STATE OF NEW JERSEY v. ROBERT A. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2800-04T42800-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT A. SMITH,

Defendant-Appellant.

_____________________________________________________________

 

Submitted January 30, 2006 - Decided March 3, 2006

Before Judges Holston, Jr. and Gilroy.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-12-4452.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark Tabakman, Designated Counsel, of counsel and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Robert Smith, appeals his June 15, 2004 judgment of conviction on Indictment No. 02-12-4452 of first-degree robbery, proscribed by N.J.S.A. 2C:15-1, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:5-2 (Count One); third-degree unlawful possession of a firearm, specifically a handgun, without a permit, proscribed by N.J.S.A. 2C:39-5b (Count Two); second-degree possession of a weapon, specifically a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4a (Count Three); and fourth-degree preventing lawful arrest by flight, proscribed by N.J.S.A. 2C:29-2a (Count Ten). After a seven-day jury trial, the jury found defendant guilty of each of the above four counts.

Defendant was sentenced on June 15, 2004 to fifteen years incarceration with an 85% term of parole ineligibility pursuant to the No Early Release Act (NERA) and Graves Act and five years of parole supervision on Count One; four years incarceration on Count Two, to run concurrent with Count One; and eighteen months incarceration on Count Ten, to run concurrent with Count One. The court merged Count Three into Count One for sentencing purposes. The appropriate fines and penalties were also imposed. Defendant appeals his conviction and sentence. We affirm.

On August 1, 2002, the victim, Joseph Shenouda, a man of Arabic nationality and only a six month resident of the United States, with a very poor command of the English language, was working at the Steakhouse II Restaurant in Irvington. Just after 10:00 p.m., he stepped outside of the restaurant and while making a telephone call on his cell phone was robbed. He testified that defendant and another man approached him. The other man took his cell phone from him. Defendant put a gun to Shenouda's stomach, placed his hand on his shoulder, told Shenouda to give him his money, and not to move. Fearing for his life, when defendant stuck the gun to his stomach, Shenouda threw his money, which he believed to be approximately $80, on the ground. The man who took the phone alerted defendant that someone was coming toward them. Defendant picked up the money and the two men got into an automobile with two other individuals and left the scene. The man who was approaching was Said Androus, a restaurant delivery man. Although Androus did not observe the handgun pointed at Shenouda's stomach, he did see the men standing near him. After being told by Shenouda what had happened to him, Androus summoned a police car that was passing by.

The police then pursued the vehicle, a burgundy Toyota Camry, which the robbers had entered. A police pursuit, with lights and sirens activated, ensued through three municipalities until the vehicle crashed into a fence in front of 13 Halsted Street in East Orange. Shenouda and his cousin, who also worked at the restaurant, followed the police car in Shenouda's cousin's car. During the pursuit one of the occupants of the Camry was leaning out of the vehicle waving a silver handgun in the direction of the police car.

After the suspects' vehicle crashed, four men exited the vehicle and ran toward the fence. Two suspects jumped over the fence and the other two went around it. Irvington Police Officers Young and Wilson searched the backyard of a residence, where they found defendant crouched down under some bushes near the steps of a home. When they apprehended defendant under the bushes, a silver handgun, later described as a starter pistol, was found about a foot from defendant. The gun was later determined by ballistics to be operable. Officer Young identified defendant and the handgun in court.

Shenouda's cell phone was found in the rear seat of the vehicle that defendant and the other suspects fled from. The cell phone contained a pre-recorded list of numbers that Shenouda had programmed into the cell phone and Shenouda identified the cell phone as the cell phone that had been stolen from him. Additionally, defendant had sixty-five dollars in his possession at the time of his arrest.

Shenouda described the defendant as a short man with a light beard, wearing a black shirt. After defendant was arrested, Shenouda, at the scene, made a positive identification of defendant as the person who pointed a gun at him. Shenouda later identified defendant as the gunman in a photograph shown to him by the police. Shenouda also described the co-defendant, who he was never able to identify, as taller than himself, wearing a long white tee shirt and having long hair.

