STATE OF NEW JERSEY v. AL-WAHID ALI a/k/a ALFONSO ROBINSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6525-01T46525-01T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AL-WAHID ALI a/k/a

ALFONSO ROBINSON,

Defendant-Appellant.

_____________________________________________________________

 

Submitted September 14, 2005 - Decided February 9, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Ind. No. 99-10-1434.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Alison Perrone, Designated Counsel,

on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel; Patricia L.

Cronin, on the brief).

PER CURIAM

In a six-count indictment, defendant Al-Wahid Ali, also known as Alfonso Robinson, was charged with third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft, N.J.S.A. 2C:20-3 (count two); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count three); second-degree eluding, N.J.S.A. 2C:29-2(b) (count four); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6) (count five); and third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count six). On May 22, 2002, the jury convicted defendant of all counts except for count three (third-degree receiving stolen property).

On July 26, 2002, defendant was sentenced on count four (second-degree eluding) to an eighteen-year extended term as a persistent offender, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant received a consecutive five-year term with two years of parole ineligibility on count one (third-degree burglary), and a consecutive ten-year term with five years of parole ineligibility on count five (second-degree aggravated assault). The court also imposed a concurrent five-year term with two years of parole ineligibility on count two (third-degree theft), and a concurrent five-year term with two years of parole ineligibility on count six (third-degree criminal mischief).

On October 18, 2002, the court amended the judgment of conviction to clarify that the eighty-five percent period of parole ineligibility on defendant's second-degree eluding conviction applies to only the maximum base term of ten years rather than the eighteen-year extended term. Thus, as a result of resentencing on October 18, 2002, defendant received an aggregate prison term of thirty-three years with fifteen and one-half years of parole ineligibility.

Shortly after 2:00 p.m. on July 27, 1999, Anthony Marsillo was working as the used car manager at the Multi-Chevrolet car dealership on Route 22 in Union, when Mike Callanan, one of the car salesmen, came running inside, yelling that someone had stolen a dark blue Chevy Tahoe. Marsillo testified that Callanan had driven the Tahoe to the front of the showroom, "got out of the car to come [in to] get the prospective buyers and when he turned around, somebody drove off with the vehicle." The Sales Manager at Multi-Chevrolet immediately telephoned 9-1-1 to report the incident.

At the time of trial, the salesman, Mike Callanan, no longer worked at Multi-Chevrolet and he could not be located; however, Union Police Department Detective Dale J. Baird testified that Callanan's notarized statement contained the following information: "Question: Did you observe who left the parking lot with this vehicle? Answer: I just saw someone with a white shirt." Apparently, Callanan's statement did not contain any other information concerning the gender, race, clothing, or appearance of the person who drove off in the dark blue Tahoe.

At approximately 2:09 p.m. on July 27, 1999, Union Police Detective Glen Johnson and Officer Richard Giunta were patrolling in a marked police vehicle when they were advised of the theft of the Tahoe from Multi-Chevrolet. Johnson was driving the patrol vehicle. It was a clear, bright day and as Johnson and Giunta traveled east on Route 22, Johnson observed a dark blue Tahoe in the left lane, matching the description of the stolen vehicle. The Tahoe had only a Multi-Chevrolet advertising plate on the back, but no license plate.

After notifying headquarters of his observations, Johnson attempted to stop the Tahoe by activating his patrol vehicle's emergency lights and sirens. At that point, the distance between the patrol vehicle and the Tahoe was only one or two car lengths and there were no cars between them. The Tahoe did not stop or slow down. Instead, it accelerated to approximately sixty miles per hour, began changing lanes, and then entered the Garden State Parkway traveling north. Johnson followed the vehicle onto the Parkway, and other police vehicles joined in the pursuit. When the Tahoe reached the Union toll plaza, it struck another car from behind, and "in effect pushed the [other] car through the toll plaza." The other vehicle moved towards the shoulder after it went through the toll plaza, and the Tahoe continued traveling north on the Parkway with the police in pursuit.

