STATE OF NEW JERSEY v. SEAN GUY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2549-06T42549-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SEAN GUY,

Defendant-Appellant.

______________________________________________________________

 

Submitted March 3, 2008 - Decided

Before Judges Lintner and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Indictment No.

05-05-2059.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Abby P. Schwartz,

Assistant Deputy Public Defender, of counsel

and on the brief).

Joshua M. Ottenberg, Acting Camden County

Prosecutor, attorney for respondent (Laurie

A. Corson, Acting Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Sean Guy was found guilty of third-degree receiving a stolen vehicle, N.J.S.A. 2C:20-7 (count one); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two); and fourth-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4). Based on defendant's prior criminal record, he qualified as a persistent offender. Nevertheless, the trial court denied the State's motion for imposition of an extended term because it determined defendant could "be adequately punished within the normal range of sentences." Defendant was sentenced to a five-year prison term with two and one-half years of parole ineligibility on count one, eighteen months with nine months of parole ineligibility on count two, and eighteen months with nine months of parole ineligibility on count three. The sentences on counts two and three are to be served concurrent with count one, but all three sentences are consecutive to defendant's Pennsylvania sentence.

On appeal, defendant presents the following arguments:

POINT I

DEFENDANT'S CONVICTION MUST BE REVERSED
BECAUSE THE COURT ERRED IN PERMITTING OFFICER SEVICK TO OFFER INADMISSIBLE OPINION TESTIMONY, AND FURTHER BY NOT DELIVERING AN INSTRUCTION ON EXPERT TESTIMONY, IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

POINT II

THE PROSECUTOR'S COMMENTS DURING SUMMATION
WERE IMPROPER AND SO PREJUDICIAL AS TO DENY
DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, 10. (NOT RAISED BELOW)

POINT III

DEFENDANT'S SENTENCE IS EXCESSIVE.

After reviewing the record and the applicable law, we conclude defendant's arguments are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

On March 29, 2005, at approximately 12:35 p.m., Nina Lamprecht of Glen Valley, Pennsylvania drove her black Lexus SUV to the Rittenhouse Hotel in Philadelphia, Pennsylvania to have her hair done. After receiving her ticket from the valet, Lamprecht proceeded into the building to her hairdresser's salon. Approximately halfway through her appointment, police advised Lamprecht her Lexus was stolen.

At approximately 4:40 p.m. on March 29, 2005, Officer Larry Robb of the Cherry Hill Township Police Department was on patrol in the Cherry Hill Mall parking lot in a marked Ford Crown Victoria. As he patrolled the lot outside of Strawbridge's retail store, his attention was caught by "a black Lexus sport utility vehicle parked on a diagonal, not properly parked in the space and occupied by a person in the driver's seat." The vehicle was "[i]n the first parking spot located outside of the Strawbridge[']s doors." On "several occasions" in Robb's experience at the Cherry Hill Mall he encountered "retail thefts or crimes . . . where a getaway vehicle will be located right outside of the doors, either right at the curb line or in the first parking spots and occupied by a getaway driver." Based on his suspicions, Robb ran the license plate number of the Lexus and discovered it was reported stolen.

Upon seeing the driver exit the Lexus, Robb testified: "I immediately put my car in park behind him and exited my car, drew my pistol, pointed it at the driver and told him to stop and put his hands up." The driver and Robb were "face-to-face," approximately seventeen feet apart. In court Robb identified defendant as the person who exited the Lexus.

Ignoring the officer's instructions to "stop and put his hands up," defendant turned and ran "towards the Strawbridge[']s doors." Robb gave chase into Strawbridge's department store, down an isle and through the men's department, and "back to the exterior of the Mall parking lot again," further down from where the chase originated. Defendant ran "on a diagonal back over towards where both vehicles were parked," until he noticed Sergeant Ronald Burrows standing next to Robb's police cruiser and the Lexus. Upon seeing Burrows, defendant made an immediate left, headed down the length of the parking lot, and back into the mall. Just as defendant entered Macy's department store, Robb caught up to him and "was able to grab him from behind and take him down to the ground," at which point Officers Leone and Glatz arrived as backup.

