STATE OF NEW JERSEY v. MICHAEL BELL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3375-04T4F3375-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL B. BELL,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 2, 2006 - Decided May 24, 2006

Before Judges Kestin and Lefelt.

On appeal from the Superior Court

of New Jersey, Law Division,

Middlesex County, Indictment No.

02-03-0019.

Yvonne Smith Segars, Public Defender,

attorney for appellant (William Welaj,

Designated Counsel, of counsel and

on the brief).

Appellant, Michael B. Bell, submitted

a pro se supplemental brief.

Zulima V. Farber, Attorney General,

attorney for respondent (Paul H.

Heinzel, Deputy Attorney General,

of counsel and on the brief).

PER CURIAM

After defendant Michael Bell's first trial ended in a mistrial and his motion to dismiss the indictment was denied, he pled guilty to third-degree conspiracy, N.J.S.A. 2C:5-2, and third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f). Judge Paley sentenced him to five years imprisonment and defendant appealed, arguing "the trial court erred in denying the defendant's motion to dismiss the indictment," the sentence was "manifestly excessive," and defendant was "entitled to a remand pursuant to State v. Natale [, 184 N.J. 458 (2005)]." We affirm defendant's conviction and sentence.

The State charged defendant and his brother, co-defendant Eric Bell, with conspiracy, selling or disposing of an assault firearm, unlawful possession of an assault firearm, defacing a firearm, and unlawful possession of a large capacity ammunition magazine. Defendant and co-defendant were tried together before Judge Paley and a Middlesex County jury. At trial, the State's theory was that, though defendant had purchased the weapon legally in Pennsylvania approximately five years before, he was incarcerated and needed to sell the weapon for legal fees. Therefore, he had co-defendant obtain the firearm, with ammunition, from their mother's house in Philadelphia and drive it to New Jersey where co-defendant, without the proper license, and on defendant's behalf, sold it for $1,000 to an undercover officer. When sold, the weapon had an obliterated serial number. Co-defendant set forth an entrapment defense, while defendant presented a defense that was essentially "jurisdictional in nature." During jury deliberations, the jury issued a series of notes and questions.

The first note informed the judge that "we cannot come to a unanimous verdict on both defendants. Big disagreement on the entrapment defense." Both defendants moved for a mistrial, which was denied, and the court issued a supplemental instruction.

The second note indicated, "after much deliberation and discussion, we still are unable to reach a unanimous decision." Again, the court denied both defendants' motions for mistrial. The judge informed the jury that their note was unclear as to whether they may have reached a unanimous verdict on any of the charges facing either defendant. The judge asked the jury to return to deliberations and advise whether resolution had been achieved on any charge against either defendant.

The jury then sent its third note indicating that "we are unanimous on all five counts for one defendant. However, we cannot come to a unanimous decision regarding the entrapment defense. For the other defendant, we have reached three unanimous counts, and the other two counts undecided." The judge advised the jury that it interpreted their note to indicate that they had reached a unanimous verdict as to the second defendant on three of the five counts. The court advised them that before it could accept a partial verdict, they should understand that such a verdict, if accepted by the court, would not be subject to their reconsideration. The court further explained that if the jury chose not to submit the partial verdict to the court, the court would find a mistrial. The judge then sent the jury back to advise the court as to how it wished to proceed.

The jury issued another note, its fourth, this time asking whether Judge Paley could "give us further instructions concerning partial verdict? Your instruction as to mistrial was unclear." At that point, both defendants again renewed their motions for a mistrial. The court then instructed the jury that they were to advise the court whether they had reached a unanimous verdict as to three counts against one defendant and that he would poll them to ensure their unanimity. If that would happen, the case would be concluded and their verdict on those three counts would be the jury's final verdict. The case would also be concluded if they indicated that they could not reach a unanimous verdict on any count. The judge returned the jury to the jury room.

The jury then issued their last note, which read: "Dear Judge Paley. Yes, we were unanimous on three counts for defendant number two, except some jurors do not agree on the entrapment issue. We misunderstood your original question." Upon receipt of this final note, both defendants once again moved for mistrials. The State opposed the motion and wanted the judge to ask whether "the entrapment is the hang-up for a particular defendant." Instead, Judge Paley granted the defense motions for a mistrial.

