STATE OF NEW JERSEY v. BRENSTON E. AYERS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0389-04T4A-0389-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRENSTON E. AYERS,

Defendant-Appellant.

____________________________

STATE OF NEW JERSEY, A-0468-04T4

Plaintiff-Respondent,

v.

EMMANUEL HARRISON,

Defendant-Appellant.

______________________________

 

Submitted January 8, 2007 - Decided

Before Judges S.L. Reisner, Seltzer and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-02-0364.

Yvonne Smith Segars, Public Defender, attorney for appellants (Alison Perrone, Designated Counsel, on the brief for appellant Ayers; Alan I. Smith, Designated Counsel, on the brief for appellant Harrison).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Annmarie Cozzi, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendants, Emmanuel Harrison and Brenston Ayers, appeal from their convictions, following a jury trial, for conspiracy and weapons charges arising out of a failed attempt to commit a home-invasion armed robbery. They also appeal from their aggregate sentences of fourteen years with an 85% parole bar.

Each defendant was convicted of second-degree conspiracy to commit armed robbery, in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a); third- degree unlawful possession of a Taurus nine-millimeter handgun without a permit, in violation of N.J.S.A. 2C:39-5(b); and second-degree possession of a handgun by a convicted felon, in violation of N.J.S.A. 2C:39-7(b). After merging the convictions for possession of a firearm for an unlawful purpose into the convictions for conspiracy to commit armed robbery, the trial judge imposed the following sentence on each defendant: a seven-year term of imprisonment with 85% parole ineligibility for the armed robbery conspiracy; a concurrent term of four years for unpermitted possession of a handgun; and a consecutive term of seven years, with five years of parole ineligibility, for each defendant's separate conviction for possession of a weapon by a felon.

Since the defendants were tried together and raise many of the same issues, we have consolidated the appeals for purposes of this opinion. We affirm the convictions but remand for reconsideration of the imposition of consecutive sentences.

I

To briefly summarize, the trial evidence would permit a jury to find the following facts. Defendant Harrison was recruited by Peter Seldin to assist him and Vasilios "Billy" Sotiropoulos in robbing the home of Sotiropoulos' cousin, Patroula Tolos. She lived with her husband, a successful restaurateur, in an affluent and rather secluded section of Englewood Cliffs, New Jersey. According to Seldin and Sotiropoulos, they initially planned to burglarize the house but then realized that they would not be able to disable the burglar alarm. Accordingly, Seldin recruited Harrison to assist them in committing an armed home invasion while Mrs. Tolos was at home. Harrison in turn recruited Ayers to assist him.

Neither Seldin nor Sotiropoulos planned to actually commit the crime themselves, but Seldin and another co-conspirator, Christopher O'Hare, were to drive with Harrison and Ayers from New York to the vicinity of the Tolos home. Once in the neighborhood, Harrison was to pretend to deliver flowers to the house and push his way in when Mrs. Tolos answered the door. Then he and Ayers would tie her up, lock her three children in a bathroom, and intimidate her into revealing the location of a large sum of cash Sotiropoulos believed was kept in the house. Only Harrison and Ayers were to drive to the Tolos house; Seldin and O'Hare were to wait for them in a parking lot across from the Royal Cliffs Diner, which was near the house.

However, on July 11, 2002, the day of the planned robbery, Mrs. Tolos saw two cars, a black Nissan Maxima occupied by defendants and a black Nissan Altima occupied by several white males, driving repeatedly past her house. She saw the Altima stop near her home and saw one of the occupants apparently gesturing toward her house. Thereafter she saw the Maxima passing by her house at least eight times. Fearing a possible burglary attempt in the offing, she called the police several times over the course of two and a half hours to report her observations and her urgent concern for her safety and that of her children. In particular, she told the police that she had observed an Altima occupied by several white males, and a black Maxima occupied by two black males, one of whom was wearing a red shirt. She reported that both cars had New York license plates.

Officer Wicker of the Englewood Cliffs Police Department responded to Mrs. Tolos' first call, but was unable to find the Nissan vehicles in the area. As he returned to the police station, he was advised that Mrs. Tolos had called again, reporting once again a black Maxima with New York plates and two black male occupants. At the suppression hearing, Wicker testified that as he was on his way out the station house door, he thought he also heard the dispatcher mention a "red shirt." As he was driving around Mrs. Tolos' neighborhood, he spotted a black Maxima with New York plates and two black male occupants. He began following the vehicle, which turned left into the Royal Cliffs Diner. As Wicker followed the car, the Maxima pulled behind the diner into a parking space. Wicker parked his patrol car behind the Maxima so as to block it from leaving and directed the two black males, who had exited the car, to return to their vehicle.