Robb testified at no point during the chase did he lose sight of defendant. Moreover, a search of defendant revealed "two cell phones on him, cash, some keys and the key to the -- a Lexus key was on the ground when [the officers] picked him up." Defendant was arrested and transported to Cherry Hill Police Department. At the police station, Robb "processed" defendant by getting "his personal information, name, address, phone number, birthday, . . . next of kin, fingerprint[ed] him and photograph[ed] him." Defendant identified himself as "Derrick Ferguson."

On March 30, 2005, defendant was remanded to the Camden County jail. Charles Sevick, a Sheriff's Officer with the Bureau of Criminal Identification, testified that when individuals are remanded to the county jail: "We process the[ir] fingerprints to make sure the subject[s are] who they say they are or identify them if they're somebody else." A corrections officer at the jail took defendant's fingerprints and Sevick made "observations as to the characteristics of those prints," and then "input the information into the computer system." The computer search indicated the arrestee, who had identified himself as Derrick Ferguson, was actually the defendant, Sean Guy.

With regard to defendant's first point, Sevick, who has worked in the Bureau of Identification for ten years, testified as to the identification procedures he employs in processing individuals, including defendant, who are remanded to the county jail. Sevick also testified he took an "F.B.I. classification course, a latent print course from the State Police, a crime scene investigator's course and a[n] advance latent fingerprint course," but was never qualified as an expert for purposes of trial.

We are satisfied from our review of the record that the testimony proffered by Sevick was overwhelmingly, if not entirely factual. For instance, Sevick's testimony regarding the procedures for intake identification at the county jail was not his opinion, but rather a factual account of procedures he follows on a daily basis. Moreover, he described these procedures with specific reference to the actions he took on the day defendant was remanded to the county jail. Therefore, even if Sevick was not qualified as an expert, his testimony as a lay witness properly recounted experiences and events relevant to this case, which were within his personal knowledge and could help the jury understand county jail identification procedures. See N.J.R.E. 701.

Furthermore, even if we assume Sevick's testimony was improper, defendant was not prejudiced in any way. Contrary to defendant's brief, Sevick did not testify defendant's fingerprints were found in the Lexus. In fact, defendant's trial counsel argued just the opposite in his summation: "It is also convenient that although Sergeant Burrows believes that he sent someone over . . . to actually do a fingerprint analysis inside of the vehicle, there's no testimony with respect to what the results were . . . ." (Emphasis added). Sevick's testimony was not elicited for the purpose of showing defendant or his fingerprints were in the Lexus; rather it simply demonstrated the individual remanded to the Camden County jail on March 30, 2005, was in fact Sean Guy, and not Derrick Ferguson. Moreover, defendant does not contest the fact that he, Sean Guy, was arrested and placed in county jail on March 30, 2005. Therefore, even if Sevick's testimony was improper, any error was undoubtedly harmless.

With regard to defendant's second argument, the Supreme Court of New Jersey has held prosecutorial misconduct will not be grounds for reversal unless it "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); see also State v. Bucanis, 26 N.J. 45, 56 ("[N]ot every suspected deviation from perfection on the part of a prosecutor will justify a reversal of a conviction. Before such a result ensues, his infraction must be clear and unmistakable and must substantially prejudice the defendant's fundamental right to have the jury fairly evaluate the merits of his defense."), cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958); State v. Ribalta, 277 N.J. Super. 277, 294 (App. Div. 1994), certif. denied, 139 N.J. 442 (1995). In determining whether a defendant was deprived of a fair trial, courts must consider "the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991). In particular, the New Jersey Supreme Court has directed courts to consider three factors in determining whether a prosecutor's remarks amounted to reversible error: "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Frost, supra, 158 N.J. at 83.

