STATE OF NEW JERSEY v. LAQUAN ALLEN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3987-03T43987-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAQUAN ALLEN,

Defendant-Appellant.

_______________________________________

 

Submitted March 13, 2006 - Decided April 4, 2006

Before Judges Fall, C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 02-10-2144.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Laquan Allen was charged with second degree robbery contrary to N.J.S.A. 2C:15-1a(2). Tried to a jury, defendant was found not guilty of robbery but guilty of the lesser crime, third-degree attempted theft, contrary to N.J.S.A. 2C:20-3a. The judge granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3a and imposed a ten-year custodial term, with a five-year period of parole ineligibility. Defendant appeals his conviction and sentence. We affirm.

I.

We briefly summarize the relevant facts, based on the evidence presented at trial. On September 24, 2001, at about 10:50 a.m., a man entered the Resorts Casino in Atlantic City and approached Louis Travies (Travies), who was working as the "cage" cashier. The man asked Travies for the coin redemption window and Travies directed him to another cashier. Several minutes later, the individual returned, handed Travies a dollar bill and a note and told Travies to read what was written on the note. The note said, "Hand me the money." Travies looked at the man and said, "[Y]ou got to be fuckin' kidding me." He asked Travies, "You think I'm kidding or something. You think I'm playing."

Travies testified that the man "started going towards his pocket." Travies pushed the alarm and ducked to the side, out of defendant's view. Travies said that he was scared and feared for his safety. After Travies activated the alarm, the man walked away. At trial, Travies identified defendant as the man who had approached him at the cashier's window and handed him the note demanding the money. The incident also was recorded on a security surveillance video. Travies identified defendant as the man shown in the video.

Detective Richard Fetske (Fetske) of the State Police testified that he was called to the casino on September 24, 2001. He met with persons assigned to casino security and interviewed Travies. Fetske reviewed the security surveillance video and stated that the video showed a person taking his hands off the counter, moving his hands to the area of his waist and then into his pocket.

Heather Allen (Allen), who is director of surveillance for the casino, testified that she was in the surveillance room on September 24, 2001 when the cashier triggered the alarm. The surveillance cameras were positioned to record the incident. Allen said that she controlled the cameras to follow the suspect as he left the casino and got onto a bicycle on Pennsylvania Avenue. Allen also said that she reviewed the tapes of "fixed" cameras positioned in the casino. The videotapes showed that the person who left the casino on the bicycle was the person who had approached the cashier.

Detective John Johnston (Johnston) of the State Police testified that he questioned defendant concerning the incident. Johnston read defendant the warnings contained on the "State Police Miranda Card." Defendant told Johnston that he understood his rights and he signed the card, as did Johnston and another witnessing officer. Defendant's interrogation was recorded on audiotape. The recording of the interrogation was played for the jury and the jury also was provided with a transcript of the tape. Neither the tape nor the transcript has been provided to us. However, the record of the trial indicates that defendant conceded in the interrogation that he went into the casino on September 24, 2001, approached the cashier's window and handed the cashier a note directing the cashier to turn over money to defendant.

Defendant testified on his own behalf and stated that, on September 24, 2001, he received a call from a person named Dasha Davis (Davis). Defendant stated that Davis worked in the casino. According to defendant, Davis told him to come to the casino with a note and certain casino employees would give him money. Defendant said that he rode his bicycle to the casino, approached the cashier's window and the cashier directed him to the coin redemption counter. Defendant asserted he was "still debating at the time" but decided to go back to the cashier's window and passed the note to Travies. Defendant testified that he realized then that Travies was not "in on it." He took back the note and left the casino. Defendant said that he did not threaten Travies. After he left the casino, defendant called Davis who told him that Travies was not "in on it."

Defendant admitted, however, that he was in the casino on September 24, 2001 and he passed the note stating "Hand me the money" to the cashier. Defendant agreed that he was "trying to get money from Louis Travies" and the money was not his. Defendant said that he did not tell the investigators about Davis because "I ain't think they was going to find out it was me."

