STATE OF NEW JERSEY VS. R.H. (12-06-0516 AND 15-10-0645, UNION COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-4916-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
R.H.,1
Defendant-Appellant.
_______________________
Argued February 13, 2019 – Decided March 29, 2019
Before Judges Koblitz, Currier and Mayer.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment Nos. 12-06-0516
and 15-10-0645.
Cody T. Mason, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Cody T. Mason, of counsel
and on the brief).
Meredith L. Balo, Special Deputy Attorney General/
Acting Assistant Prosecutor, argued the cause for
1
We use initials to preserve defendant's anonymity because he was a
confidential informant.
respondent (Michael A. Monahan, Acting Union
County Prosecutor, attorney; Meredith L. Balo, of
counsel and on the brief).
PER CURIAM
Defendant R.H. appeals from February 24, 2016 convictions, after two
trials before the same jury. He was first convicted of Indictment No. 15-10-
0645: first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and second-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). The same jury then
convicted defendant of Indictment No. 12-06-0516: two counts of certain
persons not to have weapons for the same gun on the same date, N.J.S.A. 2C:39-
7.2 The trial court sentenced defendant to an aggregate term of forty years in
prison, including a thirty-year prison sentence for robbery, subject to an eighty-
five percent parole ineligibility period pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2, and a consecutive ten-year prison sentence with
five years parole ineligibility.
On appeal, defendant argues the court erred by barring evidence of his
status as a confidential informant until midtrial, admitting portions of a redacted
2
The parties agree, based on the prior convictions of defendant alleged in each
count, that count one is a second-degree crime, N.J.S.A. 2C:39-7(b) and count
two a fourth-degree crime, N.J.S.A. 2C:39-7(a).
A-4916-15T1
2
interview transcript prejudicial to him, failing to instruct the jury on the lesser -
included charge of second-degree robbery and improperly instructing the jury
during the second, certain persons, trial. Defendant also alleges the State
committed prosecutorial misconduct multiple times throughout the course of the
robbery trial and that his sentence was improper. We affirm the convictions,
but remand for resentencing.
On January 4, 2012, around 8 p.m., at the conclusion of a driving lesson,
the victim and her instructor, Henry Ansah, stopped at a bank in Elizabeth so
that the victim could use the ATM to withdraw money to pay for the lesson.
While the victim was in the ATM vestibule, defendant entered behind her and
demanded money. When the victim refused, defendant showed her a gun. The
victim gave defendant $100 she had just withdrawn from the ATM. At
defendant's direction, she withdrew an additional $200. The victim testified that
she believed the gun defendant showed her was genuine, and he was going to
kill her. After the victim told Ansah what happened, he brought her back to the
bank to see if defendant was still there and to retrieve her debit card, left at the
ATM.
When Elizabeth Police Detective Athanasios Mikros arrived at the scene,
he identified defendant based on the bank's still photos and surveillance video.
A-4916-15T1
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Detective Mikros and Detective James DiOrio interviewed defendant. DiOrio
read defendant his Miranda3 warnings, and informed defendant that he was
under arrest based on an Essex County Sheriff's warrant for a weapons offense.
Before Mikros and DiOrio began to question defendant about the January 4
ATM robbery, they questioned him about another robbery where a gun was used.
This part of the interview, in addition to references to defendant's past crimes
and his status as a confidential informant, was redacted from the transcript and
video of the interrogation presented to the jury.
Defendant admitted that he was the individual in the photographs and
surveillance video. He explained that he went to the bank with a man named
Rock to sell drugs to the victim and use the money to buy more drugs. Defendant
claimed he entered the ATM vestibule to make sure the victim was getting the
correct amount of money. He told the victim the drugs would cost $250. The
victim gave him the money. He then ordered the victim to "take another [$200]
out." Defendant explained that he robbed the victim because he is a drug addict.
After the detectives continued to question him about the gun that he used to
commit the robbery, defendant asked, "what can I do to get around this shit?"
3
Miranda v. Arizona, 384 U.S. 436 (1966).
A-4916-15T1
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Defendant said he would not give the detectives the gun unless he got
"something good" in return.
After the interview, the detectives accompanied defendant to his mother's
house in Elizabeth. Inside, defendant pointed to a bedroom chair piled with
clothes. A BB gun was found under the clothes. Mikros also found a scarf and
hat that defendant wore during the robbery.
At trial, defendant provided another explanation. He testified that on the
evening of January 4, 2012, he was waiting with his acquaintance, Rock, to meet
a woman at the bank. Defendant was there to sell the woman fraudulent
identification. She had purchased a New Jersey driver's license and a social
security card from them for $250, and he had traveled with Rock to the bank to
complete the transaction. Defendant went into the ATM vestibule to speak to
the victim. After the victim gave him $100, he informed her that the total was
$250, so she withdrew more money.
Defendant admitted to having a gun in his hand
because [there] . . . was an individual outside when I
first pulled up, all black on, walking back and forth,
walking towards the door and then walk[ing] back off.
