STATE OF NEW JERSEY VS. MARVIN BASKER (17-09-2586, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2556-19
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
MARVIN BASKER,
Defendant-Appellant.
_______________________
Submitted March 24, 2021 – Decided May 24, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-09-2586.
Joseph E. Krakora, Public Defender, attorney for
appellant (Candace Caruthers, Assistant Deputy Public
Defender, of counsel and on the briefs).
Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Caroline C. Galda,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
Tried by a jury in November 2018, defendant Marvin Basker was found
guilty of three counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a),
and two lesser-included counts of disorderly persons simple assault, N.J.S.A.
2C:12-1(a)(1) and -1(a)(3). He was sentenced to an aggregate ten-year prison
term with a five-year parole disqualifier. He contends on appeal that his
decision not to testify was due to the trial court's error in admitting into evidence
his remote convictions from 1994 to 2003, contrary to N.J.R.E. 609(b)(1); thus,
an unjust result occurred. We agree and reverse his convictions. Accordingly,
we do not address his excessive sentence contentions.
I.
A grand jury indicted defendant with two counts of first-degree robbery,
N.J.S.A. 2C:15-1; one count of second-degree robbery, N.J.S.A. 2C:15-1; three
counts of third-degree terroristic threats, N.J.S.A. 2C:12-3(a); and three counts
of third-degree criminal restraint, N.J.S.A. 2C:13-2(a) and -2(b). The charges
arose out of a July 2017 incident that occurred at a neighborhood corner store in
Newark, which we detail below.
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A.
On November 7, 2018, a week prior to trial, a Sands/Brunson 1 hearing was
held to adjudicate the State's motion to admit defendant's prior convictions of
third-degree theft and third-degree unlawful possession of a firearm in 1994;
third-degree receipt of stolen property in 1994; second-degree eluding in 1998;
second-degree robbery in 2000; third-degree controlled dangerous substance
(CDS) possession with intent to distribute in 2002; first-degree robbery in 2003;
and second-degree aggravated arson and second-degree conspiracy to commit
aggravated arson in June 2007.
Defense counsel did not object to the admission of the convictions but
contended the arson and robbery offenses should be sanitized. The court granted
the State's motion, reasoning:
[Defendant] has a substantial criminal history. And
certainly[,] under our State v. Sands, not only the recent
conviction, the most recent [being] 2007, which is
within [ten] years of the commission of the date, his
release from that -- he wouldn’t have been released
until 2010, so that certainly -- the incident in question
is July 2017. It’s certainly within [ten] years.
But, also, when somebody has continued to
violate our laws . . . the [c]ourt has to consider that. So,
certainly, in light of that, all [of] defendant's
1
State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).
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convictions will be subject to impeaching defendant if
he testifies, his credibility.
However, I will order that any of the convictions
be sanitized because there are [other] robbery
convictions . . . . So should . . . defendant take the
stand, the jurors will be able to hear the indictment
number, the date of the sentencing, as well as the
degrees of the crimes and the sentences, but not the
actual crimes for which he was convicted.
In addition, the court granted the State's motion to bar the defense from
referencing the defendant’s mental health because defense counsel had not
provided any medical documentation or expert support for such a claim.
B.
The State presented the following trial evidence. On July 19, 2017, at
approximately 8:58 a.m., defendant entered a Newark corner store owned by
mother and son, E.G. (Edna) 2 and C.G. (Carl). At that moment, Carl was
approaching the store's exit with his daughter, K.G. (Kim). Defendant, holding
an object wrapped in a black plastic bag simulating a gun, ordered Carl to lift
up his shirt and turn over his gun, or be shot. Carl lifted his shirt, telling
defendant he did not have a gun. Defendant then patted down Carl and searched
his pockets, stating several times he would be shot if he moved.
2
We use initials and pseudonyms to protect the victims' identity.