Defendant appeals and the Public Defender raises the following points on his behalf:

POINT ONE: THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL (Partially raised below).

POINT TWO: THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL OF THE ROBBERY CHARGE AND THE JURY'S FINDING OF ATTEMPTED THEFT STANDS ON INSUFFICIENT EVIDENCE.

POINT THREE: THE TRIAL JUDGE'S INSTRUCTIONS TO THE JURY WERE INSUFFICIENT (Not raised below).

POINT FOUR: THE TRIAL JUDGE ERRED IN ADMITTING HEARSAY STATEMENTS UNDER THE EXCITED UTTERANCE EXCEPTION.

POINT FIVE: THE TRIAL JUDGE ERRED IN PERMITTING DEFENDANT'S PRIOR CONVICTIONS TO BE USED AS IMPEACHMENT EVIDENCE.

POINT SIX: THE TRIAL JUDGE ERRED IN REFUSING TO SUPPRESS DEFENDANT'S STATEMENT TO THE POLICE.

POINT SEVEN: THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION CHALLENGING THE ARRAY AND POTENTIAL BIAS OF THE GRAND JURY.

POINT EIGHT: THE SENTENCE IMPOSED BY THE TRIAL JUDGE IS IMPROPER AND SHOULD BE REMANDED TO THE TRIAL JUDGE PURSUANT TO STATE v. NATALE.

POINT NINE: THE SENTENCE IMPOSED BY THE TRIAL JUDGE IS EXCESSIVE.

Defendant filed a supplemental pro se brief in which he raises the following additional contention:

POINT TEN: THE FAILURE OF THE TRIAL JUDGE TO CHARGE THE JURY ON 4th DEGREE THEFT "DISORDERLY PERSON" WAS A DENIAL OF DUE PROCESS AND DENIED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT CONSTITUTIONAL RIGHTS AND THEREFORE REQUIRES A REVERSAL (Not raised below).

II.

Defendant first contends that he was denied a fair trial because of alleged prosecutorial misconduct. We disagree.

"The primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987), cert. denied, 508 U.S. 947, 113 S. Ct. 2433, 124 L. Ed. 2d 653 (1993). Although a prosecutor has a duty to use every legitimate means to bring about a just conviction, the prosecutor must refrain from improper methods which are calculated to produce a wrongful conviction. State v. Farrell, 61 N.J. 99, 104-5 (1972)(citing Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 2d 1314, 1321 (1935)).

Prosecutorial misconduct may be ground for reversal of a conviction if it is so egregious that it deprived defendant of a fair trial. Ramseur, supra, 106 N.J. at 322. In determining whether prosecutorial misconduct was sufficiently egregious to warrant reversal of a conviction, we must take into account "the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991).

Defendant argues that the prosecutor improperly referred to him as a "prisoner" in front of the jury and implied that he was a security threat when he asked that a sheriff's officer be placed near defendant.

These contentions arise from the following facts. On re-direct examination of defendant, defendant's counsel wanted to re-play a portion of the surveillance video. The judge asked defendant to step down from the witness stand to better position himself to use the television in the court room. The prosecutor stated, "Ask that the Sheriff's Officer be placed around the Defendant." The judge asked counsel to approach the bench and the following colloquy transpired:

[Prosecutor]: He's standing next to the people.

[The judge]: This is before the jury.

[Prosecutor]: I apologize.

[The judge]: Now I have to give a curative instruction....You have a problem.

[Prosecutor]: Proximity to the jury is so close and there's nobody around him.

[The judge]: Sheriff's officer takes care of that.

[Prosecutor]: He's a prisoner.

After the sidebar, the judge gave the jurors the following instruction:

The comment made by the prosecutor is inappropriate and is stricken from the record and from your consideration. [Defendant] is certainly permitted to stand there if that's [of] assistance to his attorney. There's nothing to suggest that there is any safety issue here and that is stricken from the record. Never to be considered by you in any way, shape or form when determining the ultimate outcome of this case.

