STATE OF NEW JERSEY v. CLINTON SCOTT

(NOTE: The status of this decision is .)
N.J.S.A. 2C:29-2b (count three) in Essex County Indictment Number 00-09-2565, and his convictions of third-degree receiving stolen property, a BMW vehicle, on March 24, 2000, N.J.S.A. 2C:20-7 (count one); second-degree eluding on March 24, 2000, N.J.S.A. 2C:29-2b (count two), the lesser-included offense of fourth-degree aggravated assault on March 24, 2000, N.J.S.A. 2C:12-1b(3) (count three), second-degree aggravated assault while eluding on March 24, 2000, N.J.S.A. 2C:12-1b(6) (count four), fourth-degree unlawful possession of a weapon, a BMW vehicle under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (count five), and third-degree possession of a weapon, a BMW vehicle, for an unlawful purpose, N.J.S.A. 2C:39-4d (count six) on Essex County Indictment Number 00-10-2860, and from the sentences imposed. "> 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5612-03T45612-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLINTON SCOTT,

Defendant-Appellant.

 

Submitted: October 26, 2005 - Decided:

Before Judges Fall, Grall and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Number 00-10-2860.

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

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Clinton Scott appeals from his convictions, after a jury trial, of third-degree receiving stolen property, a 1993 Cadillac vehicle, on March 20, 2000, N.J.S.A. 2C:20-7 (count one) and the lesser-included offense of third-degree eluding on March 20, 2000, N.J.S.A. 2C:29-2b (count three) in Essex County Indictment Number 00-09-2565, and his convictions of third-degree receiving stolen property, a BMW vehicle, on March 24, 2000, N.J.S.A. 2C:20-7 (count one); second-degree eluding on March 24, 2000, N.J.S.A. 2C:29-2b (count two), the lesser-included offense of fourth-degree aggravated assault on March 24, 2000, N.J.S.A. 2C:12-1b(3) (count three), second-degree aggravated assault while eluding on March 24, 2000, N.J.S.A. 2C:12-1b(6) (count four), fourth-degree unlawful possession of a weapon, a BMW vehicle under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (count five), and third-degree possession of a weapon, a BMW vehicle, for an unlawful purpose, N.J.S.A. 2C:39-4d (count six) on Essex County Indictment Number 00-10-2860, and from the sentences imposed.

On sentencing on the convictions in Indictment Number 00-09-2565, the court imposed a five-year term of imprisonment for third-degree receiving stolen property (count one), with a period of parole ineligibility of two and one-half years. On the third-degree eluding conviction (count three), the judge sentenced defendant to a five-year term of imprisonment, with a two-and-one-half-year parole disqualifier. Those terms were made concurrent with each other, but consecutive to the terms imposed on the convictions in Indictment Number 00-10-2860.

On sentencing on the convictions in Indictment Number 00-10-2860, the trial court imposed a five-year term of imprisonment on the receiving stolen property conviction (count one), with a period of parole ineligibility of two-and-one-half years. That term was made consecutive to the sentences imposed on Indictment Number 00-09-2565, and consecutive to the terms imposed on counts three, four and five in Indictment Number 00-10-2860. On those counts of this indictment, the court sentenced defendant to a ten-year period of imprisonment, with a parole disqualifier of five years, on the second-degree aggravated assault conviction (count four); to a flat eighteen-month term on the fourth-degree aggravated assault conviction (count three); and to a flat eighteen-month term on the fourth-degree possession of a certain weapon, the BMW vehicle, under circumstances not manifestly appropriate for its lawful use (count five). The terms imposed on the convictions in counts three, four and five of Indictment Number 00-10-2860 were made concurrent with each other, but consecutive to the term imposed on count one of that indictment; the convictions on counts two and six were merged and dismissed.

All sentences imposed on both indictments were also to run consecutive to a term of imprisonment being served by defendant in New York. Thus, the aggregate term imposed on both indictments was twenty years' imprisonment, with a ten-year parole disqualifier, consecutive to the New York sentence.

The evidence adduced by the State at trial, if credited, disclosed the following. On March 20, 2000, East Hanover Township Police Officer John M. Fox was on routine radio patrol driving southbound on River Road approaching Route 10. Stopped at a traffic light, using his patrol vehicle's mobile computer, Officer Fox performed a random license and registration check on a green 1993 Cadillac with New York license plates that was stopped in front of him. As he crossed Route 10, the alarm on his computer indicated that the Cadillac was stolen. Officer Fox turned his vehicle around and proceeded East on Route 10, the direction that the Cadillac had turned. He notified headquarters of the pursuit by radio, and headquarters then notified the surrounding municipalities.

Officer Fox eventually caught up with the Cadillac near a Toys R Us store along Route 10. As he watched the Cadillac make a right-hand turn into the store's parking lot, Officer Fox radioed headquarters and pulled into the parking lot. He positioned his patrol car behind the Cadillac, leaving a space of about twenty feet between the two vehicles.

As Officer Fox opened the door and exited his vehicle, he noticed the driver preparing to stand up out of his car. The driver asked the officer, "What are you doing?" Officer Fox responded that there might be a problem with his registration, and then asked to see the man's hands. The driver complied. Officer Fox described the driver as a black male in his late twenties with glasses and a corn-row hairstyle.

Meanwhile, a back-up unit with Officer Fox's sergeant arrived in the parking lot. As the sergeant exited his car, the driver started to get back into the Cadillac. Officer Fox instructed the man to stay where he was, but he ignored those commands, shut the door, and drove directly over a curb and through a light post, sending the post crashing to the ground.

