STATE OF NEW JERSEY VS. RICKY BOOKER(12-10-0744, UNION 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NOT FOR PUBLICATION WITHOUT THE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-2573-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RICKY BOOKER,
Defendant-Appellant.
_______________________________
Submitted May 10, 2017 – Decided August 3, 2017
Before Judges Lihotz and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 12-
10-0744.
Joseph E. Krakora, Public Defender, attorney
for appellant (John Douard, Assistant Deputy
Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
I.
Defendant Ricky Booker appeals from a November 10, 2014
conviction, following a jury trial, for first-degree armed
robbery, N.J.S.A. 2C:15-1(a)(1). The jury acquitted defendant on
charges of third-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(d), and fourth-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(d).1 Defendant was
sentenced to eighteen years, subject to the 85% period of parole
ineligibility required by the No Early Release Act (NERA).
N.J.S.A. 2C:43-7.2.
On appeal, defendant seeks a new trial, arguing the trial
judge erred by failing to instruct the jury regarding the admission
of a purported prior inconsistent statement by an eyewitness.
Additionally, defendant suggests the verdict sheet erroneously
caused the jury to return inconsistent verdicts; or,
alternatively, the sentence imposed was manifestly excessive
because aggravating factors were improperly applied. We are
unpersuaded and affirm.
II.
In the early hours of April 19, 2012, Christopher Ruiz was
walking down Second Street toward Grant Avenue in Plainfield, on
his way to a park when a blue car pulled to the side of the road
approximately thirty feet in front of him. When he was within ten
1
Defendant was also indicted on other charges relating to a
separate incident, which included two counts of murder. These
charges were severed and tried separately.
2 A-2573-14T3
feet of the vehicle, a man brandishing a large knife exited the
passenger-side door and ordered Ruiz to hand over his money. The
attacker wore a hairnet, which had "big holes" and did not obscure
his face. Ruiz turned to flee, but tripped. While lying on the
pavement, Ruiz assured his assailant the knife was unnecessary and
he would hand over his cash without resistance. The man put his
knee on Ruiz's chest, searched his pockets, and removed
approximately $300, then ran back to the car, which pulled away
toward Third Street.
Ruiz did not initially report the incident to police because
he was afraid. Then he noticed the man in his neighborhood. In
the two-and-a-half weeks following the robbery, Ruiz, on eight
occasions, saw a man he believed was his attacker as well as the
car driven on the day of the incident, which he noted was a blue
Honda Civic. At one point, he informed police of the robbery and
provided a physical description of his assailant, which included
his race, height, hairstyle, clothing, and identifying tattoos.
Further, Ruiz described the car as having a unique color, stating
it was a sky blue or purple Honda, with New Jersey plates, ending
in the letters "G" and "C." After seeing his attacker in a coffee
shop, he stopped a patrol officer, who stated he should have
reported the robbery earlier. Ruiz continued to see the man and
the Honda at various places in his neighborhood. He was able to
3 A-2573-14T3
record the entire license plate. Ruiz and a friend even followed
the man, noting he entered a home on Jones Street.
On May 11, 2012, Ruiz saw a sign requesting information about
defendant. Ruiz contacted the listed police officer, Plainfield
Police Department Officer Charles Martina. Ruiz described his
assailant, the vehicle used in the robbery, the car's license
plate, and the home he saw the man enter.2 The police investigation
determined the residence belonged to defendant's aunt and the
vehicle was owned by defendant's girlfriend.
On May 16, 2012, Ruiz returned to the police station where
he gave a formal statement to Officer Martina and identified
defendant in a photo array. Accompanied by Officer Martina, Ruiz
identified the blue Honda Civic, as it was parked in the lot of
defendant's girlfriend's place of employment. Martina obtained a
search warrant for the vehicle, which he executed. Inside he
found defendant's birth certificate and a job application bearing
his name from the glove box, a white T-shirt and blue jeans from
the trunk, and a hairnet matching Ruiz's description of the face
2
Defendant argued at trial and implicitly maintains, he was
identified as a suspect because he was already a suspect in an
unrelated crime. In support, defendant offers the street sign
Ruiz used to contact Officer Martina was specifically seeking
information about defendant and may have impressed Ruiz with
confirmatory bias when it came time for him to make his
identification using the photo array. Mention of the other crime,
a murder, was excluded at trial as prejudicial.