At Exit 143, the Tahoe left the Parkway. While it was on the exit ramp, the Tahoe struck the curb, and then proceeded on the exit ramp to a "T-intersection." At the intersection, it went through a traffic light, collided with a van, and came to a stop. Johnson observed that there was only one person in the Tahoe--the driver.

After the Tahoe collided with the van, the driver of the Tahoe got out of the passenger side of the vehicle and began to run between two houses. There were no other pedestrians in the area. Johnson described the fleeing suspect as a black male in his forties, five feet ten or five feet eleven inches tall, weighing approximately 190 to 200 pounds, and wearing gray pants and a plaid flannel shirt. Johnson testified he was not sure if the suspect's pants were gray, and he acknowledged that he indicated in his written report that the suspect's pants were brown.

Officer Giunta, Detective Johnson's partner, checked on the condition of the van driver while Johnson and Officer Cook started chasing the suspect on foot. Cook had been patrolling in a separate vehicle when he received a radio transmission regarding the stolen Tahoe, and he had joined in the chase while the Tahoe was on the Parkway. Cook had observed the Tahoe collide with the van after it left the Parkway, and he also observed the suspect running from the passenger side of the Tahoe with Johnson running after him. During the chase, the suspect scaled a six-foot-high fence, and Johnson did not attempt to follow him over the fence, but Cook continued to chase the suspect over the fence. As Cook climbed the fence, he got to within three feet of the suspect and got a "good look" at the suspect's face. Cook continued to chase the suspect through the side yard of a house, and as he came to the front of the house, he observed the suspect on the ground pushing himself up on the grass across the street. According to Cook, he had lost sight of the suspect for only "a few seconds" during the chase. The suspect was wearing beige khaki-colored pants and a multi-colored shirt.

At defendant's trial, Cook positively identified the defendant as the man he had chased and arrested, and he was certain that the defendant was the same person that he saw running from the Tahoe after it collided with the van. When he was asked how he could be so certain that the man he arrested was the same man that he saw running from the Tahoe, Cook answered: "Because I observed him. I observed his clothing. I observed him."

When Detective Johnson was unable to scale the fence, he returned to his patrol vehicle. As he drove around the corner, he observed Cook handcuffing the defendant. Johnson testified he was "[a] hundred per cent certain" that Cook had apprehended the same individual that ran from the Tahoe. Johnson testified that he had a clear, unobstructed view of the defendant's face following the Tahoe's impact with the van. According to Johnson, defendant was tired, breathless and sweaty as he was being taken into custody. Johnson estimated that approximately one minute had passed after defendant exited the Tahoe until he was apprehended and arrested.

Officer Giunta also testified that he was "[a] hundred percent positive" that defendant was the same individual that fled from the Tahoe. In addition, Giunta checked the Tahoe and recovered a cellular telephone in a leather case by the brake and gas pedal. On the back of the phone was a piece of paper with the name Al-Wahid Ali handwritten on the tape with the telephone number 973-222-2608.

Defendant elected to testify at his trial. He told the jury that he was walking to his son's house when he was "struck from behind and robbed." According to defendant, he was knocked unconscious, and whoever robbed him took his wallet, his pager, and a chain. Defendant testified that after he regained consciousness, a police officer with a gun was standing over him and told him to stay down. Defendant testified that he told the police officer that he had just gotten robbed and that he did not do anything. Defendant denied that he was the person who had stolen the Tahoe from Multi-Chevrolet and he also denied that he was the person who the police had been chasing in connection with the theft of the Tahoe.

Defendant testified that because of previous injuries to his right knee and right hip, he walked with a limp and he used a cane on July 27, 1999. Defendant also testified that it was physically impossible for him to run or to scale a six-foot-high fence on the day of his arrest. During cross-examination, the assistant prosecutor asked if "this is one big case of mistaken identity," and defendant answered: "No doubt." When defendant was asked to demonstrate to the jury how he walked, the judge noted that "[t]he witness walks with a noticeable limp. He uses the cane for support on his right hand."