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"Hear[ing] a commotion outside," Edna came out from a back office to
enter the store. She saw Kim near the front door, with defendant pressing an
object wrapped in a plastic bag into Carl's side and frisking him. Defendant
approached Edna, ordering her and Carl not to move. Defendant then grabbed
Edna's arm, pointing the object at her side, demanding that she give him her
guns. She replied there were no guns in the store.
Defendant next told Carl to hand over his cell phone. After Carl complied,
defendant asked him for the phone passcode and tried to make a call. Defendant
also tried to make a phone call using the store's fax machine. When Edna asked
defendant why he was doing this, he responded that he wanted to call the police
and that they should give him their guns. Defendant and Edna proceeded to the
back office where he told her to dial several numbers, including 9-1-1, 6-1-1,
and 2-1-1. She obeyed and handed defendant the phone several times, upon
which he repeatedly hung up by pressing the off button. On one call, Edna stated
that someone answered, "this is not [the] Newark Police Department."
Moments later, Newark Police Officer Kiyata Derrick entered the store
when people–including Kim–outside the store alerted her to the ongoing
situation. Seeing Carl and Edna inside the store with defendant holding an
object at her side, Derrick ordered defendant to drop what she thought was a
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weapon. Defendant responded that he did not have one and dropped the object,
revealing a plastic ginger-ale bottle wrapped in the plastic bag. Defendant
followed Derrick's commands, and he was searched and arrested. At no point
during the incident did defendant demand money or merchandise.
After the court advised defendant of his right to testify and the implication
of his decision, defendant declined to testify. Significantly, the court reminded
defendant that based on its pre-trial ruling, should he testify, the State "would
be permitted to disclose to the jury details about [his] prior criminal record . . .
including the degree of the convictions, as well as any sentences."
Defendant did not present any witnesses in his defense. Defense counsel
argued to the jury that defendant’s "bizarre and baffling behavior" was not an
attempt to harm the store owners and Kim, but "a call for help," though "he went
about it the wrong way."
The jury acquitted defendant of the robbery and criminal restraint offenses
but found him guilty of three counts of third-degree terroristic threats and two
lesser-included counts of disorderly persons simple assault. 3 The court
sentenced him to concurrent five-year prison terms for two counts of terroristic
3
Prior to trial, the State voluntarily dismissed one of the second-degree robbery
charges.
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threats, with a two-and-a-half-year period of parole ineligibility; a consecutive
five-year prison term for one count of terroristic threats, with a two-and-a-half-
year period of parole ineligibility; and concurrent six-month prison terms for
two counts of simple assault. Defendant's aggregate prison term was ten years
with a five-year parole disqualifier.
Before us, defendant argues
POINT I
THE TRIAL COURT'S ERRONEOUS DECISION
THAT DEFENDANT'S DECADES-OLD PRIOR
CONVICTIONS WERE ADMISSIBLE FOR
IMPEACHMENT REQUIRES REVERSAL.
POINT II
DEFENDANT'S SENTENCE IS EXCESSIVE
BECAUSE THE COURT INCORRECTLY
CONDUCTED ITS YARBOUGH ANALYSIS AND
[4]
ERRED IN ITS FINDING AND WEIGHING OF THE
MITIGATING FACTORS.
A. THE IMPOSITION OF CONSECUTIVE
SENTENCES WAS INCORRECT BECAUSE
THE COURT IMPROPERLY EVALUATED
THE YARBOUGH GUIDELINES.
B. THE COURT ERRED IN ITS FINDING AND
WEIGHING OF THE MITIGATING FACTORS.
4
State v. Yarbough, 100 N.J. 627 (1985).
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II.
"[T]he decision of whether a prior conviction may be admitted to impeach
a witness 'rests within the sound discretion of the trial judge. . . .'" State v.
