STATE OF NEW JERSEY v. MICHAEL BRIGHT

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0437-03T40437-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL BRIGHT,

Defendant-Appellant.

__________________________________

 

Submitted: December 6, 2005 - Decided July 25, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Essex County, 02-01-0214.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Appellant filed a pro se brief.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maryann K. Lynch, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Michael Bright, was indicted for first-degree robbery, N.J.S.A. 2C:15-1; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1); unlawful possession of a handgun, N.J.S.A. 2C:39-5b (third degree); and possession of the firearm for unlawful purpose, N.J.S.A. 2C:39-4a (second degree). Following a trial, the jury acquitted defendant of first-degree robbery, but convicted him for lesser-included second-degree robbery and the other crimes charged.

The trial court granted the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender. See N.J.S.A. 2C:44-3a. After merging all the second-degree convictions into the robbery conviction, the court imposed a seventeen-year prison term with three years of post-release parole supervision, providing for application to the first ten years of both the No Early Release Act, N.J.S.A. 2C:43-7.2, i.e., an 85% minimum term, and the Graves Act, N.J.S.A. 2C:43-6, i.e., a five-year period of parole ineligibility. A concurrent five-year term of imprisonment was imposed for the third-degree conviction. Appropriate monetary assessments were also ordered.

On appeal, defendant challenges the convictions. Counsel, on defendant's behalf, raises the following issues:

POINT I THE PROSECUTOR ENGAGED IN MISCONDUCT IN SUMMATION BY IMPROPERLY DISPARAGING THE DEFENSE WITNESSES AND ASSERTING THAT DEFENSE COUNSEL CONSPIRED WITH THEM TO CONTRIVE DEFENDANT'S ALIBI; FURTHERMORE, THE TRIAL COURT'S REMEDIAL INSTRUCTIONS WERE INSUFFICENT TO AMELIORATE THE CONSEQUENT PREJUDICE TO DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, 1, 9, 10. (Raised Below)

A. THE PROSECUTOR ACCUSED DEFENSE WITNESSES OF LYING AND CONSPIRING WITH DEFENSE COUNSEL TO CONSTRUCT MR. BRIGHT'S ALIBI.

B. THE CURATIVE INSTRUCTION GIVEN BY THE TRIAL JUDGE DID NOT SUFFICE TO REMEDY THE EFFECT OF THE PROSECUTOR'S MISCONDUCT.

POINT II THE TRIAL JUDGE'S RESPONSE TO A JURY QUESTION THAT THERE WAS NO TESTIMONY REGARDING THE DEFENDANT'S WHEREABOUTS ON THE DAY BEFORE THE OFFENSE WAS INADEQUATE, THUS VIOLATING DEFENDANT'S FOURTEENTH AMENDMENT DUE PROCESS RIGHTS AND SIXTH AMENDMENT RIGHT TO A FAIR TRIAL. (Not Raised Below)

Defendant, in a pro se brief, raises further issues framed exactly as follows:

POINT I THE TRIAL COURT GAVE ERRONEOUS CHARGE TO THE JURY FOR DELIBERATIONS, BY CHARGING ATTEMPT AS DEFINED IN 2C:5-1, IN THE SAME CHARGE AS ROBBERY, THIS INSTRUCTION VIOLATED THE RULES GOVERNING THE STATE OF NEW JERSEY COURTS AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF THE LAW AND A FAIR TRIAL. U.S. CONST. AMMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, 1, 9, 10. (Not Raised Below)

POINT II THE TRIAL COURT ENGAGED IN CONDUCT OF HARM BY NOT PROPERLY IMPANELING JUROR DURING CRUCIAL PHASE OF DELIBERATIONS BY THE JURY DURING TRIAL. THE JUDGE NEVER GAVE THE JURY THE CHARGE TO "START-ANEW," UPON THE ADDING OF ALTERNATE JUROR TO THE ALREADY COMMENCED DELIBERATIONS OF JURY DURING TRIAL. THUS, VIOLATING THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, 1, 9, 10. (Not Raised Below)

POINT III THE TRIAL COURT ERRORED BY ALLOWING A (BCI) PHOTOGRAPH AND COPIES THEREOF, ALONG WITH A REPORT IN SUPPORT OF THE PHOTOGRAPHS, TO BE ADMITTED INTO EVIDENCE. THE CURATIVE CHARGE GIVEN BY THE JUDGE, COULD NOT OVERCOME THE DAMAGE OR PREJUDICE THAT THIS INFORMATION CREATED. THE PROSECUTOR'S REPEATED REFERENCE TO THE (BCI) PHOTOGRAPH AFTER THE CURATIVE CHARGE WAS GIVEN, COMPOUNDED THE PREJUDICE AND HARM DONE. THUS, VIOLATING DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL U.S. CONST. AMMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, 1, 9, 10. (Raised Below)

