STATE OF NEW JERSEY VS. OREADER CALLAWAY(13-08-0662, CUMBERLAND COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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-4413-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
OREADER CALLAWAY, a/k/a
JUNIOR CALLAWAY, OREADER
JOHNSON, OREADER CALLOWAY,
OREADER CALLAWAY, JR.,
Defendant-Appellant.
—————————————-—————————————————-
Submitted March 9, 2017 – Decided June 29, 2017
Before Judges Hoffman, O'Connor and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Cumberland County, Indictment
No. 13-08-0662.
Joseph E. Krakora, Public Defender, attorney
for appellant (Theresa Yvette Kyles, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Stephen
C. Sayer, Assistant Prosecutor, of counsel and
on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
On August 14, 2013, a Cumberland County grand jury returned
a nine-count indictment, charging defendant Oreader Callaway with
first-degree kidnapping, N.J.S.A. 2C:13-1(b)(1) and N.J.S.A.
2C:13-1(b)(2) (count one); first-degree robbery, N.J.S.A. 2C:15-
1(a)(1) or N.J.S.A. 2C:15-1(a)(2) (count two); three counts of
third-degree receiving stolen property, N.J.S.A. 2C:20-7(a)
(counts three, eight, and nine); fourth-degree resisting arrest,
N.J.S.A. 2C:29-2(a)(2) (count four); third-degree terroristic
threats, N.J.S.A. 2C:12-3(b) (count five); second-degree burglary,
N.J.S.A. 2C:18-2(b)(1) (counts six); and second-degree burglary,
N.J.S.A. 2C:18-2(b)(2) (count seven).
The majority of these charges stemmed from a robbery at the
home of B.G. in Stow Creek Township. On the morning of June 30,
2012, a man broke into B.G.'s home and entered her bedroom. B.G.
could not clearly see the man's face, which he had partially
covered with a light-colored handkerchief, but she noticed he wore
a light-colored shirt. Brandishing his arm in a manner that
suggested he had a weapon, the man threatened to kill B.G. if she
did not give him money and jewelry. B.G. gave the man jewelry and
led him to the basement to give him money from her purse. He then
ordered B.G. to remain in the basement while he searched the rest
of her home. After the man left, B.G. ran to her neighbor's home
for aid.
2 A-4413-14T2
B.G.'s neighbor then called the police and described a red
truck he had observed outside of B.G.'s home. Police located this
truck at a convenience store and learned from a witness that a man
had exited the vehicle and was traveling eastward. After a brief
search, police located defendant, who matched the provided
description, and took him into custody. Police discovered several
items of jewelry on defendant's person. Police also recovered a
white cloth on the ground next to the truck at the convenience
store; DNA testing later matched defendant's buccal swab sample
to this cloth.
Defendant filed a motion to suppress evidence recovered from
his person at the time of his arrest, arguing his arrest was
unlawful. After the court denied defendant's motion, a jury tried
and convicted him of second-degree kidnapping, a lesser offense
of count one, and counts two, three, five, six, and nine.
Defendant's judgment of conviction also shows a conviction on
count seven; defendant, however, contends the jury did not return
a verdict on this charge.
At sentencing, the judge merged count three into count two,
count five into count one, and count seven into count six. On
count two, he sentenced defendant to an extended term of lifetime
imprisonment, subject to the No Early Release Act (NERA), N.J.S.A.
2C:43-7.2. He sentenced defendant to terms of ten years in prison
3 A-4413-14T2
on counts one and six, and five years on count nine, all to run
concurrent to count two.
Defendant appealed, and raises the following points of
argument:
POINT I
DEFENDANT'S SUPPRESSION MOTION SHOULD HAVE
BEEN GRANTED BECAUSE HE WAS SUBJECTED TO FULL
CUSTODIAL ARREST BY AN OFFICER WHO LACKED
PROBABLE CAUSE TO BELIEVE THAT DEFENDANT HAD
BEEN INVOLVED IN A CRIME. U.S. CONST. AMEND.
IV; N.J. CONST. (1947), ART. I, ¶ 7.
POINT II
THE ADMISSION OF THE DECLARATION MADE BY THE
NON-TESTIFYING JUVENILE, [J.P.], VIOLATED
CRAWFORD V. WASHINGTON BECAUSE THE DECLARATION
WAS TESTIMONIAL, [J.P.] WAS NOT UNAVAILABLE
TO TESTIFY, AND THERE WAS NO PRIOR OPPORTUNITY
FOR THE DEFENSE TO CROSS-EXAMINE HIM. U.S.
