STATE OF NEW JERSEY VS. ALI BASS(11-11-2085, 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NOT FOR PUBLICATION WITHOUT THE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-2423-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALI BASS,
a/k/a ALIF BASS,
a/k/a LADON BAY,
a/k/a MURAD BORNS,
Defendant-Appellant.
_______________________________
Argued September 19, 2017 – Decided October 12, 2017
Before Judges Yannotti and Mawla.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 11-
11-2085.
Thomas R. Ashley argued the cause for
appellant.
Kayla Elizabeth Rowe, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued
the cause for respondent (Robert D. Laurino,
Acting Essex County Prosecutor, attorney; Ms.
Rowe, of counsel and on the brief).
PER CURIAM
On November 5, 2015, a jury convicted defendant Ali Bass of
second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6), fourth-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d),
second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree
resisting arrest, N.J.S.A. 2C:29-2(a). On December 23, 2015,
defendant was sentenced to twenty years imprisonment with an
eighty-five percent parole disqualifier under the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2, for the aggravated assault
conviction; a ten year prison term with a five year period of
parole ineligibility for the eluding conviction; and an eighteen
year prison term for resisting arrest and unlawful possession of
a weapon convictions. All sentences were to run concurrently.
Defendant appeals from the convictions and the sentence. We
affirm.
The following facts are taken from the record. On December
11, 2009, Newark Police Detective Anna Colon was on patrol and
observed defendant driving a vehicle on Irvine Turner Boulevard.
Detective Colon activated her lights and siren to pull over
defendant because he was not wearing a seatbelt. Defendant made
a quick u-turn and a chase ensued, joined by another vehicle
operated by Sergeant Thomas Rowe with Detective Jose V. Torres as
its passenger.
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Defendant's vehicle crossed the double line into oncoming
traffic and collided head-on with another vehicle, causing the
other vehicle to become air borne and land on its side. As
Detective Colon approached defendant's vehicle, the front
passenger, Arsenio Payton, fled from the vehicle. Payton was
apprehended by another officer. Detective Colon discovered
defendant attempting to push himself into the back seat of the
vehicle. Defendant's left leg was broken and wrapped around the
driver's seat. He was arrested.
Payton subsequently pled to separate charges. As a part of
his plea, he testified he was the passenger of the automobile
involved in the chase.
Defendant's trial ensued and resulted in his convictions and
sentence from which he now appeals. On appeal, defendant raises
the following arguments:
POINT ONE - THE REFUSAL OF THE COURT BELOW TO
UNDERTAKE THE MANDATORY BEY PROCEDURE,
REGARDING MID-TRIAL PUBLICITY, VIOLATED
DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT TWO - PERMITTING THE STATE IN SUMMATION
TO MAKE THE BASELESS INFERENCE THAT DEFENSE
COUNSEL INFLUENCED WITNESS PAYTON TO FALSELY
TESTIFY, WHICH WAS COMPOUNDED BY THE COURT
BELOW REFUSING TO GIVE A CURATIVE INSTRUCTION,
WAS HARMFUL REVERSIBLE ERROR WITH THE CLEAR
CAPACITY TO PRODUCE AN UNJUST RESULT.
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POINT THREE - DEFENDANT'S SENTENCE IS ILLEGAL
AS IT IS THE PRODUCT OF MULTIPLE DISCRETIONARY
ENHANCEMENTS.
I.
Defendant argues he was deprived the right to a fair trial
because he informed the trial court of an NJ.com article
referencing his separate impending murder trials, and his trial
in the instant case. The article in question, entitled "Man
charged in 3 murders on trial for wrong-way crash in police chase,"
appeared on October 23, 2015, after trial had commenced.1
Defendant requested the trial court ask the jurors regarding
whether any of them had read the article, but the court declined
noting it had previously instructed the jury to avoid any trial
publicity regarding the trial. Defendant asserts the trial court
erred by refusing to poll the jury pursuant to State v. Bey, 112
N.J. 45 (1988), to determine whether any jurors were exposed to
the publicity surrounding the trial. We disagree.