Harris, 209 N.J. 431, 442 (2012) (quoting State v. Whitehead, 104 N.J. 353, 358
(1986)). An abuse of discretion occurs where "there has been a clear error of
judgment." State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero,
148 N.J. 469, 484 (1997)). "[O]rdinarily evidence of prior convictions should
be admitted and the burden of proof to justify exclusion rests on the defendant."
Whitehead, 104 N.J. at 358 (quoting Sands, 76 N.J. at 144 (1978)). "[P]rior-
conviction evidence has probative value for impeachment purposes, as assessed
by the trial court. . . ." State v. T.J.M., 220 N.J. 220, 235 (2015).
That said, "N.J.R.E. 609(b)(1) creates a presumption that a conviction
more remote than ten years is inadmissible for impeachment purposes, unless
the State carries the burden of proving 'that its probative value outweighs its
prejudicial effect.'" State v. R.J.M., 453 N.J. Super. 261, 266-67 (2018) (quoting
N.J.R.E. 609(b)(1)). "[T]he court may consider"
(i) whether there are intervening convictions for crimes
or offenses, and if so, the number, nature, and
seriousness of those crimes or offenses,
(ii) whether the conviction involved a crime of
dishonesty, lack of veracity or fraud,
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(iii) how remote the conviction is in time,
(iv) the seriousness of the crime.
[N.J.R.E. 609(b)(2)(i) to (iv).]
"However, making findings as to those four factors is not enough. The
court must then engage in the weighing process under (b)(1), to determine
whether the State has carried its burden of proving that evidence of the remote
conviction would not be more prejudicial than probative." R.J.M., 453 N.J.
Super. at 270, (citing N.J.R.E. 609(b)(1)). "Thus, N.J.R.E. 609(b)(1)
encompasses a more stringent admissibility standard, when more than ten years
have passed since the 'conviction' . . . than N.J.R.E. 609(a), applicable when ten
years or less have passed." State v. Hedgespeth, 464 N.J. Super. 421, 431 (App.
Div. 2020).
Defendant claims he did not testify because the court's admission of his
remote convictions committed from 1994 to 2002 was done without conducting
the proper analysis under N.J.R.E. 609(b). 5 Thus, he could not support the
theory argued by his counsel that his behavior was "off" because he was not
trying to harm anyone but was seeking help from the police and wanted Edna
5
Defendant's merits brief concedes that the 2007 second-degree convictions for
aggravated arson and conspiracy to commit aggravated arson were not remote
and, thus, admissible.
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and Carl's guns to prevent from being harmed. Without relating his mental state
to the jury, defendant asserts the court's evidentiary error prejudiced him.
Because defendant did not challenge the admission of convictions, he
must show that the court's decision was "plain error clearly capable of producing
an unjust result." State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v.
Afanador, 151 N.J. 41, 54 (1997)); R. 2:10-2. The State concedes that admission
of convictions from 1994 to 2002 was error but relying on Hedgespeth, 464 N.J.
Super. at 437 (citing Rule 2:10-2), argues that the error was harmless because
even if defendant had testified about the "episode" he was having, the jury would
not have reached a different result due to the State's strong evidence and the
inability of defendant to present any evidence of his mental health based upon
the court's pre-trial ruling.
The court did not engage in an analysis under N.J.R.E. 609(b)(1) to
determine if defendant's remote convictions were more probative than
prejudicial. It merely determined that because defendant continually violated
our laws, "all [of] defendant's convictions will be subject to impeaching [his
credibility] if he testifies." We engage in that analysis.
As to factors one and four, there were four third-degree offenses involving
theft, weapon possession, receipt of stolen property, and CDS with intent to
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distribute, that arguably weighed against admissibility. The two second-degree
offenses and one first-degree offense, involving eluding and robbery, weighed
in favor of admissibility. With respect to factor two, none of the offenses
involved dishonesty, lack of veracity, or fraud, thus weighing against
admissibility. As to factor three, three of the offenses occurred about twenty-
three years before this incident, with the remaining four offenses occurring
between approximately nineteen, seventeen, fifteen, and fourteen years before
this incident. This weighed against admissibility. In sum, considering the four
N.J.R.E. 609(b)(2) factors, we conclude the timing and nature of the seven
convictions weighed against admissibility.
