STATE OF NEW JERSEY VS. DEMETRIUS CORVIL (13-05-0480, UNION COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-4078-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DEMETRIUS CORVIL, a/k/a
DEMETRUIS CORVIL,
Defendant-Appellant.
_____________________________
Submitted November 29, 2018 – Decided August 1, 2019
Before Judges O'Connor, Whipple and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Indictment No. 13-05-0480.
Joseph E. Krakora, Public Defender, attorney for
appellant (Susan Brody, Deputy Public Defender, of
counsel and on the brief).
Michael A. Monahan, Acting Union County
Prosecutor, attorney for respondent (Milton Samuel
Leibowitz, Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial, defendant Demetrius Corvil was found guilty of
one count of first-degree robbery, N.J.S.A. 2C:15-1; two counts of second-
degree kidnapping, N.J.S.A. 2C:13-1(a); two counts of second-degree
kidnapping, N.J.S.A. 2C:13-1(b); one count of second-degree aggravated
assault, N.J.S.A. 2C:12-1(b)(1); one count of second-degree burglary, N.J.S.A.
2C:18-2; five counts of third-degree criminal restraint, N.J.S.A. 2C:13-2(a); two
counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(b); seven counts of
fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4); and one count of
fourth-degree unlawful possession of an imitation firearm, N.J.S.A. 2C:39-4(e).
After the appropriate mergers, defendant was sentenced in the aggregate to a
discretionary extended term of imprisonment of twenty-three years, subject to
an eighty-five percent period of parole ineligibility pursuant to the No Early
Release Act, N.J.S.A. 2C:43-7.2.
Defendant appeals from his conviction and sentence. In his counsel's
brief, defendant raises the following points for our consideration:
POINT I: THE COURT ERRED IN REFUSING TO
BAR RETRIAL BASED ON PRINCIPLES OF
DOUBLE JEOPARDY.
POINT II: BECAUSE THE COURT'S JURY
INSTRUCTION ON ROBBERY PROVIDED
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CONFLICTING DEFINITIONS OF THE TERM
"DEADLY WEAPON," THAT CONVICTION MUST
BE AMENDED TO ONE OF SECOND-DEGREE
ROBBERY. (Not raised below).
POINT III: THE 23-YEAR TERM IMPOSED ON
THE ROBBERY CHARGE SUBJECT TO THE NO
EARLY RELEASE ACT WAS MANIFESTLY
EXCESSIVE.
Additionally, defendant advances the following points in a pro se
supplemental brief:
POINT I: THE IN-COURT AND OUT-OF-COURT
IDENTIFICATION OF DEFENDANT BY OFFICER
SILVA SHOULD HAVE BEEN EXCLUDED
BECAUSE THE SINGLE-PHOTO
IDENTIFICATION WAS SO IMPERMISSIBLY
SUGGESTIVE THAT IT GAVE RISE TO A
SUBSTANTIAL LIKELIHOOD OF IRREPARABLE
MISIDENTIFICATION; TRIAL COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE BY
FAILING TO SEEK A WADE HEARING; AND THE
TRIAL COURT ERRED BY FAILING TO INCLUDE
OFFICER SILVA'S IDENTIFICATIONS IN ITS
INSTRUCTION TO THE JURY ON HOW TO
ASSESS IDENTIFICATION TESTIMONY. (Not
raised below).
a. The In-Court Identification of Defendant by
Officer Silva Should Have Been Excluded.
b. Trial Counsel Provided Ineffective
Assistance by Failing to Seek a Wade Hearing.
c. The Trial Court Committed Reversible Error
by Failing to Instruct the Jury to Carefully
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Scrutinize Officer Silva's In-Court and Out-Of-
Court Identifications.
