STATE OF NEW JERSEY v. RONALD GARRY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3869-04T13869-04T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD GARRY,

Defendant-Appellant.

 

Submitted: May 8, 2006 - Decided June 8, 2006

Before Judges Fall and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Number 04-01-105.

Gerald E. Fusella, attorney for appellant (Mr. Fusella and Joseph J. Fusella, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ronald Garry appeals from his convictions of passion/provocation manslaughter, attempted passion/provocation manslaughter, aggravated assault and weapons charges, and from the sentences imposed. We affirm.

Defendant was charged in Essex County Indictment Number 2004-01-105 with first-degree purposeful or knowing murder of Sonya Rodriguez, N.J.S.A. 2C:11-3a(1), -3a(2) (count one); first-degree attempted murder of George Davis, N.J.S.A. 2C:11-3 and 2C:5-1 (count two); second-degree aggravated assault of Kasanna Harris, N.J.S.A. 2C:12-1b(1); second-degree aggravated assault of George Davis, N.J.S.A. 2C:12-1b(1) (count four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count six). Defendant was also charged in Essex County Indictment Number 2004-01-106 with second-degree unlawful possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b.

The charges against defendant in Indictment Number 04-01-105 were tried to a jury between November 8, 2004 and November 19, 2004. On count one, the jury found defendant guilty of the lesser-included offense of second-degree passion/provocation manslaughter of Sonya Rodriguez, N.J.S.A. 2C:11-4b(2). On count two, defendant was convicted on the lesser-included offense of second-degree attempted passion/provocation manslaughter of George Davis, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-4b(2). On count three, the jury convicted defendant of second-degree aggravated assault of Kasanna Harris, N.J.S.A. 2C:12-1b(1). The jury also convicted defendant of the weapons charges contained in counts five and six. The aggravated assault charge contained in count four had been dismissed and was not submitted to the jury.

Following the jury's verdict, the second-degree weapon charge contained in Indictment Number 04-01-106 was then submitted to the jury, which returned a guilty verdict.

The State applied for sentencing of defendant to an extended term, as a persistent offender, on the passion/provocation manslaughter conviction on count one. The trial judge granted that motion. Finding no mitigating factors and the presence of aggravating factors N.J.S.A. 2C:44-1a(3), "[t]he risk that the defendant will commit another offense;" N.J.S.A. 2c:44-1A(6), "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted;" and N.J.S.A. 2C:44-1b(9), "[t]he need for deterring the defendant and others from violating the law[,]" the judge imposed an extended term of twenty years' imprisonment on the conviction on count one, subject to an eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On the attempted passion/provocation manslaughter conviction on count two, the judge imposed a consecutive term of ten years' imprisonment, subject to an eighty-five percent NERA parole disqualifier. Concurrent terms of ten years' imprisonment, with a NERA parole disqualifier (count three, aggravated assault), and five years' imprisonment, with a two and one-half year parole disqualifier (count five, unlawful possession of a weapon) were also imposed. The second-degree possession of a firearm for an unlawful purpose conviction on count six was merged and dismissed.

On the conviction in Indictment Number 2004-02-106, defendant was sentenced to a ten-year term of imprisonment, with a five-year period of parole ineligibility, concurrent with the terms imposed on the other indictment. The aggregate term imposed was a term of thirty years' imprisonment with an eighty-five percent parole disqualifier. Applicable mandatory fines and penalties were also assessed.

The charges against defendant arose from an incident occurring on October 1, 2003, at the Baxter Terrace Housing Project on James Street in Newark. The evidence adduced by the State at trial, if credited, disclosed the following.

At approximately 4:00 p.m. on October 1, defendant and George Davis became engaged in an oral argument in the courtyard of the housing project that escalated into a fist fight. Others watching the fight broke it up. Following the fist fight, Davis walked across the courtyard toward his second-floor apartment in the building known as 172 James Street in order to change his clothes, which had been ripped during the fight. After entering his apartment building, Davis realized that he did not have keys to access the apartment, so he went back outside into the courtyard where his stepfather was located to get his keys.

At that time, Sonya Rodriguez was home in her second-floor apartment in the 172 James Street building. Her apartment was located next door to Davis' apartment. At the time, Kasanna Harris, who dated Rodriguez's son, was visiting with Rodriguez in the apartment.

As Davis walked into the courtyard looking for his stepfather, he heard a female voice yell to him: "look out." Heeding the warning, Davis began running back toward his apartment building. Rodriguez and Harris, who had heard the commotion in the courtyard, were looking out into the courtyard from a window in Rodriguez's apartment. Defendant had returned to the courtyard with a handgun, and he began firing shots at the retreating Davis toward the apartment building at 172 James Street.

One of the shots fired by defendant struck Rodriguez while she was looking out the window; she died from the gunshot wound. Harris was struck by a piece of glass from a window in the apartment that had shattered when struck by the bullet. Although one of the bullets struck a door to the building that Harris was attempting to open during his flight from the courtyard, he was not hit by any of the bullets.

At the time of the incident, Celeste M. Zayes, Rodriguez's daughter, lived in an apartment on the third floor, directly above her mother's apartment. Zayes heard a commotion, went to her window and look out into the courtyard, where she saw defendant and Davis engaged in the fist fight. After the fight ended, Zayes put her daughter into her bedroom, and returned to the window, whereupon she saw that defendant was in the courtyard with a gun in his hand. Zayes then saw defendant start shooting in the direction of her building; she yelled to defendant, telling him to stop shooting, but he did not acknowledge her. She heard defendant fire four or five shots.

Kasanna Harris testified that after the fist fight she saw defendant reenter the courtyard with a handgun, and start shooting it toward the direction of the apartment building. She stated that a bullet shattered the glass of the apartment window and struck Rodriguez. Harris testified she received a cut on her stomach from the shattering glass.