Officer Fox ran to the side of the Cadillac, telling the driver to stop, but the Cadillac proceeded through the parking lot and onto Route 10 in an easterly direction. Officer Fox notified headquarters that the man had left the scene, activated his lights and sirens, and entered Route 10 east in pursuit of the Cadillac. Officer Fox was not able to catch up to it, but he did see the Cadillac make a left turn onto Eisenhower Parkway, heading north at approximately seventy miles per hour.

Livingston Police Officer Gregory R. Drucks was on his way to Toys R Us, when he received a radio message about the Cadillac's flight. Officer Drucks stopped his patrol car on Eisenhower Parkway, realizing that the Cadillac would likely pass him during its flight. Officer Drucks witnessed the Cadillac coming eastbound on Route 10, passing him as it made a left onto Eisenhower Parkway, and going up and over the center median as it turned. Drucks identified the man he saw driving the Cadillac as a black male in his late twenties. While driving down Eisenhower Parkway, the man momentarily drove the Cadillac on the wrong side of the road to avoid traffic blocking his way.

Officer Fox pursued the Cadillac for another quarter to one-half mile, when his lieutenant directed him to terminate the pursuit. Officer Drucks continued to pursue the Cadillac down Eisenhower Parkway. Officer Drucks estimated the Cadillac to have been likely driving in excess of seventy miles per hour. However, Officer Drucks discontinued his pursuit of the Cadillac at the Livingston municipal boundary line. At Orange Police Headquarters four days later, Officer Fox identified defendant as the man he had seen in the Toys R Us parking lot driving the Cadillac.

On March 20, 2000, David A. Zwally, a law student, was waiting at Hoffman BMW in Bloomfield while his 1992 black BMW 325 was being serviced. Zwally was sitting in the waiting room when a man he later identified as defendant came in and sat down for fifteen to twenty minutes. A Hoffman BMW serviceman approached Zwally, and told him that his car was almost ready. Zwally and defendant had a brief conversation in which defendant inquired about the work being done on Zwally's car, and Zwally asked about defendant's car. Zwally stated that defendant looked "very anxious" and that he was "kind of getting up and looking into the service bay like he was looking for his car." Zwally described defendant as approximately 6'2" in height, skinny, wearing blue jeans and a down jacket, and his hair was styled with corn rows underneath a skull cap.

Zwally was informed that his car was ready, and he went into the cash register area to pay the service bill. In the time that it took him to write the check and step outside, his BMW, which had been brought around and left with the engine running, was gone. The man that he had identified as defendant was also gone. Zwally next saw the car five days later, noting it was severely damaged.

That same afternoon, Hoffman BMW's employee Robert Policastro received a job application that someone had submitted. It was filled out under the name of "Michael Smith" with a social security number. Defendant's social security number was very similar to the one listed on this job application, with a single-digit difference in each of the three sets of numbers.

On March 20, 2000, the same day as the Cadillac chase and the BMW theft, Tawn Simpson stated that she and her friend Sandra "Tamika" Morton were hanging out in the Parrow projects in Orange. They were heading into a store when defendant pulled up next to them in a BMW vehicle. Simpson knew defendant "from going to school and then getting high on Main Street together copping drugs." Simpson knew defendant by his first name "Clinton" and by the nickname "Coupe." Morton stayed outside and talked to defendant while Simpson went into the store.

When Simpson returned outside, Morton asked her to take a ride with them, and Simpson agreed. Defendant gave Morton the keys to a Cadillac to drive, which was parked behind the Bloomfield police station, down the street from Hoffman BMW. Simpson claimed that she did not know the Cadillac was stolen. Morton drove and Simpson sat in the passenger seat of the Cadillac as they traveled alongside defendant, who was driving the BMW. The two vehicles proceeded to Bloomfield Avenue, and then to Elm Street. According to Simpson, Morton was "trying to outdrive [defendant]" and Simpson was trying to persuade her to calm down.

Meanwhile, Montclair Police Officer Michael Sauer was on routine patrol duty with his partner Tyrone Williams. At approximately 4:19 p.m., they witnessed a black BMW traveling at a high rate of speed down Elm Street in Montclair, followed closely by a Cadillac also traveling at a high rate of speed. Officer Sauer observed that a black male was driving the BMW vehicle. Officer Williams described the driver of the BMW as a black man in his late twenties or early thirties with corn rows. Running the license plate numbers of the BMW through his mobile computer system, Officer Sauer ascertained that the license plates on the BMW had been stolen from a 1987 Ford Escort vehicle in Manasquan.

Officer Sauer activated his overhead lights and siren and attempted to catch up with the two vehicles. When he eventually got behind them, the Cadillac pulled over to the side of the road and the BMW continued south into the City of Orange. Based on the information received that the Cadillac had been stolen, Officers Sauer and Williams removed Simpson and Morton from the vehicle, and placed them under arrest. Simpson and Morton told Officer Williams that the name of the man in the BMW was "Clint." After the women were taken into custody, drug paraphernalia and a pair of pliers were found in the Cadillac. As the search was being conducted, the BMW reentered the area and then left.

Four days later, on March 24, 2000, Officer Larry Dillon was on bike patrol for the City of Orange and was positioned at the corner of William and Park Streets. He received a radio message that a stolen BMW was parked in the area of William Street. After riding up William Street, he spotted a vehicle matching the description he had been given pulling out of a parking spot. Officer Dillon followed the car on his bicycle down several streets, updating headquarters on the vehicle's location by radio transmission. As the BMW stopped at a traffic light at Oakwood Avenue and Freeway Drive, Officer Dillon pulled up beside it on the driver's side and looked at defendant face-to-face. He described the man he saw as a black male in his mid twenties with "corn roll" hair, and later identified him as the defendant. Officer Dillon instructed defendant to turn the car off.