A. THE JUDGE MADE A RULING THAT THE (BCI) PHOTO AND COPIES THEREOF, WOULD NOT BE ALLOWED TO BE SHOWN IN TRIAL. IT HAD BEEN ESTABLISHED THAT THE PHOTOGRAPH AND COPIES THEREOF, WERE CRIMINAL HISTORY MUGSHOTS OF THE DEFENDANT, AND THE FILE/INVESTIGATIVE REPORT ALSO TO BE LATER ADMITTED INTO EVIDENCE, WAS IN SUPPORT OF THESE PHOTOGRAPHS. THE JUDGE NEVER MADE A RULING IN OPPOSITION OF STANDING RULING THAT THESE PHOTOGRAPHS WERE NOT TO BE SHOWN.

B. THE CURATIVE INSTRUCTION GIVEN BY THE TRIAL JUDGE DID NOT CURE THE DAMAGE AND PREJUDICES CAUSED BY THE INTRODUCTION AND ADMITTANCE OF THESE PHOTOGRAPHS AND THE INVESTIGATIVE FILE OF WHICH THESE (BCI) PHOTOGRAPHS ORIGINATE. THE PROSECUTOR INAPPROPRIATELY MADE REPEATED REFERRAL TO THIS PHOTOGRAPH DESPITE JUDGE'S RULING OF INADMISSIBLE EVIDENCE, WHICH ALONG WITH FILE WAS ULTIMATELY ADMITTED INTO TRIAL AS EXHIBIT AND DELIBERATIONS EVIDENCE.

In a supplemental pro se brief, defendant raises additional issues, in the following terms, addressed to the sentence and the performance of appellate counsel:

POINT I THE TRIAL COURT ERRORED IN SENTENCING PHASE OF TRIAL BY EMBODIMENT OF EXTRAJUDICIAL FACT FINDING FOR IMPOSITION OF EXTENDED TERM. THE DEFENDANT HOWEVER, ASKS THAT THESE ISSUES/ARGUMENTS BE RESERVED AND ADDRESSED IN REMEDIAL OR FURTHER POST-CONVICTION REVIEW UNDER ARGUMENTS MADE IN SUCH CASES AS BLAKELY VS. WASHINGTON, APPRENDI VS. NEW JERSEY, ALSO, STATE VS. FRANKLIN, AND NATALE II. SENTENCE IMPOSED BY THE TRIAL COURT IS IN VIOLATION OF THE DEFENDANT'S RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I. SUB. 1, 8, 10. (RAISED BELOW)

A. THE DEFENDANT WAS SENTENCED IN VIOLATION OF OF DECISIONS MADE IN SUCH CASES AS: BLAKELY VS. WASHINGTON, APPRENDI VS. NEW JERSEY, ALSO, STATE VS. FRANKLIN, AND NATALE II. TRIAL ATTORNEY DID MAKE ISSUE WITH REGARDS TO SENTENCING AT TRIAL.

B. THE DEFENDANT, WITH RESPECT TO, AND IN LIGHT OF THE "PIPELINE" ISSUES REGARDING THE ABOVE CASES, ASK THAT THESE ISSUES BE RESERVED FOR FOR REMEDIAL AND/OR FURTHER POST-CONVICTION REVIEW.

C. THE DEFENDANT'S COUNSEL ON DIRECT APPEAL HAS BEEN DEFIANT AND EVASIVE, PERTAINING TO THE ARGUMENTS THE DEFENDANT HAS APPRISED COUNSEL TO ATTEND. PROMPTING THE DEFENDANT TO PONDER THE ACTION OF FILING FOR APPLICATION / PRO-SE MOTION FOR WITHDRAWAL / RE-ASSIGNMENT OF COUNSEL, NUNC PRO TUNC, DUE TO "CONFLICT" OF INTEREST" ISSUES THEREOF.

The charges stemmed from an incident in a car wash and automobile repair facility. The owner of the establishment, Leo Finkelstein, testified that, shortly after he opened on the morning of September 8, 2001, defendant, whom he had known as "a customer . . . for years[,]" entered with another individual. Defendant demanded: "Leo, give me your money." Initially, Finkelstein looked away, responding: "It's too early for this bullshit." But, when he heard a gun being cocked and looked up to see defendant brandishing a handgun, he "realize[d] that it's not a joke any more."

According to Finkelstein, he then reached into his left pocket and removed "some singles which were rubberbanded. . . . As I give him the money, a bullet went out on the floor. And the same time I grab his hands[.]" A second bullet was fired, which "hit [Finkelstein] in the groin on the right side of [his] leg. But . . . it didn't penetrate [his] flesh. It was minor." A third shot was fired, hitting Finkelstein in the left leg, inflicting a serious injury. The physician who treated Finkelstein testified that a number a surgical procedures were required to address that injury, and he described permanent physical deficits attributable to it.