So I pulled the gun out because I didn't know whether
or not he's trying to, you know, play me out or he was
with her.
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Defendant told the victim to wait while he went to get the social security
card from Rock, and $50 change from the sale of the fraudulent identification.
When he returned to Rock's car, he saw the victim, the individual dressed in
black, and another person enter a car and drive off. He gave Rock $250 and kept
the additional $50 for himself.
Defendant said the gun was a toy, which he wanted to appear genuine to
scare the individual outside the bank. Defendant explained that the gun he
discussed during the police interview was not the gun used during the robbery.
Defendant testified he was being sarcastic when he admitted to the police
he had robbed the victim because he was a drug addict. He claimed: "I realized
they [were] trying to basically trick me into saying what they . . . wanted me to
say." After a midtrial ruling admitting evidence of defendant's status as a
confidential informant, defendant testified that he had been a confidential
informant for Mikros, DiOrio and another detective.
The victim testified in rebuttal that she never sought to obtain fraudulent
identification, explaining, "I have my green card and my social so I don't need
to go to somebody for a fake license." She explained that when defendant
approached her, he said, "give me money," and when she responded "no," he
showed her a gun.
A-4916-15T1
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Defendant raises the following issues on appeal:
POINT I: [R.H.]'S CONVICTIONS MUST BE
REVERSED BECAUSE THE COURT STOPPED HIM
FROM PRESENTING A FULL DEFENSE WHEN IT
BARRED INFORMATION ABOUT HIS STATUS AS
AN INFORMANT UNTIL MIDTRIAL, REDACTED
RELEVANT PORTIONS OF THE
INTERROGATION, AND BARRED OTHER
RELATED EVIDENCE.
POINT II: THE COURT COMMITTED PLAIN
ERROR WHEN IT ADMITTED, WITHOUT
LIMITING INSTRUCTIONS, FOOTAGE OF THE
DETECTIVES DISCUSSING [R.H.]'S CHARACTER
TO HARM OTHERS AND HIS PARTICIPATION IN
OTHER ROBBERIES, THE COMPLAINANT'S
DECENCY AND CHARACTER FOR
TRUTHFULNESS, AND THEIR OPINION THAT A
JURY WOULD CONVICT [R.H.] BASED ON THE
EVIDENCE. (NOT RAISED BELOW).
A. REVERSAL IS REQUIRED BECAUSE THE
DETECTIVES' ASSERTIONS OF [R.H.]'S
WILLINGNESS TO HARM PEOPLE, HIS
INVOLVEMENT WITH OTHER ROBBERIES, AND
THE COMPLAINANT'S CREDIBILITY WERE
INADMISSIBLE AND PREJUDICIAL BAD-ACT
AND CHARACTER EVIDENCE.
B. REVERSAL IS REQUIRED BECAUSE THE
STATE PRESENTED INADMISSIBLE EVIDENCE
CONCERNING THE DETECTIVES' OPINIONS
REGARDING [R.H.]'S GUILT AND THE
STRENGTH OF THE CASE AT TRIAL.
POINT III: THE PROSECUTOR ENGAGED IN
REVERSIBLE MISCONDUCT WHEN HE SHIFTED
A-4916-15T1
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THE BURDEN OF PROOF, MISSTATED THE
FACTS OF THE CASE, FRAMED A GUILTY
VERDICT AS THE ONLY JUST RESULT, AND
BOLSTERED THE STATE'S WITNESS'
CREDIBILITY WHILE DISPARAGING [R.H.].
(NOT RAISED BELOW).
A. REVERSAL IS REQUIRED BECAUSE THE
COURT DID NOT ADEQUATELY ADDRESS THE
PROSECUTOR'S COMMENTS THAT THE JURY
COULD ONLY ACQUIT IF IT BELIEVED [R.H.]
AND DISBELIEVED THE COMPLAINANT, WHICH
RESTRICTED THE JURY'S DELIBERATIONS AND
SHIFTED THE BURDEN OF PROOF.
B. THE PROSECUTOR ENGAGED IN REVERSIBLE
MISCONDUCT UNADDRESSED BY THE COURT
WHEN HE INCORRECTLY STATED THAT [R.H.]
LEFT BELONGINGS IN HIS SON'S BEDROOM
SUCH THAT IT DID NOT MATTER IF THE BB GUN
WAS RECOVERED THERE.
C. THE PROSECUTOR COMMITTED PLAIN
ERROR WHEN HE FRAMED A GUILTY VERDICT
AS THE ONLY JUST RESULT, DISPARAGED
[R.H.]'S CREDIBILITY AND CHARACTER, AND
VOUCHED FOR THE CREDIBILITY OF THE
COMPLAINANT AND LEAD DETECTIVE.