Later, after the defense rested and the jury had been dismissed for the day, the judge addressed the matter again.

It was dealt with and I dealt with it as best I could. I wanted the jury to see I would not hesitate to stand right next to the Defendant as he was off the witness stand and I moved right next to him to look at the tape. Obviously the jury has not seen any sheriff's officers follow him around throughout the trial. He [has], of course, not been shackled. [The jurors] have no idea that he's incarcerated, as they should not. So hopefully with the cautionary instruction that I gave, that would overcome any harm or prejudice that could befall here today.

We are convinced that the prosecutor's comments did not deprive defendant of a fair trial. As the record reflects, the prosecutor did not refer to defendant as a "prisoner" in the presence of the jury. That statement was made at sidebar. Moreover, defendant was not prejudiced by the prosecutor's request to have an officer stand near defendant when he stepped down from the witness stand. The trial judge immediately addressed the matter by instructing the jury to disregard the prosecutor's statement. The judge also made clear that defendant did not pose any security threat. Indeed, the judge made a point of stepping down from the bench and standing next to defendant when he testified in order to demonstrate that defendant was not a threat.

Defendant further contends that that prosecutor was improperly aggressive in his cross-examination of defendant. Again, we disagree. When questioning defendant, the prosecutor referred to defendant's testimony about Davis and asked defendant whether he told Detective Johnston about Davis when he was interrogated. Defendant said that he had not. The prosecutor then asked, "You had a chance to tell him then. Were you lying to Johnston [then] or lying to the jury now?" Defendant replied, "No." The prosecutor asked, "No, what? Which time are you lying." Defendant said, "I'm not lying."

We note that defense counsel did not object to the line of questioning. Indeed, there was nothing objectionable about it. The prosecutor merely was pointing out the differences between what defendant said to the detective and what he said in his testimony at trial. Where, as here, a defendant takes the stand in his own defense, a prosecutor is permitted to forcefully question the defendant concerning any prior inconsistent statements he may have made. There was nothing improper about the cross-examination of defendant in this case.

Defendant further contends that, through his questioning of defendant, the prosecutor improperly shifted the burden of proof to defendant. The contention is meritless. The prosecutor asked defendant whether Davis was going to testify in defendant's behalf. Defendant replied that she was not. The prosecutor said, "Pretty mysterious, isn't it? Isn't it?" Defendant replied, "It's not." Again, defense counsel did not object to this question.

The purpose of the question was to challenge defendant's credibility by suggesting that his entire story was a fabrication. The question was not improper. Indeed, the fact that defense counsel did not object suggests that counsel did not think the question was improper at the time it was asked. State v. Frost, 158 N.J. 76, 84 (1999). In any event, the judge made clear in his instructions that the State had the burden of proving defendant's guilt beyond a reasonable doubt.

Defendant additionally argues that the prosecutor made improper remarks in his summation. Defendant says that the prosecutor improperly made reference to the "Limberg case," erroneously suggested that defendant was carrying a gun when he approached Travies in the casino, and vouched for Travies' credibility.

"[P]rosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Id. at 82.

Criminal trials are emotionally charged proceedings. A prosecutor is not expected to conduct himself in a manner appropriate to a lecture hall. He is expected to be forceful and graphic in his summation to the jury, as long as he confines himself to fair comments on the evidence presented.

[Id. at 83 (quoting from State v. DiPaglia, 64 N.J. 288, 305 (1974)(Clifford, J., dissenting)).]

We are satisfied that there was nothing improper about the prosecutor's comments in his summation. We assume that the reference to the "Limberg" case was a reference to the Lindbergh case. The prosecutor probably should not have referred to the Lindberg case but, as we understand his statement, the prosecutor apparently was arguing that, unlike that earlier matter, this was an open and shut case, where the entire incident had been captured on videotape.

Moreover, the prosecutor did not state that defendant was carrying a gun. He asserted that defendant had threatened Travies by putting his hand in his pocket "like he had a gun." The prosecutor was describing defendant's movements and explaining how they conveyed a threat to Travies. This was fair comment on the evidence.