Wicker approached the driver, later identified as Ayers, who was unable to produce identification, driver's license or registration for the car. Ayers initially claimed he did not know who owned the car. Lieutenant Murray, who had followed Wicker from the police station, arrived shortly thereafter, approached the Maxima's passenger side and began speaking to Harrison, who was wearing a red shirt. Harrison also claimed he had no identification, but claimed that the car belonged to Ayers' boss "Pete." Harrison had two large pots of flowers on the floor between his feet, and he told Murray that he and Ayers were delivering the flowers for Pete. Neither defendant could tell the officers Pete's last name. As he questioned Harrison, Murray glanced through the rear window of the Maxima and saw a clipboard with a sheet of paper bearing the name "Pat Tolos." He confirmed with Wicker that this was the name of the woman who had called the police.

Suspecting that the car was stolen, Murray asked Harrison to check the car's glove compartment for vehicle identification information. However, Harrison, who stood six feet, one inch tall, and weighed 270 pounds, took up the entire passenger area of the car with the plants at his feet, and was unable to comply. When Harrison was likewise unable to produce any personal identification, Murray asked him to get out of the car. Murray then leaned in and began moving the plants out of the way so that he could open the glove compartment himself. Immediately upon moving the plants, Murray spotted a handgun on the floor of the car. He quickly slipped the gun into his waistband, called out to Wicker that there was a gun, and told Harrison and Ayers to put their hands on the trunk of the car. The officers then handcuffed the two defendants, advised them of their Miranda rights, and placed them separately in the backs of their squad cars.

The officers subsequently searched the Maxima in the diner parking lot while defendants waited to be transported to police headquarters. The officers discovered: (1) two walkie-talkies; (2) three rolls of duct tape; (3) heavy gauge cable ties, commonly used as temporary handcuffs by law enforcement; (4) two pairs of brand new gloves; (5) wire cutters; (6) a box of surgical gloves; (7) a receipt for the purchase of two chrysanthemums dated July 11, 2002, at 9:20 a.m.; (8) a shopping bag from the Metropolitan Plant Exchange; and (9) a clipboard with a piece of paper containing the word "flowers," Tolos' name, and a line with an "x". They also recovered a piece of paper from inside the car containing the name "Pete" and a telephone number which was later found to belong to a cell phone used by a business called "Golden Ventures" that was co-owned by Peter Seldin. Additionally, Murray retrieved from the ground next to the passenger side of the Maxima a rolled-up piece of paper on which Tolos' name had been written and a map had been drawn depicting directions from the Royal Cliffs Diner to the Tolos home. On returning to the police car, Murray questioned defendants, who insisted that "Pete" had offered them $100 to deliver the flowers and that Pete was waiting for them at a bus stop near the diner.

Meanwhile, seeing the police cars in the neighborhood, Seldin and O'Hare decided that something had gone wrong and took a cab back to New York, where they lived.

Eventually, Seldin was arrested for unrelated drug charges and, in connection with that arrest, offered police information about the Englewood Cliffs robbery attempt. Seldin and Sotiropoulos made plea deals that required them to testify against Harrison and Ayers. Seldin, who had several prior drug convictions, was sentenced to five years in prison with five years parole ineligibility, but with the right to move for re-sentencing to a three-year parole bar if he testified truthfully against Harrison and Ayers. Sotiropoulos received a three-year sentence. Both men testified at defendants' trial.

In addition to testifying about the robbery attempt itself, they both testified that shortly after Harrison and Ayers were arrested, they began contacting Seldin and Sotiropoulos to demand bail money. Sotiropoulos also testified that after their families bailed them out, the two defendants approached him in New York in August and demanded that he give them $50,000 or they would implicate him in the crime.

