STATE OF NEW JERSEY VS. SHARROD L. STUART (17-08-1003, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE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-1973-18
STATE OF NEW JERSEY
Plaintiff-Respondent,
v.
SHARROD L. STUART,
Defendant-Appellant.
________________________
Submitted on December 16, 2020 - Decided February 19, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. 17-08-1003
Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel V. Gautieri, Assistant Deputy Public
Defender, of counsel and on the brief).
Mark Musella, Bergen County Prosecutor, attorney for
respondent (Edward F. Ray, Assistant Prosecutor, of
counsel and on the brief).
PER CURIAM
Following a bench trial, defendant was found guilty of third-degree arson
and third-degree aggravated assault and was sentenced to an aggregate eight-
year discretionary extended prison term, with a four-year period of parole
ineligibility. Before us, he argues:
POINT I
THE COURT ERRED IN DENYING
[DEFENDANT'S] MOTION TO DISMISS THE
INDICTMENT BECAUSE THE PROSECUTOR
MISCHARACTERIZED CRITICAL EVIDENCE,
OMITTING EXCULPATORY EVIDENCE
CONTAINED IN THE COMPAINANT'S
STATEMENTS TO THE POLICE AND CASTING
DOUBT UPON HER CREDIBILITY AT A PRE-
TRIAL HEARING BY MISSTATING HER
TESTIMONY.
POINT II
BECAUSE THE JUDGE CONCLUDED THAT
[DEFENDANT] HAD NOT KNOWINGLY PLACED
THE VICTIM IN DANGER OF INJURY OR DEATH,
HE ERRED IN IMPOSING AN EXTENDED-TERM
SENTENCE AND A PERIOD OF PAROLE
INELIGIBILITY ON THE ARSON CONVICTION.
For the reasons that follow, we affirm.
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I
These facts are taken from the record. On May 22, 2017, T.P.1 gave a
statement to Detective Rager2 of the Elmwood Park Police Department regarding
an incident that day at her two-floor garden apartment in the Borough of
Elmwood Park. She reported that she and defendant, her boyfriend, got into a
heated argument and she asked him to leave. She then left to go grocery
shopping. When she returned, defendant was still there. After she took a
shower, defendant started yelling at her, and kicked a garbage can. T.P. went
into her bedroom, and defendant walked towards her "real fast," forced her on
the bed, and put his hands around her neck but did not choke her, and stated, "I
love you, but I just want you to feel the anger that I feel . . . . I want you to feel
the hurt that I feel." Defendant then left the room.
Defendant subsequently told T.P. he was going to his aunt's house. After
he left the apartment, he placed bags 3 containing his belongings by the front
door. Once defendant got outside, T.P. locked the door behind him, and he
kicked her door. To get him to stop kicking the door, she opened the door and
1
We refer to the victim by her initials. Rule 1:38-3(c)(12).
2
The record does not indicate the detective's first name.
3
Backpacks and duffle bags.
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told him, "look what you did to my door." She then closed and locked the door
and went upstairs.
T.P. told Detective Rager that when she went upstairs, she heard her
window shatter and she called the police. She then heard her neighbor yelling,
and when she went to talk to her, she saw defendant's belongings on fire
blocking the front door. T.P. called the police again to report that defendant lit
a fire at her apartment's front door, and he was getting away.
Six days later at defendant's May 30 pretrial detention hearing, T.P.
recanted portions of her statement to Detective Rager. She testified that
defendant did not apply pressure to her neck; he only had her hands around her
neck because he fell on top of her in self-defense She also testified that she was
shouting at defendant, and he "was [not] really yelling" but there was "shouting
back and forth." When asked why she changed her testimony, she stated,
"[b]ecause I, basically, lied. I, basically, lied and I felt horrible. I felt bad about
it. I lied." She also mentioned that she attempted to amend her statement before
the hearing, but no one was available to speak with her, so she emailed the
Prosecutor's Office stating her desire to change her statement. Defendant was
detained pending his trial.
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At the August 3 grand jury hearing, the State only presented one witness,
Bergen County Prosecutor's Office Detective Michael Guzman, who testified
regarding T.P.'s accusations. He acknowledged to the presenting prosecutor that
at the pretrial detention hearing T.P. "largely recanted most of what she said" to
him during his investigation following her calls to the police. When one of the
grand jurors asked the prosecutor why T.P. recanted her testimony, he
responded:
. . . I cannot and nor should you speculate on facts that
are not necessarily before you.
I've provided you with both versions of the
testimony. . . .
As the grand jury it's your duty to determine
based on that evidence whether or not there's probable
cause, meaning whether it's more likely than not that
[defendant] has committed the crimes of aggravated
arson, arson, and aggravated assault . . . on the domestic
violence victim.
