STATE OF NEW JERSEY v. JAMES J. RAMSEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6471-04T46471-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JAMES J. RAMSEY,

Defendant-Appellant.

__________________________________

 

Submitted September 27, 2006 - Decided November 15, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-08-1917.

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

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Michael J. Costanzo, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals his conviction and sentence for second- degree robbery. We affirm the conviction but vacate the sentence imposed and remand for re-sentencing pursuant to State v. Natale, 184 N.J. 458 (2005). (Natale II).

These are the facts presented to the jury. On June 25, 2004, the victim, a gas station attendant at the Seaview Shell gas station in Ocean Township, was working the early evening shift when he observed a black vehicle pull up to the gas pumps behind another vehicle, but then leave a few seconds later. Approximately fifteen minutes later, the victim saw the same car return, at which time the driver asked for three dollars worth of gas and then exited the vehicle. There were no other vehicles in the station and, because it was evening and he was working alone, the victim felt uneasy. He wrote the license plate number of the vehicle on his hand while the gas tank was being filled. When the pump clicked off, the victim saw the driver lean over into the car and thought the driver was getting money. Instead, the driver stood up, grabbed the victim around the neck, and tried to stick the victim in the stomach with an object. The victim deflected the object away from his upper body, but not before recognizing that the object was an empty Budweiser bottle. The victim gave the driver the money he had in his pocket, and the driver ran back into the car and sped away.

The victim described his assailant as a black male, between thirty and forty years old, with short hair and a graying beard. Police located the vehicle, which was registered to defendant's girlfriend, three days later. The victim identified defendant from a photo array. Although defendant denied committing the robbery, he acknowledged patronizing the gas station and indicated that he had been to the gas station earlier on the day of the robbery.

Defendant was indicted on one count of first-degree armed robbery (Count One), N.J.S.A. 2C:15-1; one count of possession of a weapon for an unlawful purpose (Count Two), N.J.S.A. 2C:39-4(d); and one count of unlawful possession of a weapon (Count Three), N.J.S.A. 2C:39-5(d). The jury convicted defendant of the lesser-included offense of second-degree robbery and acquitted defendant of the weapons offenses. The State moved to sentence defendant to an extended term as a persistent offender, but the court denied the motion. Defendant was sentenced to ten years imprisonment, with an eighty-five percent No Early Release Act (NERA) parole disqualifier. N.J.S.A. 2C:43-7.2. Appropriate fines and penalties were imposed.

Defendant raises the following points on appeal for our consideration:

POINT I

THE TRIAL JUDGE ERRED IN PERMITTING A REFERENCE TO "ARREST WARRANT" TO BE HEARD BY THIS JURY. (Not Raised Below).

POINT II

A SENTENCING REMAND IS MANDATED AS THE MAXIMUM TERM IMPOSED VIOLATES THE HOLDING IN STATE V. NATALE. (Not Raised Below).

POINT III

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that the issue presented in Point I is without sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2).

(i)

Defendant claims that the evidence presented to the jury about his arrest warrant was irrelevant, prejudicial, and deprived him of a fair trial. State v. Alvarez, 318 N.J. Super. 137 (App. Div. 1999). Initially, we note trial counsel raised no objection to this testimony. Thus, we evaluate this contention under the standard of Rule 2:l0-2, namely, whether references to the warrant were clearly capable of producing an unjust result.

Detective Clancy, the lead detective in the matter, made two references to an arrest warrant during his testimony. He testified that following the victim's selection of defendant as the assailant from the photo array, he "responded back to the Ocean Township Police Headquarters where [he] prepared a criminal warrant for Mr. Ramsey's arrest for armed robbery." The second reference occurred when Clancy testified that after defendant was located, he advised defendant that he "had an arrest warrant for armed robbery for [defendant]."

We discern no prejudice to defendant as a result of these remarks. Unlike the references to warrants in Alvarez, supra, 318 N.J. Super. at 141-42, and State v. Milton, 255 N.J. Super. 514 (App. Div. 1992), Clancy's testimony does not imply that the arrest warrant was the result of judicial imprimatur on the question of probable cause; rather, the testimony, if anything, implies that Clancy issued the warrant.

(ii)

The court sentenced defendant to ten years imprisonment, the maximum sentence authorized for a second degree offense. Because the court "start[ed] with the presumption of a seven-year term and work[ed] [his] way up or down," ultimately imposing the ten-year term, the State concedes that defendant is entitled to re-sentencing consistent with Natale, supra, 184 N.J. at 496. Consequently, we need not address defendant's claim that his sentence was excessive.

We affirm the conviction and remand for reconsideration of sentence in light of Natale II.

 

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A-6471-04T4

November 15, 2006