STATE OF NEW JERSEY v. EARL BELL, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4689-03T44689-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EARL BELL, JR.,

Defendant-Appellant.

______________________________

 

Submitted September 27, 2005 - Decided

Before Judges Coburn and S.L. Reisner.

On appeal from the Superior Court of

New Jersey, Law Division, Hudson County, Indictment No. 02-06-1431.

Yvonne Smith Segars, Public Defender, attorney for appellant (Andrew J. Shaw, Designated Counsel, of counsel and on

the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent

(Gregory R. Gonzalez, Assistant

Prosecutor, on the brief).

PER CURIAM

Defendant, Earl Bell, Jr., was indicted on three counts: (1) passing a bad check under N.J.S.A. 2C:21-5; (2) forgery under N.J.S.A. 2C:21-1a; and (3) criminal simulation under N.J.S.A. 2C:21-2. The criminal simulation count was dismissed during trial. Defendant was acquitted on the bad check charge but was convicted of forgery, N.J.S.A. 2C:21-1(a)(3), and sentenced to five years imprisonment. We affirm the conviction but remand for reconsideration of the sentence pursuant to State v. Natale, 184 N.J. 458 (2005), and for a technical correction to the judgment of conviction.

I

On January 14, 2002, defendant entered the Shop Rite supermarket at 400 Marin Boulevard in Jersey City, New Jersey and approached the Independence Community Bank branch which is located inside the supermarket. He handed the bank teller, Gerald Salas, a check to cash. The check was drawn on Kim Hayward Middleton's Independence Community Bank account in the Union, New Jersey branch. The check was for three hundred dollars and was made payable to Earl Bell.

Following bank policy, Mr. Salas called the Union branch of the bank to request a copy of Ms. Middleton's signature card to verify her signature on the check. During this telephone call, Mr. Salas spoke with John Farina, manager of the bank. Mr. Farina told Mr. Salas that Ms. Middleton was an employee of the Walmart in which the Union branch of the bank was located and that she was working in the store at that time. The Jersey City branch faxed a copy of the check to the Union branch. Mr. Farina showed the faxed copy to Ms. Middleton, who confirmed that she had not signed the check. The Jersey City branch also confirmed that the signature on the check did not match the signature card, which had been faxed from the Union branch. Mr. Salas alerted the police, who arrested defendant. Both the check and Ms. Middleton's signature card were admitted in evidence at trial.

According to the testimony of Ms. Middleton, Mr. Farina found her in the Walmart, told her that someone was trying to cash one of her checks and asked her if she had written a check to Earl Bell. She told Mr. Farina that she had not written a check to Earl Bell. She testified that, on consulting her checkbook, which was in her purse at her workplace, she discovered that there were several checks missing. She further testified that she did not know Earl Bell, she had not written a check to him, he did not have permission to have the check, and she neither wrote out nor signed the check. She testified that she was certain immediately that she had not written a check to Earl Bell, because she had limited funds and only used her checking account to pay bills.

Defendant presented no witnesses, and in his summation, defense counsel conceded that defendant "tried to pass the check." He contended that Mr. Bell did not know that the check was forged and that there was reasonable doubt as to whether the check was forged.

On the first day of the trial, following jury selection, the judge gave both counsel a copy of a proposed jury charge and asked for their input, because "the forgery charge has many alternatives . . . it has many ors in it and I'd like to know what I'm supposed to charge the jury[.] I don't know the facts. This is the job of counsel to tell me what they intend to prove and what charge I should give the jury."

At the close of the State's case, defense counsel made a motion for a directed acquittal. In his motion, counsel reviewed the three possible types of conduct that could constitute forgery, including uttering "any writing which he or she knows to be forged," and argued that the State had not proven any of the three types of forgery. Counsel did not argue that the indictment did not include uttering a forged instrument. The trial judge denied the motion on the ground that the evidence could support an inference that defendant "was uttering a forged instrument and either he forged it himself . . . or that he uttered an instrument forged by someone else."