Harrison and Ayers gave contradictory testimony at the trial. According to Harrison, their only purpose in going to Englewood Cliffs was to deliver flowers to Seldin's girlfriend. He claimed he knew nothing about a robbery or burglary and did not agree to participate in any crime. Ayers testified that he agreed to help Harrison deliver some flowers for Seldin. However, he claimed that once they arrived in Englewood Cliffs he learned that Seldin wanted to commit a burglary. According to Ayers, he agreed to participate in the burglary but refused to continue his participation once he learned that Seldin was instead planning to commit an armed robbery. Ayers denied possessing a gun or agreeing to be involved in a crime in which a gun would be used.

II

On this appeal, defendant Ayers raises the following arguments:

POINT I: DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT II: THE PROSECUTOR DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL BY SUGGESTING THAT DEFENDANT HAD TAILORED HIS TESTIMONY BASED ON THE TRIAL EVIDENCE. (Not Raised Below).

POINT III: THE TRIAL COURT ERRED IN ADMITTING EVIDENCE OF DEFENDANT'S ALLEGED POST-ARREST ENCOUNTER WITH ONE OF THE CO-CONSPIRATORS.

POINT IV: THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 104 (1986).

POINT V: THE COURT ABUSED ITS DISCRETION IN IMPOSING A FOURTEEN-YEAR TERM.

Defendant Harrison raises the following appellate arguments:

POINT I: DEFENSE COUNSEL'S FAILURE TO RECOGNIZE THE EXISTENCE OF THE "CORE ANTAGONISM" OF MUTUALLY EXCLUSIVE DEFENSES BETWEEN THE DEFENDANT AND CO-DEFENDANT AYERS AND THE FAILURE TO SEVER THE DEFENDANT'S TRIAL FROM CO-DEFENDANT AYERS CONSTITUTES INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).

POINT II: THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS EVIDENCE.

A. The Initial Encounter With Officer Wicker And Lieutenant Murray Constituted A De Facto Arrest That Was Not Supported By Probable Cause.

B. The Search Of The Vehicle By Officer Wicker And Lieutenant Murray Was "Pretextual" And Without Any Legal Justification.

POINT III: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE CONCEPT OF THE DEFENDANT'S "INNOCENCE" WAS REPEATEDLY INTRODUCED INTO THE TRIAL. (Not Raised Below).

POINT IV: THE TRIAL COURT ERRED IN ADMITTING TESTIMONY CONCERNING THE DEFENDANT'S POST-ARREST ENCOUNTER WITH VASILIOS SOTIROPOULOS AS PROOF OF THE DEFENDANT'S IDENTITY AND AS EVIDENCE OF THE DEFENDANT'S CONSCIOUSNESS OF GUILT.

POINT V: THE TRIAL COURT ABUSED ITS DISCRETION BY PERMITTING THE PROSECUTOR TO ADMIT EVIDENCE THAT THE DEFENDANT WAS PREVIOUSLY CONVICTED ON THE "FEDERAL OFFENSE" OF DISTRIBUTION OF DRUGS.

A. Evidence That The Defendant Was Convicted Of Distribution Of Drugs Should Have Been Excluded Because Of Remoteness.

B. Evidence Of The Defendant's Prior Criminal Conviction Should Have Been Sanitized Because It Shared Sufficient Similar Elements With The Offenses Charged In The Indictment.

C. The Prosecutor's Cross-Examination Of The Defendant Enhanced The Prejudice Which Resulted From The Trial Court's Failure To Exclude And Failure To Sanitize.

POINT VI: THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE HIS DUE PROCESS RIGHT TO FULL APPELLATE REVIEW AND HIS SIXTH [AMENDMENT] RIGHT TO TRIAL BY JURY WERE PREJUDICED BY THE OFF-THE-RECORD SIDEBAR CONFERENCES AND THE UNRECORDED JURY VERDICT THAT OCCURRED DURING THE TRIAL. (Not Raised Below).

A. The Defendant's Right To Full Appellate Review Was Prejudiced By The Off-The-Record Sidebar Conferences.

B. The Defendant's Sixth Amendment Right To Trial By Jury Was Prejudiced By The Unrecorded Jury Verdict.

POINT VII: THE TRIAL COURT ABUSED ITS DISCRETION BY THREATENING DEFENSE COUNSEL WITH SANCTIONS IN FRONT OF THE JURY. (Not Raised Below).

POINT VIII: IMPOSITION OF THE AGGREGATE BASE CUSTODIAL SENTENCE OF FOURTEEN (14) YEARS WAS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON THE DEFENDANT'S CONVICTIONS ON COUNTS ONE AND SIX CONSECUTIVE TO EACH OTHER.

