NOT FOR PUBLICATION WITHOUT THE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-1867-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID CONNOLLY,
Defendant-Appellant.
_______________________
Submitted May 11, 2021 – Decided June 24, 2021
Before Judges Moynihan and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Morris County, Indictment No. 17-11-0976.
Joseph E. Krakora, Public Defender, attorney for
appellant (Amira R. Scurato, Designated Counsel, on
the brief).
Robert J. Carroll, Acting Morris County Prosecutor,
attorney for respondent (Paula Jordao, Special Deputy
Attorney General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
Defendant David Connolly was convicted by jury of third-degree
receiving stolen property, N.J.S.A. 2C:20-7(a), after twice selling jewelry that
had been stolen from a storage locker he had helped clean out to an
establishment that purchased gold, jewelry and other valuables (the gold store).
He was sentenced as a persistent offender, N.J.S.A. 2C:44-3(a), to an extended
prison term of seven-years subject to three-and-one-half years' parole
ineligibility. He appeals from his conviction and sentence, arguing:
POINT I
DEFENDANT WAS DENIED A FAIR TRIAL WHEN
THE STATE EFFECTIVELY INTRODUCED HIS
WIFE'S TESTIMONY THROUGH OTHER MEANS
DESPITE THE FACT THAT WHEN SPOUSAL
PRIVILEGE IS ASSERTED, ALL TESTIMONY IS
BARRED.
POINT II
THE STATE IMPROPERLY USED DEFENDANT'S
OPENING STATEMENT AS EVIDENCE AGAINST
HIM TO SUSTAIN THEIR BURDEN OF PROOF
AND THE TRIAL JUDGE FAILED TO FULLY AND
CLEARLY CHARGE THE JURY THAT OPENING
STATEMENTS ARE NOT EVIDENCE.
POINT III
THE TRIAL JUDGE ERRED IN FINDING THE
BASIS FOR AN EXTENDED TERM AND IN
ASSIGNING A DISCRETIONARY PAROLE
INELIGIBILITY TERM.
A-1867-19
2
We affirm defendant's conviction but remand for resentencing.
Defendant's wife, L.A. (Leto), had been hired by H.K. (Hera) to assist her
in cleaning and consolidating items in three storage units she and her
nonagenarian mother used.1 On August 25, 2017, defendant was also hired to
assist Hera, working in two storage units separate and distanced from the unit in
which Hera and Leto worked that day.
Hera did not intend to return to the units until September 8, 2017. Her
interaction with Leto on that date forms the basis for defendant's argument that
he was denied a fair trial when the State "effectively introduced his wife's
testimony." After the trial court, out of the jury's presence, discussed with the
assistant prosecutor the limitations on what could be adduced at trial, cautioning
him not to have Hera "state anything that [Leto] may have said" to Hera,
defendant, who was representing himself, said he had no objection to the
proposed limitations.
Those discussions led to Hera's direct-examination testimony that,
although she had intended to go to the units with Leto on September 8, they
1
We use pseudonyms for the victim and witnesses to protect their identities.
A-1867-19
3
changed their plans. Defendant claims the testimony that followed violated the
spousal privilege under N.J.R.E. 501(2): 2
[ASSISTANT PROSECUTOR]: On September 8th,
2017 did you have a conversation, and I don't want you
to discuss the details, but just did you have a
conversation with [Leto]?
[HERA]: Yes.
[ASSISTANT PROSECUTOR]: As a result of that
conversation, did you two go to [the gold store]?
[HERA]: Yes.
Hera testified she had inquired of the gold store's owner if defendant had
sold any jewelry. The owner produced: photographs of jewelry and coins that
had belonged to Hera, her mother and sister; defendant's "photo ID"; and two
purchase agreements, each showing defendant's name and address, phone
number, and the amount the owner had paid defendant for the items sold on
August 26 and 28, 2017. After meeting with the gold store's owner, Hera and
Leto reported the crime to East Hanover police.
Defendant claims Hera's testimony contravened N.J.R.E. 501(2)—
paralleling N.J.S.A. 2A:84A-17—which provides in the part deemed pertinent
2
Defendant acknowledges the marital-communications privilege set forth in
N.J.R.E. 509 "is not relevant to this appeal as there was no actual communication
between defendant and his wife."
A-1867-19
4
by defendant in his merits brief: "The spouse or one partner in a civil union
couple of the accused in a criminal action shall not testify in such action except
to prove the fact of marriage or civil union unless (a) such spouse or partner
consents . . . ." He concedes, "[h]ere, of course the wife did not testify." He
nevertheless contends "the State proceeded to use the wife's testimonial
evidence despite her election not to testify." The State did no such thing.
