STATE OF NEW JERSEY v. JERRON JORDAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3471-04T43471-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRON JORDAN,

Defendant-Appellant.

_______________________________________

 

Submitted May 10, 2006 - Decided July 20, 2006

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-06-0512.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald T. Thelander, Assistant Deputy Public Defender, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Terry Bogorad, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following jury trial, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Count One); second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three). Defendant was sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3a and received an extended term of imprisonment of twenty-five years with a twelve and one-half year period of parole ineligibility. The requisite fines and penalties were imposed. We affirm the conviction but reverse the sentencing and remand for re-sentencing consistent with State v. Natale, 184 N.J. 458 (2005) (Natale II).

At trial, the investigating officer, Detective Marco Aliano, testified that while interviewing T.C., an alleged victim of sexual assault by another individual, he "received information of another victim by the name of [D.J.] and I contacted [A.S.], [D.J.'s] mother, and invited them to come into our office to speak to [D.J.] regarding the allegations that were made by [T.C.]." T.C. did not testify at the trial. Immediately following Detective Aliano's testimony, defense counsel moved for a mistrial. Counsel raised his concern that the testimony may have led the jury to "conclude that there is another victim in regards to Mr. Jordan." The trial judge denied the motion. He found:

Well, I'm going to deny, I'm going to deny the application for a mistrial because it appears to me that it was inadvertent. There was a factual context here in which this charge came to light. The testimony touches upon this but left alone, there might be some prejudice to Mr. Jordan, but I think that this could be dealt with rather quickly and expeditiously and that the prejudice, prejudicial impact can be immediately dispelled by either my charging the jury and explaining to them what happened or permitting Miss Squitieri to reopen to address this limited area to make it crystal clear that the other matter had absolutely nothing to do with Mr. Jordan at that time and that that continues. That it had absolutely nothing to do with him.

The judge then proceeded to give a curative instruction:

Okay. The jury is back. Ladies and gentlemen, as a result of my discussions with counsel, it became apparent that in answering one of the earlier questions by this Officer, there was a reference to another investigation during which it came to light that [D.J.] who is the claimed victim in this case had brought something to the attention of someone which led the police to conduct an investigation. The, the evidence that's been presented, that is the response to the question standing alone might create the false impression that somehow there was some other investigation involving Mr. Jordan. That is simply not the case and counsel have reviewed this matter with me and they've advised me that that is not only not the case but that I'm also satisfied that that remains true through the, through the present time.

So in order to clarify this, I'm going to permit defense counsel -- strike that, I'm going to permit the Prosecutor to reopen on this limited issue to clarify this issue so that it's crystal clear that there was no other investigation pending with regard to this defendant.

Consistent with the court's ruling, the prosecutor elicited the following testimony from Detective Aliano:

Q. Back on October 10th, 2002, you indicated that you were speaking to, or someone from your office was speaking to a person by the name of [T.C.], is that right?

A. December 10th, yes.

Q. December 10th, 2002. That was a separate investigation from the one that involved [D.J.] and Jerron Jordan?

A. Yes.

Q. Okay. And what, what's the relationship between the two girls?

A. I believe they are cousins.

Q. Okay. So the information that you got that made you go out and speak with [D.J.], the reason why she was at your office had nothing to do with [D.J.] or Jerron Jordan, is that right?

A. Yes.

On appeal defendant contends:

POINT ONE

THE TESTIMONY OF DETECTIVE ALIANO THAT [T.C.], ANOTHER SEXUAL ABUSE VICTIM, HAD MADE "ALLEGATIONS" THAT D.J. WAS ALSO A SEXUAL ABUSE VICTIM, VIOLATED THE DEFENDANT'S FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONTATION, DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10. (Not Raised Below).

POINT TWO

N.J.S.A. 2C:44-3a IS UNCONSTITUTIONAL TO THE EXTENT THAT STATE V. DUNBAR REQUIRES A JUDGE TO FIND A FACTOR, "PROTECTION OF THE PUBLIC," LEADING TO THE IMPOSITION OF DISCRETIONARY, PERSISTENT OFFENDER EXTENDED-TERM SENTENCES. U.S. CONST. AMENDS, V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

POINT THREE

THE DEFENDANT'S BASE TERM OF TWENTY-FIVE YEARS WITH TWELVE AND ONE-HALF YEARS OF PAROLE INELIGIBILITY FOR AGGRAVATED SEXUAL ASSAULT PURSUANT TO N.J.S.A. 2C:44-3a, THE EXTENDED TERM STATUTE, IS ILLEGAL, MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

Our careful review of the record convinces us there is no basis for reversing defendant's conviction. Detective Aliano's testimony was not admitted for the truth of T.C.'s statement. It was relevant to explain how Detective Aliano became involved in the investigation of the allegations against defendant. See State v. Vandeweashe, 177 N.J. 229, 240-41 (2003). The officer clarified that his investigation in connection with the other victim had nothing to do with defendant and that defendant had no involvement in that incident. In addition, the court emphatically and clearly instructed the jury that defendant was not implicated in the other incident. Under these circumstances, we are satisfied that any prejudice to defendant was cured by the trial judge's instruction and Detective Aliano's clarification. See State v. Mays, 321 N.J. Super. 619, 629-30 (App. Div.), certif. denied, 162 N.J. 132 (1999).

While this appeal was pending, the Supreme Court decided Natale II, supra, where it held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." 184 N.J. at 466. Natale II addressed concerns raised about the constitutionality of presumptive sentences after the United States Supreme Court's decision in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). In Blakely, the Court held, "'[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.'" Id. at 301, 124 S. Ct. at 2536, 159 L. Ed. 2d at 412 (quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000)). The Natale II court remedied the unconstitutionality of New Jersey's sentencing scheme by eliminating presumptive terms from the sentencing process entirely. Natale II, supra, 184 N.J. at 487. The Court determined that the elimination of presumptive terms applies "retroactively to cases in the pipeline." Id. at 494. Subsequent to the Natale II decision, we have had occasion to address the applicability of Blakely and Natale II to the imposition of extended terms. In State v. Young, 379 N.J. Super. 498 (App. Div. 2005), we reiterated that imposition of an extended term based solely upon a prior conviction is not subject to Natale II, provided the extended term is not greater than the presumptive term for an extended sentence. Id. at 510-12. Once the extended term is greater than the presumptive term for an extended sentence, a defendant is entitled to a sentencing hearing consistent with Natale II. Id. at 511-12.

Here, in imposing defendant's twenty-five-year sentence, the court considered defendant's multiple prior convictions, including a prior conviction for sexual assault. He also found additional aggravating factors; the seriousness of the offenses, the risk the defendant would commit another offense, the nature and circumstances of the offenses and the role of the defendant, and the youth of the victim. Thus, the trial court considered factors other than defendant's prior convictions in imposing the discretionary extended term. Defendant is therefore entitled to a new sentencing hearing. On remand, the sentencing judge shall follow the dictates of Natale II and State v. Abdullah, 184 N.J. 497, 513-14 (2005), in fixing the specific term of the extended sentence. The judge may also consider imposition of a parole ineligibility term. N.J.S.A. 2C:43-7b; Abdullah, supra, 184 N.J. at 511-12. The sentence shall be subject to the aggregate sentence originally imposed.

 
Affirmed in part, reversed in part. We do not retain jurisdiction.

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8

A-3471-04T4

RECORD IMPOUNDED

July 20, 2006