In addition, the prosecutor did not vouch for Travies' credibility. He argued that Travies was a credible witness. The prosecutor stated that Travies came to court and told the jury what had happened in the casino on September 24, 2001. The prosecutor asserted that, unlike defendant, Travies had nothing to gain from his testimony. This, too, was fair comment on the evidence.

III.

Defendant asserts that the judge erred in denying his motion for acquittal on the robbery charge. He also contends that there was insufficient evidence to support the conviction for attempted theft. Neither contention has merit.

When considering a motion for acquittal, the trial judge must view the evidence in its entirety and give the State the benefit of all of its favorable testimony, as well as the inferences that could reasonably be drawn from the evidence, and determine whether a reasonable jury could find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967)(citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). We apply this same standard when reviewing whether the trial judge erred in denying a motion for acquittal. State v. Moffa, 42 N.J. 258, 263 (1964).

In State v. Farrad, 164 N.J. 247, 257 (2000), the Supreme Court explained that the crime of robbery consists of

(1) theft or attempted theft; (2) intimidating or assaultive conduct consisting of (a) inflicting bodily injury upon another or (b) threatening another with or purposely putting him in fear of immediate bodily injury or (c) committing or threatening immediately to commit any crime of the first or second degree [or (d) using force upon another person]; (3) the intimidating or assaultive conduct must have occurred during the theft or attempted theft, or in immediate flight after the theft or attempted theft; and (4) defendant must have acted purposely. Theft is defined, generally, as the unlawful taking or exercise of unlawful control over property of another with purpose to deprive him thereof.... N.J.S.A. 2C:20-3. Attempted theft is defined by combining the foregoing definition of theft with N.J.S.A. 2C:5-1a. It is an abortive effort to perpetrate a theft.

[Ibid. (quoting from State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983)).]

We are satisfied that the trial judge correctly found that, based on the evidence presented by the State, a reasonable jury could find beyond a reasonable doubt that defendant had committed a robbery in the casino on September 24, 2001. As the trial judge pointed out in ruling on the motion, Travies testified that defendant approached him at the cashier's window and handed him a note that said, "Hand me the money." When Travies did not respond, defendant said "You think I'm playing" and reached towards the front pocket in his pants. The entire incident was captured on a security surveillance videotape which was shown to the jury. The trial judge properly determined that from this evidence, the jury could reasonably find that defendant had conveyed a threat to Travies.

Furthermore, the State presented sufficient evidence to support defendant's conviction of attempted theft. Suffice it to say, the evidence established that defendant attempted to obtain money that did not belong to him by passing the note to Travies in the casino. It was an "abortive effort to perpetrate a theft." Ibid. (quoting from Carlos, supra, 187 N.J. Super. at 412). The evidence showed that defendant acted with a "firmness of his purpose" to commit the crime. Id. at 258 (quoting State v. Fornino, 223 N.J. Super. 531, 538 (App. Div.), certif. denied, 111 N.J. 570, cert. denied, 488 U.S. 859, 109 S. Ct. 152, 102 L. Ed. 2d 123 (1988)).

IV.

We turn to defendant's assertion that the judge erred in allowing his prior convictions to be used for impeachment purposes.

"[W]hether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." State v. Sands, 76 N.J. 127, 144 (1978). If a criminal defendant takes the stand, the State is permitted by N.J.R.E. 609 to introduce certain prior criminal convictions to attack defendant's credibility. See State v. Manley, 54 N.J. 259, 266 (1969). Moreover, when a defendant has an extensive criminal record

indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen.

[Sands, supra, 76 N.J. at 145.]

Here, the trial judge permitted the prosecutor to impeach defendant by using his convictions in 1992, 1994 and 1996. The convictions were sanitized as required by State v. Brunson, 132 N.J. 377, 391 (1993).

Defendant argues that his convictions were too remote and the judge failed to balance the lapse of time and the nature of the crimes for which defendant was convicted "to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." Sands, supra, 76 N.J. at 145. We disagree.

