STATE OF NEW JERSEY v. JOHN HARDRICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5741-03T45741-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN HARDRICK,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 1, 2005 - Decided November 18, 2005

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-10-3432.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, on the brief).

PER CURIAM

A three-count indictment charged defendant with (1) first-degree armed robbery (N.J.S.A. 2C:15-1), (2) third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b), and (3) second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a). The jury found defendant not guilty of armed robbery, but convicted him on count one of the lesser-included offense of theft (N.J.S.A. 2C:20-3a), and determined that the amount involved exceeded $500, thus rendering the offense a crime of the third degree. N.J.S.A. 2C:20-2b(2)(a). The jury acquitted defendant on counts two and three. Judge Fullilove sentenced defendant to five years imprisonment with a two-and-one-half year parole disqualifier. Appropriate mandatory monetary assessments were imposed.

On appeal, defendant argues:

POINT I

SINCE MS. JOHNSON WAS UNABLE TO MAKE AN IN-COURT IDENTIFICATION OF THE DEFENDANT, THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF HIS DUE PROCESS RIGHT TO CONTEST THE RELIABILITY OF HER OUT-OF-COURT IDENTIFICATION BY DENYING THE MOTION FOR A WADE HEARING.

POINT II

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR MISTRIAL AFTER DETECTIVE VASQUEZ [SIC] TESTIFIED THAT HE WAS ABLE TO IDENTIFY THE DEFENDANT FROM HIS "BCI" PHOTOGRAPH BECAUSE THE MODEL JURY CHARGE ON POLICE PHOTOGRAPHS WAS INSUFFICIENT TO AMELIORATE THE PREJUDICE TO DEFENDANT.

POINT III

THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S POST-VERDICT MOTION FOR A JUDGMENT OF ACQUITTAL AND NEW TRIAL MADE PURSUANT TO R. 3:18-2 AND R. 3:20-1.

POINT IV

THE FIVE (5) YEAR SENTENCE WITH A PAROLE INELIGIBILITY PERIOD OF TWO AND ONE-HALF (2) YEARS THAT WAS IMPOSED ON THE DEFENDANT'S CONVICTION FOR THIRD DEGREE THEFT ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND ILLEGAL.

(A) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A SENTENCE IN EXCESS OF THE PRESUMPTIVE SENTENCE FOR A CRIME OF THE THIRD DEGREE.

(B) IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE FOUR (4) YEAR SENTENCE FOR A THIRD DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS AS ARTICULATED BY THE UNITED STATES SUPREME [COURT] IN BLAKELY V. WASHINGTON.

(C) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING THE MAXIMUM PERIOD OF PAROLE INELIGIBILITY FOR A CRIME OF THE THIRD DEGREE.

We reject these arguments and affirm.

At about 3:00 a.m. on August 3, 2003, Eunice Robinson was in her apartment in a high rise apartment building in Newark. Robinson was playing cards with a friend, known to her as Daewoo. Robinson's niece was present, but was asleep in a chair. Robinson had received her monthly social security check, in the amount of $524. She had cashed it and purchased a $200 money order. After purchasing some tissues and items for the apartment, she had left over more than $300 in cash. She stated the amount was "three [hundred] and some change, but I don't know exactly how much." She repeated several times, however, that she specifically remembered having more than $300 in cash. The money order and cash were on the table in her apartment.

Robinson's doorbell rang. She looked through the peephole and saw Clifton Lee Bynum, a friend of hers who lived in the building. She opened the door and admitted Bynum, who was accompanied by another individual, later identified as defendant, who was not known to Robinson. Bynum introduced defendant as "KK." Robinson noticed that defendant was walking around her apartment, seeming to be "casing" it. When defendant saw the money on the table, he grabbed it, including the money order. Bynum urged defendant not to take it. Robinson grabbed defendant and attempted to restrain him, demanding her money back. Defendant put his hand in his pocket and gestured in a manner as if he had a gun in his pocket. Robinson then backed off, fearing she would be shot. When defendant began to leave the apartment, Bynum attempted to restrain him, but defendant broke free and left. Bynum followed defendant and both men went down the stairwell.

Robinson contacted her nephew, who lived in the same building. She and her nephew went to the first floor and reported the incident to the security guard, Olutonay Banji, who was working that shift at the front desk. Banji called the police, who responded soon afterwards. Banji had signed in a guest at 1:19 a.m., who signed as "John Hardrick" and who stated his purpose for being in the building was to visit Bynum. At trial, Banji identified defendant as that individual. Banji further testified that shortly before Robinson and her nephew reported the theft to him defendant had left the building alone.

The police took Robinson directly to the stationhouse, where she gave a statement. She was then shown a series of photographs in a photographic array. Upon seeing photograph number four, she immediately identified the person depicted as the perpetrator of the theft. She signed the back of that photograph, which was dated August 3, 2002, and indicated the time of the identification as 6:58 a.m., about four hours after the criminal event. At trial, Robinson was unable to make an in-court identification of defendant, but evidence of her out-of-court identification, including through her own testimony, was admitted in evidence.

Bynum and Daewoo did not testify at the trial. Thus, Robinson's identification was critical to the State's case. Defendant did not testify and presented no witnesses.