POINT IV: THE COURT ERRED IN REFUSING TO
CHARGE THE LESSER-INCLUDED OFFENSE OF
SECOND-DEGREE ROBBERY AND IN
FACTUALLY LIMITING THE LESSER-INCLUDED
THEFT CHARGE.
A. REVERSAL IS REQUIRED BECAUSE THE
COURT FAILED TO CHARGE THE JURY ON
SECOND-DEGREE ROBBERY.
A-4916-15T1
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B. REVERSAL IS REQUIRED BECAUSE THE
COURT'S LESSER-INCLUDED THEFT CHARGE
UNDULY LIMITED THE JURY'S
CONSIDERATION OF THE OFFENSE.
POINT V: THE COURT ERRED DURING THE
SEPARATE TRIAL ON THE CERTAIN-PERSON
OFFENSES IN NOT CHARGING THE JURY ON
ISSUES SUCH AS ITS ROLE IN JUDGING
CREDIBILITY AND [R.H.]'S ELECTION NOT TO
TESTIFY. (NOT RAISED BELOW).
POINT VI: THE CUMULATIVE EFFECT OF THE
TRIAL ERRORS DEPRIVED [R.H.] OF DUE
PROCESS AND A FAIR TRIAL AND WARRANTS
REVERSAL OF HIS CONVICTIONS. (NOT RAISED
BELOW).
POINT VII: A REMAND IS REQUIRED BECAUSE
THE COURT DID NOT ADEQUATELY EXPLAIN
THE SENTENCE IMPOSED, DID NOT PROPERLY
ANALYZE WHETHER CONSECUTIVE
SENTENCES WERE APPROPRIATE, FAILED TO
AWARD A DAY OF JAIL CREDIT, DID NOT
PROPERLY GRADE AND MERGE THE CERTAIN-
PERSON OFFENSES, AND IMPROPERLY
IMPOSED $30 IN FINES.
A. A REMAND IS REQUIRED BECAUSE THE
COURT DID NOT ADEQUATELY EXPLAIN THE
SENTENCE IMPOSED, DID NOT PROPERLY
ANALYZE WHETHER CONSECUTIVE
SENTENCES WERE WARRANTED, AND
WITHHELD A DAY OF JAIL CREDIT.
B. A REMAND IS REQUIRED BECAUSE THE
COURT ERRED IN GRADING THE CERTAIN-
A-4916-15T1
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PERSON WEAPON OFFENSE AS A SECOND-
DEGREE CRIME, AND IN NOT MERGING IT WITH
THE CERTAIN-PERSON FIREARM OFFENSE.
C. A REMAND IS REQUIRED BECAUSE THE
COURT ERRED IN IMPOSING TWO $30 N.J.S.A.
2C:43- 3.3 FINES.
I.
Prior to the start of trial, the court denied defendant's application to admit
evidence that he was a confidential informant. At defendant's request, the court
also barred testimony and redacted portions of the transcript of the police
interview and video discussing an additional gun used in a separate robbery.
"[T]he decision to admit or exclude evidence is one firmly entrusted in the
court's discretion." State v. Scott, 229 N.J. 469, 479 (2017) (alteration in
original) (quoting Estate of Hanges v. Metropolitan Property & Cas. Ins. Co.,
202 N.J. 369, 383-84 (2010)). We review a court's evidentiary rulings under an
abuse of discretion standard and do "not 'substitute [our] own judgement for that
of the court' unless there was a 'clear error in judgment' -- a ruling so 'wide off
the mark that a manifest denial of justice resulted.'" Ibid. (quoting State v. Perry,
225 N.J. 222, 233 (2016)).
Our Supreme Court has recognized:
The Federal and New Jersey Constitutions guarantee
criminal defendants "a meaningful opportunity to
A-4916-15T1
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present a complete defense." "That opportunity would
be an empty one if the State were permitted to exclude
competent, reliable evidence bearing on . . . credibility
. . . when such evidence is central to the defendant's
claim of innocence."
[State v. Garron, 177 N.J. 147, 167 (2003) (citations
omitted) (quoting Crane v. Kentucky, 476 U.S. 683,
690 (1986)).]
Generally, other-crimes evidence is admissible only if it passes the
rigorous test outlined in State v. Cofield, 127 N.J. 328, 338 (1992). See also
State v. Weaver, 219 N.J. 131, 150 (2014). However, "[a] defendant generally
may introduce 'similar other-crimes' evidence defensively if in reason it tends,
alone or with other evidence, to negate his [or her] guilt." Ibid. (quoting State
v. Garfole, 76 N.J. 445, 453 (1978)). Rule 401 governs the admissibility of
other-crimes evidence used defensively. "[P]rejudice to the defendant is no
longer a factor" and the standard is "simple relevance to guilt or innocence."
Ibid. (quoting Garfole, 76 N.J. at 452-53). "[A] defendant need only show that
the evidence offered has a rational tendency to engender a reasonable doubt
about an essential element of the State's case." Biunno, Weissbard & Zegas,
Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 401 (2018).