A. The Trial Court Abused Its Discretion In Finding Aggravating Factors (2) And (11) Present.

B. The Trial Court Abused Its Discretion In Imposing Consecutive Sentences On Counts One And Six.

We decline to address Harrison's claim of ineffective assistance of counsel, without prejudice to his raising the claim in a petition for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992). Having reviewed the entire record we conclude that, except as addressed below, defendants' remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We first address the defendants' contentions that the trial court should have granted their motions to suppress the evidence discovered in the car. Both defendants argue that the evidence should have been suppressed as the "fruit" of an illegal arrest. See Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 416-17, 9 L. Ed. 2d 441, 454 (1963). They contend that Officer Wicker's initial encounter with them, in which he parked behind their vehicle and ordered them to return to the car, constituted an illegal de facto arrest, without probable cause. We disagree.

In State v. Alexander, 191 N.J. Super. 573 (App. Div. 1983) certif. denied, 96 N.J. 267 (1984), we differentiated among three types of police encounters:

From a welter of authority concerning the constitutional lawfulness of encounters with the police in public places, three significantly different situations have emerged. The police may "arrest" only if they have probable cause; they may "stop" for brief investigatory questioning if they have an articulable, reasonable basis for suspicion; and they may make an "inquiry" without any grounds for suspicion.

[Id. at 576.]

Our Supreme Court has elaborated on the distinction between a field inquiry and an investigatory stop:

A field inquiry "is a limited form of police investigation that, except for impermissible reasons such as race, may be conducted 'without grounds for suspicion.'" As a general rule, "a police officer properly initiates a field inquiry by approaching an individual on the street, or in another public place, and by asking him if he is willing to answer some questions[.]" A permissible inquiry occurs when an officer questions a citizen in a conversational manner that is not harassing, overbearing, or accusatory in nature.

More intrusive than a field inquiry is a second type of encounter, an investigative detention (sometimes called an investigatory stop or a Terry stop). An encounter escalates from an inquiry to a detention "when an objectively reasonable person feels that his or her right to move has been restricted." In that circumstance, "[a]n officer does not need a warrant to make such a stop if it is based on 'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity."

The standard of reasonable suspicion required to uphold an investigative detention is lower than the standard of probable cause necessary to justify an arrest. We have explained:

An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been [engaged] or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom.

[State v. Nishina, 175 N.J. 502, 510-11 (2003) (citations omitted).]

Under the circumstances of this case we conclude that Officer Wicker's encounter with defendants can best be characterized as an investigatory stop and that it was justified by "sufficient reasonable suspicion." State v. Birkenmeier, 185 N.J. 552, 561-62 (2006). Defendants and their vehicle fit the description given by Mrs. Tolos, and the facts she reported were consistent with an attempted burglary in the making. Officer Wicker's conduct in ordering defendants back into the car was reasonable under the circumstances to protect his own safety and his polite questioning did not convert the stop into a de facto arrest. As Lieutenant Murray testified, if the two men had given a reasonable explanation for their presence in the area, "they would have been on their way." Instead, defendants offered a highly suspicious and improbable explanation, and the police discovered, in plain view, evidence linking them to Mrs. Tolos.

This brings us to defendant Harrison's further challenge to the search of the car following Murray's discovery of the gun and defendants' arrest. We conclude that, under all the circumstances, the search was justified by the automobile exception to the warrant requirement, that is, by probable cause and exigent circumstances. See State v. Dunlap, 185 N.J. 543, 551 (2006).

The exigent circumstances doctrine was discussed at length in State v. Nishina, supra. In Nishina, the Court concluded that once the police found drug paraphernalia during a pat-down search of the defendant, and then observed what appeared to be a plastic bag of marijuana in plain view in defendant's car, the police were justified in searching the car under the doctrine of exigent circumstances:

To summarize: The officer here had the requisite reasonable suspicion to stop and ask defendant for identifying information under the totality of the circumstances. During the course of that lawful encounter, the officer smelled marijuana emanating from defendant's clothing. The smell justified the subsequent pat-down search of defendant that yielded a packet of rolling papers the officer reasonably believed was drug paraphernalia. In addition, the officer observed in plain view a plastic bag protruding from the interior console of defendant's car. The bag, together with the marijuana smell and drug paraphernalia, in turn provided probable cause to suspect that the car contained illegal drugs. The combined elements of probable cause and exigency permitted the officer's search of defendant's car under the automobile exception to the warrant requirement.