At no time prior to trial, did defendant seek a Wade hearing. During the trial, after Robinson was unable to make an in-court identification, defense counsel requested a Wade hearing. Judge Fullilove denied the request, stating "I know of no suggestion that there was anything improper in the photo selection process. The fact that the witness did not identify your client in the courtroom does not mean that the out-of-court identification procedure was in any way improper or tainted."

Entitlement to a Wade hearing is not automatic. A defendant must make a threshold showing of an impermissibly suggestive identification. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Defendant made no showing of impermissible suggestiveness at trial. On appeal, the only basis defendant argues to support his claim of impermissible suggestiveness is that, contrary to Newark Police Department procedures, Robinson did not initial or sign the back of the photographs other than that of defendant that were used in the array. However, the officer who conducted the identification procedure numbered and placed identifying marks on the other five photographs, and he so testified at trial. Robinson's failure to sign the other photographs, while it might have been contrary to the procedures of the Newark Police Department, did not constitute evidence of impermissible suggestiveness in the identification procedure. There was no error in denial of a Wade hearing.

Defendant argues that the trial judge erred in denying his mistrial motion after a police witness testified that he was able to identify defendant from his "BCI" photograph. Newark Police Detective Orlando Velazquez arrested defendant on October 16, 2003. In his trial testimony, Velasquez stated he had in his possession an arrest warrant containing information about defendant as well as a photograph of him. When the prosecutor showed the witness the photograph and asked if he recognized it, Velazquez stated: "Yeah, it's a photo from BCI, Essex County Sheriff's Department, and it's the same photo I had in my file."

Defense counsel did not object, but the judge promptly called counsel to sidebar and expressed his inclination to give a curative instruction. At the side bar colloquy, it was determined that Velazquez only used the initials BCI and did not state that those initials stand for Bureau of Criminal Identification. Defense counsel moved for a mistrial. Judge Fullilove denied the motion. He noted that Velazquez's statement was non-responsive to the prosecutor's question, and there was therefore no prosecutorial misconduct in eliciting improper testimony. The judge further felt that it was questionable whether jurors would know what the letters BCI meant. Finally, the judge offered to give a curative instruction, along the lines of the model charge dealing with police photographs, which he felt would ameliorate any potential prejudice. Defense counsel declined to have the charge given at that time, but agreed that it should be given as part of the court's final charge.

As part of the final charge to the jury, the judge delivered the complete model charge pertaining to photographs used for identification that may have been taken by a law enforcement agency or some other government entity. See "Model Jury Charge (Criminal), Identity - Police Photos." This charge is designed to neutralize any potential prejudice in a situation such as this. State v. Swint, 364 N.J. Super. 236, 243 (App. Div. 2003). We have held that a fleeting mention of "mug shots," which is a more egregious characterization than "BCI" photograph does not necessarily constitute reversible error, even in the absence of a curative instruction. State v. Harris, 156 N.J. 122, 173 (1998). We are satisfied that in this case any possible prejudice from Velasquez's comment was cured by the judge's instruction and did not deprive defendant of a fair trial.

Prior to sentencing, defendant moved for a judgment of acquittal with respect to the gradation of the theft offense at the third-degree level, arguing that the evidence was insufficient to establish that the amount involved was more than $500. The jury had before it Robinson's testimony that defendant stole her $200 money order plus more than $300 in cash. Although Robinson was unable to state the exact amount in excess of $300, she was clear and consistent that the amount exceeded $300. Viewing this evidence in the light most favorable to the State, see State v. Reyes, 50 N.J. 454, 458-59 (1967), and deferring to the jury's credibility finding, the judge properly denied the motion.

Finally, defendant argues that his sentence was manifestly excessive and illegal. Defendant had a long criminal history dating back to 1979, including seven indictable convictions sentenced on six separate dates. Those convictions were for many serious offenses, including robberies, weapons offenses, aggravated assaults, terroristic threats, and a sexual offense. The prosecutor moved for an extended term sentence as a persistent offender. See N.J.S.A. 2C:44-3a. Although defendant clearly qualified as a persistent offender, the judge denied the prosecutor's motion, determining that imposition of a maximum ordinary term sentence would serve the interests of justice.

The judge found as aggravating factors the risk that defendant would commit another offense (N.J.S.A. 2C:44-1a(3)), the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted (N.J.S.A. 2C:44-1a(6)), and the need for deterrence (N.J.S.A. 2C:44-1a(9)). The judge found no mitigating factors. He found that the aggravating factors substantially outweighed the non-existent mitigating factors. He therefore imposed an above-presumptive base term with a parole disqualifier.

We are satisfied that the judge's findings regarding aggravating and mitigating factors are supported by the record evidence, that the judge correctly applied the sentencing guidelines set forth in the Code of Criminal Justice, and that the sentence imposed was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Ghertler, 114 N.J. 383, 393 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant argues that his sentence is illegal because it violates the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). However, we are satisfied that the judge's findings of aggravating factors (3), (6) and (9) were all based upon defendant's prior criminal record. Therefore, the above-presumptive sentence falls within Blakely's recidivism exception. See State v. Abdullah, 184 N.J. 497, 505-06 (2005).

 
Affirmed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-5741-03T4

November 18, 2005