Looking right at Officer Dillon, defendant aimed the tires towards him and proceeded to drive the BMW up onto the sidewalk. The BMW sideswiped Officer Dillon's bike, knocking him to the ground. Officer Dillon cut his hand and hit his knee. Marked and unmarked patrol units arrived on the scene and observed this collision, including Orange Police Department Detectives Willie Coley and George Hesse. These detectives had received a radio message that the stolen BMW was in their vicinity and, soon thereafter, spotted it driving erratically. They turned their patrol car around and followed it, activating their lights and sirens, arriving at the location where Officer Dillon had been injured.

After knocking Officer Dillon off of his bike, the BMW went back down the curb and drove off, hitting cars at the light in an attempt to steer back into moving traffic. Ivory Devore was waiting at the traffic light, when his 1991 Lincoln Continental was rammed in the back by the BMW. Subsequently, Devore received medical treatment for a swollen neck.

After the crash, Mr. Devore and Detectives Coley and Hesse witnessed defendant abandon the BMW and flee on foot onto Freeway Drive in a westerly direction. Both of the detectives were familiar with defendant from past experience, and Detective Hesse knew him by the nickname of "Coupe." Detectives Coley and Hesse watched as defendant ran into a storage building on Freeway Drive. Following after him, the detectives initiated a floor search of the building, and were successful in flushing defendant out of the building. Detective Coley saw defendant run from the storage building, jump over a fence, cross Route 280, and run "into the projects."

Detective Coley arrested defendant forty-five minutes to an hour later at the corner of Hickory and Parrow Streets. The detectives found defendant walking in the area with a female. Detective Hesse stated he snuck up behind defendant and apprehended him before defendant had a chance to run.

Prior to the testimony of Detectives Coley and Hesse, and outside the presence of the jury, the prosecutor made an offer of proof, stating that the detectives knew defendant very well prior to March 14, 2000, and could easily identify him based on defendant's prior involvement with the Police Department in Orange. The prosecutor stated that he intended to eliminate any references in the officers' testimony to defendant's past criminal activity or, in his words, "sanitize it." Defense counsel stated that he had a "tremendous problem with any testimony that suggest[ed] in any way, shape, or form that any officer [knew his] client because of prior criminal activity."

The judge determined that it was acceptable for the witnesses to state that they knew defendant previously, as long as they did not disclose the manner in which they knew him. Defense counsel expressed the concern that "people are going to hear the police officers know him and automatically there's going to be a connection made with prior criminal activity[.]" The judge offered to give the jury a limiting charge. Ultimately, the judge determined that "since identification [was] an issue, [testimony that the officers knew defendant was] relevant and the probative value of the prior contacts with defendant outweigh[ed] any prejudicial impact of any inadvertent or wrongful conclusion that a jury might come to."

Detective Coley testified that he knew defendant by the name "Clinton Scott" and had seen him on other occasions prior to March 24, 2000. When asked if he could remember anything about defendant's physical description, Detective Coley responded, "You know, knowing him for so long and what not I just knew him. I knew it was him." Defense counsel objected to this testimony and, at sidebar, moved for a mistrial. The trial judge ruled the testimony was "highly probative," overruled the objection, and denied the motion for mistrial. Detective Hesse also testified that he knew defendant prior to March 24, 2000, and that defendant's nickname was "Coupe."

At the close of the State's case, count two of Indictment Number 00-09-2565, charging defendant with criminal mischief, and count seven of Indictment Number 00-10-2680, charging him with resisting arrest, were dismissed.

Additionally, defendant moved for a judgment of acquittal on count one of Indictment Number 00-09-2565, charging him with receiving stolen property as to the Cadillac vehicle, based on a lack of proof submitted by the State that the vehicle had been stolen. Relying on State v. Bujan, 274 N.J. Super. 132 (App. Div. 1994), the trial judge denied the motion and later instructed the jury that, for a receiving stolen property charge, the State is not required to prove that the property had been stolen, but is only required to prove that defendant knew or believed that property probably had been stolen.

After rendering its verdict, the jury was asked to consider whether the commission of the crimes of second-degree eluding and second-degree aggravated assault by defendant in counts two and four of Indictment Number 00-10-2860, constituted "violent crimes," the predicate finding for application of the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The jury determined that the crimes were not violent crimes.

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

POINT I

REPEATED REFERENCES TO THE POLICE OFFICERS' PRIOR KNOWLEDGE OF THE DEFENDANT, AND REPEATED REFERENCES TO THE DEFENDANT'S ALIAS, DEPRIVED THE DEFENDANT OF A FAIR TRIAL BECAUSE THE PROSECUTOR AGGRAVATED THE PREJUDICES OF THE JURY AGAINST THE DEFENDANT (Raised in Part Below).

POINT II

THE TRIAL COURT COMMITTED PLAIN ERROR IN ITS CHARGE TO THE JURY BY INSTRUCTING THE JURORS THAT THE STATE DID NOT HAVE TO PROVE THAT THE CADILLAC AND THE BMW VEHICLES WERE, IN FACT, STOLEN (Not Raised Below).

POINT III

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR'S CONDUCT DURING THE TRIAL PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL (Not Raised Below).

POINT IV

THE AGGREGATE TWENTY (20) YEAR CUSTODIAL SENTENCE WITH TEN (10) YEARS OF PAROLE INELIGIBILITY IMPOSED BY THE TRIAL COURT IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIOINAL.

I.

Defendant contends that the trial court erred in allowing the prosecutor to elicit statements from Detectives Coley and Hesse that they knew defendant prior to March 24, 2000. We disagree.