Robert Smith, who was residing at 184 James Street, was leaving his apartment, when he saw defendant in the courtyard arguing about something with his sister Tameka. Smith then saw a car pull up and someone inside the car handed defendant a pistol, whereupon defendant began shooting toward the apartment building at 172 James Street.

Defendant was later apprehended attempting to leave the project complex. The handgun was never recovered.

Dr. Albert Wayne Williams, a forensic pathologist, testified that he performed an autopsy on the body of Rodriguez on October 2, 2003. Dr. Williams stated that Rodriguez died as the result of a gunshot wound to her left breast, chest and abdomen.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE PROSCUTOR'S SUMMATION COMMENTS DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT II

THE COURT BELOW IMPROPERLY SENTENCED APPELLANT.

Defendant argues, for the first time on appeal, that he was denied a fair trial because of certain comments made by the prosecutor during his summation. In evaluating the prosecutor's comments in this case, we must examine his role. "Prosecutors occupy a unique position in the criminal justice system and their primary duty is not to obtain convictions, but to see that justice is done." State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989); State v. Ramseur, 106 N.J. 123, 320 (1987). A prosecutor is duty bound to confine his or her comments during summation to the facts revealed during trial and the reasonable inferences to be drawn from that evidence. State v. Ackner, 265 N.J. Super. 351, 357 (App. Div.), certif. denied, 134 N.J. 485 (1993). Certainly, not every departure from this requirement mandates reversal. State v. Johnson, 216 N.J. Super. 588, 614 (App. Div. 1987). Prosecutorial misconduct is not a basis for reversal unless the conduct was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. Accordingly, the prosecutor's statements must constitute a clear infraction and substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense in order to warrant a reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958).

In considering whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, an appellate court will consider "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the [judge] ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)(quoting Ramseur, supra, 106 N.J. at 322-23); State v. Bogen, 13 N.J. 137, 141-42, cert. denied sub nom., Lieberman v. State, 346 U.S. 825, 74 S. Ct. 44, 98 L. Ed. 350 (1953).

An appellate court "may infer from counsel's failure to object to the remarks at the time they were made that [she] did not in the atmosphere of trial think them out of bounds." State v. Taylor, 46 N.J. 316, 335 (quoting State v. Johnson, 31 N.J. 489, 511 (1960)), cert. denied, 385 U.S. 855, 87 S. Ct. 103, 17 L. Ed. 2d 83 (1966); State v. Murray, 338 N.J. Super. 80, 87 (App. Div.), certif. denied, 169 N.J. 608 (2001). Moreover, prosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence adduced at trial. State v. Vasquez, 374 N.J. Super. 252, 260 (App. Div. 2005); State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied sub nom, State v. Pantoja, 169 N.J. 610 (2001).

After analyzing the record in the light of these standards and considering the written arguments of counsel, we are not persuaded that the cited statements by the prosecutor were "clearly capable of producing an unjust result[.]" Our review of the prosecutor's summation as a whole satisfies us that there was nothing so egregious as to deprive defendant of a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999). We also note that several of the now-objected comments by the prosecutor were fair response to defense counsel's assault on the credibility of the State's witnesses during her summation.

Defendant also argues that the trial judge erred in imposing an extended term, in making the terms consecutive, and by violating the sentencing principles articulated by the Court in State v. Natale, 184 N.J. 458 (2005). We disagree.

The presumptive extended term for a second-degree conviction is fifteen years, N.J.S.A. 2C:44-1f, and the judge imposed the maximum extended term of twenty years, N.J.S.A. 2C:43-7a(3). In imposing an extended term as a persistent offender on the passion/provocation manslaughter conviction on count one, the judge correctly found that defendant met the statutory criteria set forth in N.J.S.A. 2C:44-3a. The judge then analyzed the nature of defendant's prior convictions in detail, finding "that the public needs to be protected from his propensity towards dangerousness[,]" and that

Nothing that he has been exposed to has deterred him. Any opportunity that he is given to be free he has abused and continued to engage in conduct that brought him back before this system. So in my opinion this speaks volumes as to whether he is the type of person who has a propensity towards dangerousness from which the public deserves to be protected.

The judge rejected application of aggravating factor one, N.J.S.A. 2C:44-1a(1) on the basis "that that would be double counting[,]" finding the presence of aggravating factors three, six and nine, with no mitigating factors.

We find no misapplication of discretion in imposition of an extended term, which was clearly warranted by defendant's five prior indictable convictions. Moreover, the imposition of an extended term under the persistent offender statute does not implicate nor violate the jury fact-finding principles set forth in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), or Natale, supra. See State v. Drew, 383 N.J. Super. 185, 202-03 (App. Div. 2006); State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); State v. Franklin, 377 N.J. Super. 48, 58 (App. Div. 2005); State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005).

Additionally, when sentencing defendant to the extended term, the trial judge properly engaged in the "multi-step process" set forth in State v. Dunbar, 108 N.J. 80, 88-89 (1987).

We also find no misapplication of the court's discretion in the imposition of consecutive sentences. In stating her reasons for sentencing defendant to consecutive terms, the trial judge analyzed the factors set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), "focusing primarily on the fact of multiple victims and the numerous offenses on which he is to be sentenced." The analysis by the judge fully supported consecutive sentences. We further note that imposition of consecutive sentences did not violate the jury fact-finding principles set forth in Blakely, Apprendi or Natale. See State v. Abdullah, 184 N.J. 497, 513-14 (2005); Franklin, supra, 377 N.J. Super. at 58.

Affirmed.

 

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A-3869-04T1

June 8, 2006