STATE OF NEW JERSEY v. ROBERT J. JONES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6256-03T46256-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT J. JONES,

Defendant-Appellant.

_______________________________________________________________

 

Submitted March 15, 2006 - Decided April 6, 2006

Before Judges Wefing, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Ind. Nos.

03-02-0367-D and 03-08-1489-D.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Diane Uniman, Designated Counsel,

of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (Yasmeen Shihabi,

Assistant County Prosecutor, of counsel and

on the brief).

PER CURIAM

In a two-count indictment, defendant Robert J. Jones was charged with third-degree burglary of an automobile, N.J.S.A. 2C:18-2 (count one); and fourth-degree possession of a scanner during the commission of a crime, N.J.S.A. 2C:33-22 (count two). He was also charged with possession of burglary tools, a disorderly persons offense. A jury found defendant guilty of both counts, and the trial court found defendant guilty of the disorderly persons offense. Subsequently, on December 10, 2003, defendant pled guilty to fourth-degree possession of a motor vehicle master key, N.J.S.A. 2C:5-6(a) (count one), of a separate indictment. In exchange for the guilty plea, the State agreed to request the dismissal of another charge, and it agreed to a concurrent sentence.

On December 19, 2003, defendant was sentenced to a seven-year extended term as a persistent offender, with a three-year period of parole ineligibility for third-degree burglary. He also received a concurrent eighteen-month term for possession of a scanner, a concurrent six-month custodial sentence for possession of burglary tools, and a concurrent fifteen-month term for possession of a motor vehicle master key.

Defendant's appeal of his sentence was placed on an oral argument calendar. R. 2:9-11. In our order of May 25, 2004, we noted that defendant's presentence report showed (1) the bulk of defendant's prior offenses were directed at property, as opposed to persons; (2) three of defendant's prior convictions resulted in periods of incarceration of sixty days or less; and (3) defendant remained offense-free for a period of more than five years following his release from prison. We therefore remanded the matter to the trial court to consider whether an extended sentence "is necessary for the protection of the public." State v. Dunbar, 108 N.J. 80, 90 (1987) (internal quotation marks omitted). We also instructed the trial court to determine whether an extended sentence is necessary "to deal with [this] particular defendant in the context of the offense committed." Id. at 91.

At the remand hearing on July 2, 2004, defendant's attorney asked the trial court not to impose an extended term, but if an extended term was to be imposed, then defendant's attorney asked for a "low end" sentence without any parole ineligibility. The assistant prosecutor, on the other hand, argued that defendant "is a ten do five guy. In the State's opinion, he should have been sentence[d] to ten years do five." The assistant prosecutor also indicated that the record he created at sentencing "was unsatisfactory. It was a horrible record . . . and if the Appellate Division relied on that record then I'll take the blame for that, but we now have his criminal history."

The trial court determined that the initial sentence was appropriate, and it imposed the very same sentence. Its statement of reasons for doing so included the following:

[T]he Appellate Division remanded this matter, and the criminal history has been updated. It had shown, 18 arrests with 13 convictions. It now shows 23 arrests, 12 indictable convictions, three municipal convictions, four dismissed cases, two no bill cases and two dispositions that are unreported. In 1976 he was found guilty of breaking and entering with intent to steal. There was no judgment of conviction submitted by the Prosecutor on that case. Three months before being sentenced on that the defendant was arrested and charged with attempted robbery, robbery and assault charges were dismissed. Twelve days before being sentenced on the other matter the defendant was arrested and charged with robbery[,] carrying a prohibited weapon and committing a crime while armed. Charges were amended to larceny. The defendant was sentenced to three days jail time. In July of '79 he was sentenced on three different indictments for two crimes of breaking and entering with intent to steal and a separate attempted robbery. He was sentenced to five years state prison on that. He spent one year in prison for these crimes and was paroled in July of 1980. Three months after being paroled he was arrested and later indicted for receiving stolen property, possession of a weapon, possession of narcotics equipment. Charges were dismissed. Two months after that arrest he was arrested and indicted indictment 5858-80S for possession of a weapon, possession of a handgun without a permit, possession of a controlled dangerous weapon. He pled guilty to burglary. Also charged with theft by receiving stolen property and burglary.