Considerable latitude is afforded to a trial court judge in determining whether to admit evidence, and a ruling on evidence will only be upset if it constitutes an abuse of discretion. State v. Feaster, 156 N.J. 1, 82 (1998). Admissible evidence must be deemed relevant, and its probative value must outweigh the dangers of unfair prejudice. N.J.R.E. 403.

"It is 'undeniable that the use of prior conviction evidence is fraught with a high risk of prejudice.'" State v. Alvarez, 318 N.J. Super. 137, 159 (App. Div. 1999) (quoting State v. Brunson, 132 N.J. 377, 385 (1993)). However, direct evidence of prior convictions is distinguishable from statements that have a mere possibility of implicating prior arrest convictions. See State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.), certif. denied, 108 N.J. 677 (1987). "The mere possibility that evidence could be prejudicial does not justify its exclusion." State v. Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000).

Here, Detective Hesse testified he knew defendant by the nickname, "Coupe." Detective Coley testified that he knew defendant by his name Clinton Scott.

The trial judge determined that the detectives' testimony that they knew defendant was more probative than prejudicial because identification was a central issue in the case. Furthermore, the dangers of unfair prejudice were reduced by the fact that the detectives could testify only that they knew him, but could not indicate where they knew him from or that he was notorious. The judge also mitigated the dangers of unfair prejudice by offering the defense the option of a limiting charge.

Furthermore, the trial judge indicated that there was only a possibility that the jurors would connect the police officers' knowledge of defendant with criminal activity. The judge stated, "[y]ou know . . . that just because . . . the cop knows somebody doesn't mean that . . . he's previously been involved in any criminal activity." The judge pointed out they might know each other from "a party," "a social milieu," "a Boy's Club," "basketball," or "school." Thus, the detectives' knowledge of defendant and defendant's commission of prior crimes were several inferential steps removed from each other, eliminating a high risk of unfair prejudice.

In Ramos, supra, the court held that a police officer's testimony that he knew defendant did not prejudice the jury. 217 N.J. Super. at 537-38. There, the police officer testified that he knew defendant before he became a police officer and knew many other people in the neighborhood, reducing the possibility that his knowledge of defendant arose from criminal activity. Ibid. Here, Detectives Hesse and Coley testified to a general knowledge of defendant, rather than a knowledge that was directly connected to a criminal investigation or proceeding.

We are not persuaded that the trial judge misapplied his discretion in permitting Detectives Hesse and Coley to testify that they knew defendant prior to the March 24, 2000 incident. Since the issue of identification was contested, their prior familiarity with defendant was highly relevant, and the limitations placed on their testimony sufficiently mitigated the risk of any undue prejudice. See also State v. Love, 245 N.J. Super. 195, 197 (App. Div.) (Investigator's testimony that he had prior contact with the defendant when he interviewed him during a prior homicide investigation held to not have supported an inference that the defendant had been involved in prior criminal activity), certif. denied, 126 N.J. 321 (1991).

II.

Defendant argues for the first time on appeal that the trial court committed plain error by instructing the jury that the State did not have to prove that the Cadillac was stolen. We agree.

The trial court based its jury instruction for defendant's receiving stolen property charges on the then-current law of State v. Bujan, 274 N.J. Super. 132 (App. Div. 1994). In Bujan, we interpreted the language of N.J.S.A. 2C:20-7a to require either knowledge that property was stolen, or a mere belief that it was stolen. Id. at 133. The State did not have to prove that the property itself was stolen. Ibid. Applying Bujan, the trial judge instructed the jury as follows:

Now, listen to me carefully, [because] this may be confusing. The State is not required to prove that the property, in fact, had been stolen. In contrast to the -- in contrast to the BMW, as to the 1993 Cadillac, there was no proof that it was actually stolen. The owner did not testify, and the testimony about reports received by police are not competent evidence to show that the car was, in fact, stolen. Moreover, mere proof that the property was stolen is not sufficient to establish this element. Rather, what the State must prove is that Clinton Scott either knew that the property was stolen, or believed that it probably had been stolen.

However, in State v. Hodde, 181 N.J. 375 (2004), the Court held that the statutory language of N.J.S.A. 2C:20-7a "requires the State to prove that the property has been stolen[.]" Id. at 376-77. In reviewing the language contained in N.J.S.A. 2C:20-7a that "[a] person is guilty of theft if he knowingly received or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen[,]" emphasis added, the Court concluded that "[n]othing in the text or legislative history indicates that the Legislature intended to allow the State to convict on mere belief that the enumerated items had been stolen." Id. at 382.

The Court stated that "by repeatedly employing the phrase, 'the property stolen,' [in the chapter in the Code of Criminal Justice denoted 'Theft and Related Offenses,' N.J.S.A. 2C:20-1 to -37], the Legislature evinced an intent that a person only could be found guilty of receiving stolen property if the property was actually stolen." Id. at 382 (emphasis added).

The Court held that the language "believing that it is probably stolen[,]" in N.J.S.A. 2C:20-7a "refers to the scienter necessary for the crime[,]" but "does not address, much less dispense with, the requirement that the property itself possess the characteristic of being stolen." Id. at 383.

The fact that Hodde was decided subsequent to defendant's trial did not relieve the trial court of the requirement of instructing the jury that to convict defendant of a violation of N.J.S.A. 2C:20-7a it was required to prove beyond a reasonable doubt that the vehicle was stolen at the time it was possessed by defendant. See State v. Vick, 117 N.J. 288, 290-91 (1989) (holding that it was plain error for the trial court to fail to instruct the jury as to the State's burden of proving the absence of a gun permit where defendant's trial occurred before the Court's decision in State v. Ingram, 98 N.J. 489, 494-95 (1985), which had held that absence of a permit was an essential element of the offense for which defendant was convicted).

