STATE OF NEW JERSEY v. RODNEY ARMOUR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-56906420-03T5-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RODNEY ARMOUR,

Defendant-Appellant.

__________________________________

 

Submitted September 20, 2005 - Decided

Before Judges Skillman and Axelrad.

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 02-12-2454.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark H. Friedman, Assistant Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Nina D. Bonner, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of second degree robbery, in violation of N.J.S.A. 2C:15-1. The trial court granted the State's motion to sentence defendant to an extended term as a persistent offender and imposed a twenty-year sentence, subject to parole ineligibility for 85% of that term, as required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. This sentence is to be served concurrently with an eight-year term that defendant was already serving for another offense.

The robbery was committed around 9 p.m. on October 15, 2002, in a shopping center in Neptune. The victim drove her car to an ATM in the shopping center to transfer funds into her checking account. As she was beginning this transaction, a man she identified at trial as defendant got into her car and demanded money. When she withdrew only $5 from her wallet, he said "no, that's not enough. Give me all of it." The victim then gave defendant a $20 bill, but he said that if she "didn't give him all [of her] money he was going to shoot [her] in the face." The victim then asked defendant to allow her to complete the deposit into her checking account, and he agreed. After the victim completed this transaction, defendant directed her to drive toward an Eckerd drug store at the south end of the mall. When the victim stopped at the drug store, defendant told her to give him her wallet. The victim responded that she did not know the location of her wallet, which she had dropped during the course of the robbery. When defendant was unable to find the wallet, he kicked the victim in the thigh and punched her in the jaw. After assaulting the victim, defendant got out of the car and ran behind the Eckerd towards a fence located behind the building.

In addition to the victim's in-court identification of defendant as the robber, the State presented the testimony of an employee of the Eckerd drug store, Beverly Wilson, who walked up to the victim's car while the robbery was in progress and saw the victim struggling with defendant. Wilson, who had seen defendant in the drug store shortly before the robbery, and the victim both gave the police descriptions of the perpetrator shortly after the crime. The State also produced a videotape from an Eckerd surveillance camera which showed that defendant had been in the drug store around the time of the robbery.

The night following the robbery, Wilson, who was working at a McDonald's that night, saw defendant standing in line inside the restaurant. She called the police, who responded to the McDonald's while defendant was still there. Wilson then made a positive identification of defendant as the robber, and the police placed him under arrest.

Defendant did not testify at trial. In his defense, defendant relied primarily on evidence of inconsistencies between the descriptions of the perpetrator's clothing that Wilson and the victim gave the police after the robbery and the clothes that defendant was shown wearing by the Eckerd surveillance camera and at the time of his arrest.

On appeal, defendant presents the following arguments:

I. DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL JUDGE ALLOWED THE PROSECUTOR TO PRESENT IRRELEVANT AND PREJUDICIAL INFORMATION CONCERNING DEFENDANT'S ALLEGED HOMELESSNESS ON THE DATE THAT THE ROBBERY WAS COMMITTED. (Partial Plain Error)

II. THE TRIAL JUDGE ERRED BY FAILING TO INSTRUCT THE JURY THAT THE VICTIM'S PRIOR INCONSISTENT STATEMENTS WERE ADMISSIBLE AS SUBSTANTIVE EVIDENCE. (Not Raised Below)

III. DEFENDANT'S SENTENCE IS BOTH UNCONSTITUTIONAL AND EXCESSIVE.

A. Imposition of a discretionary extended term for robbery violated defendant's constitutional rights to trial by jury and due process of law. (Not Raised Below).

B. Defendant's sentence is manifestly excessive and unduly punitive.

We affirm defendant's conviction but vacate the sentence and remand for resentencing. Except for the arguments relating to defendant's sentence, presented under Point III of his brief, defendant's arguments are clearly without merit and require only limited discussion. R. 2:11-3(e)(2).

The testimony regarding defendant's alleged homelessness, which is the basis for defendant's first argument, was presented during the re-direct of the police officer who investigated the robbery. The officer testified that a K-9 unit, which was called to the scene approximately a half hour after the crime, tracked the scent of the perpetrator from the passenger's seat of the victim's car through the fence behind the Eckerd drug store to the entrance of Boston Way Village, a low income housing project in Asbury Park. Defense counsel brought out on cross-examination of this witness that defendant did not reside at Boston Way Village. On re-direct, the prosecutor elicited testimony that defendant was "homeless" at the time of his arrest. In rebuttal, defendant presented evidence that defendant's courthouse intake form indicated that he lived with his father at an address in Cliffwood Beach.