A part-time employee of the business also testified at trial. She had heard gunshots and "ducked . . . . down . . . until someone came to the front yelling Leo was just shot." She then went to Finkelstein and observed that he had been "shot in two different spots in his leg. There was a lot of blood still running from his leg." She attempted to staunch the bleeding. Finkelstein stated to her that he had been shot by someone named Mike.

Two police witnesses also testified. One was the officer who had been called to the scene and who summoned emergency medical assistance to take the victim to the hospital. The other police witness was Detective Richard Warren. He testified about his investigation of the matter, including details elicited from a witness across the street from the location of the crime. That person described "two black males," and asserted that the younger of the two had shot Finkelstein. Based on this statement and other information collected, including a receipt located by Finkelstein's son for work that had been done for defendant, Warren brought a photograph of defendant to the hospital. Finkelstein had previously viewed a number of "mug shot books" without making any identification; but he recognized defendant from the photo displayed by Warren. In identifying defendant as his assailant, Finkelstein provided some physical details about defendant that were not apparent from the photograph.

The defense called two alibi witnesses. One, Ali Kasmaii, was the owner of an electronics business in Fort Lauderdale, Florida. Based upon a receipt in his own handwriting dated September 8, 2001, Kasmaii testified that he had seen defendant in his shop on that date with his sister, Juanita Bright McGee. McGee purchased an automobile amplifier that, according to Kasmaii, was installed in the "very early afternoon, probably around between one to two in the afternoon." The other alibi witness, Keith Young, an employee of Kasmaii's business, verified the transaction with McGee, and stated that McGee had been accompanied by defendant. Young also testified that he saw defendant the following day, as well, when defendant returned for correction of an installation problem.

In the State's summation to the jury, the assistant prosecutor reviewed the evidence and commented upon the strengths and weaknesses of the proofs as he saw them. In doing so, he stressed an inconsistency of detail in Kasmaii's testimony having to do with the handling of photographs of defendant that had been sent to Kasmaii. He argued that the inconsistency suggested that Kasmaii had cooperated in the fabrication of an alibi because of a business relationship with defendant's sister.

Defendant ascribes prosecutorial misconduct to these remarks in summation. The argument is that the assistant prosecutor exceeded the bounds of propriety in imputing a conspiratorial effort between defense witnesses and defense counsel to construct defendant's alibi. Our review of the record discloses nothing beyond a zealous effort to place issues of credibility before the jury. We discern nothing in the prosecutor's remarks suggesting that defense counsel was involved in a conspiracy to fabricate evidence. Moreover, the trial judge, in his charge to the jury, gave a curative instruction placing the issue in perspective. That instruction was wholly effective to dispel any prejudice that might have eventuated from the remarks in summation.

Our review of the record discloses, further, that the trial court committed no error in responding to the jury's question: "Was there any testimony that Mr. Bright was in Florida before September 8, 2001." The court's response: "We have examined the record[] and we find no such testimony[,]" was accurate and elicited no objection from defendant. The argument advanced on appeal "that the jury potentially shifted the burden of proof regarding Mr. Bright's alibi" is entirely speculative; and the contention that the trial court was obliged, sua sponte, to act affirmatively to dispel the prejudice is without adequate basis. We discern no plain error in these circumstances.

Defendant's argument that, in excusing a juror, the trial judge erred in failing to give the jury a "start-anew" charge, is based upon an erroneous premise. It is clear from the trial judge's statement on the record that "the first alternate juror, number 11, is being excused" that the excused juror was one of the two alternates. Therefore, there was no need for the jury's deliberations to begin anew.

Our review of the record discloses that the additional issues raised by defendant addressed to the convictions are also based on erroneous predicates regarding the admission of evidence and, in any event, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Given that the prison term ordered was higher than the then-existing presumptive term provided by statute, and because an extended term sentence and a Graves Act sentencing enhancement were imposed on a portion of the sentence, see State v. Franklin, 184 N.J. 516 (2005), we remand for reconsideration of the sentence. See State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005).

The last issue raised by defendant in his supplemental pro se brief raises questions of effective assistance of counsel that cannot be fully considered in the absence of further factual development. See State v. Preciose, 129 N.J. 451, 460 (1992). Defendant is, therefore, relegated to his post-conviction relief remedy, see R. 3:22, in this regard. Ibid.

 
The convictions are affirmed; the matter is remanded for resentencing.

(continued)

(continued)

11

A-0437-03T4

July 25, 2006

 


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