverse the decision absent an abuse of

discretion reflecting clear error of judgment. State v. Harris,

209 N.J. 431, 439 (2012).

Sanitization of prior convictions is appropriate when "a

testifying defendant previously has been convicted of a crime that

is the same or similar to the offense charged[.]" State v.

Brunson, 132 N.J. 377, 391 (1993). The Supreme Court expanded the

Brunson rule for prior similar convictions in State v. Hamilton,

193 N.J. 255, 269 (2008). The Court held that trial courts have

"discretion to consider sanitization of prior[-]conviction

evidence in any other circumstance that pose[s] a risk of undue

prejudice to a defendant." Id. at 269. In such circumstances,

sanitization limits the prosecutor to mentioning the date, degree

of the prior conviction, and sentence, "but excluding any evidence

of the specific crime of which defendant was convicted." Brunson,

supra, 132 N.J. at 391; see also N.J.R.E. 609.

Here, without objection, the prosecutor cross-examined

Hollins on three 2013 convictions, consisting of one second-degree

witness tampering offense and two third-degree drug offenses, for

7 A-3084-14T3
which he received an aggregate seven-year sentence. As to Ferraro

and Barcalow, the court conducted a Sands hearing to determine the

admissibility of their prior convictions.

Ferraro had seven prior convictions, spanning 1995 to 2013.

Without objection from defense counsel, the court permitted cross-

examination only on the 2013 convictions, third-degree criminal

restraint and second-degree possession of a firearm for an unlawful

purpose, for which Ferraro received an aggregate seven-year

sentence. Weighing the N.J.R.E. 609 factors, the court determined

that the convictions "beyond the ten[-]year mark" were

"presumptively remote" and unduly prejudicial.

Barcalow had seventeen prior convictions, with the earliest

occurring in 1996 and the latest in 2005. The court permitted

cross-examination on eleven of Barcalow's prior convictions.

Again, the court determined that "everything else" would be too

"remote" and "too prejudicial[.]" At trial, Barcalow was cross-

examined on four contempt convictions, two harassment convictions,

and two stalking convictions for which he received ten years in

prison in 2005. He was also cross-examined on a 2005 fourth-

degree resisting arrest conviction, a 2002 third-degree drug

possession conviction, and a 2001 second-degree eluding conviction

for which he received a five-year prison sentence.

8 A-3084-14T3
 We discern no abuse of discretion by the court in making

these evidentiary rulings. Moreover, because defendant did not

object to the use of the un-sanitized convictions, we are satisfied

that there was no error, much less plain error.

Next, defendant challenges his sentence as excessive, arguing

the "[c]ourt failed to do a separate analysis of the aggravating

and mitigating factors as required by law before imposing the

extended term and consecutive sentence." We disagree.

"Appellate review of the length of a sentence is limited."

State v. Miller, 205 N.J. 109, 127 (2011). We will

[A]ffirm the sentence unless (1) the
sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by
the sentencing court were not based upon
competent and credible evidence in the record;
or (3) "the application of the guidelines to
the facts of [the] case makes the sentence
clearly unreasonable so as to shock the
judicial conscience."

[State v. Fuentes, 217 N.J. 57, 70 (2014)
(quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]

When evaluating whether to impose an extended custodial term

and, if appropriate, the length of that term, sentencing courts

follow a four-step process: (1) determine whether the minimum

statutory predicates are met; (2) decide whether to impose an

extended term; (3) weigh aggravating and mitigating factors to

determine the base term of the extended sentence; and (4) determine

9 A-3084-14T3
whether to impose a parole ineligibility period. See State v.

Pierce, 188 N.J. 155, 164 (2006). "Choosing whether to impose the

extended term requires consideration of the need for public

protection." State v. Dunbar, 108 N.J. 80, 95 (1987). Further,

though the conduct underlying the current offense is of primary

importance in determining the length of the extended term, "other

aspects of the defendant's record, which are not among the minimal

conditions for determining persistent offender status, such as a

juvenile record, parole or probation records, and overall response

to prior attempts at rehabilitation, will be relevant factors in

adjusting the base extended term." Id. at 92.

"[T]he decision to impose consecutive or concurrent sentences

rests in the first instance with the trial court." Miller, supra,

205 N.J. at 130; see also N.J.S.A. 2C:44-5(a). Our Supreme Court

has set forth "general sentencing guidelines for concurrent or

consecutive-sentencing decisions (including any parole

ineligibility feature) when [a] sentence is pronounced on one

occasion on an offender who has engaged in a pattern of behavior

constituting a series of separate offenses or committed multiple

offenses in separate, unrelated episodes." State v. Yarbough, 100

N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct.

1193, 89 L. Ed. 2d 308 (1986).

10 A-3084-14T3
 Here, the court correctly determined that "[defendant]

qualifie[d] to be sentenced as a persistent offender" based upon

his record of twelve prior indictable convictions. Defendant does

not appear to dispute that determination. The court then

appropriately pointed out several important considerations bearing

on its sentencing analysis and its conclusion that aggravating

factors three, six, and nine applied. N.J.S.A. 2C:44-1(a)(3);

N.J.S.A. 2C:44-1(a)(6); N.J.S.A. 2C:44-1(a)(9). Specifically, the

court noted the "substantial risk that [defendant] will commit

another offense[,]" given defendant's lengthy juvenile and adult

criminal history and unsuccessful prior attempts at

rehabilitation; "the seriousness of the offenses," including prior

first-degree and weapons-related convictions; and the need "to

strongly discourage" attempted escapes from penal institutions,

as these "implicitly" pose "the threat of harm."

The court found no mitigating factors, specifically rejecting

defendant's arguments regarding mitigating factors one, N.J.S.A.

2C:44-1(b)(1); two, N.J.S.A. 2C:44-1(b)(2); and eight, N.J.S.A.

2C:44-1(b)(8). The court found that "attempting to escape from a

penal institution implicitly threatens serious harm" and "goes

against the good order and discipline of the penal institution."

Further, because defendant's motive for the crime was to avoid a

11 A-3084-14T3
"long sentence[,]" the incentive to re-offend would be "even

greater" now with the further extension of his sentence.

The court concluded that the need for deterrence "was one of

the primary reasons why the [c]ourt [found] that a persistent

offender extended term sentence [was] appropriate in this case."

Further, the fact that defendant "was seeking to escape a penal

institution after having previously been convicted of several

serious charges that, at the time, [were] going to result in a

substantial sentence" justified a consecutive sentence under the

criteria articulated in Yarbough, supra. As the court followed

the sentencing guidelines, made findings that are supported by the

record, and did not impose a sentence that shocks the judicial

conscience, we decline to disturb it.

Affirmed.

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