During the charge conference on September 24, 2003, the prosecutor advised the judge that "the indictment is 2C:21-A(3), uttering." Defense counsel made no objection, and agreed that the court should instruct the jury on the charge "that defendant uttered any writing which he knew to be forged." Nor did defense counsel object to the charge after the judge instructed the jury. Further, when the jury asked a question as to whether the State had to prove both elements on the forgery count, the judge gave the response suggested by defense counsel.

II

On this appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED BY ISSUING CONFUSING CHARGES TO THE JURY ON THE FORGERY OFFENSE.

POINT II: THE TRIAL COURT ERRED BY CHARGING THE JURY CONCERNING THE PASSING A BAD CHECK OFFENSE.

POINT III: THERE WAS INSUFFICIENT EVIDENCE TO CHARGE THE JURY ON THE FORGERY OFFENSE.

POINT IV: THE JURY'S VERDICT ON THE FORGERY OFFENSE WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V: THE TRIAL COURT ERRED BY CHARGING THE JURY WITH RESPECT TO FORGERY BY UTTERING PURSUANT TO N.J.S.A. 2C:21-1(a)(3) AS THE DEFENDANT WAS NOT INDICTED FOR THIS OFFENSE. NOT RAISED BELOW.

POINT VI: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. NOT RAISED BELOW.

POINT VII: THE TRIAL COURT ERRED BY FAILING TO GRANT THE DEFENSE'S MOTION SEEKING POLICE REPORTS WHICH COULD HAVE BEEN USED TO IMPEACH MS. MIDDLETON'S CREDIBILITY.

POINT VIII: THE MAXIMUM SENTENCE OF CONFINEMENT IMPOSED BY THE TRIAL COURT ON THE DEFENDANT VIOLATED HIS CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW.

POINT XI: THE SENTENCE OF CONFINEMENT IMPOSED BY THE TRIAL COURT ON THE DEFENDANT WAS MANIFESTLY EXCESSIVE.

Having reviewed the record we conclude that, with the exception of points II, V and VII, defendant's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

III

We begin by addressing defendant's arguments concerning the indictment. He contends that the court should not have charged the jury as to the crime of uttering a forged instrument, because, although the indictment recited that defendant had violated the uttering section of the forgery statute, N.J.S.A. 2C:21-1(a)(3), it also contained language found in another section of the statute, N.J.S.A. 2C:21-1(a)(2).

The fundamental purpose of an indictment is to put defendant fairly on notice of the charges against him. State v. Branch, 155 N.J. 317, 324 (1998). Consistent with that principle, an indictment may be amended to correct errors "in form or the description of the crime intended to be charged," R. 3:7-4, "as long as the indictment was sufficient to inform defendant of the charge against him before trial." State v. Orlando, 269 N.J. Super. 116, 138 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994). The flexibility of the indictment requirement is illustrated by the Supreme Court's discussion in State v. Branch:

An indictment charging a defendant with the commission of crime must identify and explain the criminal offense so that the accused may prepare an adequate defense. State v. LeFurge, 101 N.J. 404, 502 A.2d 35 (1986); State v. Talley, 94 N.J. 385, 466 A.2d 78 (1983). However, that principle is not applied rigidly. It is sufficiently flexible to permit a defendant to be found guilty of an offense not charged in the indictment. Talley, supra, 94 N.J. at 392. In Talley, the defendant was indicted for first-degree robbery. The Court held that the consolidation-of-theft-offenses provision, N.J.S.A. 2C:20-2a, gave notice to the defendant that he could be charged with theft by deception when his own testimony disclosed that additional offense. Id. at 391. Talley testified that rather than having robbed his victims at gunpoint, he had sold them counterfeit drugs to their distress. Id. at 389.

 
In LeFurge, the defendant was indicted for theft. The trial court instructed the jury on conspiracy to commit theft as a lesser-included offense, pursuant to N.J.S.A. 2C:1-8d(2). LeFurge, supra, 101 N.J. at 410-11. The jury acquitted the defendant of theft but convicted him of the conspiracy charge because, although he may not have stolen the goods from the warehouse himself, there was abundant evidence that he had conspired with the thieves. Id. at 411.