Detective Johnson and Officer Cook both denied that defendant ever mentioned anything about being robbed. In addition, the State called Union County Corrections Division Internal Affairs Investigator Stephen Pilot as a rebuttal witness. Pilot produced defendant's Union County Jail medical records. There was no mention in defendant's medical records that he complained of a head injury or leg injury or that he needed the assistance of a cane when he was admitted to the Union County Jail on July 28, 1999. Investigator Pilot also provided the following testimony:

Q. Okay. Now, did you know Mr. Ali while he was at the Union County Jail?

A. Yes, I did.

Q. All right. And did you have an opportunity to observe him in his -- during daily life at the Union County Jail?

A. Yes, I did.

THE COURT: Are you talking about in '99 now?

Q. Back in '99?

A. Yes, I did.

Q. And at that time do you recall whether or not Mr. Ali had any type of a limp?

A. Sometimes he did. Sometimes he didn't.

Q. Okay. What do you mean by that?

A. If you walked onto the floor he was on without anybody knowing, no, he didn't have one. If he seen you coming, yes, he did.

During his summation, defendant's attorney told the jury that Officer Giunta did not find defendant's cell phone in the Tahoe and that Officer Guinta's testimony was not credible or believable. Defense counsel also told the jury:

And these officers come in, whether it was because my client filed suit or for whatever reason, an hour after he testified about this, three of them come marching in and you know what I love about it? None of them wrote any kind of report. Yes, they all remember two and a half years ago my client did shadowboxing. I mean, if one of them remembered it, fine. If two of them remembered it, maybe. But for all three of them to come in and say they remember two and a half years ago a client, an inmate, they never wrote a report about was shadowboxing? All three of them? Ladies and gentlemen, the only way they could all three remember is that they agreed before they came into the courtroom that they remembered. Otherwise that, too, was total nonsense.

[Defendant] explained how he took two different buses and he explained how he traveled to the place in Irvington, heading for Hillside. He explained to you how he was attacked and how he was trying to get up when the police officer came.

I suggest to you, ladies and gentlemen, it is all believable. It's all credible. This is a case where the police got involved in a chase. I don't know whether their chasing caused the accidents that occurred. There were two. If they hadn't chased, maybe there would have been no accidents. So they are in a position where they could feel responsible for causing two accidents chasing somebody in a stolen car and then they felt [t]hey had to grab somebody. So some agile person hops out of that car, takes off a lot faster than the cops, hops a six foot fence, gets out of the sight of all the cops and they come chugging along and, unfortunately, they find my client getting up off the ground in his tan not gray pants and his plaid not white shirt and say ah-ha, we got our man. He must be the guy.

Ladies and gentlemen, he wasn't the guy. You have to deal with credibility of the witnesses. I've already talked somewhat about the officers at the jail who are being sued, the jail being sued by my client. About their memory, their recollections. It is clear that my client did lose his wallet. He didn't have any ID on him at all and with his record there is a problem being arrested and being ID'd. So there is no reason not to carry ID and most people who have ATM cards, credit cards, carry them because they use them. No reason not to carry them. He was carrying them that date and he in fact did get robbed.

Now, you heard my client has a prior criminal record and most of that record was quite awhile ago. Most of the convictions were in 1979, maybe 1983, another one in '88. Maybe one in '92 but, ladies and gentlemen, the Judge will instruct you for what purpose those convictions can be used. They have nothing to do with whether or not he committed this crime. They have to do with whether or not you decide to believe him.

The trial judge interrupted the State's summation for a sidebar conference concerning a note he received indicating that defense exhibit D-9, a classification form allegedly prepared by Dr. Ferdinand on August 16, 1999, indicating that defendant had injuries, was a forgery. Based on testimony provided by Dr. Ferdinand at a N.J.R.E. 104 hearing, the State was permitted to reopen its case. Dr. Ferdinand then testified before the jury that he was employed as a physician at the Union County Jail from July 17, 2000, to August 24, 2001, and that he could not have possibly prepared defense exhibit D-9 on August 16, 1999. Dr. Ferdinand wrote in a report in 2000 that defendant had injuries based on defendant's statements to him, and apparently D-9 was a copy of that report with the date altered to August 16, 1999.

The jury determined that defendant was not a credible witness. On May 22, 2002, defendant was convicted of all charges except for count three (receiving stolen property).