Not only was Leto not called by the State to testify at trial, her testimony
was not "effectively introduced." Contrary to defendant's argument that "the
jury was effectively given the substance of [Leto's] testimony without her
actually testifying," the facts revealed to the jury did not disclose that the
impetus for Hera and Leto to go to the gold store was anything Leto had said.
Nothing about the conversation between Hera and Leto was revealed during the
brief direct examination about their discussion, and certainly nothing about what
Leto had said was told to the jury. Hera's testimony, did not, as defendant
contends, lead to "the inescapable inference . . . that defendant's wife knew not
only about defendant's theft of the jewelry from the storage locker . . . but also
that he had sold the items to a specific store, as referenced by receipts that she
provided to [Hera]." As defendant noted in his merits brief, "the jury was not
told that defendant had been arrested in West Orange on September 8, 2017[,]
A-1867-19
5
and that in his car were jewelry items and . . . two August receipts from [the
gold store]" which Leto, who was in the vehicle, saw prior to her conversation
with Hera.
"Considerable latitude is afforded" to trial court evidentiary rulings and
they will be reversed "only if [they] constitute[] an abuse of discretion." State
v. Feaster, 156 N.J. 1, 82 (1998); see also State v. Cole, 229 N.J. 430, 449
(2017). The State did not violate "the spousal privilege[, which] is intended to
protect the sanctity and tranquility of marriage from the negative consequences
which are 'presumed to attend the compelled condemnation of one spouse by
another in a criminal proceeding.'" State v. Mauti, 208 N.J. 519, 534 (2012)
(quoting State v. Baluch, 341 N.J. Super. 141, 171 (App. Div. 2001)). We
discern no abuse of the trial court's discretion by allowing testimony that Hera
and Leto spoke before they went to the gold store. See State v. Rose, 206 N.J.
141, 157 (2011).
Defendant also argues the assistant prosecutor improperly used statements
made by the then-self-represented defendant 3 during his opening as part of the
State's proofs even though defendant did not testify at trial. In his merits brief,
3
Defendant's application to proceed pro se was granted, but he ceded
representation to standby counsel to deliver the summation.
A-1867-19
6
defendant pinpoints the portion of his opening statement he argues the State used
to meet its burden of proof:
The defendant did help [Hera] for a few hours on
that day. That's true. The ID card that . . . the
photograph reflects, it does belong to the defendant.
Defendant did make a transaction with [the gold store's
owner], but the dispute is the particular items that he's
claiming that were made. The signatures are altered
signatures, and the State will concede to that. They
went back a year later after the alleged incident and
obtained receipts with signatures on it but with no ID
and no items of jewelry. That the receipt with the items
of jewelry is not signed. It's not signature.
Defendant contends the assistant prosecutor, in two portions of his
summation, "used defendant's non-evidential opening as proof against him." In
the first statement, the assistant prosecutor, said: "And don't forget that the
defendant said in his opening the defendant did make a transaction with [the
gold store's owner]. Those are his words in his opening statement." In the
second statement, the assistant prosecutor told the jury:
And remember the defendant said in his opening
the ID card that the photographs reflect does belong to
the defendant. Those are his words in the opening.
State's Exhibit 12, the actual purchase agreement, the
signed purchase agreement with the defendant's
signature at the bottom. That is direct evidence.
Reviewing the challenged remarks in the context of the summation as a whole,
State v. Carter, 91 N.J. 86, 107 (1982), the assistant prosecutor did nothing more
A-1867-19
7
than use defendant's concessions to highlight that the State's direct proofs were
uncontested.
The assistant prosecutor's first statement responded to defense counsel's
summation during which he contended defendant's signature did not appear on
the gold store's receipts, and that the State had failed to produce the jewelry that
had been smelted or any DNA fingerprint or videotape evidence that proved
defendant had sold the jewelry to the gold store owner. The assistant prosecutor
countered by referencing the purchase agreements which he said were "signed
receipts. They're right there. If you look at them both together, they're signed,
they're signed the defendant received payment. It's all there. Go through this
evidence when you are deliberating, ladies and gentlemen." Only then did the
assistant prosecutor point out defendant's concession that he made a transaction
with the gold store owner, a fact proved not only by the signed documents but
also the gold store's photograph of defendant's "ID card" that matched the card
seized from defendant when he was arrested 4 and the owner's testimony.
The assistant prosecutor's second challenged statement responded to
defense counsel's summation that there was "no evidence, no testimony that
4
The parties stipulated that the ID card was retrieved from the "personal
property . . . defendant had on his person when he was arrested[.]"