A-4916-15T1
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A. Confidential Informant.
Defendant sought to introduce evidence that he had previously worked as
a confidential informant for the police. The court initially barred this testimony
as not relevant, and prejudicial to defendant, even though defendant sought its
admission. It also stated that evidence of defendant's role as a confidential
informant would:
open up . . . a Pandora's box . . . [regarding allegations]
that at times the police in appreciation or payment [for
defendant's cooperation as a confidential informant]
would permit the defendant to keep drugs and/or
money, things like that. . . . Now the Elizabeth Police
are going to be on trial. . . . I'm not saying it didn't
happen. . . . My concern is . . . confusion for the jury,
taking their focus away from this case . . . The focus
should not be on . . . . the details of the relationship
between [defendant] and the Elizabeth Police.
The court explained that it would reconsider its decision after Detective Mikros
testified, if defendant chose to testify.
During cross-examination of defendant at trial, the State asked defendant:
"Why would you [bring detectives to your son's gun] if that's not the gun you
used in the . . . alleged robbery?" Based on this question, defense counsel
renewed her motion to permit defendant to testify about his status as a
confidential informant. The court changed its prior ruling, explaining, "the
[c]ourt now finds. . . defendant's prior relationship with the police as a
A-4916-15T1
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[confidential informant] relevant . . .[;] the [c]ourt does not find it relevant that
the police would allegedly permit the defendant to keep drugs in exchange for
the defendant's information."
Based on the changed ruling, defense counsel asked defendant additional
questions before the State resumed its cross-examination. Defendant said he
had been a confidential informant for three detectives for about two years,
during which he had been compensated by the police. When he was picked up
by the detectives on January 11, 2012, he believed he was going to discuss an
event that occurred at another housing project. He was not aware he was under
arrest or that the statement he was giving would be used against him. He made
statements during the police interview contrary to what he eventually testified
to at trial "because I was a confidential informant and this is what I normally do
when I go into the station."
On summation, defense counsel argued that, due to defendant's role as a
confidential informant, he "bargained for leniency" with the detectives. Defense
counsel argued: "That's what [R.H.] does. He bargains with them. I give you
this, you give me that. I say this for you, you give me this. That's what he does."
Defense counsel explained:
That's why he didn't tell them the story that night,
because he's so used to being in that room. How many
A-4916-15T1
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times has he been in that room where they're feeding
him cues and he just repeats what they're saying. He
didn't realize he was being recorded because most of
the other times he's not. He didn't realize he was giving
a statement.
Because the court changed its ruling mid-trial, defendant was able to
present a complete defense concerning his role as a confidential informant, and
thus did not suffer prejudice from the earlier ruling.
B. Other-crimes evidence.
While the court permitted defendant to present confidential informant
evidence, he was unable to present evidence that when he previously
incriminated himself in front of the detectives, they "protected him from
prosecution." The court additionally barred testimony discussing an additional
gun.
The court did not abuse its discretion by ruling inadmissible evidence
defendant had previously incriminated himself in front of the detectives, who
then protected him from prosecution, because it would "'divert the minds of the
jurors from a reasonable and fair evaluation' of the issues in the case." See State
v. Brockington, 439 N.J. Super. 311, 333 (App. Div. 2015) (quoting State v.
Long, 173 N.J. 138, 164 (2002)).
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II. Detectives' Statements.
Defendant argues for the first time on appeal that the court committed
plain error by admitting, through the video and transcript of the police interview,
detectives' statements discussing defendant's "alleged willingness to harm
people, his possible involvement in other robberies, the victim's good character
for truthfulness, and their opinion that a jury would convict [defendant] of
robbery." Arguments not raised in the trial court are reviewed under the plain
error standard, and we will not reverse unless there was error that is "clearly
capable of producing an unjust result." R. 2:10-2; see also State v. Pressley, 232
N.J. 587, 593 (2018).
When applying the plain error standard to evidence that should have been
excluded, "the error will be disregarded unless a reasonable doubt has been
raised whether the jury came to a result that it otherwise might not have
reached." State v. R.K., 220 N.J. 444, 456 (2015). Our Supreme Court has
"insisted that, in opposing the admission of evidence a litigant must 'make
known his position to the end that the court may consciously rule upon it.'" State
v. Robinson, 200 N.J. 1, 19 (2009) (quoting State v. Abbott, 36 N.J. 63, 76
(1961)). The detectives' recorded statements do not meet the plain error
standard.
A-4916-15T1
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A. Defendant's Prior Bad Acts.
During the police interview, the detectives questioned defendant on how
he knew that the door to the ATM would be unlocked. DiOrio asked defendant,
"How did you know the door was broken at that bank? Were you there a few
days earlier robbing someone else?" Mikros told defendant he "want[ed] to
know why did you rob her . . . [a]nd where's the gun?" He then stated, speaking
of another attempted robbery: "You had the perfect opportunity. You know the
daughter is in fucking line and you want to go rob her. That's what you did.