On appeal, defendant makes the following arguments:

POINT ONE

FLAGRANT AND RELENTLESS PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL. (Not Raised Below)

POINT TWO

DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT REFUSED TO INSTRUCT THE JURY ON CROSS-RACIAL IDENTIFICATION.

POINT THREE

THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE INTRODUCTION OF THE DEFENDANT'S REMOTE CONVICTIONS.

POINT FOUR

IMPOSITION OF AN EXTENDED TERM AND OF PRISON TERMS ABOVE THE PRESUMPTIVE WHICH INCLUDE PAROLE DISQUALIFIERS VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (Not Raised Below)

POINT FIVE

THE IMPOSITION OF CONSECUTIVE SENTENCES FOR DEFENDANT'S ELUDING, BURGLARY, AND AGGRAVATED ASSAULT CONVICTIONS IS CONTRARY TO THE PRINCIPLES OF STATE v. YARBOUGH, 100 N.J. 627 (1985), cert. denied, 475 U.S. [1014] (1986).

POINT SIX

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE TERM OF THIRTY-THREE YEARS WITH FIFTEEN AND A HALF YEARS OF PAROLE INELIGIBILITY BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

In a pro se supplemental brief, defendant asserts:

POINT I

THE TRIAL COURT ERRED BY NOT EXERCISING THE DISCRETION ALLOWED IT BY RULE 3:18-1 TO ORDER THE ENTRY OF A JUDGMENT OF ACQUITTAL AS THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO WARRANT ANY OF HIS CONVICTIONS.

POINT II

THE JURY'S VERDICTS WERE AGAINST THE WEIGHT OF THE EVIDENCE SINCE THE STATE CLEARLY FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THE IDENTITY OF THE DEFENDANT AS THE PERPETRATOR OF THE CRIMES IN QUESTION.

POINT III

THE TRIAL COURT'S CHARGE TO THE JURY WAS INADEQUATE AND MISLEADING, VIOLATING DEFENDANT'S RIGHT TO A FAIR TRIAL AND IMPARTIAL TRIAL, PURSUANT TO HIS CONSTITUTIONAL RIGHTS. U.S. CONST. AMEND. 14th, AND N.J. CONST. ART. I, PAR. 10.

A. THE FAILURE OF THE TRIAL COURT TO PROVIDE A JURY INSTRUCTION ON IDENTIFICATION WHERE THE SOLE DEFENSE WAS ONE OF MIS-IDENTIFICATION, DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL;

B. THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY AS TO HOW TO EVALUATE THE TESTIMONY OF THE POLICE OFFICER WITNESSES;

POINT IV

DEFENSE COUNSEL'S PERFORMANCE WAS DEFICIENT BECAUSE HE DID NOT MOVE FOR ACQUITTAL AT THE CLOSE OF THE STATE'S CASE NOR FOLLOWING THE JURY VERDICT. (Not Raised Below)

POINT V

DEFENSE COUNSEL'S PERFORMANCE WAS DEFICIENT BECAUSE HE FAILED TO MOVE UNDER R. 3:20 FOR A NEW TRIAL BASED UPON THE VERDICT BEING AGAINST THE WEIGHT OF THE EVIDENCE.

POINT VI

THE SENTENCING COURT ERRED IN APPLYING THE "NO EARLY RELEASE ACT" SINCE THE COURT FAILED TO CONDUCT THE REQUIRED HEARING TO DETERMINE WHETHER THE ACT WAS APPLICABLE. (Not Raised Below) (Supplement to Appellate Counsel'[s] Point V)

POINT VII

THE CUMULATIVE EFFECT OF THE TRIAL COURT'S ERROR VIOLATED THE COMMON LAW OF NEW JERSEY AND THE DUE PROCESS CLAUSE OF THE UNITED STATES CONSTITUTION. (Not Raised Below)

We have considered each of these arguments in light of the record, the briefs filed, 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 testified at trial that he was innocently present at the precise location where the perpetrator fled. During defendant's closing argument, his attorney claimed that the testimony by the police that they found defendant's telephone in the Tahoe was "just a total outright lie." In addition, he stated that the police officers were "interested witnesses," and he urged the jury to conclude that police witnesses were incredible and that certain testimony was "total nonsense." In response, the prosecutor forcefully commented upon defendant's testimony. Although there was no objection at the time, defendant now contends that his convictions must be reversed because the prosecutor's summation impermissibly denigrated the defense and deprived him of a fair trial.