Shenouda gave a statement at the police department after the incident, from which the police generated a report that Shenouda signed. When questioned about his statement at trial, defendant's counsel pointed out some inconsistencies between the statement Shenouda gave to police and his statements made during testimony. The police report indicated that Shenouda described the gun as silver and brown. The gun presented into evidence and recovered from the scene was silver and white. Shenouda explained that he did not say "brown" and actually reported that the gun was "round," referring to the revolving portion. Additionally, the police report indicates that Shenouda witnessed defendant and the other suspects fleeing the car at the crash site. However, he testified that he did not tell the police that he saw this. Shenouda further explained that at the time of the incident he did not speak English very well, so his cousin, who is also not fluent in English, assisted him in reading the statement the police had prepared prior to his signing it.

Defendant's counsel also cross-examined Officer Young regarding some errors in the police report. Officer Young conceded that the police report failed to reflect that defendant was hiding and attempting to avoid apprehension. The report also erroneously stated that there were no eye witnesses to the robbery, despite the fact that Androus had actually gone to the police station later to give his eye witness account of the robbery.

At trial the State called Detective Isselin as a witness. The prosecutor asked the detective "Did you have occasion to speak to the defendant, Robert Smith?" The detective replied, "Yes, I did." The State then attempted to admit into evidence a Miranda warning preamble. Defendant's counsel immediately asked for a sidebar where he informed the judge that he was never provided with the preamble during discovery. Concerned that the State was attempting to elicit testimony regarding a previously undisclosed verbal statement made by defendant, defendant's counsel moved for a mistrial and asked that a N.J.R.E. 104 hearing be conducted.

The jury was dismissed and the judge conducted a N.J.R.E. 104 hearing and determined that the document was not provided in discovery. The judge limited its use to questions concerning defendant's address. The judge denied the motion for mistrial and cautioned Detective Isselin as to what he was permitted to testify:

I've given my ruling. You will not be permitted to testify about any of that. And, in fact, I'm -- it's been represented by the Prosecutor that he only has a few more questions of you that will not pertain to any statement except if you know whether any of the defendants gave their addresses. Beyond that you won't be asked anything about any statements that the defendants may have given, and if you are, you're not permitted to answer that.

The jury was brought back into the court room and the prosecutor continued his examination of Detective Isselin as follows:

Q. Detective, were you able to obtain his address?

A. No, I did not.

Q. What about for the defendant Mitchell, were you able to obtain it?

A. No, sir.

Q. What about for the defendant Reid?

A. No, I did not.

Q. All right. Were you able to make any determination as to whether any one of the three lived at 17 Halsted Street?

A. No.

MR. ELFLEIN: Now, with that, Judge, I have nothing further.

Cross-examination was declined by defendant and the witness was excused. The jury found defendant guilty on Counts One, Two, Three and Ten, but acquitted him on Count Five, third-degree aggravated assault, by pointing a handgun at a law enforcement officer, proscribed by N.J.S.A. 2C:12-1b(9).

Defendant presents the following arguments for our consideration:

POINT I

THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE DEFENDANT IS ENTITLED TO A NEW TRIAL.

POINT II

THE TRIAL COURT ERRED BY NOT GRANTING THE DEFENDANT'S MOTION FOR A MISTRIAL, AS THE ERRORS COMMITTED WERE NOT AMENABLE TO CURE.

POINT III

THE TRIAL COURT ERRED BY DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT IV

THE SENTENCE IMPOSED WAS UNJUST, INAPPROPRIATE AND MANIFESTLY EXCESSIVE.

I

Pursuant to Rule 3:20-1, after a jury finds a defendant guilty, a defendant is entitled to move to set aside the verdict as against the weight of the evidence and for a new trial.

Rule 3:20-1 states:

The trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice . . . . The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.

The object of the new trial motion is "to correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6 (1969). The trial judge is directed to evaluate the tangible factors relative to the proofs and the intangible feel of the case. Ibid.

Defendant contends that he is entitled to a new trial because the jury verdict was against the weight of the evidence. Defendant failed to raise this motion at trial. When this court reviews the decision of the trial judge, our standard of review is found at Rule 2:10-1. We direct that

the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

[R. 2:10-1. State v. Gaikwad, 349 N.J. Super. 62, 82-83 (App. Div. 2002).