[Nishina, supra, 175 N.J. at 518-19.]

See also Birkenmeier, supra, 185 N.J. at 562-63. In Nishina, given the emerging nature of the investigation, and the presence of multiple suspects at the scene, the police were not required to post a guard at the car while they obtained a search warrant:

With respect to exigent circumstances, we again note that events were occurring swiftly, making it impractical for the officer to obtain a warrant once he had observed the plastic bag. Further, given the presence of defendant's companions, it would have been reasonable for Sergeant Joline to assume that other third parties might have had knowledge of the marijuana and that "those same parties could have attempted to remove or destroy the drugs in the time necessary to obtain the warrant[.]" We are persuaded on the facts before us that "it would [have been] unduly burdensome and unreasonably restrictive to require the police to post a guard and repair to the courthouse for a warrant once they [had] probable cause to search the car."

[Nishina, supra, 175 N.J. at 518 (citation omitted).]

In Dunlap, supra, 185 N.J. at 551, the Supreme Court re-affirmed the viability of the exigent circumstances doctrine:

One final note. Nothing in this opinion should be viewed as a retrenchment from the well-established principles governing the automobile exception to the warrant requirement. The standards remain the same: probable cause and exigent circumstances, each of which to be determined on a case-by-case basis. Here, the unique facts, particularly the presence of ten officers, fully justified the Appellate Division's conclusion that exigency was absent. Different facts, such as a roadside stop effectuated by only one or two officers, would likely have changed the calculus. Police safety and the preservation of evidence remain the preeminent determinants of exigency.

[Ibid. (citing State v. Cooke, 163 N.J. 657, 670-71 (2000)).]

See also Birkenmeier, supra, 185 N.J. at 562-63. Factors to be considered in determining whether circumstances are "exigent" include the ongoing nature of the investigation. "[T]he degree of exigency is heightened when the police are involved in an ongoing investigation of events occurring close in time to the search." State v. Cooke, supra, 163 N.J. at 673. Also relevant is the possibility that third parties may have access to the vehicle.

Simply because the police were in possession of one set of keys does not logically preclude the possibility that one or more third parties had another set of keys to gain access to the [car]. That possibility is significant in a case in which a defendant repeatedly disavows ownership or knowledge of the car to be searched.

[Ibid.]

We conclude that the warrantless search of the car was justified by the doctrine of exigent circumstances. In this case, the police were dealing with an ongoing investigation of a possible burglary attempt as well as the investigation of a possible stolen car. Mrs. Tolos had made several urgent calls to police reporting that two cars appeared to be "casing" her house. At the time of the search, the police had only located one of the vehicles. Moreover, the police had already discovered one gun in the car, and had seen, in plain view through the car window, a handwritten purported receipt for flowers with Mrs. Tolos' name on it. See Nishina, supra, 175 N.J. at 517-18 (approving officer's looking through car window at materials in plain view in the interior of the car).

Defendants had given the police a fairly preposterous explanation for their presence in the neighborhood, i.e., that "Pete" (last name unknown to them) had hired them to deliver flowers. And not only did these defendants deny ownership of the vehicle containing the gun and the flowers, but they told police that the car belonged to Pete. Under these circumstances, the police had probable cause to believe that defendants were engaged in criminal activity, that the car contained further evidence of that activity, and that third parties might be able to gain access to the vehicle. They were not required to post a guard over the car, or to delay their ongoing investigation, while they obtained a warrant to search the vehicle. See Dunlap, supra, 185 N.J. at 551; Nishina, supra, 175 N.J. at 518; cf. State v. Eckel, 185 N.J. 523 (2006). Moreover, since Lieutenant Murray had observed the clipboard in plain view, he was justified in retrieving it from the car immediately. See Birkenmeier, supra, 185 N.J. at 563. It is readily apparent from his testimony that once he opened the rear door to obtain the clipboard, the other evidence was observable in plain view on the back seat.