And he also pled guilty to possession of a handgun without a permit and received the five-year prison sentence in April of '81.

Then in '81 is when he went on this crime spree. In six separate indictments including two counts of armed robbery pled to one, armed robbery on another indictment, ag[gravated] assault, possession of a weapon by a convicted person, two counts of armed robbery, pled to one count on another. Possession of a weapon by a convicted person on another then he had a conspiracy indictment dismissed and then a conspiracy and uttering savings bonds through the U.S. marshal that there is a disposition unknown. As a result of all of those and that crime spree he was sentenced to 20 years state prison in '81. He spent 15 years in prison. 15 years, and it was a 40-year sentence. Forty years do 15. Forty do 15, and he did 15 and he was not paroled until 1996. And he was on parole until he was terminated from parole by my review in January of '02. And then in January of '03 one year after he was terminated from parole he was arrested and indicted for the crimes which he is before the [c]ourt on and an accompanying DP offense. After being indicted on those charges he was again arrested three months later for possession of master keys, possession of a scanner during a crime.

. . . .

Defense counsel argued the [c]ourt should have found mitigating factor 11, and you're correct, I should have, and I now so find, however marginal it may be.

. . . .

Obviously, the punishment should fit the crime and not the criminal. Primary motivation behind the creation of the persistent [offender] status is to deal with a defendant in the context of the offense committed. Therefore, the species of the crime is the primary focus in analyzing this prong, but it is not the only focus. In 1979 when this defendant was sentenced on three indictments after pleading guilty to two counts of breaking and entering and one count of attempted robbery the sentencing judge, who I believe was Judge Greenberg, said, quote, "Defendant seems at this point to be the type of person who is either unable or unwilling to live as a law abiding citizen. Previous incarcerations and reformatory has not served to deter criminal conduct on his part. A state prison sentence of some substantial duration is required as the only measure which may further deter future criminal conduct." That was a JOC July 13th, '79.

Then in '81 he pled guilty to a burglary, theft by receiving stolen property and possession of a handgun. The [c]ourt then said in April of '81 "this is the defendant's sixth conviction, and he still has a number of charges pending." The [c]ourt's intention was to isolate him from society for as long as possible under the current charge.

Finally, after his 1981 what I call crime spree the sentencing judge said, "Defendant has an extensive prior criminal record demonstrating lawless conduct ever since his 18th birthday. The present offense involved a spree of armed robberies. The weapon was a sawed off shotgun. Prior jail terms have not deterred the defendant, an opportunity for rehab at Yardville has had no effect. The paramount considerations are now punishment and the isolation of a lawless and dangerous individual from society. The defendant in a letter expresses concern for the welfare of his three" -- this is in '81 -- "for the welfare of his three children borne of two paramours. As defendant has not bothered to support them the [c]ourt's not impressed with any potential hardship his incarceration would cause them. Perhaps he should have thought of the potential consequences of his repeated criminal conduct." And that's in July of 1981 . . . . [I]f he were too young and immature to think about those things before 1981 then while he was doing 15 years in state prison he surely should have thought of it before he got out and within 12 months after being released from parole started committing new crimes.

Lastly is the fact that . . . after a 15-year sentence six years on parole, one year of no supervision he, again, was arrested and started all over again. It was apparent that he began to merge right back into his criminal activity.

The third prong under Dunbar says that "once the decision to [im]pose an extended term is made the [c]ourt then returns its focus to the offense . . . ." and I thought I did that. I didn't give him 10 years like the prosecutor argued based on his horrendous prior record, those armed robberies, sawed off shotguns and all that. I focused on this offense and determined rightly or wrongly that the presumptive term, taking the offense into account, that he had a knife, that the other guy came out with a gun, the other guy would have never known if he wasn't a light sleeper. It happened in the middle of the night. He broke into a car. I considered all that, and said, okay, I'm going to do the extended term, but I'm not going to go above the presumptive level because there was no sawed off shotgun, there were no shots, there was no stabbing. But the potential was there for some serious injury. So I went right with the presumptive.