Where a defendant fails to request, at trial, a new trial on the ground that the verdict is against the weight of the evidence, an appeal on such ground is procedurally barred. R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972); State v. Marinez, 370 N.J. Super. 49, 56 (App. Div.), certif. denied, 182 N.J. 142 (2004). An appellate court, however, may entertain the merits of such an appeal in the interest of justice. State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J. 476 (1993). In such a review, an appellate court must determine whether a jury could have rationally found that the elements of the crime were presented beyond a reasonable doubt. Ibid. Where the jury reaches a verdict based on witness credibility, such a verdict should be upheld absent clear evidence of mistake or prejudice. Ibid. A jury is free to accept or reject the testimony of a witness based on credibility. State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

Defendant outlines in his brief various portions of Shenouda's testimony, which he argues are "unworthy of belief." At trial defendant took advantage of the opportunity to cross-examine Shenouda concerning various inconsistencies between his originally signed statement to the police and his in-court testimony. Assisted by a translator at trial, Shenouda explained that he did not fully understand the statement that he signed on the night of the incident because he did not have the benefit of a translator fluent in English. While the police report contradicts testimony by both Shenouda and Young, neither authored that report. The jury apparently found Shenouda's explanation of the discrepancies satisfactory and found defendant guilty.

"On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error . . . . (citations omitted)." State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.) certif. denied, 151 N.J. 470 (1997). Clearly, the assessment of a witness's credibility is within the purview of the jury as finder of fact at trial. See State v. Reyes, 50 N.J. 454, 464 (1967).

We are satisfied that the court properly denied the defendant's motion for a new trial. The outcome of the trial was dependent on the jury's assessment of the credibility of witnesses, which the jury determined against defendant. It was also dependent on the jury's consideration of the substantial evidence supporting the jury's verdict. That evidence included (1) the victim's positive identification of defendant as the person who stuck a handgun into his stomach and demanded his money; (2) the robbery's occurrence outside a store with lighting sufficient for the victim to get a good look at defendant's face; (3) a starter pistol matching the description of a silver handgun located within one foot of defendant's hand when he was found hiding from the police; and (4) the victim's cell phone found in the vehicle in which defendant fled the scene. The jury's verdict was clearly not against the weight of the evidence and did not constitute a manifest denial of justice under the law.

II

Defendant contends that the court should have granted a mistrial based on procedural misconduct in failing to provide discovery. Defendant made an oral statement to Detective Isselin in which he admitted possession of the handgun. This oral statement was preceded by a Miranda warning and memorialized in a police report by Officer Ramos. Co-defendants Reid and Mitchell were also Mirandized but refused to make any statements. These documents were not supplied to the defendants before trial, and the trial prosecutor was unaware that they had not been supplied. The prosecutor offered not to elicit any testimony regarding the statement in light of the discovery failure. After a lengthy colloquy in a hearing outside the presence of the jury, the court suppressed the statement and all references to it.

Defendant contends that the trial court should have granted a mistrial because the curative actions taken did not go far enough in curing the State's discovery omission. An appellate court will only reverse on such grounds if there were harmful error, which was "clearly capable of producing an unjust result." R. 2:10-2. Harmless error will be disregarded unless there is a reasonable doubt as to whether the error contributed to the verdict. State v. Macon, 57 N.J. 325, 339 (1971).

A mistrial should be granted if "the error is such that manifest injustice would result from continuance of the trial and submission of the case to the jury." Pressler, Current N.J. Court Rules, comment 5.1 on R. 3:20-1. The mistrial need not be granted if "the error is of a nature which can be effectively cured by a cautionary instruction or other curative steps." Ibid.

When a party discovers additional materials that were previously requested, the party must inform his adversary of such materials. R. 3:13-3(g). If a party fails to reveal such information the court may "prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." Ibid.

A failure of the State to provide discovery does not require the granting of a mistrial where a lesser penalty will protect the defendant's rights. State v. Marshall, 123 N.J. 1, 134 (1991). In Marshall, the prosecuting attorney attempted to examine a witness using interrogation notes that had not been provided to the defense during discovery. Ibid. The defendant moved for a mistrial on the basis of the State's discovery violation. Ibid. The trial court denied the motion and precluded the State from eliciting further testimony based on the notes and from examining the remaining witnesses on any subject covered by the interrogation notes. Ibid. The Supreme Court in finding that the trial court's determination was proper noted that "[t]he choice of sanctions appropriate for discovery-rule violations is left to the broad discretion of the trial court." Ibid. (citing State v. Toro, 229 N.J. Super. 215, 223 (App. Div. 1998)).