We next briefly address Harrison's contention that certain references by the judge and prosecutor to defendant's "guilt or innocence" were prejudicial and constituted plain error. See R. 2:10-2. Defendant did not object to any of these references at trial. Having reviewed the record, we conclude that the few isolated references to the defendants' "guilt or innocence" do not constitute plain error and had no capacity to confuse the jury as to the State's burden of proof. See State v. White, 360 N.J. Super. 406, 413 (App. Div. 2003); R. 2:10-2. The trial judge repeatedly and properly instructed the jury that defendants were presumed innocent, that they had no burden to prove their innocence, and that the State's burden was to prove defendants' guilt beyond a reasonable doubt.

We turn next to defendants' contention that the trial judge erred in permitting the State's witness, Billy Sotiropoulos, to testify to an encounter with defendants in which they allegedly demanded that he pay them money in return for their silence about his involvement in the crime. Defendants claim that this was prejudicial "other crimes" evidence that should have been analyzed under N.J.R.E. 404(b). See State v. Cofield, 127 N.J. 328 (1992). The State contends that the trial judge properly concluded that it was part of the res gestae and that a Rule 404(b) analysis was not required.

We agree that the testimony was part of the res gestae and proof of the conspiracy, as well as an admission of defendants' guilt. "N.J.R.E. 404(b) does not apply when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). See also State v. Long, 173 N.J. 138, 155-58 (2002).

Sotiropoulos testified that defendants' demands for bail money began only a few days after the crime, and were communicated to him through Seldin. The incident later in August 2002, which is the subject of this appeal, was a continuation of defendants' demands for money in exchange for their silence. Moreover, according to Sotiropoulos, during the course of the August meeting with defendants "they admitted to being involved with the case because they went on the job for me and Peter Seldin, and [defendants said that] me and Peter Seldin were responsible for taking care of their lawyer fees and for their bail money . . . ." He testified that defendants also told him what evidence the police had against them and threatened to inculpate him in the crime if he did not give them $50,000. We find no error in the judge's ruling permitting the State to present this testimony.

Further, immediately after the witness gave this testimony, the judge gave the jury a detailed limiting instruction, as though the evidence had been admitted pursuant to N.J.R.E. 404(b), directing them that they could not consider the evidence as proof that defendants were bad people or had a tendency to commit crimes. Rather, he instructed that they could only consider the evidence to decide "whether it shows a consciousness of guilt, . . . whether it supports the charge of conspiracy, or . . . whether it rebuts a claim of innocence."

We next address Harrison's contention that the trial judge erred in permitting him to be impeached with a 1994 Federal conviction for drug distribution. The drug offense was committed in 1992. Harrison was sentenced to forty-one months in prison, plus three years of post-release supervision, which terminated in 1999. Hence, his sentence had terminated approximately three years before the offense for which he was on trial. We find no abuse of discretion in the trial judge's decision to admit the conviction and we affirm for the reasons stated in his cogent oral opinion placed on the record on March 2, 2004. See State v. Spivey, 179 N.J. 229, 242-44 (2004); State v. Sands, 76 N.J. 127, 144-45 (1978).

Defense counsel did not ask that the conviction be sanitized pursuant to State v. Brunson, 132 N.J. 377 (1993), and there was no reason to require that the conviction be sanitized because, as counsel correctly conceded, it was not similar to the charges for which Harrison was on trial. Id. at 394.

We find no merit in Harrison's contention that his conviction should be reversed because, on direct examination, in response to his counsel's question concerning prior charges and convictions, defendant responded that he was originally charged with conspiracy to distribute drugs. In fact, defendant elaborated on the conspiracy concept in an attempt to minimize the significance of his guilty plea to the drug charges. According to defendant, "I pleaded guilty to one count of distribution because I shouldn't have been around these drug dealers anyway . . . [although] I thought . . . there was no guilt on my part." The prosecutor's relatively brief cross-examination on that issue in no way resembles the improper conduct disapproved in State v. Johnson, 65 N.J. 388, 391-92 (1974), and does not warrant reversal of defendant's conviction.

Harrison's contention that his conviction should be reversed because of unrecorded sidebar conferences merits no discussion beyond noting that he has not identified any specific prejudice that he suffered as a result of these sidebar conferences or the rulings that resulted from them. See State v. Paduani, 307 N.J. Super. 134, 142-43 (App. Div.), certif. denied, 153 N.J. 216 (1998). See R. 2:11-3(e)(2).

Next we address Ayers' contention that the prosecutor made improper statements in his closing argument. Since defense counsel did not object to those statements, we review this claim under the plain error standard. R. 2:10-2.

