STATE OF NEW JERSEY v. JOHN H. STEVENS, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2957-04T4
2957-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN H. STEVENS, JR.,

Defendant-Appellant.

_______________________________________

 

Submitted January 30, 2006 - Decided February 9, 2006

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-10-3267-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Arthur P. Zapolski, Designated Counsel and on the brief).

Nancy Kaplen, Acting Attorney General, attorney for respondent (Linda K. Danielson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant was charged in an Essex County indictment with second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1b (count two); fourth-degree possession of a weapon in circumstances not appropriate for its lawful use, N.J.S.A. 2C:39-5d (count three); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1b (count five); fourth-degree possession of a weapon in circumstances not appropriate for its lawful use, N.J.S.A. 2C:39-5d (count six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count seven); third-degree criminal restraint, N.J.S.A. 2C:13-2a (count eight); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count nine); third-degree aggravated assault, N.J.S.A. 2C:12-1b (count ten); fourth-degree possession of a weapon in circumstances not appropriate for its lawful use, N.J.S.A. 2C:39-5d (count eleven); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count twelve); second-degree burglary, N.J.S.A. 2C:18-2 (count thirteen); fourth-degree theft, N.J.S.A. 2C:20-3a (count fourteen); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count fifteen). The judge granted the State's motion to amend count thirteen from second-degree to third-degree burglary. Defendant was tried before a jury, which found defendant not guilty on counts one to twelve, guilty on counts thirteen and fifteen and the lesser-included disorderly persons offense of theft on count fourteen.

The judge sentenced defendant on counts thirteen and fifteen to concurrent terms of five years, each with a two and one-half year period of parole ineligibility. The judge imposed a concurrent 180-day term for the disorderly persons offense. The judge also imposed appropriate penalties and assessments.

We briefly summarize the relevant facts based on the evidence presented at trial. In early June 2003, Teresa Burnett was living with her sister in an apartment in East Orange, New Jersey. Defendant was Burnett's boyfriend and, on occasion, he would stay with Burnett in the apartment Burnett shared with her sister.

On June 15, 2003, at around 11:00 p.m., Burnett returned to the apartment. Defendant had been asleep but awoke when Burnett entered. According to Burnett, defendant was "pretty upset" because he heard that Burnett was not going to let him move in with her. Burnett said defendant dragged her from the living room into the bedroom where he pushed her onto a bed and began to choke her. Burnett kicked the wall of the adjacent apartment of Dorothy Johnson (Johnson), the building's superintendent, who called the police. The police responded to the scene and asked Burnett to come the next day to the station to file a report but she never did.

Burnett testified that, after this incident, she ended her relationship with defendant. Burnett was still speaking with defendant but she would not allow him to stay in her apartment. Late in June 2003, Burnett moved to another apartment in the same building.

At around 10:00 p.m. on July 6, 2003, defendant came to the apartment. Burnett told defendant that there was "no way" she could let him move in with her because "he was banned from the building." Burnett testified that she still "care[d] for [defendant]" and did not want to see him homeless but Johnson did not want defendant in the building. Nevertheless, Burnett permitted defendant into the apartment to "wash up" and do his laundry.

Burnett testified that she was in the bedroom and defendant was in the kitchen where the washer and dryer were located. At some point, defendant returned to the bedroom. Burnett said that he had a knife and a hammer. Defendant told Burnett that he was going to kill her and then kill himself. Defendant said he had nothing to live for because Burnett would not let him move in. Defendant would not let Burnett leave the room. Burnett had sexual relations with defendant "to get him to calm down and to put down the knife." Burnett was able to get the hammer away from defendant but not the knife. According to Burnett, defendant remained in the apartment until the morning, when Johnson knocked on the door. Burnett went to Johnson's apartment and told defendant to leave.

On the evening of July 7, 2003, at around 10:00 p.m., Burnett was in her apartment with defendant. Burnett let defendant in so that he could wash his clothes. Burnett told defendant that he should leave because Calvin Stewart (Stewart), her former boyfriend, was coming over to the apartment that evening. Burnett informed defendant that she was thinking of letting Stewart move in with her. Defendant said that he did not want Stewart living there. Defendant went into the bathroom and hid behind the shower curtain.

When Stewart arrived, Burnett told Stewart that defendant was in the bathroom. Stewart told defendant, "Man, come out. She don't want you here. Come out." Defendant came out and the two men began to argue. Burnett and Stewart left the apartment and went into the hallway. Stewart was going to call the police. Burnett noticed that defendant had "a little steak knife" in his hand.