The judge explained that he thought the jury was "confused" and had not "reached a unanimous verdict on anything." He stated, "I think that, at this point, based on the confusing notes I have received, any verdict . . . could not be fairly said to be based on the evidence. And, unfortunately, I am constrained to grant the defendants' application for that mistrial at this time."

Defendant subsequently moved to dismiss the indictment. Defendant argued that the jury had reached a unanimous verdict on all the counts against "one defendant," which he believed to be himself, and the judge's refusal to allow the jury to report its partial verdict violated his right to be free from double jeopardy. Judge Paley rejected this argument and denied the motion. He explained that the jury had failed to return any verdict regarding either defendant and that, therefore, both defendants could be retried.

Thereafter, defendant pled guilty pursuant to a plea agreement and Judge Paley subsequently imposed a five-year prison term concurrent to the life sentence defendant was already serving. At the beginning of the plea proceeding, the judge acknowledged that "defendant also reserves the right to appeal the denial of his motion to dismiss which was addressed by this Court last week."

On appeal, defendant, by counsel and pro se supplemental letter brief, essentially reargues the position advanced before Judge Paley. According to defendant, at the time the jury issued its notes, the jury must have decided that co-defendant possessed the defaced weapon and the ammunition and sold the weapon without the proper license. The two charges not yet decided probably were the serial number defacement and conspiracy. Consequently, defendant argues, the jury "must have found the defendant not guilty" of conspiracy "and, to the extent it indicated it had reached a unanimous verdict as to all five charges, it had to have found the defendant not guilty of the remaining four charges as well."

As the State argues, this scenario constitutes total speculation. It relies upon the jury's third note indicating that it had reached a verdict on all five counts as to one defendant. This note was never confirmed by the jurors whose last note indicated that they had misunderstood the judge's question asking whether they had reached a unanimous verdict on any charges as to either defendant.

In addition, defendant's argument is based entirely on the contention that the judge improperly refusing to take the verdict and granted a mistrial. Defendant fails to reveal, however, that it was his motion for a mistrial that Judge Paley granted. When defendant seeks a mistrial, re-prosecution is hardly ever prohibited. E.g., State v. Torres, 328 N.J. Super. 77, 86-87 (App. Div. 2000) (noting retrial should be barred where a prosecutor intentionally provokes a defendant to move for mistrial in an effort to avoid acquittal); State v. Dunns, 266 N.J. Super. 349, 363 (App. Div.), certif. denied, 134 N.J. 567 (1993) (explaining a defendant may be retried even after jeopardy has attached where mistrial was declared at the request of or with the acquiescence of the defendant, or where "'manifest necessity'" or "'public justice'" mandated retrial) (quoting United States v. Perez, 22 U.S. 579, 580, 6 L. Ed. 165 (1924)).

Furthermore, we agree with Judge Paley that the jury's notes were conflicting and confusing. We cannot fault either the judge's disinclination to receive a partial verdict, State v. Shomo, 129 N.J. 248, 256-57 (1992), or his discretionary declaration of a mistrial. Because the jury failed to return any verdict at all on any of the crimes charged, the defendant could have been retried, and the judge correctly denied the motion to dismiss. State v. Devlin, 234 N.J. Super. 545, 552 (App. Div.), certif. denied, 117 N.J. 653 (1989).

Regarding defendant's sentence, we first note that it was imposed pursuant to a plea bargain, which must be given "great respect." State v. S.C., 289 N.J. Super. 61, 71 (App. Div.), certif. denied, 145 N.J. 373 (1996). A "presumption of reasonableness . . . attaches to criminal sentences imposed on plea bargain defendants." State v. Sainz, 107 N.J. 283, 294 (1987). Even without the presumption of reasonableness, Judge Paley's sentence was well within his discretion. State v. Roth, 95 N.J. 334, 365 (1981).

Regarding defendant's argument premised on Natale, supra, 184 N.J. at 484, 487 we have recently decided State v. Soto, ___ N.J. Super. ___ (App. Div. 2006), which is dispositive. Defendant's guilty plea, which included a recommendation for five years imprisonment, impliedly authorized Judge Paley to engage in judicial factfinding in addition to the facts derived from defendant's plea. Id. at ___ (slip op. at 7-9). No violation of Natale has occurred.

Affirmed.

 

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A-3375-04T4

May 24, 2006