"[A]ccurate jury instructions are essential in a criminal trial." Hodde, supra, 181 N.J. at 384. The failure to instruct the jury in an element of the offense is presumed to be prejudicial error, even absent an objection by the defense. Ibid. Therefore, by instructing the jury that an element of the charge as to the Cadillac need not be proven, when it was in fact required, the trial court committed prejudicial error. Therefore, defendant's conviction on count one of Indictment Number 00-09-2565 for receipt of stolen property, N.J.S.A. 2C:20-7a, must be reversed. See id. at 385. Because the State presented no evidence to demonstrate that the Cadillac was a stolen vehicle, we sua sponte enter a judgment of acquittal on count one of Indictment Number 00-09-2565.

Moreover, as to defendant's conviction of receipt of stolen property on count one in Indictment Number 00-10-2860, with respect to the BMW vehicle, although there was evidence in the record to establish that it was a stolen vehicle, because the charge given essentially directed the verdict on the "stolen" element of the offense, we are constrained to reverse this conviction, as well, and remand this charge for trial. In State v. Wesner, 372 N.J. Super. 489, 493-94 (App. Div. 2004), certif. denied, 183 N.J. 214 (2005), we noted that no matter how compelling the evidence, a judge may not direct a verdict against a defendant in a criminal case. Therefore, although the evidence that the BMW was a stolen vehicle was compelling, the charge directed the jury that it was not required to determine whether the BMW was stolen.

III.

Defendant further argues that the conduct of the prosecutor during trial deprived defendant of his right to a fair trial. We disagree.

Allegations of prosecutorial misconduct must be evaluated in light of the unique responsibilities of a prosecutor. State v. Harvey, 151 N.J. 117, 144 (1997). Prosecutors must pursue their duties with "earnestness and vigor." Ibid. (quoting United States v. Young, 470 U.S. 1, 7, 105 S. Ct. 1038, 1042, 84 L. Ed. 2d 1, 7 (1985)). They must make a "forceful presentation of the State's case." Harvey, supra, 151 N.J. at 144 (quoting State v. Ramseur, 106 N.J. 123, 320 (1987)).

Moreover, not every instance of misconduct will warrant a reversal. Instead, the record must show that the error had a "palpable impact" on the proceedings. State v. Roach, 146 N.J. 208, 219 (1996). Misconduct by a prosecutor does not constitute reversible error unless it is deemed to be so egregious as to deprive defendant of a fair trial. Harvey, supra, 151 N.J. at 144-45.

Factors to consider in analyzing the impact of prosecutorial comments include whether the defense made a timely and proper objection; whether the remark was withdrawn; and whether the court gave a limiting instruction. State v. Zola, 112 N.J. 384, 426 (1998), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). Furthermore, a reviewing court must consider the feel of the trial and the degree of responsiveness of both counsel and the court to improprieties as they arose. Harvey, supra, 151 N.J. at 145.

In light of these guiding principles, we consider defendant's contention, raised for the first time on appeal, that the prosecutor's comment that hearsay evidence existed that would be "damaging" to defendant constituted plain error.

During the direct testimony of Officer Fox by the prosecutor, the following dialogue ensued:

Q. How is it that you were at the Orange Police Headquarters?

A. I learned that --

Q. Don't tell us --

PROSECUTOR: If I could just lead a little, Judge?

DEFENSE COUNSEL: Objection, Your Honor. This is the second time he's doing this. He's telling the witness how to answer the questions. I didn't object the last time, but I'm objecting this time.

THE COURT: Well --

PROSECUTOR: Counsel -- does he want hearsay out --

THE COURT: Well --

PROSECUTOR: -- that's going to be damaging to his client?

THE COURT: -- wait stop. The jury will disregard the last comment of counsel, period.

[Emphasis added.]

Although defense attorney objected to the leading nature of the prosecutor's question, the defendant did not raise the claim at trial that the prosecutor's comment about "damaging" hearsay prejudiced the trial. Unless this remark by the prosecutor can be found to have been capable of depriving defendant of a fair trial, reversible error will not be found. State v. Timmendequas, 161 N.J. 515, 575 (1999) (citing State v. Chew, 150 N.J. 30, 84 (1997) (Chew I), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999)), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

In State v. Reddish, 181 N.J. 553, 642 (2004), the prosecutor told the jury in a murder case that the law "prevented her from divulging the details of the murder underlying the prior murder aggravating factor." In one of many similar exchanges, the prosecutor asked one juror what, if anything, that juror would want to know about the facts and circumstances of the other murder. Ibid. Understandably, the juror responded that she would "want to know everything and also . . . everything about the defendant." Ibid. The defendant contended that the prosecutor's numerous references to her inability to discuss evidence on the prior-murder aggravating factors "amounted to impermissible allusions to personal knowledge of prejudicial evidence outside of the record." Id. at 643.

The Court in Reddish viewed the prosecutor's references differently. In supporting the position of the prosecution, in dicta, the Court stated that the limitations the prosecutor discussed were in fact real existing limitations on her ability to discuss facts, and that her references to those limitations were not unduly prejudicial. Ibid. The Court held that the prosecutor's comments had not prejudiced defendant because the trial court had promptly given a curative instruction. Id. at 644.

Here, the prosecutor made one comment about "damaging hearsay." Rather than including the reference to hearsay as part of his formulated argument and repeating it, as in Reddish, the prosecutor's reference was singular and fleeting. Indeed, the prosecutor had requested permission to lead his witness specifically to prevent testimony that would have included hearsay. Viewing the proceedings as a whole, we are not persuaded that this minor reference was prejudicial to defendant's right to a fair trial.