CONST., Amends. VI, XIV; N.J. CONST. (1947),
Art. I, PARAS. 1, 9, and 10.
POINT III
THE EXTENDED TERM SENTENCE OF LIFE, SUBJECT
TO THE NO EARLY RELEASE ACT, WAS NOT IMPOSED
PURSUANT TO GOVERNING CASE LAW, WAS NOT
JUSTIFIED ON THIS RECORD, AND IS GROSSLY
EXCESSIVE.
POINT IV
THE CONVICTION ON COUNT VII MUST BE DISMISSED
AS THERE WAS NO VERDICT TAKEN REGARDING THAT
COUNT.
Defendant also filed a pro se supplemental brief, where he
raises the following arguments:
4 A-4413-14T2
POINT I
THE BUCCAL SWAB TAKEN ON FEBRUARY 11, 2013[,]
IN THE SALEM COUNTY MATTER SHOULD BE EXCLUDED
IN THE CUMBERLAND COUNTY TRIAL FOR THERE [WAS]
NO ORDER OR A MOTION FILED UNDER 404(B) TO
BRING IN THE BUCCAL SWAB TAKEN ON FEBRUARY 11,
2013[,] UNDER THE SALEM COUNTY INDICTMENT NO.
12-10-656-I.
POINT II
ALL INVESTIGATIVE REPORTS, TESTIMONIES AND
IDENTIFICATIONS INVOLVING TROOPER MCCREERY
SHOULD BE EXCLUDED FROM THE RECORD, FOR THIS
TROOPER TESTIFIED UNDER THREE DIFFERENT NAMES
ON THREE DIFFERENT HEARINGS IN RELATION TO THE
DEFENDANT.
We have reviewed the record in light of defendant's arguments
and the applicable law. For the reasons that follow, we affirm
defendant's convictions on counts one, two, three, five, six, and
nine. However, because we agree with defendant that the jury
failed to convict him of count seven in open court, we remand for
the trial court to amend defendant's judgment of conviction to
reflect a dismissal on count seven.
I.
We begin by addressing the suppression motion. New Jersey
State Police Trooper Gerald McCreery1 testified that on June 30,
1
The transcript from the suppression motion listed Trooper
McCreery as "Dean McCreery." However, his first name was listed
as "Gerald" at trial. From our review of the transcripts, we are
satisfied the motion transcript mistakenly listed the trooper's
first name.
5 A-4413-14T2
2012, he received a report of a burglary involving a red flat-body
pickup truck with gas tanks on the back. The vehicle also
displayed white lettering on its side that suggested it belonged
to a fire department.
While driving towards the crime scene, Trooper McCreery
passed a vehicle parked at a convenience store that matched the
above description, prompting him to turn around and pull into the
store parking lot. The trooper exited his patrol car and
approached the vehicle, finding it unoccupied but containing a
television and "pillow cases full of merchandise." He also felt
the hood of the vehicle, which was still warm.
A patron standing outside of the convenience store then called
the trooper over. The patron said that as the trooper passed by
in his patrol car, a black male wearing a white shirt and dark
jeans exited the truck and "hopped the fence and started heading
east in the back yards." The trooper radioed this information to
dispatch and remained by the vehicle to await the other police
units. Shortly thereafter, Bridgeton police took defendant into
custody and brought him back to the convenience store. According
to Trooper McCreery, defendant was wearing the exact clothing the
patron had described. However, the patron did not remain at the
scene and was therefore unable to identify defendant at that time.
6 A-4413-14T2
After Trooper McCreery viewed defendant, another officer
transported him to the police station.
Detective Jason Hovermann of the Bridgeton Police Department
testified that he received a report the State Police "were
attempting to locate somebody that had committed a robbery." The
report described the suspect as "a black, male subject, wearing
dark-colored jeans and a white T-shirt," jumping fences between
back yards and heading east from the convenience store. Upon
turning onto a street near the convenience store, he observed
defendant, who matched this description. Defendant was walking
but was sweating heavily as if he had been running, which the
officer found suspicious because it was early in the morning.