A-1867-19
8
[defendant's] fingerprints were even on the ID card." Defense counsel had also
impugned the gold store owner's credibility, rhetorically asking the jury what
was he "covering up. Is it that when the person who came in to make the sale
presented [defendant's] ID and now [the owner] has to back[-]peddle" about how
long the video surveillance from his store was preserved "so as to make the
justification for why the video doesn't exist because the video would have shown
who made the sale[.]"
A review of the assistant prosecutor's entire response shows he focused
the jury's attention on the State's direct evidence: the photographs taken by the
owner of the receipts from both transactions, defendant's ID card and both
purchase agreements. Again, he merely highlighted that defendant, in his
opening statement, did not contest that the ID card was his; that was the s ame
fact to which he had stipulated.
Defendant's opening statement was not part of the State's proofs. The
assistant prosecutor's references to parts of the opening properly commented on
what proofs presented by the State during the trial were not contested. Those
proofs, not any reference to defendant's opening, sustained the State's burden
with regard to the elements of the crime.
A-1867-19
9
Further, defendant did not object to the remarks now challenged,
"suggest[ing] that [he] did not believe the remarks were prejudicial at the time
they were made." State v. Frost, 158 N.J. 76, 84 (1999). "The failure to object
also deprive[d] the court of an opportunity to take curative action." Ibid. We
determine none of the assistant prosecutor's remarks warrant reversal because,
individually or cumulatively, they were not so egregious to substantially
prejudice defendant's right to a fair trial. State v. Timmendequas, 161 N.J. 515,
575 (1999).
We deem defendant's argument that the trial court's instruction to the jury:
"Arguments, statements, remarks, opening statements, summations, closing
statements are not evidence and must not be treated as evidence[,]" was "only
one passing reference" that was "woefully deficient and is presumed to be
reversible error," to be without sufficient merit to warrant discussion. R. 2:11-
3(e)(2). We note only that the court's instruction tracked the model charge, see
State v. Whitaker, 402 N.J. Super. 495, 513-14 (App. Div. 2008) ("When a jury
instruction follows the model jury charge, although not determinative, 'it is a
persuasive argument in favor of the charge as delivered.'" (quoting State v.
Angoy, 329 N.J. Super. 79, 84 (App. Div. 2000))), and the court also iterated
that instruction in its opening charge. Defendant posed no objection to the
A-1867-19
10
charge as given. Defendant's failure to pose an objection to the jury instructions
"constitutes strong evidence that the error belatedly raised . . . was actually of
no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999). We
discern no error, much less plain error, in the instruction. R. 2:10-2; see also
State v. R.B., 183 N.J. 308, 321-22 (2005) ("A claim of deficiency in a jury
charge to which no objection is interposed 'will not be considered unless it
qualifies as plain error . . . .'" (quoting State v. Hock, 54 N.J. 526, 538 (1969))).
Defendant challenges the trial court's imposition of a seven-year extended
term sentence as a persistent offender, N.J.S.A. 2C:44-3(a), and a three-and-
one-half-year period of parole ineligibility, N.J.S.A. 2C:43-7(b). We review an
imposition of a sentence for abuse of discretion. See State v. Johnson, 118 N.J.
10, 15 (1990).
Defendant argues the trial court specified only one predicate offense in
finding he was eligible for an extended term because the statute defines, in part,
a persistent offender as one
who has been previously convicted on at least two
separate occasions of two crimes, committed at
different times, when he was at least [eighteen] years of
age, if the latest in time of these crimes or the date of
the defendant's last release from confinement,
whichever is later, is within [ten] years of the date of
the crime for which the defendant is being sentenced.
A-1867-19
11
[N.J.S.A. 2C:44-3(a).]
Defendant correctly notes the only predicate offense mentioned by the
trial court was his federal conviction. The court should have clearly indicated
which of the other crimes from defendant's extensive criminal record satisfied
the state's requirements. Defendant, however, told the court he was not
contesting the State's motion to impose a persistent-offender extended term,
stating "[i]t is what it is"; he acknowledged the accuracy of his criminal history
as set forth in the presentence report and conceded it was "extensive ." Under
those circumstances, there is no reason to remand this matter for the trial court
to specify which of defendant's twelve prior indictable convictions, sentenced
on at least six separate sentencing dates established defendant's persistent
offender status.
Defendant also contends the trial court erred in failing to find mitigating
factors eight, N.J.S.A. 2C:44-1(b)(8) ("defendant's conduct was the result of
circumstances unlikely to recur"), and nine, N.J.S.A. 2C:44-1(b)(9) (defendant's
character and attitude "indicate that he is unlikely to commit another offense")
based on the court's comments at sentencing about defendant's "exemplary"
behavior and demonstrated intelligence during the trial. Not only were those
mitigating factors not raised by defendant, they are belied by defendant's lengthy
A-1867-19
12
criminal history, including, as the trial court recognized, a violation of
supervised release and reincarceration on defendant's most recent federal
sentence.