In Bey, the Court determined where there is publicity during
a trial, "[i]f the court is satisfied that the published
information has the capacity to prejudice the defendant, it should
determine if there is a realistic possibility that such information
1
A second article entitled "Accused murderer says he was not
driver in crash during police chase," appeared on October 29,
2015, the fifth day of trial, but counsel never addressed its
existence with the trial court.
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may have reached one or more of the jurors." Id. at 86. If there
is such a realistic possibility, a voir dire must be conducted to
ascertain whether any juror has been exposed. Id. at 86-87. The
trial court then must determine whether the mid-trial publicity
had a "great[er] capacity to prejudice a defendant's case," and
where the publicity had such a strong potential for prejudice, the
usual assumptions about jurors following their oaths and adhering
to the judge's instructions are not warranted. Id. at 81-83, 90;
see also State v. Mejia, 141 N.J. 475, 514 (1995) (Handler, J.,
concurring) (quoting Bey, supra, 112 N.J. at 81-90).
We review a decision to conduct a Bey voir dire for abuse of
discretion. State v. Tindell, 417 N.J. Super. 530, 564 (App. Div.
2011), certif. denied, 213 N.J. 388 (2013). This is because
"[c]ases of presumed prejudice due to pretrial publicity are
'relatively rare and arise out of the most extreme circumstances.'"
State v. Harris, 156 N.J. 122, 143 (1998) (quoting State v.
Koedatich, 112 N.J. 225, 269 (1988), cert. denied, 488 U.S. 1017,
109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)).
The publicity in this matter was limited to an article defense
counsel initially identified at the onset of trial, and a second
one which later appeared that counsel did not address. This form
of publicity was not the sort of "extreme circumstances" warranting
a Bey voir dire.
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As noted by the State, the trial court instructed the jury
four times regarding the avoidance of trial publicity throughout
the trial. Importantly, the trial court instructed the jury before
the NJ.com article was published, both during the jury selection
voir dire and after the jury was empaneled. The trial court's
instruction was clear:
You are not to read or have anyone read to you
any newspaper accounts about any issue or
person or matter involved in this case.
You're not to search the internet for any
media accounts about the trial or search any
papers or magazines for any information about
anyone or anything involved in this case.
On the third day of trial, before the jury returned to the
courtroom, defense counsel raised a concern that he had learned
of the NJ.com article, which also featured a photograph of
defendant. Defense counsel indicated he had not read the article,
but wanted to bring the matter to the trial court's attention.
Defense counsel stated:
I am not priv[y] to the article, your honor,
and I did not see it myself. I just heard of
it. I just want the court to know that what
I'm saying is hearsay. But it's my
understanding that that's what was told to me.
So if that is the case, which I have no reason
to believe it's not, then I would leave it to
the court's discretion with respect to
ensuring that none of the jurors actually read
or heard about the article.
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After the state objected to the request that the judge
question the jury about the article, the trial court declined to
instruct the jury again on trial publicity because the instruction
had been given twice before. The trial court explained:
Okay. I continuously instructed the jury not
to do an investigation, nor contact, nor
research, . . . but more importantly I've
instructed them to immediately bring it to the
attention of the court if they had
inadvertently seen or heard, or been subject
to any information concerning anything
involved in this trial, or anyone involved in
this trial.
I don't see any reason to reinstruct them on
that. I don't see any reason to take any
further action with reference to that article
or any article that may be out there
somewhere.
The NJ.com article was raised again during defense counsel's
cross-examination of Detective Torres. Defense counsel asked
Detective Torres whether he had seen photographs of defendant.
The trial court permitted the question over the State's objection
on relevancy grounds and Detective Torres answered: "Just whatever
was on NJ.com."
The State renewed its objection and a sidebar ensued where
the State asserted that the defense did not have a good faith
reason to ask such a question. Defense counsel responded that the
point of the question was not to inform the jury about the
existence of the NJ.com article, but to test the credibility of
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Detective Torres's testimony regarding his identification of
defendant.
Defense counsel explained: "So what I'm saying is for five
years [Detective Torres] hasn't seen this individual. [Detective
Torres] saw [defendant] for a matter of seconds and he was able
to identify him in court." The trial court accepted the defense
counsel's rationale and instructed the jury to disregard Detective
Torres's reference to what he saw on NJ.com.