We further note that throughout the trial, the interactions between the prosecutor and the defense attorney were confrontational and belligerent. Due to the contentiousness of trial, the judge conscientiously interposed curative remarks when either counsel overstepped their bounds.

Defendant also argues that the prosecutor improperly introduced the concept of defendant's "innocence" into his summation, thereby prejudicing the trial. We disagree.

Specifically, the defense refers to the following excerpt from the prosecutor's summation:

[Defense] [c]ounsel says, well he didn't -- you know, he was minding his own business. I suppose he's suggesting he's just another innocent person walking down the street. I suggest no, not here. That's not going to fly. Okay. This is not just a -- this is just not one of those circumstances.

This is a person that is not a stranger to the people who saw him, who identified him involved in the -- in the BMW, who tried to run over a police officer on a bicycle, who -- who's car smashed into Mr. Devore, shook him up, damaged his car, finally abandoned the BMW and got arrested a short time later and [was] identified by everybody.

[Emphasis added.]

No objection was made to these statements at the time. See R. 2:10-2. Therefore, unless the remarks were capable of depriving defendant of a fair trial, reversible error will not be found. Timmendequas, supra, 161 N.J. at 575. As we have noted, "prosecutorial misconduct does not constitute a ground for reversal unless the conduct is deemed 'so egregious that it deprived defendant of a fair trial.'" Harvey supra, 151 N.J. at 144-45 (quoting Ramseur, supra, 106 N.J. at 322).

Defendant cites to State v. White, 360 N.J. Super. 406 (App. Div. 2005), for the proposition that defendant's innocence should not be introduced into the jury charge because it tends to reduce the State's burden of proof. However, White involved repeated use of the phrase "guilt or innocence" by the trial judge during the jury charge; here, a statement by the prosecutor during summation is involved.

In summations, prosecutors are allowed a considerable amount of leeway. Harvey, supra, 151 N.J. at 144. However, the scope of the summation argument must not exceed the four corners of the evidence, and reasonable inferences therefrom. State v. Loftin, 146 N.J. 295, 347 (1996).

Here, evidence introduced by the State revealed that defendant was apprehended and arrested while walking down the street. Drawing inferences from these facts, the defense argued during its summation that defendant did not try to evade arrest "[b]ecause he knew he didn't do anything wrong." Clearly, the prosecutor's comment that defendant was not just "another innocent person walking down the street" was in direct response to the defense's argument. Given that the prosecutor's responsive comment on defendant not just being another innocent person walking down the street was also couched between consistent articulations by the prosecutor of the reasonable doubt standard, we find no basis to conclude that the prosecutor's comment could have prejudiced the jury in a way that would have produced an unjust result.

Moreover, unlike the circumstances in White, the judge clearly stated in the jury charge that "[t]he burden of proving each element of a charge beyond a reasonable doubt rests upon the State, and that burden never shifts." The judge also charged that "[t]he State has the burden of proving Clinton Scott guilty by a reasonable doubt . . . [and] the State's proofs must be . . . powerful . . . beyond a reasonable doubt."

Defendant further contends that repeated references to defendant's alias deprived defendant of a fair trial. Specifically, the defense references the following excerpt from the prosecutor's summation:

What a nickname to have in a stolen car case, Coupe. That's Coupe. That's the guy [Tawn Simpson] knows as Coupe. I can't make this stuff up. He's got a nickname of Coupe.

In State v. Paduani, 307 N.J. Super. 134, 146-47 (App. Div.), certif. denied, 153 N.J. 216 (1998), we differentiated between an "alias" and a "nickname." "Marijuana", a street name by which defendant was called in Paduani, was deemed a nickname that was not deemed unduly prejudicial because it was relevant to the case and the judge had issued a limiting instruction regarding its use. Ibid. We cited to our decision in State v. Salaam, 225 N.J. Super. 66, 73 (App. Div. 1988) as an example of a defendant with an alias, where defendant Abdul Haqq Salaam was also known as "Willie Favors."

Aliases, as opposed to nicknames, are kept from the jury unless relevant for some other purpose. Paduani, supra, 307 N.J. Super. at 147. The rationale behind this rule is that aliases imply that the defendant belongs to a criminal class, thereby prejudicing the jury. Ibid. However, in Paduani, we extended the exclusion for aliases to apply to certain types of nicknames. Ibid. Specifically, the principle from Salaam that alias names should be kept from the jury unless relevant for some purpose, was also applied to pejorative nicknames, such as "Marijuana" and "Trouble." Ibid. We concluded that pejorative nicknames bore the same potential to prejudice the jury by also placing the defendant in a criminal class. Ibid.

Here, the record establishes that the name "Coupe" is more of a nickname than an alias. Defendant has also been known as "Troy Deberry" and "Malik Scott," which are more in the nature of aliases, or subterfuges to hide one's identity. Because "Coupe" is a shortened name that people in his neighborhood called defendant, it is more in the nature of a nickname.

Moreover, this nickname is not derogatory on its face. Although the prosecutor framed it as being ironic, the nickname itself does not have derogatory connotations. Coupe does not draw to mind criminal enterprises in a way that "Marijuana" might. Thus, it is unlikely to prejudice a jury. Regardless, even in Paduani, supra, we found that there was no prejudice stemming from the nickname "Marijuana" because it was a nickname used by the defendant, and "our independent review of the record reveal[ed]" no prejudice. 307 N.J. Super. at 147. Likewise, here, our review of the record discloses no prejudice to defendant from the universal use of defendant's nickname "Coupe."

IV.