POINT II: THE DEFENDANT'S RIGHT TO A FAIR
TRIAL WAS VIOLATED BY THE PROSECUTOR'S
REFERENCE TO HIM BEING A PRISONER
DURING QUESTIONING OF A STATE WITNESS
AND BY THE TRIAL COURT'S FAILURE TO
INSTRUCT THE JURY THAT NO ADVERSE
INFERENCE SHOULD BE DRAWN FROM THE
FACT OF DEFENDANT'S INCARCERATION. (Not
raised below).
a. The Prosecutor's Reference to Defendant
Being a Prisoner.
b. The Trial Court's Failure to Provide a
Cautionary Instruction.
POINT III: THE DEFENDANT WAS DENIED DUE
PROCESS OF LAW AND A FAIR TRIAL BY THE
INTRODUCTION OF EXPERT TESTIMONY THAT
DID NOT MEET THE SUPREME COURT'S
CRITERIA FOR RELIABILITY. (Not raised below).
POINT IV: THE STATE'S FAILURE TO PRESERVE
EXCULPATORY EVIDENCE OF THE GLOVES
TURNED OVER TO POLICE BY ONE OF THE
VICTIMS, AS WELL AS SURVEILLANCE
FOOTAGE AT BOB'S PHARMACY DEPICTING
TWO INDIVIDUALS MATCHING THE SUSPECTS'
DESCRIPTIONS FLEEING FROM THE SCENE OF
THE CRIME, VIOLATES DUE PROCESS AND
REQUIRES DISMISSAL OF THE INDICTMENT
WITH PREJUDICE, AND THE TRIAL COURT'S
FAILURE TO PROVIDE THE JURY WITH AN
ADVERSE INFERENCE SPOLIATION CHARGE
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VIOLATED THE DEFENDANT'S RIGHT TO A
FAIR TRIAL. (Not raised below).
a. The State's Failure to Preserve Exculpatory
Evidence Requires Dismissal of the Indictment
with Prejudice.
b. The Trial Court's Failure to Provide The Jury
with an Adverse Inference Spoliation Charge
Violated the Defendant's Right to a Fair Trial.
POINT V: THE DEFENDANT'S RIGHTS TO DUE
PROCESS OF LAW AS GUARANTEED BY THE
FOURTEENTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND ARTICLE I,
PARAGRAPH 1 OF THE NEW JERSEY
CONSTITUTION WAS VIOLATED BY THE TRIAL
COURT'S FAILURE TO RECORD SIDEBAR
CONFERENCES.
POINT VI: EVIDENCE OF A SLEEPING JUROR
VIOLATED DEFENDANT'S FEDERAL AND
STATE CONSTITUTIONAL RIGHTS TO DUE
PROCESS AND AN "IMPARTIAL AND
MENTALLY COMPETENT" TRIBUNAL AND THE
TRIAL COURT'S FAILURE TO VOIR DIRE THE
ALLEGEDLY SLEEPING JUROR AMOUNTED TO
AN ABUSE OF DISCRETION. (Not raised below).
POINT VII: THE DEFENDANT'S RIGHT TO DUE
PROCESS AND TO CONFRONT THE WITNESSES
AGAINST HIM WAS VIOLATED BY THE STATE'S
ABUSE OF THE RULE ALLOWING WRITINGS TO
REFRESH A WITNESS' MEMORY.
Having reviewed the briefs, record and applicable legal principles, we
affirm the conviction and sentence in all respects.
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I
The salient evidence adduced at trial was as follows. On October 31,
2011, J.R. and his girlfriend, S.R., had a number of J.R.'s family members in
their home in Elizabeth for the weekend in order to celebrate his birthday. 1 At
approximately 9:00 a.m., a man later identified as defendant knocked on the
door, holding a gift bag and a balloon. When one of the guests opened the door,
defendant punched the guest in the head, causing the guest to fall. Before
defendant struck him, the guest saw defendant's face.
Defendant then donned a ski mask, pointed a gun at the guest, and entered
the house with another man, who was wearing a mask on which was the image
of a skull or skeleton. 2 This man, suspected of being Jesus Velasquez, was
charged with various offenses along with defendant, but Velasquez was
ultimately acquitted of all charges. For purposes of this opinion, we refer to the
man who entered the house with defendant as the "second intruder."
