STATE OF NEW JERSEY v. TARIQ K. KYAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3099-04T43099-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TARIQ K. KYAM,

Defendant-Appellant.

____________________________

 

Submitted December 20, 2005 - Decided February 8, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

02-09-1118.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jean B. Bennett,

Designated Counsel, of counsel and on

the brief).

Peter C. Harvey, Attorney General,

attorney for respondent (Kristen M.

Harberg, Deputy Attorney General, of

counsel and on the brief).

PER CURIAM

Union County Indictment No. 02-09-1118I charged the defendant, Tariq K. Kyam, with third-degree burglary,

N.J.S.A. 2C:18-2 (Count One); third-degree theft,

N.J.S.A. 2C:20-3 (Count Two); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Three). After a two-day jury trial, defendant was convicted on Count One of the lesser included disorderly persons offense of criminal trespass,

N.J.S.A. 2C:18-3(a), and on Count Two. He was acquitted on the third-degree burglary originally charged in Count One and on

Count Three.

Defendant was, thereafter, sentenced to a custodial five-year term with a two-year parole ineligibility on the disorderly persons conviction (Count One) and a concurrent five-year term of imprisonment with a two-year parole ineligibility on the third-degree conviction (Count Two). The appropriate fines and penalties were also imposed. Defendant appeals from both the convictions and the sentences imposed. We find no merit in the challenges to the convictions and, therefore, affirm. We find the sentences, however, to have been improperly imposed and remand for re-sentencing.

Here are the facts as they were developed at trial. On May 9, 2004, Hillside Police Officer, Eduardo Teixeira, was assigned to the Patrol Division. At approximately 2:30 a.m. he and his partner were stopped at the intersection of Winans and Leslie Streets when they observed a gray BMW facing northbound on Leslie Street. They saw a red Jeep Cherokee next to the BMW. Earlier that day, the Hillside Police Department had advised its officers to look for a gray BMW that had been reported stolen. As the officers moved into position to approach the BMW, both vehicles accelerated away from them. There ensued a chase at speeds approaching seventy miles per hour that terminated when the Jeep, attempting to follow the BMW, crashed into three cars at a car dealership. The record does not reveal if the BMW was ever located.

The officers exited their patrol car and apprehended defendant. They noticed that the steering column's ignition switch was damaged and the ignition cylinder was "popped out." A flathead screwdriver was recovered from the front passenger seat of the Jeep Cherokee.

That vehicle, owned by Antonio Rodriguez, had been parked outside his home in Hillside on May 8, 2002, at approximately 10:30 p.m. Mr. Rodriguez had not given anyone permission to drive his vehicle, he did not leave the keys in the vehicle and the ignition was not damaged when he parked the car.

Defendant testified at the trial. He explained that he needed transportation to his job and was contacted by an individual, known to him only as Marcus, regarding transportation. Defendant claimed he paid Marcus $60, in return for which Marcus was to provide a car for his use for two days. Defendant and Marcus drove to the Jeep in Marcus' white Porsche. At Marcus' direction, defendant waited in the Porsche while Marcus got the Jeep started. Once he did, defendant entered the Jeep and drove off, while Marcus left in his car. As defendant approached Winans Street, he saw both Officer Teixeira's patrol car and a BMW. He went around the BMW and proceeded through the intersection. He denied speeding or being chased. However, as he approached the intersection of Coit Street, the Jeep ignition turned off causing the car to crash. Finally, defendant denied breaking into the Jeep, denied entering the Jeep with the intention to steal the Jeep, and denied any knowledge that the Jeep was stolen prior to entering the vehicle.

On appeal, defendant asserts that his motion for judgment of acquittal at the conclusion of the State's case should have been granted, that the conviction is against the weight of the evidence, and, for the first time on this appeal, that prosecutorial conduct in summation prejudiced him. We find no merit to any of these contentions.

At the conclusion of the State's case, when faced with a motion for a judgment of acquittal, the trial court is required to determine:

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its 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).]

Thus viewed, it is beyond question that the State's evidence could support a finding of guilt beyond a reasonable doubt. A rational jury could certainly have accepted the State's evidence that defendant was in possession of a vehicle owned by another, and that the car had been started without the use of a key. Both of these conclusions support an inference that defendant had either stolen the vehicle or that he had taken possession of the vehicle knowing that it was stolen. Indeed, the "unexplained and exclusive possession of stolen property shortly after the theft justifies an inference that the possessor is the thief." State v. Dancyger, 29 N.J. 76, 85 (1959). The denial of defendant's motion was eminently correct. The same analysis impels us to the conclusion that the convictions were amply supported by credible evidence. State v. Perez, 177 N.J. 540, 555 (2003).

Defendant now claims that the prosecutor's summation exceeded permissible bounds, although no objection was made to the summation at trial. This failure to object "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999). We have, nevertheless, independently examined this record and the remarks of the prosecutor. In evaluating those remarks, we are cognizant that "[c]riminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999) (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974) (Clifford, J. dissenting)). The prosecutor's comments here were grounded in the evidence and were entirely permissible.

Although there is no basis for defendant's attack on his convictions, we note three problems with the sentences imposed. The State concedes that the Judgment of Conviction "erroneously indicates that defendant was convicted of third-degree criminal trespass" when, in fact, he was convicted of the disorderly persons offense of criminal trespass. The Judgment of Conviction must be corrected. More substantively, as the State also concedes, the sentence imposed on the disorderly persons offense of criminal trespass exceeded the maximum permissible sentence of six months incarceration and a fine of $1,000. N.J.S.A. 2C:43-8; N.J.S.A. 2C:43-3(d). The matter must be remanded for re-sentencing on Count One.

Defendant was also sentenced on Count Two, as we have already noted, to a concurrent term of five years with a two-year parole ineligibility. At the time of sentencing, the Code of Criminal Justice provided for the imposition of a sentence, on a third-degree conviction, of a term from between three years and five years, N.J.S.A. 2C:43-6(a)(3), and a presumptive term of four years, N.J.S.A. 2C:44-1(f)(d). In imposing a sentence in excess of the presumptive term, the judge found three of the aggravating factors described in N.J.S.A. 2C:44-1(a): (3) (risk that defendant will commit another offense), (6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted), and (9) (the need for deterring defendant and others from violating the law).

As the result of constitutional challenges to the sentencing provisions of the Criminal Code, our Supreme Court eliminated presumptive terms and required re-sentencing of any defendant who had received a term of imprisonment that (1) exceeded the presumptive term and (2) was based on aggravating factors other than the defendant's prior criminal record. State v. Natale, 184 N.J. 458 (2005). Since the trial court here imposed a sentence above the presumptive term and relied on factors other than defendant's prior criminal record, we are constrained by the language of Natale to remand for re-sentencing on Count Two as well. We recognize that, although it is by no means clear, factors 3 and 9, in addition to factor 6, might, under certain circumstances, justify a sentence in excess of the presumptive term. State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). On remand, the sentencing judge should weigh and evaluate the sentencing factors consistent with these precedents.

 
The convictions are affirmed and the matter is remanded for re-sentencing.

(continued)

(continued)

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A-3099-04T4

February 8, 2006