4 A-2573-14T3
covering worn by his assailant on the passenger's seat. Police
arrested defendant.
During the August 2014 trial, Ruiz identified defendant in
court. He detailed the events of the robbery, defendant's physical
actions of pinning him down and searching his pockets, and the use
of the blue Honda. Ruiz also described each instance when he saw
defendant following the robbery. In addition to Ruiz's statements
about seeing defendant in or near the vehicle several times
following the robbery and his observations of the license plate,
the jury heard defendant's birth certificate was found in the
vehicle along with the hairnet allegedly used in the crime. No
weapon was located or presented at trial.
The jury returned a conviction for armed robbery, but
acquitted defendant of the weapons charges. On August 6, 2014,
Judge Joseph P. Donohue applied aggravating factors (3), (6), and
(9) and found no mitigating factors. He imposed an eighteen-year
sentence, subject to NERA.
On appeal, defendant argues:
POINT I
THE TRIAL COURT ERRED BY FAILING TO INSTRUCT
THE JURY THAT RUIZ'S PRIOR INCONSISTENT
STATEMENTS IN POLICE WITNESSES' REPORTS WERE
ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not
Raised Below).
5 A-2573-14T3
POINT II
BECAUSE THE VERDICT SHEET FAILED TO SPECIFY
THE DEADLY WEAPON ALLEGEDLY USED IN THE
ROBBERY, AND THE JURY ACQUITTED MR. BOOKER OF
THE ONLY CHARGES OF WEAPONS POSSESSION, THE
"DEADLY WEAPON" ELEMENT OF THE FIRST-DEGREE
ROBBERY, THERE WAS INSUFFICIENT EVIDENCE FOR
THE ROBBERY CONVICTION.
POINT III
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE
AND UNDULY PUNITIVE BECAUSE IT IS GROUNDED ON
IMPROPER FINDINGS REGARDING AGGRAVATING
FACTORS.
We address each argument.
III.
For the first time on appeal, defendant suggests the jury
charge was deficient. We find the argument unavailing.
A defendant is required to challenge jury instructions at the
time of trial. Failure to do so is considered a waiver of the
right to contest the instructions on appeal. See State v. Adams,
194 N.J. 186, 206-07 (2008); see also R. 1:7-2 (requiring jury
instructions to be challenged at trial). Therefore, we reverse
only in the presence of plain error, that is, error "clearly
capable of producing an unjust result." Adams, supra, 194 N.J.
at 207; see R. 2:10-2 (stating absent objection, reversal is
warranted when the error shown to be "clearly capable of producing
an unjust result"). More specifically,
6 A-2573-14T3
not "any" possibility can be enough for a
rerun of the trial. The possibility must be
real, one sufficient to raise a reasonable
doubt as to whether the error led the jury to
a result it otherwise might not have reached.
[State v. Macon, 57 N.J. 325, 336 (1971).]
"In the context of a jury charge, plain error requires
demonstration of a '[l]egal impropriety . . . prejudicially
affecting the substantial rights of the defendant sufficiently
grievous to justify notice by the reviewing court and to convince
the court that of itself the error possessed a clear capacity to
bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341
(2007) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The
allegation of error must be assessed in light of "the totality of
the entire charge, not in isolation." State v. Chapland, 187 N.J.
275, 289 (2006). While an erroneous jury charge may be a "'poor
candidate[] for rehabilitation' under the plain error theory,"
Jordan, supra, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J.
191, 206 (1979)), we nonetheless consider the effect of any error
in light "of the overall strength of the State's case," Chapland,
supra, 187 N.J. at 289. Moreover, the failure to "interpose a
timely objection constitutes strong evidence that the error
belatedly raised [] was actually of no moment." State v. White,
326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163
N.J. 397 (2000); see also State v. Morais, 359 N.J. Super. 123,
7 A-2573-14T3
134-35 (App. Div. 2003) ("Where there is a failure to object, it
may be presumed that the instructions were adequate.").
Defendant states Officer Martina's report, prepared when he
first interviewed Ruiz, omitted any mention the attacker's face
was covered. Defendant therefore argues Ruiz's trial testimony
asserting his attacker wore a mask was inconsistent with his
initial police statement. However, during cross-examination
Officer Martina recalled Ruiz had described his attacker as wearing
a mask at the time during his initial statement, and he
acknowledged the omission was his in the police report.