Finally, defendant argues a remand for resentencing is necessary for the
trial court to "make appropriate findings about the existence of and weights
assigned to the sentencing factors before it considers imposing a discretionary
extended term and a discretionary parole disqualifier." We review the trial
court's "sentencing determination[s] under a deferential standard." State v.
Lawless, 214 N.J. 594, 606 (2013). We do not "substitute [our] judgment for
the judgment of the sentencing court." Ibid. Instead, we will affirm a 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) (alteration in
original) (quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
See also State v. Miller, 237 N.J. 15, 28 (2019).
A-1867-19
13
The court largely complied with the mandate that sentencing judges are
required to set forth on the record the reasons for imposing the sentence and the
factual basis supporting each aggravating and mitigating factor considered ,
N.J.S.A. 2C:43-2(e); R. 3:21-4(g), and must also state the balancing process that
led to the sentence, State v. Martelli, 201 N.J. Super. 378, 385 (App. Div. 1985).
The court well-explained its reasons for finding aggravating factors three,
N.J.S.A. 2C:44-1(a)(3) ("[t]he risk that the defendant will commit another
offense"), six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of the defendant's prior
criminal record and the seriousness of the offenses of which he has been
convicted"), and nine, N.J.S.A. 2C:44-1(a)(9) ("[t]he need for deterring the
defendant and others from violating the law"); and for rejecting defendant's
proposed mitigating factors one, N.J.S.A. 2C:44-1(b)(1) ("[t]he defendant's
conduct neither caused nor threatened serious harm"), and six, N.J.S.A. 2C:44-
1(b)(6) ("[t]he defendant has compensated or will compensate the victim of hi s
conduct for the damage or injury that he sustained"). We, therefore follow our
Supreme Court's instruction that "an appellate court should not second -guess a
trial court's finding of sufficient facts to support an aggravating or mitigating
factor if that finding is supported by substantial evidence in the record." State
A-1867-19
14
v. O'Donnell, 117 N.J. 210, 216 (1989); see also State v. Carey, 168 N.J. 413,
426-27 (2001).
The trial court, however, may not have adhered to the Court's "standards
for imposing an extended term of imprisonment on a persistent criminal offender
under N.J.S.A. 2C:43-7 and any effect that decision has on the discretionary
power of the court to impose a period of parole ineligibility under N.J.S.A.
2C:43-7(b)." State v. Dunbar, 108 N.J. 80, 82 (1987). Once a trial court has
determined that the statutory criteria for subjecting a defendant to an extended
term have been met, the court must then decide "whether to impose an extended
sentence." Id. at 89. The court must then "weigh the aggravating and mitigating
circumstances to determine the base term of the extended sentence." Ibid. Once
that base term is determined, a sentencing court may, if "clearly convinced that
the aggravating factors substantially outweigh the mitigating factors," impose a
minimum period of parole ineligibility "not to exceed one-half of the [base]
term" imposed. Id. at 92 (first quoting N.J.S.A. 2C:43-6(b) and then quoting
N.J.S.A. 2C:43-7(b)).
We cannot determine from the record if the trial court "erred by reaching
a conclusion that could not have reasonably been made upon a weighing of the
relevant factors." Roth, 95 N.J. at 366. The trial court concluded "the
A-1867-19
15
aggravating factors[, upon which the court] put great weight on all three of
them" and the aggravating factors "do substantially outweigh the non-existent
mitigating factors"; but the court did not state it was clearly convinced of that
weighing process.
Moreover, the court did not parse the convictions upon which it based
aggravating factor six. It would have been improper for the court to consider a
prior conviction both as a predicate offense for imposing a persistent offender
extended term, N.J.S.A. 2C:44-3(a), and as a basis for finding an aggravating
factor under N.J.S.A. 2C:44-1(a). See State v. Vasquez, 374 N.J. Super. 252,
267 (App. Div. 2005) (concluding that it was impermissible double-counting for
the court to raise the presumptive extended base term of defendant's sentence on
account of defendant's prior conviction, which was the conviction requiring a
mandatory extended term sentence). It is not clear from the record if the court
double-counted the crimes used to find defendant was a persistent offender in
determining the length of defendant's sentence or period of parole ineligibility.
We are therefore constrained to remand for resentencing at which the court must
address those issues.
Defendant's conviction is affirmed; remanded for resentencing. We do
not retain jurisdiction.
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