After the conclusion of testimony and summations, the trial
court charged the jury before deliberations, and again instructed
the jurors not to conduct research of their own. After a lunch
break, the jury returned to begin deliberations, which lasted
until the following day. At the conclusion of the first day of
deliberations, the trial court again instructed the jury to conduct
"[n]o research about anyone or any issue involved in this case[.]"
Under these circumstances, we cannot conclude the trial
publicity required a Bey voir dire. The jury was repeatedly
instructed to refrain from reading outside sources before and
after the article was published. The record lacks evidence there
was a realistic probability the information reached the jury.
There is no evidence of strong publicity of the sort that would
prejudice defendant. Thus, a Bey voir dire was not triggered by
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the publication of the article and the trial judge did not abuse
his discretion by declining to voir dire the jury.
II.
Next, defendant asserts the prosecutor's statement in
summation that defense counsel improperly influenced Payton to
testify in defendant's favor was prejudicial error. Defendant
asserts the court's refusal to give a curative instruction
compounded the prosecutor's error and warrants reversal. We
disagree.
As noted above, at his plea proceeding Payton testified that
he was the passenger in the vehicle operated by defendant. At
trial, Payton was called to testify for defendant and changed his
testimony. Payton testified that he had written a letter to
defense counsel claiming he was the driver of the vehicle. He
further testified on cross-examination that defense counsel had
visited him before the trial. Without an objection from defense
counsel, the following colloquy occurred:
[PROSECUTOR:] And you had an opportunity to
speak to [defense counsel]. Is that correct?
[PAYTON:] Yes.
[PROSECUTOR:] Okay. And did you guys discuss
what you were going to be talking about today?
[PAYTON:] No.
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[PROSECUTOR:] Okay. So [defense counsel] just
paid you a visit and then left? I don't
understand.
[PAYTON:] Yes, I was telling him that I was
the driver of the vehicle.
[PROSECUTOR:] Okay. So you did talk to him
about this case. Is that correct?
[PAYTON:] Yes.
In summation, defense counsel argued Payton's testimony was
credible because he had not been intimidated by defendant or anyone
on defendant's behalf, namely, defense counsel. Defense counsel
stated:
So in any event, going over his testimony that
[defense counsel had] seen [Payton] three
times (indiscernible).
. . . you've heard testimony that [defendant]
visited [] Payton while he was in jail . . .
Now this was after the letter not before the
letter, after the letter. So any suggestion
that [defendant] intimidated [Payton] in this
visit is wrong because he came after . . . I
received the letter. And there's no evidence
except the mere suggestion of the State that
anything untoward happened there.
On summation, the prosecutor responded to defense counsel's
remarks. The prosecutor argued: "So ladies and gentlemen, [defense
counsel] went [to visit Payton] to discuss this case. But you
don't need to prep someone three times to tell the truth[.]"
Appellate review focuses on the prosecutor's alleged
misstatements and their collective effect, if any, on a defendant's
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right to a fair trial. We evaluate "the severity of the misconduct
and its prejudicial effect on the defendant's right to a fair
trial" and conclude whether "prosecutorial misconduct is not
grounds for reversal of a criminal conviction unless the conduct
was so egregious as to deprive defendant of a fair trial." State
v. Papasavvas, 163 N.J. 565, 625 (2000) (quoting State v.
Timmendequas, 161 N.J. 515, 575-76, cert. denied, 534 U.S. 858,
122 S. Ct. 136, 151 L. Ed. 2d 89 (2001)). Thus, "[t]o justify
reversal, the prosecutor's conduct must have been clearly and
unmistakably improper, and must have substantially prejudiced
defendant's fundamental right to have a jury fairly evaluate the
merits of his defense." Id. at 616 (quoting Timmendequas, supra,
161 N.J. at 575).
"A prosecutor in a criminal case is expected to make a
vigorous and forceful closing argument to the jury. . . .
Prosecuting attorneys are afforded considerable leeway if their
comments are reasonably related to the scope of the evidence before
the jury." State v. Harris, 141 N.J. 525, 559 (1995). However,
"[a]d hominem attacks on defense counsel in particular or on
defense lawyers in general are not acceptable." State v. Adams,
320 N.J. Super. 360, 370 (App. Div.), certif. denied, 161 N.J. 333
(1999) (emphasis omitted) (citing State v. Thornton, 38 N.J. 380,
398 (1962), cert. denied, 374 U.S. 816, 83 S. Ct. 1710, 10 L. Ed.