Defendant Ayers contends that in his summation the prosecutor improperly accused him of tailoring his testimony, comments prohibited under State v. Daniels, 182 N.J. 80 (2004). We quote the relevant portions of the summation in full:

When you dissect the defense in this case, you see two main things, denial and minimization. Mr. Denial is Mr. Harrison and Mr. Minimization is Mr. Ayers. That's what you have at work in this case. Both of their stories cannot exist in the same world . . . .

Mr. Harrison's theory is I'll just get up there, I'll say I know nothing and I'll stick to the most outrageous and absurd story that this was a flower delivery and he wants you, ladies and gentlemen of the jury, with all of your experience and common sense to buy that and that's what he's hoping and he goes first because I submit to you, folks, I'm not really sure what's going to happen next, but he gives you that story and little does he know that not one day later Mr. Ayers would choose to take the stand and throw him under a bus, just completely blow his ship out of the water and say that ain't true.

Why did that happen, folks? It happened because first Mr. Harrison's story is so outrageous, so implausible that even Mr. Ayers is smart enough not to go that route. He's not that dumb. The cards are stacked against us this time. Cut my losses, say what I have to say, minimize and let me go home, and he chooses, ladies and gentlemen, to take that stand and give you some of what you now already know, but it's got to stop, it's got to stop at some point. He's had almost two years to think about his defense. He's had all of the discovery and all of the reports. One thing he had most importantly was the entire testimony from the beginning to end and then he tells this story so perfectly fitted with all of the facts. He remembers all of the things that help him, anything that hurts him he can't recall, don't remember. It's implausible. He's trying to cut his losses.

[(Emphasis added).]

In Daniels, the Court held, as a matter of its supervisory authority over the conduct of criminal trials, but not as a matter of constitutional law, that prosecutors are prohibited from making "generic accusations" that a defendant tailored his testimony. Id. at 98.

Generic accusations occur when the prosecutor, despite no specific evidentiary basis that defendant has tailored his testimony, nonetheless attacks the defendant's credibility by drawing the jury's attention to the defendant's presence during trial and his concomitant opportunity to tailor his testimony.

[Ibid.]

Such generic accusations place an unfair burden on a defendant for exercising the constitutional right to be present throughout the entire trial and to confront adverse witnesses. Id. at 97-98. On the other hand, the court applied a different analysis to a prosecutor's specific allegations of tailoring "when there is evidence in the record, which the prosecutor can identify, that supports an inference of tailoring." Id. at 98.

If there is evidence of tailoring, beyond the fact that the defendant was simply present at the trial and heard the testimony of other witnesses, a prosecutor may comment, but in a limited fashion. The prosecutor's comments must be based on the evidence in the record and the reasonable inferences drawn therefrom. Moreover, the prosecutor may not refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses, and was thus able to tailor his testimony. In all such circumstances, we expect that prosecutors will act in good faith.

[Id. at 98-99 (citation omitted) (emphasis added).]

In Daniels, the court found there was some evidence that the defendant tailored his testimony to try to "get past" incriminating evidence. Id. at 100. The prosecutor's comments on the tailoring were proper except for remarks specifically highlighting the fact that the defendant was sitting in the courtroom throughout the trial and listened to all of the State's witnesses. Id. at 101. Moreover, the trial judge's jury charge did not cure "the harmful effects of those comments." Ibid. Hence, the Court concluded that defendant was entitled to a new trial. Id. at 102.

We conclude that the prosecutor's remarks here suffered from some of the same errors as those in Daniels in that he told the jury that "[defendant] had most importantly . . . the entire testimony from the beginning to end." Of course, the prosecutor's remarks were not primarily a generic accusation of tailoring. Rather they were a specific accusation based on the incredible nature of Harrison's testimony and the contradictions in Ayers' testimony. The objectionable remarks were not the focus of the summation, but were one or two lines in a very long closing argument that spanned nearly sixty pages of transcript.

As in Daniels, the prosecutor here made remarks in summation to which defense counsel did not object. Hence, as in Daniels, we apply the plain error rule, under which "the error must be 'sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Id. at 95 (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

In Daniels, supra, 182 N.J. at 86, the Court noted that there was a significant question as to whether the defendant was involved in the crime. By contrast, in this case, the evidence of defendants' guilt was overwhelming. The brief and borderline nature of the prosecutor's remark, together with the strong evidence of guilt in this case, lead us to conclude that the prosecutor's statement, while improper, was harmless. We see no possibility that this one isolated comment about Ayers' presence during the entire testimony could have "led the jury to a result it otherwise might not have reached." Id. at 95.