Burnett exited the building with Stewart and they got into his car. Defendant followed and yelled, "If you go, if you go, if you get in the car, if you get in that car, you ain't going to have nothing when you get back. I'm going to throw all your clothes away. You ain't going to have nothing." Burnett and Stewart drove off and went to Orange, where Stewart's family resided.

Burnett returned to her apartment at 8:00 a.m. the following morning. She found that her apartment had been "trashed." She testified that garbage and cat litter were thrown all over the place. The blinds had been pulled down from the window. Burnett said that her clothes, shoes and a big "boom-box" radio were missing. She estimated that the value of the clothes and shoes was between $500 and $700. She also estimated that the value of the radio was $150. Burnett went outside and spoke with a man by the name of Hassan, a contractor who was doing some work on the building. Hassan said that defendant had told him he damaged the apartment because he thought Burnett had spent the night with Stewart.

Burnett began to clean up her apartment while defendant was outside, "roaming around" and "screaming." Burnett tried to ignore him but defendant entered the building and kicked the door to the apartment off its hinges. Burnett ran to a phone booth to call the police. Meanwhile, defendant entered the apartment and took Burnett's purse. Burnett saw defendant leave the building. He held up the purse for Burnett to see. Defendant laughed, told Burnett that he had her purse and ran off.

Defendant was arrested several days later by Detective Joseph Williams of the East Orange police department. According to Williams, defendant was carrying a bag which contained Burnett's purse. Burnett later retrieved her purse at the police station.

Defendant was convicted on three charges related to the incidents of July 7 and 8, 2003. He appeals his conviction and sentences and raises the following points for our consideration:

POINT ONE: THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.

POINT TWO: THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE VERDICT (Partially raised below).

POINT THREE: THE SENTENCES ARE EXCESSIVE AND CONTRAVENE DEFENDANT'S SIXTH AMENDMENT RIGHT TO TRIAL BY JURY.

We turn first to defendant's contention that the judge should have dismissed the indictment because the charges were based on Burnett's allegations. Defendant maintains that Burnett's testimony was unreliable and uncorroborated.

However, defendant did not move prior to trial for dismissal of the indictment. "[D]efenses and objections based on defects . . . in the indictment or accusation" must be raised prior to trial." R. 3:10-2(c). Failure by the defendant to move for dismissal prior to trial constitutes a waiver. State v. Del Fino, 100 N.J. 154, 160 (1985). "Moreover, the merits of the underlying assertion must be persuasive if an untimely challenge is to be otherwise allowed for good cause." Id. at 161.

Here, defendant has provided no explanation whatsoever for failing to seek dismissal of the indictment prior to trial. The merits of defendant's challenge to the indictment are wholly unpersuasive. Therefore, we decline to consider defendant's untimely assertion that the indictment should have been dismissed for evidential insufficiency.

We turn to defendant's contention that the trial judge erred in denying his motion to dismiss the charges. At the close of the State's case, defendant moved for dismissal of all of the charges. The trial judge treated the application as a motion for a judgment of acquittal pursuant to R. 3:18-1. On such a motion, the trial judge 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 favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

When reviewing the denial of a motion for acquittal, we apply the same standard that is employed by the trial court. State v. Moffa, 42 N.J. 258, 263 (1964).

Defendant argues that there was insufficient evidence to support the charge in count thirteen that he committed burglary on July 7 and 8, 2003. A person is guilty of burglary if, with the purpose of committing an offense therein, he:

1) Enters a research facility, structure, or a separately secured or occupied portion thereof unless the structure was at the time open to the public or the actor is licensed or privileged to enter; or

(2) Surreptitiously remains in a research facility, structure, or a separately secured or occupied portion thereof knowing that he is not licensed or privileged to do so.

[N.J.S.A. 2C:18-2(a)(1) and (2).]

Defendant contends that the motion for acquittal should have been granted because the evidence established that he was licensed to enter Burnett's apartment on the dates charged in the indictment. We disagree.

Although Burnett let defendant into the apartment to wash his clothes on July 7, 2003, she testified that she asked him to leave because Stewart was coming over. When Stewart arrived, he also told defendant to leave the apartment. The evidence showed that, at this point, defendant did not have a license to remain in the premises. The evidence also established that defendant followed Burnett and Stewart out of the apartment and, without a license to do so, returned to the apartment and removed Burnett's property. We are convinced that the State presented sufficient evidence to establish that defendant entered Burnett's apartment when he was not "licensed or privileged" to do so. N.J.S.A. 2C:18-2(a)(1).