Detective Hovermann ordered defendant to stop and "placed him
in handcuffs to detain him, patted him down, and waited for the
State police to arrive." The detective did not know whether
defendant was armed, but he proceeded to pat down defendant to
check for weapons and discovered two hard objects in defendant's
rear pockets. He looked inside defendant's pockets and observed
the items were loose pieces of jewelry, but he did not remove the
items. Detective Hovermann also noted that another man had been
walking with defendant, but he did not search or arrest this man
because he did not meet the reported description.
7 A-4413-14T2
Following this testimony, the motion judge denied defendant's
motion to suppress, finding reasonable, articulable suspicion
existed to justify Detective Hovermann's actions in detaining
defendant. Specifically, the judge found defendant's clothing and
profuse sweating indicated he was the suspect in question. The
judge further determined that Trooper McCreery had probable cause
to arrest defendant once police brought him back to the convenience
store.
On appeal, we owe deference to the trial judge's factual
findings as long as they are supported by sufficient credible
evidence presented at the suppression hearing. State v. Gamble,
218 N.J. 412, 424-25 (2014). However, our review of the trial
court's legal interpretations is de novo. Id. at 425. Following
our review of the facts and applicable law, we find no basis to
disturb the judge's decision denying suppression.
We first note the judge appeared to suggest that Detective
Hovermann did not arrest defendant but detained him based upon
reasonable suspicion. It is well settled that police officers
"may conduct an investigatory stop if, based on the totality of
the circumstances, the officer had a reasonable and particularized
suspicion to believe that an individual had just engaged in, or
was about to engage in, criminal activity." State v. Stovall, 170
N.J. 346, 356 (2002) (citing Terry v. Ohio, 392 U.S. 1, 21, 88 S.
8 A-4413-14T2
Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968)). However, an
investigatory stop becomes a de facto arrest where it is more than
minimally intrusive. State v. Dickey, 152 N.J. 468, 478 (1998).
This inquiry turns on a number of factors, including whether police
placed the suspect in handcuffs or confined him in a police car.
Id. at 479.
Here, we find Detective Hovermann went beyond an
investigatory stop and instead conducted a de facto arrest. The
Fourth Amendment to the United States Constitution and Article I,
Paragraph Seven of the New Jersey Constitution both "require that
arrest warrants be supported by probable cause and that warrantless
arrests in public places be supported by the same." State v.
Shannon, 222 N.J. 576, 585 (2015), cert. denied, ___ U.S. ___, 136
S. Ct. 1657, 194 L. Ed. 2d 800 (2016); see also State v. Rosario,
___ N.J. ___, ___ (2017) (slip op. at 11) ("An arrest -- the most
significant type of seizure by police -- requires probable cause
and generally is supported by an arrest warrant or by demonstration
of grounds that would have justified one."). Therefore, our
inquiry turns on the existence of probable cause to arrest
defendant.
"[A] police officer has probable cause to arrest a suspect
when the officer possesses 'a well[-]grounded suspicion that a
crime has been or is being committed.'" Shannon, supra, 222 N.J.
9 A-4413-14T2
at 585 (alterations in original) (quoting State v. Basil, 202 N.J.
570, 585 (2010)). "That well-grounded suspicion should be based
on the totality of the circumstances as viewed by 'an objectively
reasonable police officer.'" Ibid. (quoting Basil, supra, 202
N.J. at 585). The facts and circumstances must show "reasonable
ground[s] for belief of guilt." State v. Marshall, 199 N.J. 602,
610 (2009) (quoting State v. O'Neal, 190 N.J. 601, 612 (2007)).
"Although several factors considered in isolation may not be
enough," when analyzed under the totality of the circumstances,
their cumulative effect can support probable cause. State v.
Moore, 181 N.J. 40, 46 (2004).
Applying this standard, we find the totality of the
circumstances provided Detective Hovermann with probable cause to
arrest defendant. Detective Hovermann received a report of a
robbery suspect described as a black male wearing a white shirt
and dark pants traveling east from the convenience store. Not
only did defendant meet this description, he was sweating
profusely, which suggested he had been running or exerting himself.
We have held that such factors can provide the necessary probable
cause to conduct an arrest. See State v. Davis, 204 N.J. Super.
181, 184 (App. Div. 1985), certif. denied, 104 N.J. 378 (1986).