Generally, N.J.R.E. 803(a)(1) allows the use of prior
inconsistent statements as substantive evidence, if the statement
would have been admissible. State v. Cabbell, 207 N.J. 311, 336-
37 (2011)
The prior-inconsistent-statement exception to
the hearsay rule allows the jury to determine
whether to believe the testimony given on the
stand or the diametrically different version
given earlier to the police. To satisfy
constitutional confrontation guarantees,
however, "[t]he jury . . . must observe the
witness and make a decision about which
account is true." Likewise, the admission of
a witness's prior statement describing events,
when the witness feigns a loss of memory on
the stand, does not violate a defendant's
federal or state right of confrontation.
Although "a witness's feigned lack of
recollection may sharply limit or nullify the
value of cross-examination," we have
"conclude[d] that those limitations do not
8 A-2573-14T3
rise to the level of [violating] a defendant's
federal and state constitutional right to
confront witnesses."
[Ibid. (quoting State v. Brown, 138 N.J. 481,
543 (1994), overruled on other grounds, State
v. Cooper, 151 N.J. 326, 361-63 (1997))].
In this matter, we reject the claim these facts demonstrate
Ruiz uttered inconsistent statements for which a charge should
issue. There was no evidence Ruiz's trial testimony differed from
what he told police. Officer Martina confirmed Ruiz stated the
assailant's face was covered by a mask. Although defendant
correctly suggests, if Ruiz told police he saw a mask, the fact
should have been included in the police report; the lapse resulted
from Officer Martina's failure to record this detail in his report,
which cannot be attributed to Ruiz.
Moreover, the jury was presented with this evidence and could
assess the credibility of Ruiz and Officer Martina. No facts
support the jury ignored this evidence. Rather, deliberations
show the jury carefully considered all evidence presented. Based
on the verdict convicting defendant of armed robbery, we can only
conclude the jury favorably adjudged Ruiz and Officer Martina's
credibility. See State v. Provet, 133 N.J. Super. 432, 438 (App.
Div.) ("If the credibility of the witness was impeached it would
have served the purpose of disproving [the] assertion."), certif.
denied 68 N.J. 174 (1975). We find no error.
9 A-2573-14T3
Next, defendant argues the verdicts were inconsistent. He
maintains the acquittal of the weapons charges means he could not
be convicted of armed robbery. We are not persuaded.
The United States and the New Jersey Supreme Courts have held
repeatedly inconsistency in the jury's verdict on multiple counts
is not a ground to set aside a guilty verdict. See, e.g., United
States v. Powell, 469 U.S. 57, 58-59, 105 S. Ct. 471, 477, 83 L.
Ed. 2d 461, 464 (1984); Dunn v. United States, 284 U.S. 390, 393,
52 S. Ct. 189, 190, 76 L. Ed. 356, 359 (1932); State v. Banko, 182
N.J. 44, 55 (2004); State v. Grey, 147 N.J. 4, 11 (1996). In
Powell, supra, 469 U.S. at 65, 105 S. Ct. at 476, 83 L. Ed. 2d at
468, the United States Supreme Court said:
[E]ven verdicts that acquit on a predicate
offense while convicting on the compound
offense — should not necessarily be
interpreted as a windfall to the Government
at the defendant's expense. It is equally
possible that the jury, convinced of guilt,
properly reached its conclusion on the
compound offense, and then through mistake,
compromise, or lenity, arrived at an
inconsistent conclusion on the lesser offense.
In Banko, supra, 182 N.J. at 54, our Court quoted Powell with
approval and held that "the Dunn/Powell rule controls inconsistent
verdicts in this State." Further, the Court stated inconsistent
"verdicts are permitted . . . 'so long as the evidence was
sufficient to establish guilt on the substantive offense beyond a
10 A-2573-14T3
reasonable doubt.'" Id. at 55 (quoting State v. Petties, 139 N.J.
310, 319 (1995)). In the event the verdicts appear inconsistent,
this court "should not speculate as to whether the verdicts
resulted from jury lenity, compromise, or mistake not adversely
affecting the defendant." Grey, supra, 147 N.J. at 11. "We permit
inconsistent verdicts . . . because it is beyond our power to
prevent them." Banko, supra, 182 N.J. at 54.
