STATE OF NEW JERSEY v. WILLIAM STROUGHN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4699-03T44699-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WILLIAM STROUGHN,

Defendant-Appellant.

________________________________

 

Submitted January 17, 2006 - Decided February 7, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-01-0047.

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

Peter C. Harvey, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following trial, a jury convicted defendant, William Stroughn, of second-degree robbery in violation of N.J.S.A. 2C:15-1. He was sentenced to an extended term of seventeen years incarceration with eighty-five percent parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also sentenced to three years of parole supervision after his release. Defendant appeals and we affirm, but remand for resentencing in light of the recent holdings in State v. Natale (Natale II), 184 N.J. 458 (2005) and State v. Young, 379 N.J. Super. 498 (App. Div. 2005).

The offense occurred on September 21, 2002, shortly before 2:00 p.m., in front of Kean University in Union Township. It was witnessed by Celimo Artavia, Josinette Gorchinsky and Alonzo Jones. They all essentially described the victim, Rita Zito, as a small elderly lady in her early to mid-sixties. Both Jones and Artavia were driving their vehicles on North Avenue in front of the University. Gorchinsky was also in her vehicle, turning into the University parking lot, when she observed the incident.

Jones testified that defendant bumped the victim with his bicycle and then tried to grab her shoulder bag. The victim held onto her bag as she fell to the ground. Defendant, who had gotten off his bicycle, stood over her pulling on the bag. According to Jones, defendant started dragging the victim on the ground as she held on to her bag. Artavia saw defendant on top of the victim, struggling with her to get the bag. The victim was yelling for help. Jones and Artavia stopped their vehicles and chased defendant, who rode away on his bicycle. As defendant fled, he dropped his bicycle and continued on foot until he was caught by Jones and Artavia. They held him until the police arrived. Jones and Artavia identified defendant at trial.

Gorchinsky, who remained in her car, saw defendant and the victim, who was screaming for help and struggling for her purse. Gorchinsky began beeping her horn in an attempt to summon help. Defendant then released the purse and started to flee. Officer Sylvia Dimenna of the Union Township Police Department was dispatched by radio to the scene. When she arrived, defendant was being held by two Kean University police officers. Dimenna described the victim as "upset" and "bewildered." She testified that the victim had debris and dirt on her arm and clothing. According to Dimenna, the victim's left elbow was scraped and her left hand was cut and bleeding.

Two other Union Township Police Officers arrived and defendant was arrested and placed in the patrol car. His bicycle, which was lying on its side on the grass, was placed in the trunk of the police car. The victim did not testify. Over defendant's objection, Dimenna was permitted to testify that the victim identified herself at the scene as Rita Ann Zito. Dimenna testified that she asked Zito what had happened.

Defendant did not testify. Defendant's wife, Patricia, claimed that defendant had injured his leg in an accident three or four years earlier, as a result of which he walks with a cane. She testified that defendant is able to ride a bicycle, but unable to run. Dimenna described defendant as having a "slight limp." She also testified that defendant did not have a cane at the scene.

On appeal, defendant raises the following points:

POINT I

CONTRARY TO CRAWFORD V. WASHINGTON, AND IN VIOLATION OF DEFENDANT'S RIGHT TO CONFRONTATION, THE TRIAL JUDGE ERRONEOUSLY ALLOWED THE STATE TO ESTABLISH THE NAME OF THE ALLEGED VICTIM THROUGH HEARSAY EVIDENCE.

POINT II

THE TRIAL JUDGE ERRONEOUSLY ALLOWED THE STATE TO ELICIT INFERENTIAL HEARSAY FROM THE NON-TESTIFYING VICTIM OF THE ALLEGED ROBBERY, THEREBY VIOLATING DEFENDANT'S RIGHT TO CONFRONTATION. THIS ERROR WAS EXACERBATED BY THE TRIAL JUDGE'S FAILURE TO INSTRUCT THE JURY THAT IT WAS NOT PERMITTED TO DRAW ANY INFERENCE AS TO WHAT THE TESTIMONY OF THE ALLEGED VICTIM WOULD HAVE BEEN IF SHE HAD APPEARED AT TRIAL. (Not Raised Below)