Therefore, because we find Detective Hovermann enacted a
lawful arrest, his pat down of defendant and discovery of the
10 A-4413-14T2
jewelry was lawful as a search incident to arrest. See State v.
Minitee, 210 N.J. 307, 318 (2012) ("When the police place an
individual under arrest, they may search his person and the area
within his immediate grasp."). Moreover, the suppression record
shows that Detective Hovermann did not seize the jewelry in
question.
We also find the judge did not err by concluding probable
cause existed for Trooper McCreery to arrest defendant. The recent
robbery report, the patron's tip, and defendant matching the
provided description, all served to establish probable cause. As
such, we find no basis to reverse the denial of defendant's
suppression motion.
II.
We next address defendant's argument that the State violated
his Sixth Amendment right to confrontation by eliciting hearsay
testimony from Trooper McCreery regarding the description he
received from the patron at the convenience store. We find no
basis to reverse.
During trial, the judge conducted an N.J.R.E. 104 hearing to
determine whether Trooper McCreery's testimony on this issue was
admissible. The trooper stated that approximately eighty seconds
elapsed from the time he spotted the red truck at the convenience
store to the time he spoke to the patron, a juvenile named J.P.
11 A-4413-14T2
The State indicated it did not plan to call J.P. to testify at
trial. As such, defendant argued testimony about J.P.'s
description of the man who exited the truck was inadmissible
hearsay, violating defendant's right to confrontation as a
testimonial statement pursuant to Crawford v. Washington, 541 U.S.
36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004).
The judge disagreed, first ruling J.P.'s statements were
admissible under the present sense impression hearsay exception,
N.J.R.E. 803(c)(1), due to the brief time it took Trooper McCreery
to park in the convenience store and speak to J.P. The judge then
determined the testimony did not violate defendant's right to
confrontation because J.P. was not aware defendant committed a
crime, and therefore, his statement did not implicate defendant.
However, the judge barred any testimony regarding defendant's
alleged actions of jumping over the fence and fleeing from police.
The State then presented the following testimony from Trooper
McCreery:
Q Now, Trooper, I think where we left
off yesterday, you were describing arriving
at the [convenience store] in Bridgeton City
in response to having seen the vehicle
matching the description of that broadcast –
a vehicle that was part of a fire department,
correct?
A Correct.
12 A-4413-14T2
Q I believe you also testified that you
touched the hood and determined that it was
still warm?
A I looked into it and then touched the hood.
Correct.
Q And then you began to speak to a
patron?
A Correct.
Q Is it true that as a result of the
information that you learned that you
determined that you should be looking for a
person matching a certain description?
A That's correct.
Q And is it also that as a result of the
information you learned you decided you should
look for that person heading in a particular
direction?
A That's correct.
Q Okay. Could you tell the jury what
description you were provided?
A The description I was provided was a black
male, white t-shirt, dark jeans, running
eastbound.
Defendant now asserts this testimony warrants reversal.
Generally, we review the trial judge's decision on the
admissibility of evidence for an abuse of discretion. State v.
Kuropchak, 221 N.J. 368, 385 (2015). "However, when the trial
court fails to apply the proper test in analyzing the admissibility
of proffered evidence, our review is de novo." State v. Rinker,
446 N.J. Super. 347, 358 (App. Div. 2016). Defendant urges us to
13 A-4413-14T2
review the trial judge's decision de novo, arguing he did not
apply the correct standard, described by the Supreme Court in
Crawford. Defendant argues that under Crawford, the court should
have required J.P. to testify because his statement was
"testimonial."
Criminal defendants have the constitutional right to confront
the witnesses against them. U.S. Const. amend. VI; N.J. Const.
art. I, ¶ 10; State v. Branch, 182 N.J. 338, 348 (2005). "The
right of confrontation is an essential attribute of the right to
a fair trial, requiring that a defendant have a 'fair opportunity
to defend against the State['s] accusations.'" Branch, supra, 182
N.J. at 348 (quoting State v. Garron, 177 N.J. 147, 169 (2003),
cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204
(2004)). The Confrontation Clause generally prohibits the use of
an out-of-court testimonial hearsay statement unless the person
who made the statement is unavailable to testify at trial, and the
defendant had a prior opportunity for cross-examination. State
v. Cabbell, 207 N.J. 311, 329-30 (2011) (quoting Crawford, supra,
54 U.S. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197).
Testimonial statements generally include statements "given in
'circumstances objectively indicat[ing] that . . . the primary
purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.'" Id. at 329
14 A-4413-14T2
(alterations in original) (quoting Davis v. Washington, 547 U.S.