The men pointed a gun at the guests on the first floor and ordered them to
lie face down. The second intruder went upstairs into J.R. and S.R.'s bedroom,
where they were still sleeping, pointed a gun at them, told them they were being
1
We use initials to protect the privacy of the victims.
2
This gun was later recovered and determined to be a starter pistol.
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robbed, and ordered them to go downstairs. They complied and, when they got
to the first floor, lay on the floor face down with the other guests.
The men asked J.R. where he kept his money, and he replied it was in a
safe upstairs. Defendant ordered J.R. to go back upstairs, while the second
intruder remained behind. After defendant and J.R. went upstairs, J.R. hesitated
before he opened the safe. Defendant beat J.R. with a gun on the back of his
skull until he opened the safe. J.R. handed the money in the safe, which
contained approximately $74,000 in cash, to defendant. J.R. was brought back
downstairs and questioned about whether there was any other money in the
house. While questioned, J.R. was struck about the head with a gun, and one of
the men put a gun to the back of S.R.'s head. J.R. told the intruders there was
not any other money in the house.
Meanwhile, a guest in the house, who had escaped the intruders' detection,
climbed out of a bathroom window, ran to a local store, and told the owner to
call the police. As a result of that call, police officers Matthew Williams and
Ina Silva of the Elizabeth Police Department responded to the scene. Williams
entered the home and searched the house for suspects, while Silva went to the
rear of the house. She saw a heavyset black male wearing black clothes run out
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of the back door. Silva chased him, but was unable to keep up and headed back
toward the house.
While returning to the house, Silva saw the other suspect, subsequently
determined to be defendant, in an alley near the house. She and Williams
pursued him and two other police officers, Meagher and Streep, managed to
apprehend him at the rear of a pharmacy and place him under arrest.
Following defendant's arrest, near J.R.'s house the police recovered a
starter pistol from a garbage can and a ski mask in a back yard. A mask with a
skull on it was found in another yard in the neighborhood. DNA obtained from
the ski mask matched that provided by defendant through a buccal swab.
Defendant and Velasquez were tried together. After the trial commenced,
co-defendant's counsel advised the court she intended to call assistant prosecutor
Colleen Ruppert to testify about the contents of a memorandum she had drafted
in 2012, when she had last worked on the case, because the contents of that
memorandum suggested other parties may have been the perpetrators. The court
permitted co-defendant to call Ruppert as a witness.
A copy of the memorandum was not provided in the record, but colloquy
between court and counsel revealed the memorandum referenced that either J.R.
or S.R. told the State that two of their neighbors had told them that they had seen
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two men and a woman outside of J.R.'s house during the early morning hours of
October 31, 2011.
During a sidebar conference while Ruppert was on the witness stand,
defendants indicated they had not been made aware of the fact that the neighbors
also reported the two men and the woman were in a car when outside of the
victims' home. The record is unclear, but the comments of counsel indicate there
was a document other than Ruppert's memorandum that contained the
information about the two men and the woman being in a car. Co-defendant's
counsel admitted the State had revealed to defendants that J.R. and S.R. had
advised the State their neighbors noticed two men and a woman around the
victim's house in the early morning hours of the day of the robbery. However,
counsel represented to the court that the "idea that there was a car with three
occupants in it" was not.
The prosecutor clarified it was actually S.R., not J.R., who had provided
the information about the neighbors, and that the State had only learned about
the fact the two men and one women may have been in a car just before the trial
began. The prosecutor argued both defendants had previously known about the
two males and a female and, in the prosecutor's opinion, "[w]hether or not [the
men and the woman] were on foot or in a car, it's immaterial." The prosecutor
A-4078-15T4
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further commented the State was unable to find out who the neighbors were and,
thus, could not confirm the existence of a car. Finally, he noted there was
nothing that precluded either defendant from speaking to S.R. about what she
learned from the neighbors.