You pointed a gun. She didn't give you the money."
Following that statement, DiOrio began to discuss the robbery of the
victim, stating: "Why would a lady who don't know you from Adam, take a
hundred dollars out, which she intended to, and then start another transaction
and take [another] $200 dollars . . . out?" The redacted version of the transcript,
presented at trial to the jury, does not suggest that two separate robberies were
being discussed during the interview.
For the first time on appeal, defendant argues that these portions of the
transcript were improperly admitted as evidence of defendant's prior bad acts.
The primary concern is that "the jury may convict the defendant because he is 'a
"bad" person in general.'" Cofield, 127 N.J. at 336 (quoting State v. Gibbons,
A-4916-15T1
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105 N.J. 67, 77 (1987)); see also State v. Garrison, 228 N.J. 182, 193-94 (2017)
(explaining that "[o]ne of the well-recognized dangers inherent in the admission
of so-called 'other-crimes evidence' is that a jury may convict a defendant not
for the offense charged, but for the extrinsic offense") (quoting State v. Skinner,
218 N.J. 496, 514 (2014)). These statements do not demonstrate prior bad acts
of defendant and were not prejudicial.
B. Defendant's Bad Character.
During the police interview, the detectives questioned defendant about
whether the gun used in the robbery of the victim was real or fake. DiOrio told
defendant that he did not think the gun was real, because if it was , defendant
would have pulled it out of his pocket and put it to the victim's head. For the
first time on appeal, defendant argues that this statement constituted bad-
character evidence, and suggested that defendant had a violent disposition.
Again, in itself it is merely a comment by the detective and not proof of bad
character.
C. The Victim's Good Character.
Defendant additionally argues that the State improperly bolstered the
victim's credibility and character when, during the police interview, the
detectives stated that she was "not a drug user," was "an innocent lady," and was
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"[not] making [the alleged robbery] up." In the context of the interrogation this
was not harmful.
D. Detectives' opinion.
During the police interview, the detectives told defendant of the strength
of the State's case. For example, Mikros stated, "Even if we don't have the gun,
you have enough to go down. You're not gonna win this. You're not. We're not
lying to you." Defendant argues that these statements were "akin to opinion
testimony regarding the ultimate issue of guilt. . . ." Lay opinion testimony "can
only be admitted if it falls within the narrow bounds of testimony that is based
on the perception of the witness and that will assist the jury in performing its
function." State v. McLean, 205 N.J. 438, 456 (2011); N.J.R.E. 701.
Defendant argues, for the first time on appeal, that the detectives'
interview statements were improper opinion testimony, evidence of defendant's
bad character and the victim's good character, as well as evidence of defendant's
prior bad acts. The statements were made in the videotaped interview to coax
defendant into confessing. Their admission as part of that taped interview was
not "clearly capable of producing an unjust result." See R. 2:10-2.
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III. Prosecutorial Misconduct.
Defendant next argues that the State committed misconduct by shifting
the burden of proof, misstating facts of the case, and, for the first time on appeal,
by framing a guilty verdict as the only just result and bolstering the credibility
of its witnesses. When a defendant alleges that the prosecutor engaged in
misconduct, the court must "assess whether the defendant was deprived of the
right to a fair trial." Pressley, 232 N.J. at 593; see also State v. Wakefield, 190
N.J. 397, 437 (2007). "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.'" Wakefield, 190 N.J. at 438 (alteration in original) (quoting
State v. Papasavvas, 163 N.J. 565, 625 (2000)).
The prosecutor is afforded wide latitude during summations, as long as he
or she "stays within the evidence and legitimate inferences therefrom. . . ." State
v. R.B., 183 N.J. 308, 330 (2005) (quoting State v. Mayberry, 52 N.J. 413, 437
(1968)). During summation, prosecutors are also permitted to "respond to an
issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super.
247, 266 (App. Div. 1996). "In reviewing closing arguments, we look, not to
A-4916-15T1
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isolated remarks, but to the summation as a whole." State v. Atwater, 400 N.J.
Super. 319, 335 (App. Div. 2008).
A. Shifting the burden of proof to defendant.
Defendant argues that the prosecutor committed reversible misconduct by
improperly shifting the burden of proof by informing the jury that they could
only acquit defendant if they did not believe the victim. Defendant further
argues that the court's curative instruction was inadequate.
During summation, the prosecutor stated:
If you are to believe the defendant's story, there are very
important assumptions and very important decisions
that you have to make . . . . You would have to believe
the victim is lying about the robbery.
After defense counsel objected, the court issued a curative instruction to
the jury:
[T]here was also a comment [the prosecutor] made[,]
something along the lines of to find the defendant not
guilty you'd have to accept his version of the events. In
reality -- and the jury charge is going to tell you that
you can believe or disbelieve all or parts of the
testimony of any of the witnesses. That's completely
up to you.
