STATE OF NEW JERSEY v. JESSE SMITH

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1602-07T41602-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JESSE SMITH,

Defendant-Appellant.

_____________________________________

 

Submitted March 10, 2009 - Decided

Before Judges Winkelstein and Fuentes.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment No.

06-07-0845.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Monique Moyse, Designated Counsel,

on the brief).

James F. Avigliano, Passaic County Prosecutor,

attorney for respondent (Christopher W. Hsieh,

Senior Assistant Prosecutor, of counsel and on the

brief).

PER CURIAM

Defendant Jesse Smith was tried before a jury and convicted of second-degree robbery, N.J.S.A. 2C:15-1, as a lesser included offense of first-degree robbery, and fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4e. The court sentenced defendant on the robbery conviction to an extended term of thirteen years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and to a concurrent term of eighteen months on the weapon charge. After reviewing the record, we affirm defendant's conviction, vacate the extended term sentence imposed on the robbery conviction, and remand for re-sentencing in accordance with State v. Pierce, 188 N.J. 155, 172-74 (2006). We derive the following facts from the evidence presented at trial. Michael Chin is a self-described marijuana user. At approximately eleven o'clock in the evening on March 5, 2006, Chin drove his Jeep to the City of Paterson looking to buy $10 worth of marijuana. Chin came upon defendant standing near a liquor store on the corner of Rosa Parks Boulevard and Keane Street. According to Chin, defendant approached him and asked him if he wanted to buy some marijuana.

When Chin indicated that he wanted to buy a bag, defendant said that he knew where to get it. Defendant then handed his "boom box radio" to a woman walking nearby, and got inside Chin's vehicle. Once inside Chin's Jeep, defendant instructed Chin as to where to go, eventually leading him to an open parking space on an isolated side street.

Chin gives the following description as to what occurred next:

He asked to use my cell phone so he could get it for me and I figured just maybe someone else was going to drop it off and he was just like a middleman or something. So he used my cell, called somebody or I thought he called somebody and I waited - he said we've got to wait for at least ten minutes. While we were waiting, he's going through the car, opening the glove box, opening the center console, looking for all of my stuff, asking to see my wallet, you know, asking me if I was the police and this and that and I told him I wasn't the police, don't worry about that and he continues going through my stuff, you know, checking - according to him, checking to make sure I wasn't any kind of police and then I say maybe another five minutes after that all began he made another phone call and said that we have to wait again and he continued going through my stuff. And putting aside particular stuff. At the time I didn't realize it, but ended up putting the stuff aside that he wanted to take with him.

Q. What did he put aside?

A. The two CD cases, the - my wallet. He actually kept that. My debit card, he actually took out of the wallet, but -

Q. Now, when he was doing all of this, why were you letting him to do this?

A. Well, I wasn't in a position to say anything otherwise. You know, I just figured he wanted to clarify that I wasn't the police. I didn't think I had anything, you know, to worry about and at the time I was more nervous at that time, it was taking a little while. So I wasn't trying to agitate him at the same time because I didn't know what he was capable of.

Q. Okay. So what happened next?

A. We waited a little a bit longer and out of the side -- on the passenger side, on the passenger side door, he - I saw a reflection of something shiny and then he pulled it out and pointed it at me and asks me, 'Do you know what this is?' And I was, 'Yeah, to me it looks like a gun.'

Q. Did you think it was a real gun?

A. For all I knew it was a real gun.

Chin eventually handed over to defendant $20 from his wallet, two gold chains, and the other items he had set aside. Defendant warned Chin not to come around because he had shot at another victim's car who had disobeyed his warning. The entire encounter took approximately ten minutes.

Although initially indecisive about involving law enforcement, Chin eventually reported the incident to Frank Rendina, a police officer Chin saw at a traffic light, about five blocks away from the scene of the robbery. Fearing prosecution himself, Chin originally misinformed Rendina about the nature of the crime. When confronted with some of the odd details of the story, Chin admitted to Rendina that he had been robbed while attempting to buy marijuana.

The police placed Chin in a patrol car and drove him around the area to see if he could find his assailant. After an initial false sighting, Chin saw the woman to whom defendant had given the radio. The police placed her in a patrol car. Several minutes later, several officers entered the building next to the liquor store where defendant had first approached Chin. Officer John Kelly saw defendant sitting on a box at the end of the third floor hallway.

Defendant had a silver imitation handgun in his left pants pocket, and was wearing two chains around his neck, which were subsequently identified as among the items taken at the robbery. Chin's wallet, cell phone, CDs and CD holder were recovered near where defendant was sitting. Before he was transported to the police station, Chin identified defendant as the person who had robbed him just minutes before.

Defendant testified in his own defense, admitting to being a heroin dealer operating out of the Rosa Parks building. He saw Chin drive up in front of the building. A woman told him that Chin was parked around the corner and wanted to exchange two gold chains for five bags of heroin. According to defendant, that is precisely what happened; he gave Chin five bags of heroin in exchange for the two gold chains.