Defendant requested and the court granted a mistrial, because the
information the State learned just before trial from S.R., specifically, that the
neighbors may have seen the two men and a woman in a car, could have altered
defendant's trial strategy. Specifically, the court noted that if defendant had
been provided such information by the State, he may have asserted a third party
or parties committed the subject crimes.
Just before jury selection on the retrial, defendant unsuccessfully moved
to dismiss the indictment on double-jeopardy grounds, pursuant to N.J.S.A.
2C:1-9. The retrial proceeded to conclusion. As previously stated, the jury
convicted defendant of, among other things, first-degree robbery, and he was
sentenced in the aggregate to a twenty-three year term of imprisonment. The
co-defendant was acquitted of all charges.
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II
A
On appeal, defendant contends the trial court erred when it denied his
motion to dismiss the indictment on double-jeopardy grounds.
The law governing the dismissal of an indictment when a mistrial has been
granted at a defendant's request is grounded in principles of double jeopardy
embodied in the Fifth Amendment of the Federal Constitution and Paragraph 11,
Article I, of the New Jersey Constitution. State v. Torres, 328 N.J. Super. 77,
85-92 (App. Div. 2000). A defendant has two options when prosecutorial error
has occurred. Oregon v. Kennedy, 456 U.S. 667, 676-77 (1982).
The first option is to proceed to verdict, appeal and, if successful, face
retrial. The second option is to request a mistrial and take advantage of some of
the benefits provided under the "Double Jeopardy Clause the freedom from
extended anxiety, and the necessity to confront the government's case only once
— [that] would be to a large extent lost in the process of trial to verdict, reversal
on appeal, and subsequent retrial." Ibid. But when a defendant obtains a
mistrial, retrial is not barred unless "the governmental conduct in question is
intended to 'goad' the defendant into moving for a mistrial." Id. at 676.
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Our courts apply the Oregon v. Kennedy standard under the federal and
State constitutions. Torres, 328 N.J. Super. at 92; State v. Cooper, 307 N.J.
Super. 196, 202-03 (App. Div. 1997). Under Oregon v. Kennedy's test, direct
evidence of the government's intent to goad is not required. It may be inferred
from the "objective facts and circumstances" of the case. Kennedy, 456 U.S. at
675.
In Torres, we identified objective factors to be considered in "determining
whether or not a prosecutor's misconduct was intended to provoke a mistrial."
Torres, 328 N.J. Super. at 88. These factors are: "(1) whether there was a
sequence of overreaching or error prior to the error resulting in the mistrial, (2)
whether the prosecutor resisted the motion for a mistrial, (3) whether the
prosecutor testified, and the court below found, that there was no intent to cause
a mistrial, and (4) the timing of the error." Ibid. (citing Kennedy, 456 U.S. at
680 (Powell, J., concurring)). Not all of the factors are necessarily implicated
or probative in each case. The necessary inquiry is whether the objective facts
and circumstances of the case tend to support or negate an inference the State
provoked a defendant's request for mistrial.
Here, defendant maintains the prosecutor knew he possessed potentially
exculpatory information, specifically, that neighbors informed S.R. that the two
A-4078-15T4
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men and the woman observed to be outside of J.R. and S.R.'s residence just
before the robbery were in a car, not on foot, and that the State withheld such
information so defendant would request a mistrial. However, defendant
concedes such conduct may not rise to the level of deliberately goading a
mistrial.
The trial court found the assistant prosecutor did not intend to provoke
defendant into requesting a mistrial. The court stated:
In the present matter, the State failed to turn over
some evidence which this [c]ourt finds was a good
faith error. . . .
....
[T]he State's attorney said, well, we were looking at
information and had some information about a car
which we weren't able to verify and the neighbors that
may have given that information are in the wind.
They're no longer able to be found so to us it was
essentially speculative and not material because there
wasn't anything that we could determine. [However,]
. . . [defendants] knew in discovery that [the]
neighbors had existed . . . .