Defendant was convicted in 1992 for aggravated assault with a firearm. He was sentenced to eighteen months in jail. Defendant was convicted in 1994 of unlawful possession of a firearm and was sentenced to three years in prison. Defendant also was convicted in 1996 of possession of controlled dangerous substances with intent to distribute and was sentenced to three years.

In our view, the judge did not err in permitting the prosecutor to use the prior convictions for impeachment because defendant's criminal record is evidence of a "contempt for the bounds of behavior placed on all citizens." Id. at 145. Clearly, the jury was entitled to know of defendant's prior criminal convictions in assessing whether defendant's testimony was credible. Ibid.

V.

Defendant also challenges his sentence. He argues that he should not have been sentenced to an extended term as a persistent offender. He asserts that his sentence is excessive. He also contends that the imposition of a sentence beyond the presumptive term violated his right to trial by jury under the Sixth Amendment and he is entitled re-sentencing under State v. Natale, 184 N.J. 458 (2005).

We are satisfied that the judge did not err in determining that defendant should be sentenced as a persistent offender pursuant to N.J.S.A. 2C:44-3a. Defendant does not argue that he does not meet the statutory criteria for sentencing as a persistent offender. Instead, defendant argues that the judge abused his discretion by finding that an extended term was warranted in this case.

Here, the trial judge found that defendant "clearly qualifies as a persistent offender career criminal." The judge noted that defendant, who was 29 years old at the time of sentencing, had nineteen juvenile filings, nine adjudications of delinquency, fourteen adult arrests and five adult convictions, including convictions for aggravated assault with a firearm, possession of CDS with intent to distribute, unlawful possession of a handgun and assault. The judge also noted that defendant had an open bench warrant in Atlantic City and three serious pending matters, including two robberies, one with bodily injury. The judge added:

In this case [defendant] showed his utter disrespect and disregard for other people's property . . . and his total disdain for the rights and safety of others, as well as his total contempt for the law. He set out to take money that wasn't his. I think in his warped mind he believes he's entitled to anybody's else's money because he can't and won't earn it on his own. He has truly become a career criminal. There is no doubt in assessing the aggravating and mitigating factors that the aggravating factors substantially outweigh the mitigating factors. [Defense counsel], I agree with you that [defendant] is an addict to heroin and marijuana, who undoubtedly will remain lawless until that addiction is [e]ffectively dealt with. He is to be expected to break the law in the future once he's paroled....[H]e's never done anything for himself to try to address his drug problems, other than trying to argue that in court for a judge to give him a break....He is extremely and highly likely to reoffend....

We are satisfied that the judge's findings amply support the imposition of an extended term in this case.

We reject defendant's assertion that his sentence is excessive. We are convinced that the extended term sentence of ten years with a five-year period of parole ineligibility is not manifestly excessive or unduly punitive, is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

We also are satisfied that defendant is not entitled to re-sentencing under Natale, supra, 184 N.J. at 495-96. Imposition of an extended term pursuant to N.J.S.A. 2C:44-3a does not run afoul of Sixth Amendment. State v. Young, 379 N.J. Super. 498, 510-11 (App. Div. 2005).

Moreover, here the judge found aggravating factors under N.J.S.A. 2C:44-1(a)(3)(risk that defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6)(the extent of defendant's criminal record); and N.J.S.A. 2C:44-1(a)(9)(need to deter defendant and others from violating the law). The judge found no mitigating factors. The judge's findings are essentially based upon the facts of this particular offense and defendant's prior criminal record.

Although the judge noted that defendant is addicted to drugs, he based that finding on defendant's own admissions, which defense counsel emphasized in his argument at the sentencing hearing. In the circumstances, re-sentencing under Natale is not required. See State v. Abdullah, 184 N.J. 497, 506 n.2 (2005); Natale, supra, 184 N.J. at 495.

VI.

We have considered the other contentions raised by defendant in this appeal. We find these assertions not to be of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

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A-3987-03T4

April 4, 2006