With respect to the sentence imposed, defendant presents essentially three arguments, contending that the trial court erred in imposing terms in excess of the presumptive terms provided by sentencing provisions in the Code of Criminal Justice; erred in imposing maximum periods of parole ineligibility; and erred in imposing consecutive terms.

Appellate review of a sentencing decision requires us to determine, first, whether the correct sentencing guidelines have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third whether, in applying those guidelines to the relevant facts, the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. State v. Roth, 95 N.J. 334, 365-66 (1984).

Defendant first argues that the trial court abused its discretion in imposing sentences in excess of the presumptive terms for crimes of the second and third degree.

Under the New Jersey Code of Criminal Justice, second-degree crimes are punishable by imposition of a term of imprisonment between five and ten years, N.J.S.A. 2C:43-6a(2), with a presumptive term of seven years. N.J.S.A. 2C:44-1f(c). Third-degree crimes are punishable by a term of between three and five years, N.J.S.A. 2C:43-6a(3), with a presumptive term of four years. N.J.S.A. 2C:44-1f(1)(d). Fourth-degree crimes are punishable by a specific term of imprisonment not to exceed eighteen months, N.J.S.A. 2C:43-6a(4), with a presumptive term of nine months. N.J.S.A. 2C:44-1f(1)(e).

When imposing a sentence of imprisonment, courts are to impose the presumptive term unless the preponderance of aggravating or mitigating factors weighed in favor of a higher or lower term within the statutory range. N.J.S.A. 2C:44-1(f)(1). The mitigating and aggravating factors could reduce or increase the sentence within the statutory range as long as the factors were clearly enumerated by the judge in the record. Ibid.

Recently, the New Jersey Supreme Court reconsidered its sentencing structure and adapted the Code to comply with the principles articulated by the United States Supreme Court in Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000) ("Other 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"); Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413 (2004) (declaring that, for Apprendi purposes, a sentence based on judicial factfinding that exceeds the maximum sentence authorized by either a jury verdict or a defendant's admissions at a plea hearing runs afoul of the Sixth Amendment right to trial by jury); and United States v. Booker, 543 U.S. 220, __, 125 S. Ct. 738, 757, 160 L. Ed. 2d 621, 650 (2005) (striking down portions of the Federal Sentencing Guidelines that authorized judges, based on their own fact findings, to impose sentences exceeding those allowed by a jury verdict alone). Based on those guiding principles, our Supreme Court revised the Code's sentencing scheme in State v. Natale, 184 N.J. 458 (2005) (Natale II) and State v. Abdullah, 184 N.J. 497 (2005).

In Natale II, supra, the Court 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. The Court further concluded that the New Jersey

"statutory maximum" for Blakely and Booker purposes is the presumptive term. Because the Code's system of presumptive sentencing allows judges to sentence beyond the "statutory maximum" based on their finding of aggravating factors, that system is incompatible with the holdings in Apprendi, supra, Blakely, supra, and Booker, supra. We, therefore, conclude that the Code's system of presumptive sentencing violates the Sixth Amendment's right to trial by jury.

[Id. at 484.]

In announcing the elimination of the presumptive term, the Court stated:

Judges will continue to determine whether credible evidence supports the finding of aggravating and mitigating factors and whether the aggravating or mitigating preponderate.

Although judges will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive. . . .

[Id. at 487-88.]

Here, the trial court imposed the maximum term of imprisonment on each conviction within each range, and then made the maximum term imposed on the convictions in Indictment Number 00-09-2565, five years' imprisonment, consecutive to those given on the convictions in Indictment Number 00-10-2860, within which indictment the court made the maximum term of five years imposed on the third-degree receiving stolen property conviction (count one), consecutive to the maximum term of ten years imposed on the second-degree aggravated assault while eluding conviction (count four).

Offender-based aggravating factors relate to the defendant's prior criminal convictions. Abdullah, supra, 184 N.J. at 503. Those factors must be analyzed as part of a reasonable balancing process, without the fixed point of a statutory presumptive. Natale II, supra, 184 N.J. at 488. "The touchstone is that the sentence must be a reasonable one in light of all the relevant factors considered by the court." Ibid.

In imposing an aggregate sentence of twenty years with ten years of parole ineligibility, the trial court cited the extent of defendant's prior criminal record. The judge found that under N.J.S.A. 2C:44-1a(6) and N.J.S.A. 2C:44-1a(9), this sentence was appropriate based on the aggravating factors of defendant's prior criminal record and the need to deter him from violating the law in the future. Arguably, the basis for the sentences imposed by the trial court were the offender-based aggravating factors. See Natale II, supra, 184 N.J. at 482; Abdullah, supra, 184 N.J. at 606, n.2. The findings of the trial judge on the aggravating and mitigating factors are supported by the record and are clearly explained. Roth, supra, 95 N.J. at 363.

However, in light of our reversal of the receiving stolen property conviction in Indictment Number 00-09-2565 and entry of a judgment of acquittal; our reversal of the receiving stolen property conviction in Indictment Number 00-01-2860 and the remanding of same for trial; the elimination of presumptive terms by Natale II, the fact that defendant's sentence was greater than the then-existing presumptive terms; the admonishment in Natale II to sentence defendants within the statutory ranges by balancing the aggravating factors; the discussion by the trial judge during sentencing that defendant otherwise appeared extended-term eligible; the establishment of parole ineligibility periods; and the imposition of consecutive terms, we vacate the sentences imposed and remand the matter for resentencing in accordance with the following procedures announced in Natale II, supra:

As a result of today's decision, we will order a new sentencing hearing in each affected case based on the record at the prior sentencing. At the new hearing, the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[184 N.J. at 495-96.]