Defense then brought to question saying, wait a
minute, we don't see anything . . . in [Ruppert's] memo
about a car . . . and that's what preempted the mistrial
being filed by [defendant] to look into this matter and
indicating to the court at the time that . . . [defendant]
may have opened differently. [Defendant] didn't
necessarily open to a third party defense but this
information about a car may [have] present[ed] it. So
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in order to give the defendant all the benefit of the
doubt, the court granted the [mistrial] motion at the
time.
However, in granting the motion, the [c]ourt
understood that [the] defense should have the time to
explore these further developments and maybe
develop that third party defense. . . . And it came out
that after the mistrial, in interviewing certain people
and trying to connect who knew who, that those
ultimate neighbors, which no longer live at the
address, were able to be contacted and identified and
questioned.
So, it didn't appear that it was, per se, exculpatory
information. The State had turned over everything it
believed in good faith it was required to turn over. . . .
I didn't see anything demonstrated by [the prosecutor]
throughout this trial that would have called his ethical
obligations into question.
....
[T]he prosecutor . . . in this case did, in this court's
opinion, sufficiently explain that he did overlook
information. He believed it was unimportant. He
wasn't trying to slip anything by anybody or do
anything that would have been, you know, behind
anybody's back. The act itself was a mistake, was an
error, was inadvertence, it was negligence. It wasn't
part of a strategy that he had. It wasn't, in any way,
intended to goad the defendants into requesting any
type of mistrial.
Once the trial court found the prosecutor did not intend to provoke a
mistrial request, the court was required to deny the motion to dismiss the
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indictment. Even "[p]rosecutorial conduct that might be viewed as harassment
or overreaching, even if sufficient to justify a mistrial on defendant's motion,
. . . does not bar retrial absent" intent to deprive the defendant of his right to
decide whether the charges will be adjudicated in one proceeding. Kennedy,
456 U.S. at 675-76.
Here, the consideration of the four factors a court is to use when
evaluating whether a prosecutor's conduct was intended to goad a defendant into
seeking a mistrial supports the trial court's conclusion. As for the first factor,
there is no evidence of a sequence of overreaching or error prior to the error
resulting in the mistrial. Defendant does not even allege the State withheld any
discovery other than that the two men and the woman may have been in a
vehicle. As for the second factor, the State vigorously resisted defendant's
motion for a mistrial.
Regarding the third factor, the assistant prosecutor did not testify, but
there are sound reasons in the record to conclude the failure to turn over the
subject evidence was inadvertent. Further, we note the State had turned over all
evidence except for evidence the two men and the woman may have been sitting
in a car. Defendant knew that J.R. or S.R. had advised the State their neighbors
saw the two men and the woman near the victims' home just before the crimes
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occurred. Defendant could have but did not question J.R. or S.R. and follow-up
with the neighbors to obtain additional details.
As for the fourth factor, defendant sought a mistrial just after the State
had rested and defendant elected not to testify. The evidence against defendant
was very strong, if not overwhelming, in light of the fact the DNA found in the
ski mask discovered close to the victims' home very soon after the incident
matched defendant's.
Weighing these factors, we agree with the trial court that the prosecutor
did not intend to provoke or goad defendant into requesting a mistrial.
Therefore, the retrial was not barred.
B
Defendant next attacks the quality of the jury charge. His principal
contention is the jury instruction on robbery was defective because the court
provided conflicting definitions of the term "deadly weapon." Defendant did
not raise this issue before the trial court. He argues the only remedy is to amend
the conviction for robbery from a first-degree to a second-degree offense.
The court's instruction on the meaning of "deadly weapon" was:
A "deadly weapon" is any firearm or other weapon,
device, instrument, material or substance, whether
animate or inanimate, which in the manner it is used,
or intended to be used, is known to be capable of
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producing death or serious bodily injury, or which in
the manner it is fashioned would lead the victim
reasonably to believe that it's capable of producing
death or serious bodily injury.
[(Emphasis added).]