11 A-2423-15T2
2d 1039 (1963)). "[W]hile a prosecutor's summation is not without
bounds, '[s]o long as he stays within the evidence and the
legitimate inferences therefrom the Prosecutor is entitled to wide
latitude in his summation.'" State v. Wakefield, 190 N.J. 397,
457 (2007) (quoting State v. Mayberry, 52 N.J. 413, 437 (1968),
cert. denied, 393 U.S. 1043, 89 S. Ct. 673, 21 L. Ed. 2d 593
(1969)).
Here, placed in context, the prosecutor's comments regarding
defense counsel's three visits to Payton were permissible. It was
defense counsel who first raised and addressed the issue of the
visits and Payton's credibility, both during the testimony and
summation phases of the trial. Indeed, defense counsel argued
Payton's testimony in the 2010 plea colloquy was perjury. Also,
defense counsel's summation attempted to bolster Payton's
credibility, as the key witness, by explaining Payton's motivation
for coming forward with his story, why he wrote to defense counsel,
and why defense counsel visited him three times. Because Payton's
trial testimony contradicted his 2010 plea, and only one version
of the testimony could be true, the prosecutor was free to
challenge Payton's credibility regarding the reasons for the
change in his testimony.
We reject defendant's claim the prosecutor improperly
suggested defense counsel personally influenced Payton to change
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his testimony. Payton's credibility was a key issue, and whether
he committed perjury or was influenced to change his testimony was
a decision for the jury to make. The gravamen of the prosecutor's
remark was to explain to the jury the State's view of the facts
in evidence. This conduct was neither egregious nor did it deprive
defendant of a fair trial in any discernable way. Thus, the trial
court did not err by refusing to issue a curative instruction
under these circumstances.
III.
Lastly, defendant argues his sentence for aggravated assault
is illegal because the imposition of an extended sentence of twenty
years, with seventeen years parole ineligibility under NERA,
should have been based on the maximum ordinary term, not the
extended term. We find no merit to this claim.
Sentencing determinations are reviewed on appeal under a
highly deferential standard. State v. Fuentes, 217 N.J. 57, 70
(2014). We review sentences imposed by the trial court for an
abuse of discretion. State v. Megargel, 143 N.J. 484, 493-94
(1996).
A sentencing court may apply an extended sentence pursuant
to N.J.S.A. 2C:43-7, if the court finds a defendant to be a
persistent offender pursuant to N.J.S.A. 2C:44-3. Defendants
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convicted of a second-degree crime may be sentenced to an extended
term between ten and twenty years. N.J.S.A. 2C:43-7.
Defendant does not challenge the trial court's ability to
impose an extended sentence for his aggravated assault conviction
or that he is a persistent offender. His conviction for aggravated
assault is a second degree offense that is subject to a mandatory
NERA parole disqualifier. N.J.S.A. 2C:42-7.2(d)(4); N.J.S.A.
2C:12-1(b)(6).
Rather, in asserting his claim that his NERA period of parole
ineligibility may only be based on the maximum ordinary term
defendant relies upon State v. Allen, 337 N.J. Super. 259, 273-74
(App. Div. 2001), certif. denied, 171 N.J. 43 (2002). In Allen,
we held "the imposition of an extended term for a first or second
degree 'violent crime' (as defined in N.J.S.A. 2C:43-7.2(d)) must
embody a parole ineligibility term at least equal to the NERA
sentence applicable to the maximum ordinary term for the degree
of crime involved." Allen, supra, 337 N.J. Super. at 273-74.
Defendant misreads the holding in Allen. We did not restrict
the imposition of an extended sentence to the maximum ordinary
term. Instead we noted the "imposition of a mandatory or
discretionary ineligibility term on an extended term sentence
could be longer if required or authorized by statute." Id. at
274.
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Therefore, the trial court properly sentenced defendant to a
twenty-year extended term, and properly applied the eighty-five
percent minimum NERA term of parole eligibility to the extended
term, as set forth in Allen. Ibid.
Affirmed.
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