STATE OF NEW JERSEY v. REGINALD L. LEACH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2513-04T42513-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD L. LEACH,

Defendant-Appellant.

___________________________________________________________

 

Submitted April 25, 2006 - Decided December 28, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-04-0403-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Reginald L. Leach, and co-defendant, Gloria Walton, were charged under Passaic County Indictment No. 01-04-0403, on April 24, 2001, with first degree robbery, N.J.S.A. 2C:15-1a(1) and/or 2C:15-1a(2) and N.J.S.A. 2C:2-6 (counts one and four); third degree criminal restraint, N.J.S.A. 2C:13-2a and N.J.S.A. 2C:2-6 (counts two and five); and fourth degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e and N.J.S.A. 2C:2-6 (counts three and six). Because these charges arose from two separate armed robberies, the court granted defendant's pre-trial motion to sever counts one, two, and three from counts four, five and six.

Defendant was tried on counts four, five and six in March 2004. On March 18, 2004, the jury returned a verdict finding defendant guilty on all three counts charged in the indictment. On July 16, 2004, the court sentenced defendant to a term of twenty years in prison, with a ten-year period of parole ineligibility, for the robbery conviction (count four). That sentence is to be served consecutive to the sentence imposed on February 20, 2004, for counts one and two of the indictment. Count six was merged into count four and on count five, criminal restraint, the court sentenced defendant to five years, to be served concurrently with the sentence on count four.

On this appeal from the July 16, 2004, judgment of conviction for counts four, five and six of the indictment, defendant raises the following assertions of error:

POINT I: THE ADMISSION OF EVIDENCE OF DEFENDANT'S ILLEGAL DRUG USE COUPLED WITH THE PROSECUTOR'S IMPROPER RELIANCE UPON THIS EVIDENCE IN SUMMATION AND THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT II: THE TRIAL COURT'S FAILURE TO INCLUDE ALL RELEVANT TESTIMONY IN ITS READBACK TO THE JURY WAS UNDULY PREJUDICIAL TO DEFENDANT AND DEPRIVED HIM OF A FAIR TRIAL.

POINT III: THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON COUNT TWO BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED THE CRIME OF CRIMINAL RESTRAINT.

POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWENTY-YEAR TERM WITH TEN YEARS OF PAROLE INELIGIBILITY.

POINT V: IN THE ALTERNATIVE, THIS MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005) (NOT RAISED BELOW).

We are not persuaded by the arguments in Points I, II, and III and therefore affirm the conviction. However, for the reasons expressed below, we remand this matter for further consideration of the sentence on count one in light of State v. Natale, 184 N.J. 458 (2005).

On September 29, 2000, at approximately 8:30 p.m., defendant and co-defendant entered a women's fashion store called The Avenue in Parsippany, New Jersey. Erica Parker, an employee of The Avenue, later testified at trial about their presence in the area on the night of the robbery. She recalled she asked if they needed help. The store was busy, prompting defendant and co-defendant to leave. They went to the Fashion Bug in the same shopping complex.

At about 8:45 p.m. they entered the Fashion Bug where assistant manager Kay Ann Miller and sales clerk Aline Carey were working. Co-defendant, disguised as a pregnant female, gathered some clothes and went into a dressing room. During this period defendant sat down near a mannequin and waited. At closing time, defendant and co-defendant approached the register with the clothes. After Miller rang up the clothes, co-defendant asked defendant to "give her cash," which was a prearranged signal to begin the robbery.

At this point, defendant produced what appeared to be a handgun with a red tip. Defendant walked up behind Carey and demanded, "[G]et down on the floor. This is a stickup." Carey immediately got down on the floor and defendant walked with Miller to the cash registers. He ordered Miller to open the registers and the safe. According to employees, defendant removed $1,000 from the registers but the safe was empty.

Defendant then ordered both employees into the bathroom at the rear of the store. In an effort to prevent or to impede their escape, he shoved boxes in front of the door. After a few minutes of waiting, the employees emerged from the bathroom to find that the defendant and co-defendant had left. Although they were gone, an elderly woman, who had apparently been in the fitting room during the robbery, was still in the store.

At approximately 9:15 p.m., Officer Puso of the Parsippany Police Department arrived on the scene. He obtained a description of defendant and co-defendant. Neither of the employees described the male robber as having a limp initially, but Miller later told an investigating officer that she had seen the man limping. The next day, Parker, the employee from The Avenue who had approached defendant and co-defendant on the night of the robbery, recognized the descriptions of the defendant and co-defendant in a newspaper account of the robbery and contacted the police.

In furtherance of the investigation, Parsippany Detective Michael Lasalandra prepared photo arrays that included defendant and co-defendant. On October 20, 2000, Parker identified defendant but was unable to identify co-defendant. Miller, when shown the arrays, identified co-defendant but was unable to identify defendant.

At trial, the State called as a witness co-defendant Gloria Walton, who agreed to testify in return for a favorable plea agreement. Walton testified that she and defendant had planned to rob the Fashion Bug on the night in question. She further testified as to her and defendant's $200 to $300 a day drug habit and that, immediately after the robbery, defendant went to purchase drugs.

As his first point of asserted error, defendant argues the admission of testimony from his co-defendant regarding defendant's illegal drug use, along with the prosecutor's reliance upon such information in his summation, deprived him of his right to a fair trial.

During its summation, the State referred to the testimony as follows:

You know, Gloria Walton testified and she told you how long she's known Reginald Leach, and it was since they were kids. She's told you that she had a drug problem, heroin and cocaine, and she told you that Reginald Leach had a drug problem. I believe she told you that their habit was about $200 to $300 a day, a drug habit. That is the motivation for committing the robbery. That is the motivation.