POINT III

AN EXTENDED TERM SENTENCE WAS NOT NECESSARY FOR THE PROTECTION OF THE PUBLIC AND WAS IMPOSED IN VIOLATION OF BLAKELY V. WASHINGTON. ALTERNATIVELY, THE LENGTH OF THE EXTENDED TERM WAS EXCESSIVE UNDER THE CIRCUMSTANCES OF THIS CASE. (Not Raised Below)

At trial, defendant objected to Dimenna identifying the victim by name, asserting hearsay. The State countered, arguing that the victim's testimony respecting her name was admissible under N.J.R.E. 804(b)(4), as a statement of personal or family history. The State presented a letter from the victim's doctor, Gabriel B. Jaffe, M.D.:

TO WHOM IT MAY CONCERN:

MS. RITA ZITO IS A CURRENT PATIENT OF MINE WHO IS CURRENTLY SUFFERING FROM SEVERE AND UNCONTROLLED HYPERTENSION. I HAVE ADVISED HER NOT TO TRAVEL UNTIL THIS IS UNDER CONTROL WHICH SHOULD BE AT LEAST ONE MONTH. ANY FURTHER QUESTIONS PLEASE CALL MY OFFICE.

Permitting the testimony, the judge found:

[A] person saying his or her known name under circumstances such as this where an alleged victim of a robbery tells her name to a police officer is a declaration that is inherently trustworthy. So although it is not an enumerated exception under 804(b)(4), I think the trustworthiness of the declaration goes a long way to including a name under family history. So I do find it fits under the rule.

He also accepted the State's argument that it would represent a hardship from a cost standpoint to require the State to go to Maryland and take the victim's deposition merely to obtain her name. He concluded that the State made the requisite showing under N.J.R.E. 804(a)(4) that the victim was both unavailable due to illness and that it would be an undue hardship or expense to obtain the victim's deposition for use in lieu of testimony at trial.

Defendant first argues that the State failed to meet the unavailability requirement for admission under the family history exception to the hearsay rule. He also contends that, even if properly admitted under a hearsay exception, the statement runs afoul of the Sixth Amendment Confrontation Clause because it qualified as testimonial evidence.

To consider a statement as personal or family history under N.J.R.E. 804(b)(4), it must concern "the declarant's own birth, adoption, marriage, divorce, legitimacy, ancestry, relationship by blood, adoption, or marriage, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated . . . ." N.J.R.E. 804(a)(4) requires a condition precedent to admission that the witness is "absent from the hearing because of . . . physical or mental illness or infirmity . . . and . . . the proponent is unable, without undue hardship or expense, to obtain declarant's deposition for use in lieu of testimony at trial." Although not conceded by defendant, we are satisfied that one's name is equivalent to a fact of personal and family history cognizable by N.J.R.E. 804(b)(4).

We are equally satisfied that the judge properly exercised his discretion in permitting the testimony. Absent an abuse of discretion, evidentiary decisions of the trial judge should not be disturbed. State v. Sands, 76 N.J. 127, 144 (1978); MacKay v. CSK Publ'g Co., 300 N.J. Super. 599, 617 (App. Div. 1997); Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 610 (App. Div. 1984). Our role is not to substitute our judgment for that of the trial judge, but to decide whether the judge pursued a manifestly unjust course. Green v. New Jersey Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div. 1991). There was a sufficient showing that the victim was unavailable due to physical illness. Moreover, the information elicited from the witness was not critical to the issues in the case nor did it impart specific information into the manner in which the events unfolded. As such, the hardship and expense to depose the witness in Maryland clearly overshadowed any minimal probative value of the testimony.