Where a prosecutor's closing remarks "either in subtle or obvious fashion draw attention to a defendant's failure to testify," Fifth Amendment concerns may require reversal. State v. Engel, 249 N.J. Super. 336, 382 (App. Div. 1991); see also State v. Sinclair, 49 N.J. 525, 548-49 (1967) ("The prosecutor has the right to make fair comment on the evidence . . . but when he begins to discuss the significance of what testimony was not presented . . . there is a danger that he may reflect upon a defendant's Fifth Amendment right to remain silent."). On the other hand, a prosecutor may fairly comment on "legitimate inferences from non-production of evidence." Sinclair, supra, 49 N.J. at 549. Prosecutors are given especially wide latitude when responding to arguments or allegations in defense counsel's summation. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001). Moreover, "if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. . . . [since] [t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 83-84; see also Bucanis, supra, 26 N.J. at 57 ("A timely objection provides the trial court with an opportunity to rectify the situation or to reduce the impact of such comment by taking corrective action.").

In the present case, defendant alleges error in the three following remarks made by the prosecutor during summation:

Again, these witnesses were asked questions but there's been no proof, no evidence whatsoever that there, in fact, was a title -- a document with the name of Derrick Ferguson on it with an address and things of that . . . nature.

. . . .

The testimony from the officer himself, which there's no reason to . . . question really in terms of credibility is that he saw a person inside a vehicle parked in a suspicious manner. . . .

. . . .

There's no mistake that he was a police officer. He was wearing a police uniform, in a police car, coming up to that scene. That's what the . . . credible evidence shows. And there's really no dispute whatsoever . . . the credible evidence shows that there was a very lengthy pursuit, a foot chase into the Mall and to the Strawbridge[']s [s]tore, out of the Strawbridge[']s [s]tore, into the parking lot.

[(Emphasis added).]

Counsel for defendant did not object to any of these statements at trial, and we are convinced that none of these remarks can be said to have "deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83.

In his summation, counsel for defendant contended police "assumed that [defendant's] name was Derrick Ferguson because they got this title that he had . . . on his person. And when they arrest[ed] him, they put down the name Derrick Ferguson." However, there was no evidence proffered at trial to suggest defendant was in possession of an automobile title indicating the name Derrick Ferguson. Thus, it was not improper for the prosecutor to respond to defendant's theory by suggesting "there's been no proof, no evidence whatsoever" to support the claim.

Similarly, in stating there was really no reason to question the credibility of Robb, the prosecutor was responding to credibility attacks initiated by defendant's attorney. For example, defendant's attorney told the jury: "Our position is that Officer Robb came on the scene, that he actually observed Mr. Guy near the vehicle but outside of the vehicle. He immediately, because we're talking about a black Lexus SUV, sees my client, African-American male, and says, you know what, this doesn't look right." Further, by arguing police "assumed" defendant's name was Derrick Ferguson, defendant's attorney implicitly attacked the truthfulness of Robb's testimony. The prosecutor did not personally vouch for Robb, nor did he imply Robb was inherently credible because he was an officer of the law. State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993). Rather, the prosecutor was simply suggesting to the jury that Robb was believable and his testimony accurate, in response to defense counsel's attack on the officer's sensory perceptions.

Thus, considering the prosecutor's comments as a whole, "the tenor of the trial," and the failure of defendant's trial counsel to object, it is clear there was no prosecutorial misconduct, let alone prosecutorial misconduct sufficiently egregious to deprive defendant of a fair trial. Marshall, supra, 123 N.J. at 153.

Lastly, defendant's claim that his sentence is excessive (point three) is equally without merit. Defendant's sentence does not represent a miscarriage of justice or shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Jarbath, 114 N.J. 394, 401 (1989); State v. Ghertler, 114 N.J. 383, 387-88, 393-94 (1989); State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

(continued)

(continued)

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A-2549-06T4

March 24, 2008