Here, we conclude the jury instructions were clear and
correct. See Grey, supra, 147 N.J. at 14-16 (reversing an
inconsistent verdict when "the jury undoubtedly relied on the
wrong predicate felony"). Further, each charge stands
independently and the State's evidence supported each element of
the first-degree robbery offense. Not only was the identification
evidence strong, but Ruiz's testimony included several statements
that defendant held a knife, he feared for his safety and defendant
forcibly took $300.
Further, the inconsistency, which benefited defendant, does
not require a reversal of the robbery conviction. See State v.
Burnett, 245 N.J. Super. 99, 113 (App. Div. 1990), certif. denied,
126 N.J. 340 (1991). The law is clear, we will not speculate why
the jury acquitted on the weapons offenses. Banko, supra, 182
N.J. at 54-55. We reject as unavailing the suggestion the verdict
sheet was confusing. The jury instructions clearly stated the
11 A-2573-14T3
deadly weapon in question was a knife. Defendant's speculation
of juror confusion lacks merit. R. 2:11-3(e)(2).
Finally, defendant challenges the imposed sentence. As
guided by our Supreme Court, we apply a deferential standard when
reviewing sentencing determinations and should not substitute our
judgment for the judgment of the sentencing court. See State v.
Fuentes, 217 N.J. 57, 70 (2014). We must affirm the sentence
unless "(1) the sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by the sentencing court
were not based upon competent and credible evidence in the record;
or (3) 'the application of the guidelines to the facts of [the]
case makes the sentence clearly unreasonable so as to shock the
judicial conscience.'" Ibid. (quoting State v. Roth, 95 N.J.
334, 364-65 (1984)). Guided by this standard, we have no basis
to intervene. See State v. O'Donnell, 117 N.J. 210, 215–16 (1989).
Here, the trial court found aggravating factors three (risk
of recidivism), six (criminal history), and nine (specific and
general deterrence). See N.J.S.A. 2C:44-1(a)(3), (6), (9).
Defendant does not assert the factors do not apply; rather, he
only argues the judge recited insufficient reasons for their
application. The transcript refutes this contention.
Judge Donohue recited defendant's "long and significant"
criminal history, beginning with juvenile arrests in 2004 and
12 A-2573-14T3
numerous adjudications in between 2004 and 2006. In addition to
this conviction, as an adult, defendant had two indictable
convictions for theft and others for receiving stolen property,
unlawful possession of a handgun, and drug possession. Also
recorded are various municipal and disorderly persons convictions,
violations of probation, and open charges for murder. At
sentencing, the judge recited the timeframes for crimes, noting
periods when defendant committed a new offense within weeks of a
prior conviction. Also, he acknowledged past convictions, which
resulted in county jail and probation sentences, did not deter his
continued criminal conduct.
Defendant's lengthy and substantial criminal history amply
supports a finding he is likely to commit a further offense.
"[R]ecidivism . . . is a traditional, if not the most traditional,
basis for a sentencing court's increasing an offender's sentence."
Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct.
1219, 1230, 140 L. Ed. 2d 350, 368 (1998). His extensive juvenile
record also was properly considered to support application of
aggravating factor three. See State v. Torres, 313 N.J. Super.
129, 162 (App. Div. 1998) (stating, for the purposes of balancing
aggravating and mitigating factors, "[a] sentencing court may
consider a juvenile record").
13 A-2573-14T3
Finally, the judge identified the need to deter defendant
from the type of crime he committed. "[T]he seriousness of a
criminal record, the predictive assessment of chances of
recidivism, and the need to deter the defendant and others from
criminal activity, do all relate to recidivism" and "go beyond the
simple finding of a criminal history." State v. Thomas, 188 N.J.
137, 153 (2006). Defendant's history portrays an escalation of
violence and increased seriousness of committed crimes. The need
to deter violent offenses, like the one for which defendant was
convicted, is appropriate. See State v. Cancel, 256 N.J. Super.
430, 437 (App. Div. 1992) ("[T]he weight attributable to the
deterrence factor, cited by the judge, is obvious.").
Finding the aggravating factors outweighed the mitigating
factors, the judge imposed an eighteen-year term of imprisonment.
"[W]hen the aggravating factors preponderate, sentences will tend
toward the higher end of the range" subject to the trial judge's
discretion. State v. Natale, 184 N.J. 458, 488 (2005). The length
of the sentence fell within the range designated for the offense,
and it does not shock our judicial conscience.
Affirmed.
14 A-2573-14T3