Defendant also claimed that Chin offered his cell phone for crack cocaine. Defendant took a number of items from Chin and agreed to try to find a dealer who could accommodate him. According to defendant, this second deal was frustrated when the police arrived at the scene. Defendant testified that when he saw the police, he went back into the building, expecting to either return the items to Chin at a later point, or consummate the crack cocaine exchange. Shortly thereafter, however, the police came into the building and arrested him.

Against these facts, defendant now raises the following arguments.

POINT I

THE TRIAL COURT ERRED BY REJECTING MR. SMITH'S REQUEST TO CHARGE THE JURY ON THEFT ON THE PERSON AND THEFT BY DECEPTION.

1. Theft on the Person/Theft of Movable Propery.

2. Theft by Deception.

3. The Charge Bolstered the State's Case.

POINT TWO

MR. SMITH WAS DENIED A FAIR TRIAL BY THE ADMISSION INTO EVIDENCE OF HEARSAY, CONTRARY TO NEW JERSEY'S EVIDENTIARY RULES AND DECISIONAL LAW, AND FEDERAL AND STATE CONFRONTATION CLAUSES.

POINT THREE

MR. SMITH'S SENTENCE VIOLATED THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND MUST BE VACATED AND THE MATTER REMANDED FOR RESENTENCING PURSUANT TO STATE V. PIERCE, 188 N.J. 155 (2006).

POINT FOUR

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.

As to the argument raised in Point One, the trial court properly found that there was no rational basis to charge the jury with the lesser included offenses of theft by deception, N.J.S.A. 2C:20-4, and theft from a person, N.J.S.A. 2C:20-3. A trial court "shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8(e). As the Supreme Court has recently reaffirmed, the key in this analysis is whether the evidence, when rationally considered by the jury, can support a not guilty verdict of the greater offense, and a conviction of the lesser one. State v. Cassady, 198 N.J. 165, 178 (2009).

N.J.S.A. 2C:20-4 defines the offense of theft by deception as follows:

A person is guilty of theft if he purposely obtains property of another by deception.

A person deceives if he purposely:

 
a. Creates or reinforces a false impression, including false impressions as to law, value, intention or other state of mind, and including, but not limited to, a false impression that the person is soliciting or collecting funds for a charitable purpose; but deception as to a person's intention to perform a promise shall not be inferred from the fact alone that he did not subsequently perform the promise;

 
b. Prevents another from acquiring information which would affect his judgment of a transaction; or

 
c. Fails to correct a false impression which the deceiver previously created or reinforced, or which the deceiver knows to be influencing another to whom he stands in a fiduciary or confidential relationship.

 
The term "deceive" does not, however, include falsity as to matters having no pecuniary significance, or puffing or exaggeration by statements unlikely to deceive ordinary persons in the group addressed.

N.J.S.A. 2C:20-3 defines theft from a person as the unlawful exercise or control over the property of another with the intent of depriving that person of the value of such property.

Here, even if the jury accepted defendant's testimony as truthful, the record does not provide a rational basis for the jury to convict defendant on either of the lesser included theft charges. As to the two gold chains, defendant testified that this was an arms length transaction through which Chin received the value of the five bags of heroin.

With respect to the other items, defendant testified that he took Chin's property with the expectation of exchanging it for illicit drugs. This was not accomplished because the police arrived at the scene. His intent was, however, to complete the transaction as negotiated and agreed to by Chin. The value of the illicit drugs as compared with the value of defendant's property, is irrelevant. The jury had no evidence that defendant took advantage of Chin by exchanging gold chains for five bags of heroin.

From the perspective of a rational juror, defendant's testimony, if accepted, only offers a means to completely exonerate defendant on the robbery charge, not to provide a rational basis for lesser included theft offenses. Thus, the trial court correctly denied defendant's application.

As to Point Two, defendant argues that he was denied a fair trial by the testimony of State's witnesses implying that the woman in possession of defendant's radio had given the police incriminating information that led to defendant's apprehension. The record does not support this argument. The trial court repeatedly sustained defense counsel's timely objections, cutting off any reference to the woman. Defense counsel did not request any curative instruction. We discern no basis to reverse on this issue.

We are compelled to vacate the extended term sentence imposed on the second-degree robbery conviction because the sentencing judge improperly considered protection of the public as a factor, as previously required under State v. Dunbar, 108 N.J. 80 (1987), but eliminated in Pierce, supra, 188 N.J. at 168. Thus, we remand for re-sentencing,

but only in respect of reconsideration of the appropriate sentence . . . within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range. The court must reconsider the applicable aggravating and mitigating factors and impose a sentence within the broadened range of sentences available consistent with this opinion.

[Pierce, supra, 188 N.J. at 171.]

We affirm defendant's conviction. We vacate the extended term imposed on the second-degree robbery conviction, and remand for re-sentencing in accordance with this opinion. We affirm the sentence imposed on the fourth-degree offense.

 

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A-1602-07T4

June 12, 2009