The judge found that the document was not provided in discovery and limited the witness's testimony but denied the motion for a mistrial. The judge conducted an N.J.R.E. 104 hearing where the prosecutor agreed to limit his examination of Detective Isselin to questions concerning the address of defendant. The prosecutor then examined the witness, who testified that he never obtained defendant's address. The trial judge properly exercised his discretion when he ruled that the State could neither enter the document into evidence nor elicit any substantive testimony regarding the document. Therefore, a mistrial was not appropriate.

III

Defendant contends that the trial court should have granted his motion for acquittal pursuant to Rule 3:18-1 at the conclusion of the State's case. We are satisfied that the motion for acquittal on Counts One, Two, Three and Ten of the indictment was properly denied because a reasonable jury could find that the State had proved the elements of those crimes beyond a reasonable doubt.

When deciding a motion for judgment of acquittal a trial court must consider "whether the evidence at that point is sufficient to warrant a conviction of the charge involved." Reyes, supra, 50 N.J. at 458. Specifically, the trial court must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." Id. at 458-59. An Appellate court must apply the same standard in determining whether the denial of the motion was proper. State v. Moffa, 42 N.J. 258, 263 (1964).

Defendant outlines in his brief the various portions of Shenouda's testimony which he finds to be "highly suspect." It is the jury's responsibility to accept or reject the testimony of witnesses based on credibility.

The defense argues that Shenouda gave a description of a robber wearing a white tee-shirt that could have fit a "thousand black men" and did not get a good look at the robber's face. However, that testimony was in reference to co-defendant Reid and not defendant. Conversely, the identification of defendant was at all times positive, consistent, and based on the victim having a good view of defendant's face. The State's case was based on direct evidence from the victim, as well as upon the physical evidence of a handgun matching the description of the silver handgun found in defendant's possession and the victim's cell phone found in the vehicle in which defendant fled from the scene. A reasonable jury clearly could find guilt beyond a reasonable doubt as to the robbery and weapons charges.

With regard to the Tenth Count, defendant argues that there was no evidence of resisting arrest "once he was apprehended by the police." "The only testimony presented was that he was either running from the car or hiding." N.J.S.A. 2C:29-2a provides: "(1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest[; and] (2) [e]xcept as provided in paragraph (3), a person is guilty of a crime of the fourth-degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest . . . ." Under paragraph (3), "an offense . . . is a crime of the third-degree if the person: (a) [u]ses or threatens to use physical force or violence against the law enforcement officer . . . or (b) [u]ses any other means to create a substantial risk of causing physical injury to the public servant . . . ."

Defendant was never charged with the third-degree offense of resisting arrest. He was charged with the fourth-degree offense of preventing or attempting to prevent his arrest by engaging in flight. The offense was completed when he fled and hid from the police so that he had to be dragged out of the bushes.

The basic offense of resisting arrest . . . is a disorderly persons offense. It is raised to a fourth-degree crime if the prevention or attempted prevention of the arrest is accomplished by flight. Whether or not flight is involved, however, if the resistance is accompanied by physical force or violence against the officer, the crime is of the third-degree.

[State v. Simms, 369 N.J. Super. 466, 470 (App. Div. 2004).]

Based on defendant's flight to the fence and beyond the fence into the bushes, there was clearly evidence, beyond a reasonable doubt, of a violation of preventing or attempting to prevent arrest by engaging in flight. Defendant was told to stop by officers in uniform, and he purposely ran to prevent his arrest. The trial court properly denied defendant's motion for acquittal.

IV

Defendant contends that the sentencing court did not properly weigh and balance the aggravating factors and that the resulting sentence shocks the judicial conscience. However, if defendant's sentence falls within the statutorily prescribed sentencing range and the aggravating factors outweigh the mitigating factors and are supported in the record by credible evidence, the sentence should be affirmed. An appellate court must review the trial court's sentencing to ensure that (1) the sentence complies with the sentencing guidelines; (2) the aggravating and mitigating factors found were based on "competent credible evidence in the record"; and (3) the sentence was not so "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

The sentencing guidelines call for sentences between ten and twenty years for first-degree crimes, between three and five years for third-degree crimes and no more than eighteen months for fourth-degree crimes. N.J.S.A. 2C:43-6a. The sentencing court found the following aggravating factors related to the crimes committed by defendant: (2) The gravity and seriousness of harm inflicted on the victim; (8) The defendant committed the offense against a police or other law enforcement officer; and (9) The need for deterring the defendant and others from violating the law. N.J.S.A. 2C:44-1a. The court found no mitigating factors.

