STATE OF NEW JERSEY v. SALEEM JOSEPH WHEELER

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3098-03T33098-03T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SALEEM JOSEPH WHEELER,

Defendant-Appellant.

______________________________________________

 

 
Submitted November 30, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

02-03-0485.

Nelson, Fromer & Crocco, attorneys for

appellant (Steven E. Nelson, of counsel;

Matthew Jordan, on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mark P. Stalford,

Assistant Prosecutor, of counsel; Mr. Stalford

and Tara Wilson, Assistant Prosecutor, on

the brief).

PER CURIAM

Defendant Saleem Joseph Wheeler appeals from his conviction following a guilty plea to five counts of a twenty-two count indictment as follows: one count of conspiracy to commit armed robbery, N.J.S.A. 2C:5-2, and four counts of armed robbery, N.J.S.A. 2C:15-1. At the same time, defendant entered guilty pleas to separate indictments charging possession of a controlled dangerous substance and possession of a weapon by a convicted person. At sentencing, the judge merged the conspiracy to commit armed robbery into the substantive offenses and sentenced defendant on the armed robbery counts to concurrent terms of twenty years in prison subject to the 85% parole ineligibility term of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the separate weapons offense, defendant was sentenced to a concurrent ten-year term with five years parole ineligibility. The sentences were concurrent to a sentence defendant was then serving. A consecutive sentence of five years with two and one-half years parole ineligibility was imposed on the drug offense. Appropriate penalties and assessments were also imposed.

Defendant's plea came several days into his trial on the armed robbery and related charges, after the denial of his motion for a mistrial based on the State's alleged violation of its discovery obligations pursuant to R. 3:13-3. In his plea agreement, defendant reserved the right to appeal the denial of his mistrial motion. Accordingly, he presents the following arguments on this appeal:

POINT I

THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL WHERE THE PROSECUTOR'S BLATANT DISCOVERY VIOLATIONS CONTRARY TO RULE 3:13-3(B) AND 3:13-3(C) CAUSED THE DEFENDANT TO BE PREJUDICED AND DENIED HIS RIGHT TO DUE PROCESS.

POINT II

THE DELIBERATE DISCOVERY ABUSES BY THE STATE CONSTITUTE ACTS OF PROSECUTORIAL MISCONDUCT, WHICH ACTS "GOADED" THE DEFENDANT INTO MOVING FOR A MISTRIAL; THEREBY THE BAR OF DOUBLE JEOPARDY WOULD ATTACH AND PREVENT A RETRIAL OF THE DEFENDANT.

Since Point II is contingent on Point I, it need only be addressed if we agree with defendant on his first argument. However, we find no abuse of discretion by the trial judge in rejecting defendant's motion for a mistrial and therefore affirm his conviction and sentence.

Defendant first raised the possibility of discovery violations when he moved for a mistrial, based on other grounds, during the prosecutor's opening statement. During the testimony of the State's second witness, Detective DeAngelis, defendant again complained of what he perceived to be discovery violations. After an extensive sidebar discussion, the judge tentatively found no discovery violations but agreed to carry the matter to the following week so that the parties could review the discovery over the ensuing weekend. On June 9, 2003, defendant filed a formal motion for a mistrial to which the State responded. After reviewing the briefs and entertaining extensive oral argument on June 10, 2003, Judge DeStefano carefully analyzed defendant's contentions and denied the motion in a thorough oral ruling. Detective DeAngelis's testimony was then completed. On the following day, June 11, 2003, defendant entered his guilty pleas.

It is well settled that the "granting of a mistrial is within the sound discretion of the trial judge," and we therefore review that decision under an abuse of discretion standard. State v. DiRienzo, 53 N.J. 360, 383 (1969); see also State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). "A mistrial is an extraordinary remedy and should be resorted to only to prevent an obvious failure of justice." State v. Hubbard, 123 N.J. Super. 345, 351 (App. Div.), certif. denied, 63 N.J. 325 (1973). Our review of the record does not reveal any such failure of justice. Judge DeStefano's denial of the mistrial motion was well within his discretion, and we affirm substantially for the reasons he expressed in his oral ruling of June 10, 2003. As noted at the outset, our disposition makes it unnecessary to consider defendant's second point.

 
Affirmed.

Defendant was charged in seventeen counts of the indictment along with Christian DeLoach. There were five additional counts against DeLoach alone.

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A-3098-03T3

January 3, 2006