During his summation, the prosecutor stated:

He's lying up a storm, ladies and gentlemen, and you don't have to believe anything he said and nothing he says is evidence unless and until you believe it and there's no basis to believe him in this case.

Oh, what a tangled web we weave when first we practice to deceive. Those words were said by Sir Walter Scott back in 1808 and probably we've never had a truer application than what you witnessed in this courtroom during these past few days. Mr. Ali has spun a fantastic web of lies in order to get you to believe that he didn't commit these crimes. He even got his son Al Tariq to come into court and to support that alibi and to support those lies as well.

Let's look at it, ladies and gentlemen. There's the false alibi, the fact that he was at one son's house and he was heading towards another son's house and he just happened to be walking along the way when he got robbed. There's the story about this robbery, this fictitious robbery that he made up out of thin air to try to support why he was there. There's the head injury that he complains of in court but that he never complained of back then. There's the complaints or the request for medical attention that he claims now he made but there's no record of him ever having made it. The fact that he called his son. All a bunch of lies.

The defendant concocted this whole defense and how do you know he did that? How did it all happen? Well, as he admitted, he received discovery in this case. Early on he gets all of the police reports, the statements. Everything having to do with this case he receives. He reads it. He studies it. He knows it backward and forward. He then is able to construct the lies and he says -- he has to work backward essentially. He can't say that at the time of the crime on July 27th that I was -- I, Al-Wahid Ali, was in France. He can't do that because he is arrested that day. He is apprehended in Irvington. So the story has to start in Irvington.

He doesn't have any identification on him. Well, that shouldn't be any surprise to anybody. I mean, he was out there that day looking to steal a car. He stole the car from Multi-Chevrolet. Why should [he] have identification on him? That is not going to be of value to him. He doesn't need any identification but he claims that, oh, I had identification. I was robbed that day. Again, just to fit [into] his version.

He can't say that he was running that day because that's what the police say. The police chased a man, a man who was running. He says I wasn't running. In fact I was walking towards -- to visit another relative that day. I was walking on the street. I had some ices and now I am walking. He doesn't want you to think he was able to run so he talks about the fact that he had the limp and all those injuries.

This cell phone. The cell phone issue. He claims that the cell phone was on him, on his person and not in the car. Every important fact that is of relevance to his guilt he's been able to turn around in an effort to try to convince you that he did not commit these crimes and it's up to you to determine which version is true, which version is honest, which version is reasonable.

He goes overboard, ladies and gentlemen. He claims that he has this terrible limp and he has to use a cane in order to walk. He claims a loss of consciousness. He was hit from behind and lost his consciousness. He was out cold. He claims that he had this head injury. All nonsense. All a bunch of nonsense. Never happened.

His story doesn't add up.

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999); accord State v. Harris, 141 N.J. 525, 559 (1995); State v. Williams, 113 N.J. 393, 447 (1988). "Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries." Frost, supra, 158 N.J. at 82. However, reversal is required when the prosecutor's misconduct was "so egregious that it deprived the defendant of a fair trial." Id. at 83. "To justify reversal, the prosecutor's conduct must have been 'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).

The facts underlying defendant's conviction are straightforward and uncomplicated. Officers Johnson, Cook, and Giunta positively identified the defendant as the person who they saw run from the stolen Tahoe after it collided with a van on July 27, 1999. After a short chase, defendant was taken into custody. This case turned on credibility, and the jury believed the police officers.

When viewed in the context of the entire case, and the State's summation as a whole, the remarks complained of did not have the capacity to deprive defendant of a fair trial. It was appropriate for the prosecutor to respond to defense counsel's attack on the integrity and credibility of the State's witnesses, and there was a specific evidentiary basis for the prosecutor's accusation of tailoring. See State v. Daniels, 182 N.J. 80, 98 (2004) ("Allegations of tailoring are specific when there is evidence in the record, which the prosecutor can identify, that supports an inference of tailoring."). While the prosecutor's summation was less than perfect, we conclude that any error was harmless beyond a reasonable doubt, State v. Macon, 57 N.J. 325, 336 (1971), and was not "clearly capable of producing an unjust result." R. 2:10-2.