"In general, a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); accord State v. McBride, 211 N.J. Super. 699, 705 (App. Div. 1986); State v. Martelli, 201 N.J. Super. 378, 384-85 (App. Div. 1985).

The trial court made the following findings of aggravating and mitigating factors:

I did consider the statutory mitigating and aggravating factors. I asked a question of whether or not factor number 8, 8b would be appropriate. However, I've been advised that there was no substance abuse at the time of the commission of this offense. You're correct Mr. Miseo. The statutory mitigating factors do not include prior drug use or history of drug use. That is a factor which I can take into consideration in terms of sentencing in general.

However, I find that there were no mitigating factors which are applicable to this set of circumstances. With regard to the aggravating factors, I do find that aggravating factor number two. The gravity and the seriousness of the harm inflicted on the victim is applicable. Here, the victim was confronted by this defendant and one of his co-defendants with a weapon. And he was robbed.

The defendant should have known that the victim of the offense was vulnerable and incapable of resistance because of those set of circumstances and the use of a weapon. I find that aggravating factor number eight certainly applies to the conviction of resisting arrest. The offense was committed against a police officer or other law enforcement officer acting in the performance of their duties. And I find that factor number nine is applicable. There is a need for deterring this defendant from violating the law.

On Count One, first-degree robbery, defendant was sentenced to fifteen years incarceration with an 85% term of parole ineligibility and five years of parole supervision. On Count Two, third-degree unlawful possession of a handgun without a permit, he was sentenced to four years incarceration running concurrently. Count Three was merged with Count One. On Count Ten, fourth-degree preventing lawful arrest by flight, he was sentenced to eighteen months incarceration running concurrently. These sentences are within the range provided by the statute. Aggravating factors (8) and (9) were adequately placed on the record and founded in competent credible evidence.

As to aggravating factor number (8), defendant unquestionably fled from the police when he was told to stop and thus resisted arrest. Moreover, not only did defendant flee from the police, when defendant was found hiding, he refused to come out. Officer Young testified that he needed the assistance of other officers, who helped in removing the debris cover and pulling defendant out of his hiding place. There was ample evidence from which to find aggravating factor number (8).

As to factor number (9), defendant had fourteen juvenile complaints lodged against him with seven being sustained by adjudications of delinquency. Of the seven sustained, the offenses included were receiving stolen property, possession of burglary tools, assault, theft by unlawful taking, possession of a controlled dangerous substance, and violation of probation. As an adult, he was arrested seven times and found guilty of three disorderly persons offenses including issuing or passing bad checks, loitering, and possession of drug paraphernalia.

As to aggravating factor (2), the Supreme Court has held that the harm to the victim may not be used both to increase the degree of culpability of the crime and as an aggravating factor. State v. Jarbath, 114 N.J. 394, 404 (1989). To do so would constitute unfair "double-counting." Ibid. A crime is elevated to first-degree robbery from second-degree robbery if the defendant is "armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1b. Because defendant was convicted of first-degree robbery, it was not appropriate for the court to have considered the use of a weapon as an aggravating factor.

The court properly found aggravating factors (8) and (9). They were clearly supported by the evidence and no mitigating factors were found. Therefore, the aggravating factors clearly outweigh the non-existent mitigating factors. We are satisfied, therefore, that the court's error in finding aggravating factor (2) does not constitute harmful error "clearly capable of producing an unjust result." R. 2:10-2. The court gave consideration to the defendant's age and circumstances. The sentences were all made to run concurrent. The aggregate sentence was just, appropriate and fair. There was no excessiveness. The sentence imposed does not shock the judicial conscience.

 
Affirmed.

Defendants Richard Mitchell and Shaun Reid were co-defendants on trial with defendant.

(continued)

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A-2800-04T4

March 3, 2006