Defendant acknowledges the above definition of "deadly weapon" is
correct, because it properly explains that an imitation firearm may be a deadly
weapon. However, thereafter, the court explained the difference between first -
and second-degree robbery and then instructed:
In this case, the State must prove beyond a reasonable
doubt that the defendants were armed with, used or
threatened immediate use of a deadly weapon while in
the course of committing the robbery. "Armed with a
deadly weapon" means that the defendant possessed
and had immediate access to a deadly weapon. A
"deadly weapon" is any firearm or other weapon,
device, material or substance, whether animate or
inanimate, which in the manner which it is used, or
intended to be used, is known to be capable of
producing death or serious bodily injury.
[(Emphasis added.)].
Defendant notes that in the above portion of the charge, the court did not
include in its definition of "deadly weapon" reference to an object "which in the
manner it is fashioned would lead the victim reasonably to believe that it's
capable of producing death or serious bodily injury." Defendant does concede
that, thereafter, when the court used the term "deadly weapon," the court added
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the language "or imitation thereof." For example, in one portion of the charge
the court instructed:
If you find the State has proven beyond a reasonable
doubt that the defendant Demetrius Corvil and/or
defendant Jesus Velasquez committed the crime of
robbery and was armed with a deadly weapon, or used
or threatened immediate use of a deadly weapon or
imitation thereof at the time of the commission of the
robbery, then you must find defendant Demetrius
Corvil and/or defendant Jesus Velasquez guilty of
robbery in the first degree.
[(Emphasis added).]
However, defendant argues the above instruction and wherever else the court
made reference to a "deadly weapon or imitation thereof" was nevertheless
defective because the court did not define the term "imitation."
When a defendant fails to object to a jury charge, we review for plain
error, and "disregard any alleged error 'unless it is of such a nature as to have
been clearly capable of producing an unjust result.'" State v. Funderburg, 225
N.J. 66, 79 (2016) (quoting R. 2:10-2). In addition, "[t]he error must be
considered in light of the entire charge and must be evaluated in light 'of the
overall strength of the State's case.'" State v. Walker, 203 N.J. 73, 90 (2010)
(quoting State v. Chapland, 187 N.J. 275, 289 (2006)). "Without an objection
at the time a jury instruction is given, 'there is a presumption that the charge was
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not error and was unlikely to prejudice the defendant's case.'" State v. Montalvo,
229 N.J. 300, 320 (2017) (quoting State v. Singleton, 211 N.J. 157, 182 (2012)).
Here, the court defined the term deadly weapon, instructing such a weapon
includes any device or instrument "which in the manner it is fashioned would
lead the victim reasonably to believe that it is capable of producing death or
serious bodily injury." The court omitted the latter language in one section of
the charge in which the court referenced the meaning of deadly weapon.
However, after that one omission, the court's repeated use of the term "deadly
weapon or imitation firearm" served to inform the jury the court's initial
definition of deadly weapon, which essentially includes objects that appear to
be firearms, was the definition to which it was to adhere. In our view,
considering it as a whole, the charge was not clearly capable of producing an
unjust result.
C
Defendant claims trial counsel was ineffective for failing to request a
Wade3 hearing. In addition, for the first time on appeal, defendant contends
Officer Silva's out-of-court and in-court identifications of him should have been
3
United States v. Wade, 388 U.S. 218 (1967).
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excluded, and that the trial court erred when it failed to instruct the jury on "how
to assess identification testimony." We reject these contentions.
Generally, ineffective assistance of counsel claims are not considered on
direct appeal because they "involve allegations and evidence that lie outside the
trial record." State v. Preciose, 129 N.J. 451, 460 (1992). However, a reviewing
court may consider such a claim on direct appeal "when the trial itself provides
an adequately developed record . . . ." State v. Castagna, 187 N.J. 293, 313
(2006) (citing State v. Allah, 170 N.J. 269, 285 (2002)). Here, the record is
sufficiently developed. We readily dispense with and reject defendant's claim
trial counsel was ineffective because he failed to request a Wade hearing.
Specifically, Silva did not make an out-of-court identification of defendant.
Thus, there would not have been any reason for trial counsel to seek a Wade
hearing.
