STATE OF NEW JERSEY v. BRYAN K. SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4366-04T44366-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRYAN K. SMITH,

Defendant-Appellant.

 

Submitted September 13, 2006 - Decided September 21, 2006

 
Before Judges Cuff and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, 04-01-0002-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Melissa R. Vance, Designated Counsel, on the brief).

Anne Milgram, Acting Attorney General, attorney for respondent (Paul H. Heinzel, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A Burlington County Grand Jury indicted defendant on charges of third-degree burglary, N.J.S.A. 2C:18-2a(1) (count one); and third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count two). A jury convicted defendant of both offenses. On count one, pursuant to N.J.S.A. 2C:44-3a, the trial judge imposed a discretionary extended term of imprisonment of seven years with a three-and-one-half-year period of parole ineligibility; and a concurrent seven-year term on count two. On appeal, defendant raises the following legal arguments:

POINT I

THE PROSECUTOR IMPROPERLY COMMENTED ON DEFENDANT'S DECISION NOT TO TESTIFY THEREFORE VIOLATING HIS FIFTH AMENDMENT RIGHT TO REMAIN SILENT (Not Raised Below).

POINT II

THE TRIAL JUDGE FAILED TO APPROPRIATELY ADDRESS THE JURY'S QUESTION REGARDING DEFENDANT'S EMPLOYMENT SITUATION (Not Raised Below).

POINT III

THE SENTENCE IS EXCESSIVE AND VIOLATES DEFENDANT'S SIXTH AND FOURTEENTH AMENDMENT RIGHTS.

We affirm defendant's judgment of conviction but remand for resentencing in light of State v. Pierce, 188 N.J. 155 (2006).

At trial, defendant neither testified nor called witnesses. The State's case reveals that on October 27, 2003, a man broke into a truck owned by Ray Owens that was located in Owens's driveway in Willingboro. The man removed various tools and items of personal property from the truck, including Owens's toolbox, drills, bolt cutters, and a Sprint cell phone and its charger. Owens's neighbor, Ernesto Huertas, observed a man fitting defendant's description removing the items from the truck. Although the interior light of the truck was on when the door was opened, Huertas was unable to see the person's face as he removed the items from Owens's truck. Huertas was, however, sure that the person was not Owens. Huertas called 9-1-1.

A Willingboro police officer, Pierre Deissler, responded to the scene. He subsequently stopped defendant's vehicle, which matched the description of the vehicle that Huertas gave to the police during the 9-1-1 call. After defendant gave Deissler permission to search the car, Deissler found tools in the trunk of the car and a cell phone on the front seat. Defendant could not provide the phone number for the cell phone. When Owens arrived at the scene, he identified the tools and cell phone as his and provided the police with the phone number of the cell phone.

Against these facts, we review defendant's arguments. He first claims that in her closing, the prosecutor improperly commented on defendant's decision not to testify by stating: "the defendant has no explanation for why [the cell phone] is there." Because defendant did not object to the statement at trial, we address his argument under the plain error standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971). In so doing, we find defendant's argument to be without merit.

Though a prosecutor should not draw attention to a defendant's decision not to testify, State v. Cooke, 345 N.J. Super. 480, 486 (App. Div. 2001), we do not find the challenged comment of the prosecutor to have been improper under the circumstances of this case. The remark was not a reference to defendant's decision not to testify at trial. Rather, it was a reference to his failure at the scene to explain the presence, on the front seat of his car, of a cell phone that he claimed was his, but to which he did not know the number. Further, because defendant volunteered at the scene that the cell phone was his, the prosecutor's remark was not a comment on defendant's prearrest silence. See State v. Muhammad, 182 N.J. 551, 565-67 (2005) (making reference to what a defendant did not say is commenting on his silence).

Our conclusion is buttressed by the failure of defense counsel to object when the prosecutor made her remark; if no objection is made to alleged improper remarks, "the remarks will not be deemed prejudicial." State v. Frost, 158 N.J. 76, 83 (1999). "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 84.

Defendant next claims that the court failed to address a question raised by the jury during its deliberations, leaving the jury confused. The jury sent a note to the judge that stated: "What was Bryan K. Smith's occupation at the time of the incident?" The judge gave the following reply:

Whatever is in evidence with respect to that is in evidence. Whatever testimony there is about that is in. There is no other answer I can give you at this time. There's no other answer I can give you at any time other than the answer I've just given you. Do you understand?

JUROR: Yes.

Again, no objection was made at that time and we will review the argument under a plain error standard. R. 2:10-2.

First, while defendant argues that the purpose of the jury's question may have been to determine whether defendant was impecunious, we find no basis for that argument. The State did not introduce evidence of impecuniosity to demonstrate defendant's general criminal propensities. See State v. Mathis, 47 N.J. 455, 471-72 (1966), rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971).

Nor do we find that the question showed any confusion by the jury. For whatever reason, the jury wanted to know if defendant was employed. Perhaps they wanted this information to determine if the tools could have been used in defendant's business. Perhaps that was not the reason. We will never know. Regardless, the judge properly replied that the jury had to make its determination based on the evidence in the record. The foreperson of the jury responded that he understood the court's answer. We find no confusion and consequently no plain error.

Defendant's final point is that his sentence is excessive. In imposing sentence, the court reviewed the criteria for a discretionary extended term established in State v. Dunbar, 108 N.J. 80 (1987). After completing its analysis, the court noted that over the previous fifteen years defendant had amassed eight felony convictions; defendant posed a serious threat to the public safety; and previous punishments had little effect in deterring his criminal activity. Noting that the extended base term for a crime of the third degree could be fixed by the court at a point between five and ten years, the court, after applying aggravating factors three, six, and nine, and finding no mitigating factors, imposed a seven-year term with a three-and-one-half-year period of parole ineligibility.

Given that the New Jersey Supreme Court recently modified the Dunbar analysis in State v. Pierce, supra, 188 N.J. 155, the case must be remanded for resentencing. The resentencing shall be "in respect of reconsideration of the appropriate sentence . . . within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended term range. The court must reconsider the applicable aggravating and mitigating factors and impose a sentence within the broadened range of sentences available consistent with this opinion." Id. at 171.

On remand, it is not necessary for the trial court to determine whether defendant is eligible for an extended term; that finding has been made. Nothing in Pierce, supra, would cause us to disturb it. We also add, as did the Pierce Court, that "defendant may not be subjected to a sentence in excess of the one previously imposed." Id. at 174.

We affirm defendant's conviction and remand for resentencing.

 

 

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A-4366-04T4

 

September 21, 2006