Although the trial court initially overruled a defense objection to the officer's testimony regarding defendant's homelessness, the court subsequently reconsidered and gave a curative instruction to the jury:

There was testimony in this case, ladies and gentlemen, from a police officer I believe on redirect examination to the effect that when the defendant was arrested he indicated to the officer in some report that he was homeless. I want you to disregard that testimony, ladies and gentlemen. That's not part of this case. That's not relevant in this case. I don't want to forget that testimony. I want you to remember that testimony and remember not to use it in your deliberations.

In fact, we have affirmative testimony that the defendant lived at 682 Keyport Avenue in Cliffwood Beach, New Jersey with his father. And that was testimony that we heard from Eileen Liberatore who took that information from Mr. Armour I believe on October 17th.

Defendant did not object to this instruction.

Even assuming the trial court erred initially in overruling defendant's objection to the officer's testimony that he was homeless, see State v. Mathis, 47 N.J. 455, 469-72 (1966), we are satisfied that the rebuttal evidence that defendant in fact resided with his father and the court's curative instruction to the jury to disregard the evidence regarding defendant's alleged homelessness negated any possible prejudicial impact this testimony otherwise may have had.

There was no basis for the trial court to give the jury the Model Jury Charge on prior inconsistent statements of a witness because there was no significant inconsistency between the description of the robber's clothing that the victim provided the police shortly after the crime and the description of that clothing she gave at trial. The victim's initial description of defendant's clothing was at most less complete than the description she gave at trial, after she had the opportunity to observe the clothing seized from defendant at the time of his arrest. Therefore, this was not an inconsistency that required a prior inconsistent statement instruction, particularly in the absence of any request by defendant.

Under Point IIIA of his brief, defendant argues that both his sentence to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a) and his sentence to a twenty-year term of imprisonment, five years in excess of presumptive fifteen year term established by N.J.S.A. 2C:44-1(f)(1)(b), violated the jury trial rights recognized in Blakely v. Washington, 524 U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

In State v. Dixon, 346 N.J. Super. 126, 140 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), we held that "the prerequisites to an extended term under N.J.S.A. 2C:44-3a are related to the issue of recidism and may be found by the judge without presentation to the jury." We have repeatedly reaffirmed this holding, most recently in State v. Young, ___ N.J. Super. ___, ___ (App. Div. 2005) (slip op. at 14-16). We adhere to Dixon and Young and therefore reject defendant's argument that jury fact-finding was a prerequisite to his sentence to an extended term as a persistent offender.

However, the court's imposition of a sentence in excess of the fifteen-year presumptive extended-term sentence for a second-degree offense brings into play our Supreme Court's recent decision in State v. Natale, 184 N.J. 458, 466 (2005), which held that "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." The Court further held that "[t]o bring the Code [of Criminal Justice] into compliance with the Sixth Amendment in a way that the Legislature would have intended, presumptive terms [must be eliminated] from the sentencing process." Ibid. Therefore, under Natale, a trial court is now required to sentence a defendant within the statutory range, after identifying and weighing applicable mitigating and aggravating factors, "without reference to presumptive terms." Ibid. This holding applies to any defendant with a case "on direct appeal as of the date of [the Natale] decision." Id. at 494. Any such defendant is entitled to "a new sentencing hearing . . . based on the record at the prior sentencing." Id. at 495. "At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

The trial court sentenced defendant to a term of imprisonment in excess of the presumptive fifteen-year term based not only on his prior criminal record but also other aggravating factors. Defendant's case was on direct appeal to this court when Natale was decided. Therefore, defendant is entitled to a new sentencing hearing in which the presumptive statutory term of fifteen years is not considered.

We reject defendant's argument that the sentencing record did not justify imposition of an extended term as a persistent offender. The sentencing record, particularly defendant's lengthy criminal history, adequately supports the trial court's conclusion that an extended-term sentence was "necessary for the protection of the public." State v. Dunbar, 108 N.J. 80, 90 (1987).

Because defendant must be resentenced in conformity with Natale, there is no need to consider the argument that his sentence to a twenty-year term was excessive.

Accordingly, we affirm defendant's conviction and the grant of the State's motion to sentence defendant to an extended term. We vacate defendant's sentence and remand the case to the trial court to resentence defendant in conformity with Natale.

 

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A-5690-03T4

October 4, 2005