During the course of her testimony, Silva identified defendant as the
person arrested by the police. Defendant fails to provide a reason that supports
his premise Silva's in-court identification was the product of any error or
misconduct on the part of the police. Even if her in-court identification were,
her testimony was immaterial. First, the fact Silva testified she saw defendant
being arrested is not probative of the fact he committed a crime.
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Second, defendant does not challenge Officer Williams and Meagher's
testimony that they apprehended and arrested defendant. Third, the evidence
against defendant was very strong. Defendant's DNA matched that found in the
ski mask recovered near the scene of the incident, and the ski mask fit the
description of one of the masks worn by one of the intruders.
Defendant's contention the court failed to properly instruct the jury on
how to "assess identification testimony" is without sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
D
Defendant claims his right to a fair trial was violated because of references
to him as a prisoner during the trial and the court's failure to provide a curative
instruction. Specifically, during his direct examination, the State asked Officer
Williams what occurred after defendant's arrest. Williams responded, "Usually
[they] process the prisoner or process clothing that might have to be tagged. "
When the State asked him if S-204 was a shirt worn by "prisoner Corvil,"
Williams responded in the affirmative.
Defendant did not object to Williams's testimony or request a curative
instruction. The State concedes both its and Williams's reference to defendant
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as a prisoner was inappropriate, but maintains the State's actions constituted
harmless error. We agree.
Although characterizing defendant as a prisoner was improper, these two
references in this lengthy trial were fleeting and, in context, not prejudicial to
defendant. It was obvious defendant was labeled as such because he had just
been arrested and was being detained for the subject offenses, not because he
was serving a sentence for a prior crime. The errors were harmless and do not,
as defendant contends, require a reversal of his convictions.
E
Defendant maintains his sentence of imprisonment for twenty-three years
in the aggregate is excessive. Specifically, defendant was sentenced to the
following terms of imprisonment: twenty-three years for first-degree robbery,
N.J.S.A. 2C:15-1; eight years for second-degree kidnapping, N.J.S.A. 2C:13-
1(a); five years for second-degree kidnapping, N.J.S.A. 2C:13-1(b); eight years
for second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); nine years for
second-degree burglary, N.J.S.A. 2C:18-2; five years for third-degree criminal
restraint, N.J.S.A. 2C:13-2(a); ten years for third-degree terroristic threats,
N.J.S.A. 2C:12-3(b); eighteen months for fourth-degree aggravated assault,
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N.J.S.A. 2C:12-1(b)(4); and eighteen months for fourth-degree unlawful
possession of an imitation firearm, N.J.S.A. 2C:39-4(e).
Defendant was found to be discretionary extended term eligible on the
robbery charge as a persistent offender, pursuant to N.J.S.A. 2C:44-3. At the
sentencing hearing, the State requested an aggregate sentence of sixty-five
years; defendant contended a sentence in the range of twenty to twenty-five
years was appropriate. On appeal, defendant does not claim the court abused its
discretion in imposing the extended term; his argument is the term of years
imposed was excessive.
At sentencing, the court noted defendant was thirty-four years of age when
he committed the subject offenses, had previous convictions that resulted in five
separate prison terms, and had violated parole four times. The court found
aggravating factors three, six, and nine applied, see N.J.S.A. 2C:44-1(a), that
there were no mitigating factors, see N.J.S.A. 2C:44-1(b), and that the
aggravating factors outweighed the nonexistent mitigating factors.
We have examined the record in light of defendant's argument. Defendant
received an extended sentence, to which he does not object, and the court
ordered that all of his sentences run concurrently to the sentence imposed for
first-degree robbery. The aggregate sentence imposed is just three years above
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the maximum that may be ordered for a first-degree offense, and it is not
disputed the court did not err by imposing an extended term. In our view, the
sentence was not manifestly excessive and does not shock our judicial
conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010) (citing State v. Roth,
95 N.J. 334, 364-65 (1984)).
F
We have considered defendant's remaining arguments, and conclude they
are without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(2).
Affirmed.
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