Defendant also contends that the trial court erred in admitting his six prior convictions for impeachment purposes even though they were "sanitized" to preclude reference to the charges. See State v. Brunson, 132 N.J. 377, 391-92 (1993). Defendant argues that his six prior convictions were so remote that their admission constitutes an abuse of the trial court's discretion. 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. The trial judge carefully considered defendant's criminal history, including the issue of remoteness and his ruling is supported by the record. 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.

Defendant also challenges his sentence, which was imposed on July 26, 2002, claiming that the imposition of consecutive sentences and an extended term sentence violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). We disagree. The trial court correctly analyzed and applied the Yarbough guidelines in imposing consecutive sentences for the burglary and aggravated assault convictions. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). "[T]here is no presumption in favor of concurrent sentences and therefore the maximum potential sentence authorized by the jury verdict is the aggregate of sentences for multiple convictions." State v. Abdullah, 184 N.J. 497, 513-14 (2005). Thus, "the sentencing range is the maximum sentence for each offense added to every other offense." Id. at 514.

We also conclude 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).

The presumptive extended term for a persistent offender convicted of a second-degree crime is fifteen years. N.J.S.A. 2C:44-1(f)(1). Based on its finding that aggravating factors three, six, and nine were present and that there were no mitigating factors, the court imposed an eighteen-year extended term for the second-degree eluding conviction, and it imposed the maximum prison terms for the burglary and aggravated assault convictions. Therefore, "because defendant received a sentence higher than the presumptive term based on judicial findings other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment," State v. Natale, 184 N.J. 458, 489-90 (2005), and we remand for resentencing "based on the record at the prior sentencing." Id. at 495. The elimination of the presumptive terms also applies to extended terms embodied in N.J.S.A. 2C:43-7. Young, supra, 379 N.J. Super. at 514. Thus, although we do not view this career criminal's sentence as excessive, we deem it appropriate to remand for resentencing. The sentence, however, shall be no greater than the aggregate sentence originally imposed. Natale, supra, 184 N.J. at 496.

 
Defendant's convictions are affirmed, and the matter is remanded for resentencing consistent herewith.

_____________________________________________________________

WECKER, J.A.D., concurring.

I write separately to emphasize several improprieties in the assistant prosecutor's summation, which my colleagues characterize as "less than perfect." I recognize that certain of the prosecutor's unprofessional comments about the defense case mirrored defense counsel's comments about the State's case. For example, the prosecutor described the defense case as "a bunch of nonsense" after defense counsel described the State's case as "total nonsense." And the prosecutor described defendant's testimony as "a bunch of lies" and defendant as "lying up a storm" after defense counsel described certain police officers' testimony as "a total lie."

But the prosecutor here crossed the line when he used defendant's right to receive discovery materials, see R. 3:13-3, and to use those materials to meet the State's case, generally to suggest some impropriety in the exercise of those rights. Here, irrespective of incredible evidence offered by the defense in the form of an altered medical record, there was no specific evidence of "tailoring" that made the prosecutor's remarks appropriate under State v. Daniels, 182 N.J. 80, 98 (2004).

In Daniels, the Court held that "generic accusations of tailoring debase the 'truth-seeking function of the adversary process,' violate the 'respect for the defendant's individual dignity,' and ignore 'the presumption of innocence that survives until a guilty verdict is returned.'" Id. at 98 (quoting Portuondo v. Agard, 529 U.S. 61, 76, 120 S. Ct. 1119, 1129, 146 L. Ed. 2d 47, 60 (2000) (Stevens, J., concurring)). Justice Zazzali, writing for a unanimous Court in Daniels, concluded: "Therefore, pursuant to our supervisory authority [over the proper administration of criminal justice], we hold that prosecutors are prohibited from making generic accusations of tailoring during summation." Ibid. By contrast, the Court held that when there is a specific accusation of tailoring, the prosecutor may comment "in a limited fashion." Id. at 99. While noting certain specific examples where the defendant was likely to have tailored his testimony, id. at 100-01, and where the prosecutor's summation, "without adding more, . . . would have been fair comment," id. at 101, the Court nonetheless reversed the defendant's conviction because of the prosecutor's additional more generic remarks about tailoring.