 
 
Within this analytical framework, the Appellate Division found no constitutional infringement caused by defendant's felony-murder conviction. The theory is sound and could have been used to sustain the conviction in this case had defendant been given fair notice that the State intended to use the robbery of Pettie as a predicate to the felony-murder charge.

[State v. Branch, supra, 155 N.J. at 324.]

The State's evidence in this case was uncomplicated, and the record reflects that defendant was well aware of the charges against him. His counsel specifically agreed with the prosecutor that the indictment should be understood as charging defendant with uttering a forged instrument. His failure to object at trial to the court's proposed charge concerning uttering the check also reflects that understanding. We conclude that defendant waived his right to raise the issue on appeal when he failed to object to the charge at trial. See U.S. v. Cury, 313 F.2d 337, 339 (3d Cir. 1963); U.S. v. Laverick, 348 F.2d 708, 714 (3d Cir 1965). And even considering the issue, we conclude he suffered no prejudice from any possible ambiguity, because the indictment was sufficient to put defendant on notice that he was charged with uttering a forged instrument, and that is what defendant understood it to mean.

We likewise find no merit in defendant's contention that the trial judge should have directed an acquittal on the bad check charge. Defendant was charged with violating N.J.S.A. 2C:21-5, by "knowingly [passing] Check number 143, drawn on the account of Kim Middleton at the Independence Bank in the amount of $300.000, knowing that the Independence Bank would not honor said check. . ." There was sufficient circumstantial evidence from which the jury could have inferred that defendant knew that the check was forged and that he therefore knew that the bank would not honor the check. On the other hand, the jury may have reasoned that defendant was gambling that he would get away with uttering a forged instrument, and therefore that he did not know for certain that the bank would not honor the check. The fact that the jury acquitted defendant on this charge does not establish that there was no evidence to support the charge. Further there is no basis to conclude that the uttering conviction was in any way tainted by the inclusion of the bad check charge. The evidence on the uttering charge was overwhelming. Defendant was caught in the act of trying to cash an obviously forged check.

Finally, we turn to the sentencing issue. At sentencing the judge noted that defendant had four prior felony convictions and "he has a long history of drug problems." The court also stated

[v]ery little sympathy is going to be shown to you because based on your record, you don't deserve it. You've got a drug problem, you've never tried to deal with it. You've got an extensive family and instead of dealing with your drug problem, you keep committing crimes. . . .

He also stated that

the best thing that we can do is make sure you get less time to interact with people so that you won't commit crimes because of your addict status. I wish you weren't an addict. I wish you didn't have the problem, unfortunately you do and I have to protect society from other crimes that you will undoubtedly commit.

He also cited the fact that the complaining witness was crying on the witness stand. Based upon a finding of aggravating factors three, six and nine, the court sentenced defendant to five years in prison, which was one year above the presumptive sentence for a third degree crime.

Defendant contends that, in basing the sentence on facts not found by the jury or conceded by defendant, the trial judge ran afoul of the sentencing principles announced, four months later, in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We agree. As the Supreme Court of New Jersey recently held in State v. Natale:

[A] sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee.

[Natale, supra, 184 N.J. at 466.]

Because the sentencing judge relied heavily on defendant's status as a drug addict and his failure to address his addiction, facts not found by the jury, the sentence violates the principles established in Blakely and Natale. We, therefore, remand this matter to the trial court for reconsideration of the sentence, which shall be based solely on constitutionally permissible factors.

We affirm the conviction and remand for re-sentencing, which shall occur within thirty days of the date of this opinion. On remand the court shall also correct the judgment of conviction, which erroneously recites that defendant was convicted of violating N.J.S.A. 2C:21-1(a)(2) instead of -1(a)(3).

 
Affirmed in part, remanded in part.

On cross-examination, Ms. Middleton admitted that she had pled nolo contendere to a charge of marijuana possession in 1997, thereby rendering moot defense counsel's concern that she might deny her criminal involvement and he might need to obtain police reports concerning the incident.

(continued)

(continued)

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A-4689-03T4

October 11, 2005