The court later instructed the jury on its ability to make credibility
determinations:
A-4916-15T1
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As the judges of the facts you are to determine the
credibility of the witnesses . . . . Through this analysis
as judges of the facts you weigh the testimony of each
witness and then determine the weight to give to it.
Through that process you may accept all of it, a portion
of it, or none of it.
Finally, the court instructed the jury:
[T]he burden of proof is on the State. The defendant is,
therefore, not required to prove that he acted pursuant
to a claim of right, rather, the burden is on the State to
prove the defendant did not act pursuant to a claim of
right. Thus, if the State has proven all the elements of
robbery or theft beyond a reasonable doubt . . . then you
must find the defendant guilty of robbery or theft.
A prosecutor may never suggest a shifting of the burden of proof to
defendant. State v. Loftin, 146 N.J. 295, 389 (1996). Here, the prosecutor
responded to defense counsel's attack in summation on the victim's credibility
and her explanation of the robbery as "bizarre." At defendant's request, the trial
judge promptly issued an effective curative instruction to the jury, neutralizing
any possible prejudice caused by the remarks. We find no unaddressed,
prejudicial misconduct.
B. Other Prosecutor Misconduct.
Defendant next argues that the prosecutor committed reversible
misconduct by making improper inferences from the evidence, framing a guilty
verdict as the only just result, and bolstering the credibility of the victim while
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attacking the character of defendant. These issues are without sufficient merit
to warrant discussion. R. 2:11-3(e)(2).
IV. Jury Charges.
Proper jury charges are essential for a defendant to receive a fair trial.
State v. Green, 86 N.J. 281, 287 (1981). "The trial judge has a mandatory duty
to charge the jury on the fundamental principles of law which control the case
. . . ." State v. Holmes, 208 N.J. Super. 480, 490 (App. Div. 1986) (quoting
State v. Fair, 45 N.J. 77, 90 (1965)). N.J.S.A. 2C:1-8(e) states: "The court shall
not charge the jury with respect to an included offense unless there is a rational
basis for a verdict convicting the defendant of the included offense."
If a rational basis exists for charging the jury with the lesser-included
offense, "a court's failure to give the requested instruction is reversible error."
State v. Carrero, 229 N.J. 118, 128 (2017). When determining if "the rational-
basis test has been satisfied, the court must view the evidence in the light most
favorable to the defendant." Ibid.Defendant was charged with first-degree robbery.
Robbery is a crime of the second degree, except that it
is a crime of the first degree if in the course of
committing the theft the actor attempts to kill anyone,
or purposely inflicts or attempts to inflict serious bodily
injury, or is armed with, or uses or threatens the
immediate use of a deadly weapon.
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[N.J.S.A. 2C:15-1(b) (emphasis added).]
N.J.S.A. 2C:11-1(c) provides that if the victim reasonably believed the
instrument used "to be capable of producing death or serious bodily injury," th e
instrument is a deadly weapon for the purposes of the statute. Thus, "any device,
instrument or the like will make robbery a crime of the first degree if the victim
reasonably believes it to be a deadly weapon." Cannel, N.J. Criminal Code
Annotated, cmt. 6 on N.J.S.A. 2C:15-1 (2018).
The court rejected defendant's request for a lesser-included offense
charge, concluding there was no rational basis in the record for a charge of
second-degree robbery. "There is nothing that I could find that would indicate
a rational basis for the jury to conclude it was a second[-]degree robbery. [The
victim] says, you know what? He had a gun. He threatened me with it . . . by .
. . [making] gestures. He said give me the money." The judge further explained
that defendant testified "[i]t was a business transaction . . . and the only reason
he ever had the gun or reached for the gun . . . [was] because he had a concern
of what was happening outside the ATM . . . ."
In order for a rational basis for second-degree robbery to exist, the jury
would have to find that defendant was guilty of robbery, but that he was not
"armed with, or [did not] use[] or threaten[] the immediate use of a deadly
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weapon." N.J.S.A. 2C:15-1(b). The victim testified that when she refused to
give defendant money, he showed her a black gun. She thought the weapon
defendant had was a real gun, and gave him money "because I thought he was
going to shoot me, like [I was] going to die that night[,] I was so scared."
Defendant testified that he had a toy gun in his hand when interacting with
the victim, and that he "pulled the gun out" because he was wary of an individual
who was outside the ATM. Defendant also testified that he only put the gun
away after the victim gave him the first $100 because he no longer saw the
individual outside the bank.
Even if defendant was armed with a toy gun, as he claims, no rational
basis existed to charge the jury on second-degree robbery. The victim
indisputably saw a gun, toy or not, and thus reasonably believed it was a deadly
weapon. The court properly refused to charge second-degree robbery.
Defendant's further claim that the court erred by not charging theft is without
sufficient merit to warrant discussion. R. 2:11-3(e)(2).