813, 822, 126 S. Ct. 2266, 2273-74, 165 L. Ed. 2d 224, 237 (2006)).
However, a line of cases in our state law jurisprudence,
beginning with State v. Bankston, 63 N.J. 263 (1973), holds that
"the hearsay rule is not violated when a police officer explains
the reason he approached a suspect or went to the scene of the
crime by stating that he did so 'upon information received.'" Id.
at 268; see also State v. Luna, 193 N.J. 202, 217 (2007)
("[W]itnesses may testify that they took certain investigative
steps based 'upon information received.'" (quoting Bankston,
supra, 63 N.J. at 268-69)). Such testimony is admissible "if
necessary to rebut a suggestion that [an officer] acted arbitrarily
and only if the use of that phrase does not create an inference
that the defendant has been implicated in a crime by some unknown
person." Branch, supra, 182 N.J. at 352.
Indeed, a testifying officer may not "repeat specific details
about a crime relayed to them by a radio transmission or another
person without running afoul of the hearsay rule." Luna, supra,
193 N.J. at 217. More importantly, "both the Confrontation Clause
and the hearsay rule are violated when, at trial, a police officer
conveys, directly or by inference, information from a non-
testifying declarant to incriminate the defendant in the crime
charged." Branch, supra, 182 N.J. at 350. "[A] police officer
15 A-4413-14T2
may not imply to the jury that he possesses superior knowledge,
outside the record, that incriminates the defendant." Id. at 351.
Here, we find Trooper McCreery's testimony appropriately
followed the rule of Bankston and its progeny, and therefore, his
testimony did not violate the hearsay rules and Confrontation
Clause. This testimony was necessary to rebut defense counsel's
opening statement, which suggested police acted arbitrarily in
arresting defendant, who was merely walking down the street with
another black male who police did not question or search. See id.
at 352.
Moreover, although the reference to a "patron"2 was better
left unsaid, we discern no implication that the trooper possessed
"superior knowledge" outside the record to incriminate defendant.
See id. at 351. The "patron" did not identify the man he observed
as defendant, nor did he imply defendant was the perpetrator of
the crime; instead, he only noted an individual wearing certain
clothing exited the truck and proceeded eastward. The prosecutor
appropriately elicited this information to show why police took
certain investigatory steps.
Because we conclude the trial judge appropriately sanitized
the subject testimony to comport with Bankston, he did not err by
2
Following the testimony in question, defense counsel elicited
further details about J.P. on cross-examination.
16 A-4413-14T2
failing to analyze whether this testimony was testimonial under
Crawford and its progeny. We discern no basis to reverse on this
issue.
III.
Defendant argues the judge erred by imposing an extended term
sentence of lifetime imprisonment, subject to NERA, for his first-
degree robbery conviction. Our review of the judge's sentencing
decision is limited and deferential. See State v. Grate, 220 N.J.
317, 337 (2015).
At sentencing, the State moved for imposition of a
discretionary extended term of lifetime imprisonment. There is
no dispute that defendant was eligible for an extended term based
on his prior convictions. See N.J.S.A. 2C:44-3(a). However,
defendant presents four arguments in support of his position that
in deciding to impose an extended term, the judge failed to follow
the procedures set forth in State v. Pierce, 188 N.J. 155 (2006),
and State v. Dunbar, 108 N.J. 80 (1987). We reject these arguments
and affirm defendant's sentence.
"The persistent offender statute, N.J.S.A. 2C:44-3(a), grants
the sentencing court discretion to impose an extended sentence
where the statutory prerequisites for an extended-term sentence
are present." Pierce, supra, 188 N.J. at 161.
The court may, upon application of the
prosecuting attorney, sentence a person who
17 A-4413-14T2
has been convicted of a crime of the first,
second or third degree to an extended term of
imprisonment if it finds . . . [that t]he
defendant has been convicted of a crime of the
first, second or third degree and is a
persistent offender.
[N.J.S.A. 2C:44-3(a)].
The statute defines a "persistent offender" as
a person who at the time of the commission of
the crime is 21 years of age or over, who has
been previously convicted on at least two
separate occasions of two crimes, committed
at different times, when he was at least 18
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 10 years of the date of the crime
for which the defendant is being sentenced.