. . . .

Therefore, I . . . conclude that [aggravating factors] three, six and nine clearly and substantially outweigh the very marginal 11, and taking into account the offense as the primary thing, but the overall record and everything else with this defendant I am more than satisfied . . . with the seven years New Jersey State Prison with a three-year period of parole ineligibility and everything else as far as the statutory penalties the same as was ordered the first time.

Defendant now presents the following arguments:

POINT I

DEFENDANT'S SENTENCE WAS EXCESSIVE AND VIOLATED PRINCIPLES OF BLAKELY v. WASHINGTON (RAISED BELOW)

POINT II

FAILURE OF THE JUDGE TO RECUSE HIMSELF WAS PLAIN ERROR AND AN ABUSE OF DISCRETION AND DENIED DEFENDANT A FAIR TR[IA]L (NOT RAISED BELOW)

POINT III

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION TO ALLOW PRIOR CONVICTIONS INTO TRIAL FOR PURPOSES OF IMPEACHMENT IF THE DEFENDANT TESTIFIES OR CALLS CHARACTER WITNESSES (RAISED BELOW)

POINT IV

THE DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEREIN COUNSEL FAILED TO REQUEST RECUSAL OF JUDGE (NOT RAISED BELOW)

POINT V

THE FACT FINDING OF THE JURY WITH RESPECT TO CONVICTION OF BURGLARY WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW)

After reviewing each of these arguments in light of the record and the applicable law, we conclude that defendant's contentions lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.

Defendant claims that his sentence to an extended term of seven years in prison with three years of parole ineligibility violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159 L. Ed. 2d 851 (2004). We conclude, however, that the judicial fact-finding necessary to determine defendant's eligibility for an extended term as a persistent offender, N.J.S.A. 2C:44-3(a), did not violate Blakely because it was predicated on his prior criminal record. State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002).

Defendant argues that the trial court erred in ruling that his prior convictions, "sanitized" to preclude reference to the charges in accordance with State v. Brunson, 132 N.J. 377, 392 (1993), would be admitted for impeachment purposes if defendant were to testify. The claim is cognizable on appeal despite defendant's decision to refrain from testifying. See State v. Whitehead, 104 N.J. 353, 360-61 (1986).

The trial judge carefully considered defendant's criminal history, including the issue of remoteness and his ruling is supported by the record. In State v. Sands, our Supreme Court held that "whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge." 76 N.J. 127, 144 (1978). The Court also noted that evidence of prior convictions should ordinarily be admitted into evidence, and the "burden of proof to justify exclusion rests on the defendant." Ibid. In the present case, defendant had received a twenty-year sentence in 1981, and he was not paroled until July 31, 1995. Thus, the absence of criminal activity for a significant period of time was attributable to the time spent in custody. Had defendant testified, it would have been improper to prevent the jury from considering his disregard for the rules of ordered society in evaluating his credibility. See State v. Morris, 242 N.J. Super. 532, 544-45 (App. Div.), certif. denied, 122 N.J. 408 (1990). Given defendant's pattern of repeated disregard for the law, it is clear that the convictions ruled admissible were not so remote as to warrant exclusion. N.J.R.E. 609; State v. Sands, supra, 76 N.J. at 144-47.

The trial judge did not evince any bias, prejudice, or ill will towards defendant, and there is nothing in the record to support defendant's claim that the trial judge's failure to recuse himself was plain error and an abuse of discretion. Defendant received a fair trial and a fair sentence, and there is nothing in the record which might reasonably lead counsel or defendant to a contrary conclusion. R. 1:12-1(f). Moreover, defendant's attorney was not ineffective or deficient for failing to present arguments that we now find to be without merit.

Lastly, defendant asserts that the burglary verdict was against the weight of the evidence. That argument is procedurally barred because defendant failed to move for a new trial based on that ground. R. 2:10-1; see, e.g., State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). If we were to consider the issue, however, it is clear that the testimony of Ronald Boskett, the complaining witness, provided a sufficient basis for a burglary verdict.

Affirmed.

 

(continued)

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11

A-6256-03T4

RECORD IMPOUNDED

April 6, 2006