Defendant next contends that there was insufficient evidence to support the charge in count fifteen that he made terroristic threats on July 7 and 8, 2003. A person is guilty of a crime of the third degree:

if he threatens to commit any crime of violence with the purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience.

[N.J.S.A. 2C:12-3a.]

Defendant argues that Burnett's testimony was "wholly uncorroborated, unsubstantiated and fanciful." Defendant asserts that at the time of the alleged crime, he was emotionally distraught because he was losing the "love of his life." Defendant additionally contends that the incident was nothing more than a "lover's quarrel." Again, we disagree.

Burnett testified that on July 7, 2003, after she told defendant that Stewart was coming to the apartment, and he might be moving in with her, defendant refused to leave and hid in the bathroom. After Stewart arrived, Burnett and Stewart left the building and were getting into a car when, according to Burnett, defendant told her, "[I]f you get in that car, you ain't going to have nothing when you get back. I'm going to throw all your clothes away. You ain't going to have nothing."

Based on this testimony, the jury could reasonably find that defendant threatened to commit a crime. In addition, a reasonable jury could find that by making these threats, defendant was endeavoring to "terrorize" Burnett. N.J.S.A. 2C:12-3a. Defendant's assertion that this was little more than a "lover's quarrel" flies in the face of the evidence that he "trashed" Burnett's apartment and removed items of her personal property.

Defendant also argues that there was insufficient evidence to support the theft charge. Under N.J.S.A. 2C:20-3a, a person is guilty of this offense "if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." Ibid. As we stated previously, Burnett testified that defendant took her clothes, shoes and radio. Defendant said he was going to throw all of Burnett's clothes away. In addition, on July 8, 2003, when Burnett was making the phone call to the police, defendant showed Burnett that he had her purse and he ran away with it.

Defendant contends that there was no corroboration that Burnett actually owned a "boom-box" radio. However, he does not address the taking of Burnett's clothes and shoes. Defendant asserts that if he took the purse, it was nothing more than a "lover's prank." But Burnett recovered her purse only after it had been seized by the police and she retrieved it at the police station. We are satisfied that reasonably minded jurors could find that defendant took items of Burnett's personal property with the intent to permanently deprive her of the same.

We next consider defendant's contention that his sentences are excessive. The judge denied the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge found aggravating factors under N.J.S.A. 2C:44-1a (3)(risk of re-offense); (6) (extent of defendant's prior criminal record and seriousness of the offenses for which defendant was convicted); and (9) (need to deter defendant and others from violating the law). The judge found no mitigating factors under N.J.S.A. 2C:44-1b.

We are satisfied that the judge's findings are supported by the record. In our view, the sentences are not manifestly excessive or unduly punitive, are not an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Defendant additionally argues that the sentences on counts thirteen and fifteen violate his right to a jury trial under the Sixth Amendment as interpreted in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

While this appeal was pending, our Supreme Court decided State v. Natale, 184 N.J. 458 (2005), and held that New Jersey's system of presumptive-term sentencing violates the right to trial under the Sixth Amendment. Id. at 484. The Court invalidated the presumptive terms under the Criminal Code, thereby making the top of the statutory range for the crime charged the "statutory maximum" authorized by the jury verdict or the facts admitted by defendant at his guilty plea. Id. at 487. The Court ordered new sentencing hearings in cases on direct appeal as of the date of the decision. In those proceedings, the sentencing judge 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 judge here imposed sentences on counts thirteen and fifteen that are longer than the presumptive terms for the crimes charged in those respective counts. Re-sentencing under Natale may not be required if a sentence is based solely upon a defendant's prior criminal record. See State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). However, in this case, when sentencing defendant, the judge considered matters other than defendant's prior criminal record, including defendant's anger management and behavioral problems. Because the sentences were not based solely upon defendant's prior criminal record, re-sentencing is required under Natale.

In sum, we affirm defendant's convictions. We also find that the sentences imposed on counts thirteen and fifteen are not excessive. We remand, however, for re-sentencing on counts thirteen and fifteen pursuant to Natale.

Affirmed in part and remanded in part for re-sentencing on counts thirteen and fifteen. We do not retain jurisdiction.

 

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A-2957-04T4

February 9, 2006