[Ibid.]
"To determine whether a defendant meets the definition of a
'persistent offender,' a court must examine the defendant's prior
record and his or her age at the time of any prior convictions
. . . ." Pierce, supra, 188 N.J. at 162. Defendant first argues
the judge erred by failing to make these findings.
However, in discussing his findings on the aggravating
sentencing factors, N.J.S.A. 2C:44-1(a), the judge noted
defendant "has [twenty-eight] arrests, six disorderly
convictions, [thirteen] indictable convictions, three violations
of probation[,] and two parole violations." He further noted
that defendant was an adult at the time of these prior
18 A-4413-14T2
convictions. As such, although the judge did not specifically
list every applicable conviction and defendant's age during each
offense, we find he followed the procedures required by Pierce.
Defendant next argues the judge may have improperly "double
counted" the convictions he used to trigger defendant's extended
term and those he considered in imposing the length of the
sentence. As such, defendant asserts the judge violated Dunbar,
supra, 108 N.J. at 89-92, because he failed to identify and
"segregate[]" the triggering convictions. Defendant also argues
the judge may have double counted the triggering convictions in
finding aggravating factors N.J.S.A. 2C:44-1(a)(3) (risk of
reoffending) and (6) (prior criminal record and seriousness of
offenses at issue).3
However, we find the judge's sentencing analysis comported
with Dunbar, supra, 108 N.J. at 89-92, which permits a judge to
take prior offenses into account for both a defendant's
eligibility for an extended-term range and the ultimate sentence
within that extended-term range that the judge chooses to impose,
so long as the judge makes sufficient findings that identify and
balance the pertinent aggravating and mitigating factors in
3
The judge also found aggravating factors N.J.S.A. 2C:44-1(a)(1)
(nature and circumstances of the offense); (2) (gravity and
seriousness of harm); and (9) (need for deterrence). He did not
identify any mitigating factors. See N.J.S.A. 2C:44-1(b).
19 A-4413-14T2
determining at what point within the expanded range the sentence's
base term will be fixed. See also Pierce, supra, 188 N.J. at
168. We find the judge made such findings on the aggravating
factors at issue here.
Defendant's third argument is that the judge erred by failing
to make a finding that the extended term was "necessary to protect
the public." Sentencing judges should consider the "need to
protect the public" when imposing a sentence within the extended-
term range. Id. at 168-69. Here, although the sentencing judge
did not explicitly use the phrase "protection of the public," he
provided the following explanation for finding aggravating factor
N.J.S.A. 2C:44-1(a)(9), the need for deterrence:
I don't know what could possibly deter you at
this point in your life. You've already had
virtually every form of punishment that the
State knows. You've had probationary
treatment, you've had incarceration, you've
been on parole and none of it has dissuaded
you from the things that you have done and it
has become part of your life, I think, at this
point, in time. That's the way you function.
So there is a need for deterrence.
We find these statements were sufficient to show the judge was
imposing the extended term to protect the public.
Finally, defendant argues the extended term was "grossly
excessive." However, under, N.J.S.A. 2C:43-7(a)(2), an extended
term for a first-degree offense can range from twenty years to
life imprisonment. The sentencing judge did not abuse his
20 A-4413-14T2
discretion by following the law, and therefore, we decline to
reverse on this basis.
IV.
Defendant urges us to dismiss his conviction on count seven
because the jury did not render a verdict on this charge in open
court. R. 1:8-9. We agree and remand for amendment of defendant's
judgment of conviction.
Count seven of defendant's indictment charged him with
second-degree armed burglary pursuant to N.J.S.A. 2C:18-2(b)(2).
Under this statute, burglary rises to a second-degree offense
where the actor is "armed with or displays what appear to be
explosives or a deadly weapon." Ibid. Conversely, count six of
the indictment charged defendant with burglary under N.J.S.A.
2C:18-2(b)(1), which rises to a second-degree offense where the
actor "[p]urposely, knowingly or recklessly inflicts, attempts to
inflict or threatens to inflict bodily injury on anyone."
However, the burglary section of defendant's verdict sheet
only contained language relating to count six, which the transcript
of the verdict at trial reflects:
COURT CLERK: How do you find, as to the charge,
that defendant in the course of committing a
theft upon [B.G.], did threaten [B.G.] with,
or purposely put her in fear of immediate[]
bodily injury?