Defendant argues further that even if Walton's testimony was admissible, there should have been a limiting instruction. Because defendant did not raise this argument below, we apply the plain error standard. Under that standard, a defendant must show error "clearly capable of producing an unjust result" before we will reverse on the grounds of the alleged error. R. 2:10-2.

Defendant notes that in State v. Mazowski, 337 N.J. Super. 275, 281-85 (App. Div. 2001), another panel of this court held that admission of testimony from the defendant, who testified in his own behalf, that he committed the robbery to support his drug habit, as evidence of motive, was improper. Further, the panel observed that where a defendant's drug addiction is broadly offered as proof of motive and is not related to the particular crime with which the defendant is charged, or any other particular crime, such proof is comparable to the admission of testimony to an "undifferentiated 'motive' to steal." Id. at 282. The panel continued, "except for its label, [reliance on an extremely broad definition of motive] is indistinguishable from a claim that defendant had a 'disposition,' or general propensity to commit crimes, which is precisely what N.J.R.E. 404(b) prohibits." Ibid.

While we do not accept the State's argument that such testimony was admissible as part of the res gestae of the crime, we are satisfied that the reference to defendant's drug addiction was not a generalized proffer of addiction as a motive. The testimony of the co-defendant was direct and specific regarding defendant's and co-defendant's immediate use of the fruits of their robbery to satisfy their drug habits. The State's introduction of co-defendant's testimony was not the sort of generalized motive testimony that Mazowski found is improper to admit.

Even if the testimony and the comment in summation was improper, we do not conclude that such testimony and comment rise to the level of plain error. Here, there was testimony from several eyewitnesses in addition to the testimony by co-defendant implicating defendant. Thus, in context, we are convinced that the reference to defendant's drug addition as proof of his motive to commit robbery was not clearly capable of producing an unjust result.

Defendant next argues that the court's failure to include all testimony related to defendant's limp or to inquire into the scope of the jury's request constituted error. During deliberations, the jury directed a note to the court that they "need[ed] to see transcripts to confirm who actually observed the limp and testified to it in court." The court then directed that the relevant portions of Detective Lasalandra's and Miller's testimony be read back to the jury. The court denied defendant's request to include the testimony stating that the victims did not, initially, make reference to the limp. In this matter, the court acted within its discretion and we reject defendant's allegations of error.

It is well established that "the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court." State v. Wolf, 44 N.J. 176, 185 (1965). Additionally, where a request is clearly circumscribed, the trial court has no obligation to compel jurors to hear testimony they have not requested. State v. Wilson, 165 N.J. 657, 661 (2000). This is so even if one of the parties requests that the readback include additional testimony. Ibid.

Here, the jury clearly wanted to hear only the portion of the testimony dealing with those witnesses who testified as to the limp; they did not request testimony about who did not testify to the limp. Therefore, the judge's denial of defendant's request to include additional material in the readback was within the court's discretion.

Defendant next alleges that the State failed to prove, beyond a reasonable doubt, that defendant was guilty of criminal restraint. Specifically, defendant alleges that the State failed to show that defendant exposed the victims to the risk of serious bodily injury as required under N.J.S.A. 2C:13-2a. Serious bodily injury is "bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ[.]" N.J.S.A. 2C:11-1(b); State v. Williams, 197 N.J. Super. 127, 132 (App. Div. 1984). The court found that there existed sufficient evidence to support conviction on this count and we agree.

Under N.J.S.A. 2C:13-2a, the State must show that the restraint was under circumstances in which defendant knowingly exposed the victim to the risk of serious bodily injury. Here, after obtaining the cash from the store, defendant ordered the victims, at gunpoint, into the store bathroom. Defendant then barricaded the victims inside by placing boxes in front of the door. In placing the boxes there, defendant intended to prevent escape and to confine the victims. Further, defendant chose to commit the robbery near closing, when the store was more likely to be empty. As a result, defendant left the victims in a locked room, knowing that it was less likely that someone would find them until the next morning. Thus restrained, the victims were in a position that exposed them to the risk of serious bodily injury. During this period of captivity, any number of calamities could have befallen the victims while they were cut off from aid. It is inapposite that no such injury actually occurred. Therefore, the court properly denied the motion for judgment of acquittal on that ground, leaving for the jury to decide whether the elements of the crime had been established beyond a reasonable doubt.

Finally, defendant challenges the court's imposition of a twenty-year sentence, with ten years of parole ineligibility, for count four (first degree robbery). In imposing a sentence above the presumptive term, the court relied upon aggravating factors (3), risk that defendant would re-offend; (6), prior criminal record; and (9), need for deterrence. These factors were neither found by a jury nor charged in the indictment. In light of the Court's holding in State v. Thomas, 188 N.J. 137 (2006), it is inconsequential that the court relied upon only the so-called "recidivism factors". Therefore, we remand this matter for resentencing consistent with Natale, supra, 184 N.J. at 458 and do not reach defendant's other argument addressed to the sentence.

Affirmed, with a remand for resentencing in light of Natale, supra, 184 N.J. at 458. Review of the sentence on count four should be joined with the review of the sentence on count one.

 

Counts one, two and three relate to an incident that occurred on September 20, 2000, at a Fashion Bug store in Totowa. Pursuant to R. 3:14(a), Passaic County issued the indictment and conducted the trial.

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A-2513-04T4

December 28, 2006