STATE OF NEW JERSEY v. MATTHEW STANCIL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1388-04T41388-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW STANCIL,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 29, 2005 - Decided

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 04-01-0265.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Gary A. Thomas, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of second-degree robbery, N.J.S.A. 2C:15-1. He was sentenced as a persistent offender, see N.J.S.A. 2C:44-3a, to an extended term of eighteen-years imprisonment, subject to an 85% percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The judge ordered that the sentence would be served concurrent to a sentence defendant was then serving.

On appeal, defendant raises these arguments:

POINT I

DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE REMOVAL OF A JUROR WITHOUT "GOOD CAUSE" VIOLATED DEFENDANT'S RIGHT TO AN IMPARTIAL JURY GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

POINT II

DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE VACATED BECAUSE THE LOWER COURT VIOLATED THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. (Not Raised Below).

We reject Point I and affirm the conviction. However, in light of the Supreme Court's decisions in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005), decided during the pendency of this appeal, the matter must be remanded for resentencing.

On the evening of August 7, 2003, Elvin Delarocha, his wife and three young children returned to their apartment building in Orange after grocery shopping. After they parked their minivan, they began to remove grocery bags, when they were accosted by defendant and another assailant. The attackers grabbed the two adult victims directing them not to look at their faces and threatening to kill them if they did. Defendant went through Delarocha's pockets, removing his wallet, cell phone and keys to the minivan. Defendant handed the keys to the other assailant, who entered the vehicle and sat in the driver's seat. One of the children was already out of the van, and at this point defendant ordered the parents to remove the other small children from the van, which they did. Delarocha then picked up two bricks. He threw one at defendant, striking him in the head and knocking him unconscious. He threw the other through the open door of the minivan, striking the other perpetrator in the shoulder, after which that individual got out of the van and fled the scene. The second assailant was never identified.

A 9-1-1 call was placed to the police, who responded promptly. When the police arrived, defendant, who was bleeding from the head, was still laying on the ground next to the minivan. A search of his person revealed that he had Delarocha's cell phone and wallet in his pocket.

The sole argument raised by defendant for reversal of his conviction is that the judge improperly excused a sitting juror. The judge empanelled fourteen jurors, allowing for two alternates to be ultimately designated. After the jury was sworn and opening statements were presented, a lunch recess was taken. After the recess, the law clerk of another judge reported to the judge in this case that he overheard a cell phone conversation by a juror, which took place in the elevator in the presence of six or seven jurors on this case. The judge placed the law clerk under oath in open court in the presence of both counsel and defendant, and the law clerk described the incident in detail and gave a description of the juror who had the conversation.

He reported that she complained that she had been picked on a jury and would be tied up for about a week. She further stated that during the voir dire process the judge asked many questions including about whether she had been previously convicted of a crime and then stated, "I told them that I wasn't even though I have been convicted of crimes." The law clerk was then excused, and the juror matching the description was brought into the courtroom for questioning.

When the judge asked whether she had a cell phone conversation in the elevator she responded, "Maybe." When asked whether there were other jurors from this case in the elevator, she stated, "No idea." The judge asked whether she recalled what she told the person on the cell phone, and she responded, "Probably." The judge asked her to describe her conversation. She stated only that she told the person to whom she was speaking that she was picked for a jury and would be in court for about a week. She did not volunteer the comment about a prior conviction.

When the judge pressed her with direct questions, the juror acknowledged her comment on the cell phone about being convicted of a crime. She stated that she had pled guilty in municipal court to possessing a small quantity of marijuana, and she wasn't sure if that was considered a crime or if it was merely a disorderly persons offense. When the judge questioned her further, asking whether she remembered him asking the question about whether she had ever been arrested but not convicted of a crime, she replied in the negative.

The judge conducted a sidebar conference. Defense counsel urged that the juror not be excused, suggesting that her conviction was at the disorderly level and thus not a disqualification from jury service. The prosecutor argued that "the Law Clerk heard her say she was convicted of a crime in her mind, therefore[e] she was not truthful and she has to be excused." The judge found that the juror was evasive in her responses and disingenuous with the court, and he dismissed her. The judge then questioned the other jurors to determine whether any of them were tainted by the incident. He concluded they were not, a conclusion defendant does not dispute. The trial then continued with thirteen jurors, and at the conclusion, one was designated as an alternate and the other twelve deliberated and decided the case.

Trial judges are authorized to excuse impaneled and sworn jurors for good cause shown. R. 1:8-2(d)(1). This is not a situation where the issue of juror excusal occurred during deliberations, which requires a specific and more stringent standard -- death, illness or other inability to continue. Ibid. Under the circumstances of this case, the general good cause standard is applicable and the trial judge is granted broad discretion in making the determination. We are satisfied from our review of the record that the judge did not mistakenly exercise his discretion. His action simply reduced the number of available alternate jurors from two to one. The action in no way impugned defendant's right to a trial before an impartial jury. Thus, there was no error in this regard, and defendant's conviction of second-degree robbery is affirmed.

Defendant argues that his sentence is excessive and violates the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Defendant's argument is two-fold. He complains that imposition of an extended term sentence was impermissible because it relied upon factfinding by the judge rather than the jury. He also argues that imposition of an above-presumptive term is impermissible for the same reason.

There is no infirmity in the imposition of an extended term sentence based upon persistent offender status. State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005). This sentence falls within the recidivism exception to the holdings in Blakely and Apprendi. Id. at 509-10. There is no dispute that defendant satisfied the criteria for a persistent offender. The judge engaged in an appropriate analysis as required by State v. Dunbar, 108 N.J. 80 (1987), in making his discretionary determination whether to impose an extended term sentence. That discretion was appropriately exercised. Accordingly, we affirm the determination to impose an extended term sentence.

The eighteen-year term imposed was greater than the fifteen-year presumptive sentence within the extended term range. In fixing that term, the judge considered by way of aggravation circumstances other than defendant's prior record. In addition to finding the presence of aggravating factors (3) (the risk that defendant will commit another offense) (6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted) and (9) (the need for deterrence), the judge also found the presence of aggravating factor (1) (the nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner). See N.J.S.A. 2C:44-1a. Thus, imposition of a greater than presumptive term does not fall within the recidivism exception and is contrary to the holdings in Natale and Abdullah. See Abdullah, supra, 184 N.J. at 505-06. We therefore remand for resentencing anew in accordance with the principles set forth in Natale and Abdullah.

 
The conviction is affirmed. The matter is remanded for resentencing.

The seven-count indictment contained other more serious counts, including first-degree robbery, N.J.S.A. 2C:15-1, and carjacking, N.J.S.A. 2C:15-2, but the jury found defendant not guilty of all other charges and convicted him only of one lesser-included second degree robbery offense.

The judge also imposed a five-year period of parole supervision pursuant to NERA. Although the issue has not been raised by the parties, we note that for a second-degree conviction, the correct period of parole supervision under NERA is three years. N.J.S.A. 2C:43-7.2c. This aspect of the sentence should be corrected in the remand directed by this opinion.

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A-1388-04T4

December 14, 2005