THE FOREPERSON: Guilty.
21 A-4413-14T2
COURT CLERK: In the course of committing the
robbery did defendant use, threaten the
immediate use of, or was he armed with, or
simulate that he possessed a deadly weapon?
THE FOREPERSON: Yes.
COURT CLERK: How do you find that, as to the
charge, that defendant did unlawfully enter
the structure . . . with the purpose to commit
an offense therein?
THE FOREPERSON: Guilty.
COURT CLERK: Did defendant purposely,
knowingly or recklessly threaten to inflict
bodily injury on [B.G.]?
THE FOREPERSON: Yes.
The State argues the jury indirectly found defendant guilty
of armed burglary by affirming defendant threatened the use of a
deadly weapon, and he entered the structure with the intent to
commit an offense therein. However, the above colloquy directly
tracks the verdict sheet, which first discussed armed robbery in
questions 2 and 2A, and then moved to burglary in questions 3 and
3A. The record clearly reflects that the jury failed to render a
verdict on count seven.
Where a jury fails to make a finding with respect to guilt
or innocence on a specific charge, "a finding cannot be presumed."
State v. Millett, 272 N.J. Super. 68, 96 (1994). We have held
that where a jury fails to return a verdict on a certain charge,
courts should reverse that conviction without remanding for a new
22 A-4413-14T2
trial. See State v. Black, 380 N.J. Super. 581, 591 (App. Div.
2005), certif. denied, 186 N.J. 244 (2006); see also Pressler &
Verniero, Current N.J. Court Rules, cmt. on R. 1:8-9 (2017) ("In
criminal cases, the defendant is entitled, on double jeopardy
grounds, to an acquittal of unconsidered and unreported
charges.").
Therefore, we remand this matter for amendment of defendant's
judgment of conviction to reflect the dismissal of count seven.
Since the judge merged count seven into count six at sentencing,
we discern no basis for disturbing defendant's sentence.
V.
Last, we address the arguments defendant raised in his pro
se supplemental brief. We note defendant failed to raise these
issues before the trial court; generally, we will decline to review
issues not raised below unless they involve jurisdiction,
implicate the public interest, or are necessary to achieve
substantial justice. See State v. Walker, 385 N.J. Super. 388,
410 (App. Div.), certif. denied, 187 N.J. 83 (2006). Such is not
the case here. Nonetheless, we briefly discuss these arguments
and find they lack merit.
Defendant first argues the DNA buccal swab should have been
excluded from evidence because it was obtained under a different
indictment in Salem County. Defendant was tried in Salem County,
23 A-4413-14T2
under Indictment 12-10-656, in connection with a Salem County
burglary. The record shows that on February 11, 2013, a judge in
Salem County entered an order, requiring defendant provide a buccal
swab for DNA testing. A DNA sample was later delivered to
Cumberland County. In his supplemental appendix, defendant
provides two transcripts of an N.J.R.E. 404(b) hearing from Salem
County, where the parties briefly discussed the admissibility of
the white cloth and the DNA evidence; there is no record reflecting
a resolution of the issue, but defendant claims the Salem County
judge ruled this evidence was inadmissible.
Defendant now asserts the DNA evidence should be excluded in
the instant matter because "there was no order or motion by the
prosecutor . . . to bring in the [b]uccal swab DNA comparison from
the Salem County [o]rder." Defendant also asserts the swab was
"other crimes" evidence, pursuant to N.J.R.E. 404(b), and
therefore, the judge in the instant matter should have analyzed
its admissibility under the test from State v. Cofield, 127 N.J.
328 (1992). However, defendant points to no law requiring a motion
or order to admit DNA evidence obtained under a different
indictment. Moreover, this was not "other crimes" evidence because
it directly related to the crime at issue. We therefore reject
this argument.
24 A-4413-14T2
Defendant also challenges all testimony and investigative
reports from Trooper McCreery, on the basis that the trooper's
first name was listed incorrectly on several transcripts from the
various proceedings involving defendant. Defendant asserts this
constituted perjury and harmful reversible error. We reject this
argument, finding any mislabeling of the trooper's name in no way
affected the outcome of defendant's trial.
Affirmed.
25 A-4413-14T2