Finally, we address defendants' challenges to their sentences. Initially, even though we agree with defendants (and the State concedes) that the trial court improperly applied aggravating factor eleven (cost of doing business), we nonetheless find no error in the trial court's decision to impose the then-presumptive sentence of seven years imprisonment for defendants' armed robbery conspiracy convictions. See State v. Dalziel, 182 N.J 494, 501 (2005); State v. Roth, 95 N.J. 334, 363-64 (1984). However, we are constrained to remand for reconsideration of the imposition of consecutive sentences for the "certain persons not to have weapons" convictions.

In analyzing the issue under State v. Yarbough, 100 N.J. 627, 643-45 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the trial court recited the applicable factors without explaining how they apply to this case. Moreover, we are not persuaded that the factors do apply here. We quote the trial judge's decision:

The parties should understand the Court's reasoning as to why the sentences are consecutive rather than concurrent. . . . And the reasons for a consecutive sentence [are indicated] as follows. And Yarbough gives us some assistance in this regard.

The crimes and their objectives were independent of each other. The crimes involve separate acts or threats of violence. The crimes were committed in separate places [rather] than a single period of aberrant behavior. And any of the crimes involved multiple victims, [and whether] the convictions are numerous.

I find those factors to apply with respect to Counts One, Six and Seven. And that's my reason for the consecutive nature of [count] Seven [certain persons].

Even giving deference to the trial judge's feel for the record, having presided over the trial, and his sense of Mrs. Tolos' distress at the possible impending burglary of her house, we cannot conclude that the judge's stated reasons justify consecutive sentences. These were not separate crimes in any meaningful sense. The testimony of all witnesses on the issue indicated that defendants' sole reason for possession of the weapon was to aid in committing the robbery. The crimes were not committed in separate places. The gun was not loaded and was never used; consequently the possibility that there would have been multiple victims had the robbery been committed is of less significance.

Moreover, the aggregate sentences imposed on these defendants, fourteen years with 85% parole ineligibility, are strikingly disproportionate to the three-year and five-year sentences imposed, respectively, on Sotiropoulos and Seldin, the avowed masterminds of the operation. Even accounting for the fact that the co-defendants struck plea bargains, the vast differences in the sentences imposed is questionable absent some further justification. This is particularly so because Seldin, like defendants, had prior felony drug convictions and still received sentences that were not only concurrent to each other but concurrent to another sentence he was serving in New York.

Accordingly we remand to the trial court for reconsideration of defendants' sentences for the "certain persons" convictions, to be supported by a statement of reasons. See State v. Marinez, 370 N.J. Super. 49, 57-60 (App. Div.), certif. denied, 182 N.J. 142 (2004).

Affirmed in part, remanded in part.

 

Codefendants Scott M. Herman, Vasilios Sotiropoulos, Peter Ian Seldin, and Christopher J. O'Hare were also charged in connection with the planned robbery. All of these codefendants entered into plea agreements with the State.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Although defendants have not raised the issue, we agree with the trial judge that Murray's attempt to perform a limited search of the glove box was justified by the need to discover the identity of the car's owner, since defendants claimed they could not produce the registration and their suspicious explanations were entirely consistent with the car being stolen. See State v. Boykins, 50 N.J. 73, 77 (1967) ("[I]f the operator is unable to produce proof of registration, the officer may search the car for evidence of ownership."); State v. Patino, 83 N.J. 1, 12 (1980); State v. Holmgren, 282 N.J. Super. 212, 215 (App. Div. 1995); cf. State v. Lark, 319 N.J. Super. 618 (App. Div. 1999), aff'd o.b. 163 N.J. 294 (2000).

We reject the State's argument that State v. Eckel, supra, should not be applied retroactively. From cases which the Supreme Court has remanded for reconsideration in light of Eckel, we infer that Eckel has at least pipeline retroactivity. See, e.g., State v. Lore, 186 N.J. 601 (2006), remanding State v. Lore, No. A-062-03 (App. Div. Sept. 24, 2004) (search conducted on Dec. 9, 1999).

Although defendant contends the verdict was not recorded, we have been provided with a transcript of the verdict.

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2

A-0389-04T4

February 28, 2007