Defendant was indicted for second-degree aggravated arson, N.J.S.A. 2C:17-
1(a)(1), third-degree arson, N.J.S.A. 2C:17-1(b), and third-degree aggravated
assault on a domestic-violence victim, N.J.S.A. 2C:12-1(b)(12).
On May 14, 2018, the trial judge denied defendant's motion to dismiss his
indictment. The judge rejected defendant's argument that the State failed to
establish the proofs necessary to sustain the elements of aggravated arson, and
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that there was prosecutorial misconduct by failing to present exculpatory
evidence that T.P. recanted her allegation of assault and that the gasoline can
was found in T.P.'s possession.
During the four-day bench trial in October 2018, defendant represented
himself with the assistance of standby counsel. At the trial's conclusion, the
judge determined the State's witnesses were credible, including T.P., "although
she attempted to minimize defendant's action." The judge acquitted defendant
of second-degree aggravated arson and found him guilty of third-degree arson
and third-degree aggravated assault.
II
We first address defendant's contention that the trial judge erred in
denying his motion to dismiss the indictment based upon prosecutorial
misconduct, which denied him fundamental fairness and due process, and
infringed upon his State constitutional right to an impartial grand jury. Because
the judge, acting as factfinder, and found defendant guilty, any alleged
procedural deficiencies in the grand jury hearing were rendered harmless. See
U.S. v. Mechanik, 475 U.S. 66, 70 (1986); State v. Simon, 421 N.J. Super. 547,
551 (App. Div. 2011) ("[A] guilty verdict is universally considered to render
error in the grand jury process harmless."); State v. Cook, 330 N.J. Super 395,
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411 (App. Div. 2000) (holding prosecutor's failure to present exculpatory
evidence to the grand jury was rendered harmless by guilty verdict).
In examining the record, we detect, as did the judge, no prosecutorial
misconduct before the grand jury. The judge stated:
I don't find that [the Assistant Prosecutor] or the State's
conduct in any way interfered with the grand jury's
decision making capabilities in providing his comments
to the grand jury or providing whatever information
was provided. I, also, don't find that any evidence
which the defense alleges was not provided to the grand
jury would be clearly exculpatory, either on the arson
grounds or on the aggravated assault issue.
The record indicates that the grand jury was given an accurate account of
T.P.'s police statement and pre-trial detention hearing testimony. There was no
indication the State argued that T.P.'s recantation testimony was not credible.
The State did not fail to present any exculpatory evidence. See State v. Hogan,
144 N.J. 216, 236 (1996) ("[T]he State may not deceive the grand jury or present
its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'").
Defendant admitted he started the fire, and the neighbor said she saw him start
it.
The State informed the grand jury that T.P. recanted her initial statement
that defendant choked her and did not try to dissuade the jury from believing her
recantation. Considering the grand jury was provided T.P.'s statement regarding
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defendant's mere placement of his hands around her neck, the grand jury's
decision-making process regarding the element of causing significant bodily
injury and the aggravated assault charge was not tainted by the State's
characterization of the assault as a "strangulation." There was no prosecutorial
misconduct that affected the grand jurors' ability to make an informed decision
as to whether to indict. See Hogan, 144 N.J. at 229 (citing State v. Murphy, 110
N.J. 20, 35 (1988)) (noting indictment may be dismissed if misconduct infringes
on grand jury's decision-making function). Accordingly, the judge did not abuse
his discretion and there is no basis to reverse the denial of defendant's motion to
dismiss the indictment. See State v. Zembreski, 445 N.J. Super. 412, 424 (App.
Div. 2016).
III
Defendant asserts that his sentence was excessive. He contends the trial
judge failed to apply the correct legal standard in sentencing him to an extended
term by relying on State v. Dunbar, 108 N.J. 80 (1987), instead of State v. Pierce,
188 N.J. 155 (2006), which revised the Dunbar standards. He argues that in
Pierce, our Supreme Court held that under the Sixth Amendment, a defendant's
eligibility for a discretionary extended term must not be based upon anything
other than the fact of prior convictions. Pierce, 188 N.J. at 158, 167-68. Yet,
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he maintains that although Dunbar's four-factor analysis no longer applies, its
considerations are still applicable in fashioning a sentence. Defendant contends
the judge, however, misapplied Dunbar by stating that the second factor for
determining the propriety of an extended term is to consider "whether it's a
deterrent to impose an extended term." The judge should have instead
considered whether an enhanced sentence was necessary to protect the public.
Dunbar, 108 N.J. at 90. Defendant also asserts the judge double-counted
aggravating factor nine, the need to deter, by including it in the calculations
leading to an extended term and when he imposed "a sentence higher than the
midpoint of the range and in imposing a [four-year] period of parole
ineligibility." We are unpersuaded.