For the same reasons, we reject defendant's contention, raised for the first time on appeal, that the judge's decision to admit the victim's statement of her identity runs afoul of the Sixth Amendment right of confrontation as enunciated recently in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). In Crawford, the defendant was tried for assault and attempted murder. The Washington state court allowed the state to play a tape-recorded statement in which the accused's wife, who was otherwise barred from testifying because of the marital privilege, described defendant stabbing the victim. The trial court concluded that the accused's Sixth Amendment right of confrontation did not bar admission of the statement because the statement bore particularized guarantees of trustworthiness. The United States Supreme Court reversed, holding that the Sixth Amendment right to confrontation bars the use of any hearsay "testimonial" evidence regardless of its reliability where the declarant is unavailable for trial and defendant has not been afforded a prior opportunity to cross-examine the witness. Id. at 59, 124 S. Ct. at 1369, 158 L. Ed. 2d at 197. "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69, 124 S. Ct. at 1374, 158 L. Ed. 2d at 203. The right to confrontation is similarly guaranteed by Article 1, paragraph 10 of our Constitution.

The statement here did not amount to "testimonial evidence" as that described in Crawford. It neither inculpated defendant nor, as we have previously pointed out, was it critical in any sense. See Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968) (holding that an out-of-court statement by a co-conspirator must be inculpatory to offend the Confrontation Clause). It was simply a statement by which the victim identified herself to the investigating police officer. Its admission was akin to a business record. Indeed, Dimenna confirmed that the victim's name and appearance was documented in the police report.

Even if we were to come to a different conclusion concerning the propriety of the admission of the statement, we are satisfied that its introduction was harmless and that there was no plain error. State v. La Porte, 62 N.J. 312, 318 (1973). In order for error to be reversible, there must be a real possibility that it led to an unjust result. Ibid. Such a possibility is "one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973). The statement itself does not directly or indirectly implicate defendant in a crime. Moreover, there was additional overwhelming evidence of defendant's guilt. State v. Baker, 228 N.J. Super. 135, 140-41 (App. Div. 1988). Simply stated, testimony identifying the victim by name was not "clearly capable of producing an unjust result . . . ." R. 2:10-2.

Likewise unavailing is defendant's contention, also raised for the first time here, that Dimenna's testimony that she "spoke to Mrs. Zito and asked her what had happened" was inadmissible hearsay. Defendant concedes that Dimenna never testified to what Zito told her concerning the incident. One would naturally expect an investigating police officer to ask a victim what happened. The officer's testimony that she arrived at the scene and asked the victim what happened was properly admitted. There was no error, much less plain error.

Defendant contends that the judge abused his discretion in granting the State's motion to impose an extended term. Defendant has an extensive juvenile and adult record. From 1967 to 2002, he had twenty-eight Municipal Court convictions, many of which were for drug related offenses and larceny, as well as thirteen indictable convictions, which include possession of drugs, receiving stolen property, theft, robbery, burglary, and possession of a stolen motor vehicle. "[A] defendant challenging a prosecutor's application for an extended term must establish that the decision constituted an abuse of prosecutorial discretion." State v. Kirk, 145 N.J. 159, 169 (1996). We are satisfied from our review of the record that the trial judge properly considered the factors required by State v. Dunbar, 108 N.J. 80 (1987), and correctly found defendant a persistent offender pursuant to N.J.S.A. 2C:44-3a. Defendant's contentions to the contrary lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Finally, defendant contends that the imposition of an extended term violates the principles of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). He asserts that the period of incarceration imposed, which exceeds the presumptive term, was violative of our recent decision in Natale II. The imposition of an extended term sentence under N.J.S.A. 2C:44-3a is based on defendant's record of prior criminal convictions and thus falls within the recidivism exception enunciated in Blakely and Apprendi. Young, supra, 379 N.J. Super. at 509-10.

The State concedes that a remand is necessary in accordance with the decision in Natale II because the judge imposed a seventeen-year term, two years above the presumptive extended term for a second-degree offense. Natale II, supra, 184 N.J. at 495. We agree. The judge found aggravating factors that were not related exclusively to defendant's prior criminal record. We are constrained, therefore, in light of Natale II, to remand for consideration as to whether the judge would impose a lesser sentence in the absence of the presumptive term. See State v. Abdullah, 184 N.J. 497, 506 (2005) (decided the same day as Natale II). Accordingly, we remand for resentencing. In all other respects, the judgment of conviction is affirmed.

 

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A-4699-03T4

February 7, 2006