We must next consider whether the State proved that the "probative value
[of the remote convictions] outweigh[ed] [the] prejudicial effect" of their
admission. N.J.R.E. 609 (b)(1). The State did not. The State concedes that the
admission of the prior convictions was error but asserts it was harmless. As
noted, the court considered only the number of defendant's offenses without
addressing the prejudice of the convictions if defendant testified. The prior
convictions were remote–some very much so–and were not indicative of
defendant's honesty or veracity, but rather a person plagued by a past life of
crime. See State v. Stevens, 115 N.J. 289, 300 (1989) ("It is thought that proof
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of a previous crime will distract the jury, leading [it] to forego an independent
analysis of the evidence and to rely merely on the tendency they possess in
common with most people of saying 'once a thief – always a thief.'") (quoting
State v. Ascolese, 59 N.J. Super. 393, 397 (App. Div. 1960)). We have little
doubt that informing the jury about the number of defendant's convictions would
have prejudiced him had he testified.
Turning to the State's claim of harmless error, its reliance on Hedgespeth
is misplaced. There, we found error in the trial court's evidentiary ruling which
kept the defendant from testifying, but determined no unjust result occurred
where "the State's evidence was so strong . . . there was no real possibility that
the jury would have reached a different result," and there was evidence
corroborating the State witnesses' testimony. Hedgespeth, 464 N.J. Super. at
438. Here, the admission of defendant's convictions prompting him not to testify
due to their prejudicial effect on his defense was not harmless.
The jury found defendant guilty of third-degree terroristic threats and
simple assault. The former is committed where a person "threatens to commit
any crime of violence with the purpose to terrorize another. . . ." N.J.S.A. 2C:12-
3(a). The latter occurs when a person "[a]ttempts to cause . . . bodily injury to
another" or "[a]ttempts by physical menace to put another in fear of imminent
12 A-2556-19
serious bodily injury." N.J.S.A. 2C:12-1(a)(1) and -1(a)(3). The State's
evidence through Carl's and Edna's testimony satisfied the elements of both
offenses. The jury, however, did not hear defendant explain his intentions
regarding his demands to Carl and Edna for guns and use of their phones to call
the police and for emergency assistance. While the jury could have completely
disregarded defendant's testimony, given the bizarre nature of his conduct, the
jury may have found it illuminating and been persuaded that he did not have the
mens rea to commit the crimes.
Obviously, we have no crystal ball to predict what would have happened
had defendant testified. But we are convinced that the court mistakenly applied
its discretion to admit defendant's remote convictions that, in turn, kept him from
exercising his right to testify, and violated his due process rights and deprived
him of a fair trial. U.S. Const. amends. VI, XIV; N.J. Const. art. 1, ¶¶ 1, 10;
Rock v. Arkansas, 483 U.S. 44, 50 (1987) ("The necessary ingredients of the
Fourteenth Amendment's guarantee that no one shall be deprived of liberty
without due process of law include a right to be heard and to offer testimony. . .
.") The court's ruling constituted plain error because it produced an unjust result
– defendant was convicted without testifying because of the prejudicial effect of
being confronted with his numerous remote convictions. See R.J.M., 453 N.J.
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Super. at 264 ("Because defendant was unfairly prevented from testifying, and
the jury might have reached a different result had defendant testified, we reverse
the conviction and remand the case for retrial.").
III.
Because we are reversing defendant's convictions, we do not address
defendant's excessive sentence arguments. Finally, to the extent we have not
addressed any of the parties' arguments, it is because we have concluded that
they are without sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
Reversed and remanded for retrial consistent with this opinion. We do
not retain jurisdiction.
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