[T]he prosecutor further remarked that

the defendant sits with counsel, listens to the entire case and he listens to each one of the State's witnesses, he knows what facts he can't get past . . . . But he can choose to craft his version to accommodate those facts.

Thus, the prosecutor's comments highlighted the fact that defendant was able to "sit" in the courtroom during trial, enabling him to "listen[]" to other witnesses testify. Then, the prosecutor urged the jury to infer that defendant thus "craft[ed] his version." These comments are precisely the type that a prosecutor is prohibited from making, even when the record indicates that defendant tailored his testimony.

[Ibid].

Here, the prosecutor's generic remarks respecting defendant's access to the State's discovery materials were as improper as the generic remarks respecting the defendant's tailoring in Daniels. I recognize that the right to discovery is a right afforded by our Court rules and may not rise to the level of a constitutional right, such as the right to be present at trial and to confront the State's witnesses addressed in Daniels. Nonetheless, it is an essential aspect of the Supreme Court's rules for the fair administration of our criminal justice system.

The prosecutor here misstated the law in a critical area the State's burden of proof. The prosecutor exhorted the jury: "It's up to you to determine which version is true, which version is honest, which version is reasonable." That argument dilutes the State's burden of proving the elements of the crime beyond a reasonable doubt. It implies that the State's burden is merely to establish a preponderance of the evidence; it also implies that defendant bears the same burden to establish that his version is more likely true than the State's.

It is axiomatic that while a prosecutor may argue vigorously in summation, that vigor must be tempered by appropriate restraint in the service of justice. Despite my strong reservations about the prosecutor's conduct in this summation, I concur in the result for two reasons. First, I am satisfied that the judge's instructions respecting the State's burden of proof superseded the prosecutor's error in that regard, and second, I cannot conclude that the prosecutor's ill-chosen remarks denied defendant a fair trial. Without quoting the charge at length, the record reveals that the trial judge initially instructed the jury that it must follow his instructions, and not any statements of the attorneys, about what the law is. The judge repeatedly and forcefully instructed the jury that the State had the burden of proving that defendant was the person who committed the crimes charged, and proving defendant guilty beyond a reasonable doubt. The judge explicitly instructed that the defendant had no burden of proving his innocence, and explained the difference between proof beyond a reasonable doubt and proof by a preponderance of the evidence.

There was damning evidence against defendant that was unrefuted, destroyed his credibility, and made the verdict virtually inevitable. The State established that defendant had produced an altered medical report that appeared to corroborate certain physical limitations on the day of his arrest, limitations that would have prevented him from running and jumping a fence, conduct attributed to the perpetrator of these crimes. The State produced the physician who had signed the original report. In light of the physician's testimony that he was not yet employed as a physician at the jail on the date that appeared on the photocopied report in evidence, any doubt previously engendered by any of defendant's testimony evaporated.

 
I therefore concur in the disposition of defendant's appeal.

The prosecutor also misstated the law in another respect. After accurately telling the jury, "You don't have to believe anything [defendant] said . . . ," the prosecutor erroneously told the jury that "nothing he says is evidence unless and until you believe it . . . ." Defendant's testimony is evidence unless it is excluded by the judge, although the jury may or may not believe it or give it any weight.

According to trial testimony, the document D-9 in evidence, a photocopy showing the signature of Dr. Ferdinand, included a history of "right knee torn ligament" and appeared to bear a date of August 16, 1999. But S-26 in evidence was the original from which that photocopy was made. It was identified by Dr. Ferdinand, and it actually bore the date February 16, 2001. Dr. Ferdinand testified that he was not employed at the Union County Jail until after August 1999.

(continued)

(continued)

22

A-6525-01T4

6

A-6525-01T4

February 9, 2006