The trial judge granted the State's motion to impose an extended term
sentence, N.J.S.A. 2C:44-3(a), on the arson charge because defendant was a
persistent offender. The judge applied aggravating factors: one, "the nature and
circumstances of the offense"; three, "[t]he risk that the defendant will commit
another offense"; six, "[t]he extent of the defendant's prior criminal record and
the seriousness of the offenses of which he has been convicted"; and nine, "the
need for deterring the defendant and others from violating the law." N.J.S.A.
2C:44-1(a)(1), -1(a)(3), -1(a)(6), -1(a)(9). The judge applied mitigating factors:
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eight, "conduct was the result of circumstances unlikely to occur[,]" and nine,
"unlikely to commit another offense." N.J.S.A. 2C:44-1(b)(8), -1(b)(9). The
judge found the aggravating factors were determined to substantially outweigh
the mitigating factors. Accordingly, defendant was sentenced to an extended
prison term of eight years with four years of parole ineligibility.
As for the aggravated assault conviction, the judge also applied
aggravating factors one, three, six, and nine. He found that only mitigating
factor nine applied. The aggravating factors were determined to outweigh the
mitigating factors. The judge imposed a four-year prison term concurrent to the
arson conviction.
There is no merit to defendant's assertion that the trial judge failed to apply
the correct legal standard to sentence him to an extended term as a persistent
offender. Defendant is eligible for a discretionary extended term as a persistent
offender based on his eight prior convictions for: first-degree carjacking; fourth-
degree aggravated assault with a firearm; second-degree possession of a firearm
for an unlawful purpose; fourth-degree unlawful possession of a firearm;
second-degree resisting arrest/eluding motor vehicle operation-risk of
death/injury to another person; and third-degree burglary.4 See N.J.S.A. 2C:44-
4
Defendant was convicted three times for third-degree burglary.
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3(a). While the State acknowledges the judge may have misinterpreted Dunbar's
second step, the extended term comported with Pierce. The judge did not abuse
his discretion as the eight-year sentence was within the extended range and his
weighing of the sentencing factors was reasonable and supported by credible
evidence in the record. See Pierce, 188 N.J. at 169.
Furthermore, there was no impermissible double-counting of aggravating
factor nine as defendant argues. A sentencing court must avoid "double-
counting" facts that establish the elements of the relevant offense in making that
determination. State v. Fuentes, 217 N.J. 57, 74-75 (2014). Aggravating factor
nine is intended to deter the public and the defendant. Id. at 70. Defendant's
act of setting fire in front of the only ingress/egress of T.P.'s apartment was
properly considered by the judge in imposing an extended term sentence.
We also reject defendant's contention that the judge erred in imposing a
four-year parole bar because the prosecutor requested a flat sentence and a
parole bar was not mandatory for a discretionary extended term. We agree with
the State that in accordance with State v. Hess, 207 N.J. 123, 151 (2011), the
judge has the discretion to impose a sentence within our sentencing guidelines
and is not bound by the State's recommendation. There was no abuse of
discretion in the judge's determination that based upon the nature of the offense
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and defendant's criminal record, the aggravating factors substantially
outweighed the mitigating factors to warrant a period of parole ineligibility. See
Fuentes 217 N.J. at 73; Dunbar, 109 N.J. at 92-93.
Lastly, defendant argues the trial judge improperly weighed aggravating
factor one, as he found that he was not guilty of aggravated arson on the basis
that he did not purposely or knowingly place T.P. in danger of injury or death
but rather he had acted recklessly with regard to the consequences of starting a
fire. Defendant maintains aggravating factor one only applies when a
defendant's actions reveal an "extraordinary brutality," and his actions did not
rise to the level of calculated intent necessary to inflict an injury. See Fuentes,
217 N.J. 57, 75 (2014); State v. O'Donnell, 117 N.J. 210, 217-18 (1989); State
v. Carey, 168 N.J. 413, 425-26 (2001); State v. McGuire, 419 N.J. Super 88, 159
(App. Div. 2011). Defendant also contends, despite finding T.P. provoked him
by pouring gasoline on his clothing, the judge failed to weigh mitigating factor
three, "acted under a strong provocation[,]" N.J.S.A. 2C:44-1(b)(3), which
caused the judge to find that the aggravating factors outweighed the mitigating
ones. State v. Dalziel, 182 N.J. 494, 504-05 (2005) (holding that where
mitigating factors are supported by the record, they "must be part of the
deliberative process"). We are unpersuaded.
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The judge's factual findings and consideration of the sentencing factors
are based on credible evidence in the record. See State v. Bolvito, 217 N.J. 221,
228 (2014). Although T.P. poured gasoline on defendant's belongings and may
have been the initial aggressor after breaking up with defendant, it was
defendant who intentionally set the fire creating a serious threat to the safety of
T.P. and residents of the apartment complex, as well as to property damage.
Under these circumstances, defendant's extended term sentence and parole bar
do not shock the judicial conscience. See ibid.Affirmed.
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