V. Certain Persons Jury Charge.
After the jury returned a verdict convicting defendant of robbery,
possession of a firearm for an unlawful purpose, and unlawful possession of a
weapon, a separate trial before the same jury for the certain persons offenses
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took place. Defendant argues for the first time on appeal, after raising no
objection to the jury charge at the certain persons trial, that the court erred in
not re-instructing the jury on: (1) the nature of the indictment; (2) the function
of the court; (3) the duty to avoid speculation and conjecture; (4) the evidence
allowed to be considered; (5) the process for deliberating and returning a verdict;
(6) the jury's fact-finding function and role in judging the credibility of
witnesses; and (7) in light of defendant's decision not to testify, that he had the
right to remain silent and was presumed innocent.
Consistent with our Supreme Court's clear instructions in State v.
Ragland, 105 N.J. 189, 194-96 (1986), the court properly instructed the jury:
You must again disregard completely your prior verdict
and consider anew the evidence previously admitted on
the possession of a weapon by the defendant. The
defendant again is entitled to the presumption of
innocence. Each and every material fact that makes up
the crime of certain persons not to have a firearm and
the crime of certain persons not to have a weapon[,]
including the element of possession[,] must be proven
by the State beyond a reasonable doubt.
The court then instructed the jury on the law regarding possession of a firearm
and a weapon by a previously convicted person, and the elements the State must
prove in order to find defendant guilty of those crimes beyond a reasonable
doubt.
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Absent objection from the defendant, no further charge was required.
VI. Cumulative Effect of Errors.
Given the lack of significant error and overwhelming evidence of guilt,
this issue requires no further discussion. R. 2:11-3(e)(2).
VII. Sentencing.
We "review the court's 'sentencing determination under a deferential
standard of review.'" State v. Grate, 220 N.J. 317, 337 (2015) (quoting State v.
Lawless, 214 N.J. 594, 606 (2013)). We must affirm the trial sentence if: (1)
the court followed the sentencing guidelines; (2) its findings of fact and
application of aggravating and mitigating factors were based on competent,
credible evidence in the record; and (3) the application of the law to the facts
does not "shock[] the judicial conscience." State v. Bolvito, 217 N.J. 221, 228
(2014) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
"To provide an intelligible record for review, the court should identify the
aggravating and mitigating factors, describe the balance of those factors, and
explain how it determined defendant's sentence." State v. Kruse, 105 N.J. 354,
360 (1987). "Merely enumerating those factors does not provide any insight
into the sentencing decision, which follows not from a quantitative, but from a
qualitative, analysis." Id. at 363.
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26
A. Double-counting.
At sentencing, the State moved for imposition of a discretionary extended
term of imprisonment based on defendant's prior convictions.
N.J.S.A. 2C:44-3(a) provides:
The court may, upon application of the prosecuting
attorney, sentence a person who has been convicted of
a crime of the first, second or third degree to an
extended term of imprisonment if it finds . . . [t]he
defendant has been convicted of a crime of the first,
second or third degree and is a persistent offender.
The same statute defines a "persistent offender" as
a person who at the time of the commission of the crime
is [twenty-one] 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 [ten] years of
the date of the crime for which the defendant is being
sentenced.
In determining whether to impose a discretionary extended term, the court
must: (1) determine whether the minimum statutory predicates are met; (2)
decide whether to impose an extended term; (3) weigh aggravating and
mitigating factors to determine the base term of the extended sentence; and (4)
determine whether to impose a parole ineligibility period. State v. Pierce, 188
N.J. 155, 164 (2006). The court must also consider the need for public
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27
protection. Ibid. Further, "other aspects of the defendant's record, which are
not among the minimal conditions for determining persistent offender status,
such as a juvenile record, parole or probation records, and overall response to
prior attempts at rehabilitation, will be relevant factors in adjusting the base
extended term." State v. Dunbar, 108 N.J. 80, 92 (1987).
At sentencing, the court determined that an extended prison term should
be imposed based on defendant's multiple indictable and criminal convictions,
and his possession of a weapon. The court discussed defendant's extensive prior
criminal record. The court determined that defendant had "at least nine prior
indictable convictions . . . from 1991 to 2010."
The court next explained that defendant "has been on parole, or probation,
or in prison, for over 20 years and has multiple violations of probation and
parole, has committed crimes while on probation and, frankly, although he may
be a different man today, seems to have no respect for the law." The court found
aggravating factor three applicable, N.J.S.A. 2C:44-1(a)(3), the risk that the
defendant will commit another offense, explaining "it's clear from the
defendant's many convictions and violations of probation and parole, that he's a
risk to re-offend, not to mention his struggle with addiction that makes him a
risk to offend, as well." The court additionally found applicable aggravating
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factor six, N.J.S.A. 2C:44-1(a)(6), the extent of the defendant's prior criminal
record and the seriousness of the offenses of which he has been convicted, citing
defendant's long criminal history. Finally, the court found applicable
aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need for deterring defendant
and others from violating the law.