See also Abdullah, supra, 184 N.J. at 504-12; State v. Young, 379 N.J. Super. 498, 514-15 (App. Div. 2005).

Defendant also argues that the trial court abused its discretion by sentencing him to maximum periods of parole ineligibility. We disagree.

In Abdullah, supra, 184 N.J. at 509, the Court stated:

In making a discretionary decision whether to impose a parole disqualifier, a court balances the same aggravating and mitigating factors used to determine the length of the sentence, but applies a stricter standard that reflects the serious impact that a parole disqualifier will have on the real time a defendant serves on his sentence.

Applying this stricter standard, N.J.S.A. 2C:43-6(b) allows the sentencing court the discretion to impose a parole disqualifier where the court is convinced that aggravating factors substantially outweigh the mitigating factors. Id. at 511. In Abdullah, the Court affirmed the constitutionality of that statute, holding that N.J.S.A. 2C:43-6(b) did not violate federal or state constitutional rights because the sentencing factors used for parole disqualification purposes "were neither intended by the Legislature to constitute elements of a crime nor were they transformed into constitutional elements when the judge used them[.]" Id. at 511-12.

Here, the trial judge ruled that he was "clearly convinced that the aggravating factors substantially outweigh[ed] any mitigating factors by it big time." The judge enumerated those aggravating factors on the record. As a result of the holding in Abdullah that parole ineligibility determinations based on the aggravating factors fall "squarely within the constitutional boundaries[,]" the court's imposition of parole ineligibility periods comports with applicable sentencing guidelines. Certainly, however, on remand the trial court should reconsider the parole disqualifier periods in light of its determinations on the resentencing ordered.

Defendant also argues that the trial court abused its discretion by running the sentence on three of his counts consecutively. In State v. Yarbough, 100 N.J. 627, 643-644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court developed the following criteria to be applied by the courts in deciding whether to impose concurrent or consecutive sentencing:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences are to be imposed are numerous;

(4) there should be no double counting of aggravating factors;

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense; and

(6) there should be an overall outer limit on the cumulation of consecutive sentences for multiple offenses not to exceed the sum of the longest terms (including an extended term, if eligible) that could be imposed for the two most serious offenses.

[Footnotes omitted.]

Defendant argues that under the third factor, the State failed to meet the criteria necessary to impose a consecutive sentence because the crimes involved constituted one extended period of aberrant behavior. However, the trial judge found differently, stating in pertinent part:

My reasoning is as follows. It seems to me that the conduct in driving the car, particularly on day 2, the incident in Orange, that the eludings that result therefrom do not deserve separate sentences in terms of taking in account the [Yarbough] factors, State v.[Yarbough], 100 N.J. 627 (1985), and while the statute as enacted enables me to do more than two consecutive sentences per [sentencing], I . . . understand that . . . the reason for the consolidation in this case that it was done -- by the way, with consent, without objection, was not because this really was one incident, was because the interplay between the . . . dropping off of the Cadillac and the BMW and the fact that pursuant to [N.J.R.E.] 404(b) the evidence of one case would end up being used with respect to the . . . other case, not because . . . this was one continuous event.

If, for example, there had not been that connection between the Cadillac and the BMW driving off together, if these were just two independent incidents without that . . . relationship, there never would have been a consolidation. This is not a single . . . event, so to speak.

Therefore, as far as I'm concerned, these crimes and their objectives were predominantly independent of each other. The possession of the stolen BMW resulting from, and I'm satisfied under the facts, and it's pretty clear that the proofs that he had -- that he knew or believed the . . . BMW was stolen was based upon the finding that he probably stole it himself.

The Cadillac is an entirely different theft. There's no proof that he stole the car. I believe the car was stolen and it was allegedly stolen in New York in any event. There's no proof as to his involvement in that, if any.

These involved -- the crimes were committed at different times, separate places. They involved multiple victims, and the convictions to which the sentences are to be imposed are numerous.

Based on the findings of the judge, which are supported by the record, the crimes can reasonably be interpreted as independent of each other. Finally, the Court ruled in Abdullah, supra, that there was no constitutional impediment to a judge deciding whether a defendant should serve consecutive sentences under the Code. 184 N.J. at 512.

Although we find no misapplication by the trial judge by imposing consecutive sentences upon the defendant, the consecutive nature of the sentences should be reexamined, in light of the Yarbough factors, taking into account the fact that the receiving stolen property convictions on count one in Indictment Number 00-09-2565, and on count one of Indictment Number 00-10-2860, have been reversed.

In summary, with the exception of the conviction on count one in Indictment Number 00-09-2565, which is reversed and a judgment of acquittal is entered, and the conviction on count one in Indictment Number 00-10-2860, which is reversed and remanded for retrial, defendant's convictions are affirmed. The sentences imposed are vacated and the matter is remanded for resentencing.

 
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

The judgment of conviction issued on March 15, 2002, in Indictment Number 00-09-2565, erroneously reflects under "FINAL CHARGES" that defendant was convicted of second-degree eluding on count three.

We recognize that some of the convictions were merged and dismissed.

In sentencing on the third-degree convictions in Indictment Number 00-09-2565, the trial court imposed the maximum term of five years' imprisonment on each conviction and then ran those concurrent with each other. We have since reversed defendant's conviction in that indictment of third-degree receiving stolen property.

This conviction has also been reversed, and it has been remanded for trial.

The maximum eighteen-month terms imposed on the fourth-degree convictions on counts three and five were made concurrent with the ten-year term imposed on the conviction in count four.

Except for consideration of the fact that the receiving stolen property conviction in Indictment Number 00-09-2565 has been reversed and remanded.

(continued)

(continued)

42

A-5612-03T4

August 11, 2006