Defendant argues that the court double-counted his extensive criminal
record by imposing an extended term and finding aggravating factor six
applicable. In State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005), the
sentencing judge erroneously relied upon a single prior conviction to justify both
the imposition of an extended term sentence, and the length of that extended
term. We found that doing so amounted to "double-counting" of the defendant's
prior conviction. Id. at 267-68. State v. McDuffie, 450 N.J. Super. 554, 576
(App. Div. 2017) recently addressed this situation, where a defendant argued
that a trial judge "impermissibly double-counted his criminal record, when
granting the State's motion for a discretionary extended term, and again, when
imposing aggravating factor six . . . ."
"[F]acts that establish[] elements of a crime for which
a defendant is being sentenced should not be considered
as aggravating circumstances in determining that
sentence." [Defendant's] criminal history was not a
"fact" that was a necessary element of an offense for
which he was being sentenced. Further, it cannot be
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29
disputed [defendant] had more than the requisite
number of offenses to qualify for an extended term.
Indeed, the trial judge was not then required to ignore
the extent of his criminal history when considering
applicable aggravating factors.
[Id. at 576-77 (first and second alterations in original)
(citation omitted) (quoting State v. Kromphold, 162
N.J. 345, 353 (2000)).]
Given defendant's numerous prior convictions, the court did not commit
error by imposing an extended term and using his prior convictions also as an
aggravating factor. Nor did the court err in finding aggravating factor nine, the
need for deterrence.
B. Fines.
Defendant argues that the court erred in imposing two $30 fines pursuant
to N.J.S.A. 2C:43-3.3, which provides that penalties be deposited into a "Law
Enforcement Officers Training and Equipment Fund." He argues that the statute
requires only one $30 penalty per disposition, and here there was only one
disposition.
"In addition to any disposition made pursuant to the provisions of Title
2C . . . any person convicted of a crime shall be assessed a penalty of $30."
N.J.S.A. 2C:43-3.3(a) (emphasis added). A "disposition" is defined as "[a] final
settlement or determination." Black's Law Dictionary 539 (9th ed. 2009).
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Defendant had two trials. He was sentenced for his conviction under Indictment
No. 15-10-0645 for robbery and unlawful possession of a weapon. Defendant
was thereafter sentenced, with a separate judgement of conviction, for the
charges under Indictment No. 12-06-0516, two counts of certain persons not to
have weapons. The court did not err in assessing two $30 penalties pursuant to
N.J.S.A. 2C:43-3.3.
C. Consecutive terms.
Defendant argues persuasively that the court erred by failing to address
the Yarbough factors in sentencing defendant to consecutive sentences. See
State v. Yarbough, 100 N.J. 627, 643-44 (1985). N.J.S.A. 2C:44-5(a) provides
that when a defendant receives multiple sentences "for more than one offense .
. . such multiple sentences shall run concurrently or consecutively as the court
determines at the time of sentence . . . ." Our Supreme Court set forth five
factors that courts should consider in deciding whether to impose consecutive
sentences:
(a) the crimes and their objectives were predominantly
independent of each other; (b) the crimes involved
separate acts of violence or threats of violence; (c) the
crimes were committed at different times or separate
places, rather than being committed so closely in time
and place as to indicate a single period of aberrant
behavior; (d) any of the crimes involved multiple
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31
victims; and (e) the convictions for which the sentences
are to be imposed are numerous.
[Yarbough, 100 N.J. at 643-44.]
"The Court also specifically directed that 'the reasons for imposing either
a consecutive or concurrent sentence should be separately stated in the
sentencing decision.'" State v. Miller, 205 N.J. 109, 129 (2011) (quoting
Yarbough, 100 N.J. at 643). Where a court does not explain its reasoning for
imposition of consecutive sentences, "a remand is ordinarily needed for the
judge to place reasons on the record." Ibid.Under the robbery indictment, on count one, first-degree robbery, the
court sentenced defendant to a prison term of thirty years under NERA. On the
certain persons indictment, count one, defendant was sentenced to a consecutive
term of ten years imprisonment with five years of parole ineligibility.
In sentencing defendant to consecutive sentences, the court explained, "I
do find that a consecutive sentence, meaning the certain persons, is appropriate
due to [defendant's] lengthy, substantive criminal history and for the protection
of the public." A remand is necessary because the court failed to address any of
the Yarbough factors. We note that the robbery and certain person offenses were
not entirely independent of each other, and involved no more than one victim.
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32
Both the State and defendant agree that we should remand to determine
whether defendant is entitled to an additional day of jail credit. Also, both the
State and defendant agree defendant's conviction of certain persons not to have
a weapon, N.J.S.A. 2C:39-7(a) (count two), a fourth-degree crime, should merge
with certain persons not to have a firearm, N.J.S.A. 2C:39-7(b) (count one), a
second-degree crime.
We thus remand for a new sentencing hearing, to allow the parties to fully
address the sentencing issues. We affirm the convictions and do not retain
jurisdiction.
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