STATE OF NEW JERSEY v. LAWRENCE TOODLE

(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NOT FOR PUBLICATION WITHOUT THE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-3376-07T43376-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAWRENCE TOODLE,

Defendant-Appellant.

________________________________________________________________

 

Submitted May 20, 2009 - Decided

Before Judges Cuff, C.L. Miniman and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-0257.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Lawrence Toodle appeals from his October 29, 2007 conviction, following a trial by jury, on charges of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3a (count one); second-degree burglary, N.J.S.A. 2C:18-2 (count two); third-degree terroristic threats, N.J.S.A. 2C:12-3a (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four); and third-degree possession of a weapon, a knife, for an unlawful purpose, N.J.S.A. 2C:39-4d (count six). The judge sentenced defendant to an extended-term sentence of fifteen years imprisonment on count two, and imposed concurrent five-year sentences on the remaining counts. On May 9, 2008, the judge resentenced defendant on count two to impose the required NERA parole ineligibility term. Consequently, defendant was sentenced on May 9, 2008 on count two to a fifteen-year term of imprisonment, with eighty-five percent to be served without parole eligibility. The judge also imposed the required three-year term of parole supervision upon release. The sentences on the remaining counts were not affected by the resentencing. Appropriate fines and penalties were imposed. We affirm.

I.

After driving his wife Iris to work on May 2, 2006, Augustus Asbell returned home to find an intruder inside. Seeing Asbell, the intruder pulled a knife from his pants pocket and began to threaten Asbell. When Asbell grabbed a stick from the closet, the intruder fled out the front door. Asbell got into his truck and began to follow the intruder, snapping photographs of the intruder while he ran; however, Asbell lost track of the man when he ducked behind a house. When Asbell returned home, he saw that one of the front screens had been cut and a window had been broken. Upstairs, he found his wife's jewelry box empty and her clothing all over the floor. Asbell called police.

A week later, Detective Rufus Bryant took a formal statement from Asbell and showed him a series of photographs, but because Asbell made no identification, Bryant did not keep a record of the photos that were used in the photo array. A few weeks later, on May 25, 2006, while driving through the neighborhood, Bryant saw a man walking whom he recognized as the person depicted in Asbell's photographs. Bryant stopped the man, later identified as defendant, and took a photograph of him.

The next day, Bryant called Asbell and asked him to look at a photo array Bryant had prepared "in the hopes that maybe the person he saw in his home [was] in the photo line up." Detective Alfonza Marina, a detective who had no knowledge of the case, showed Asbell the photographs while Bryant was not present. Asbell immediately identified defendant, who was depicted in photograph number five, as the person who had broken into his home on May 2, 2006, stating that he was "100% sure." After the identification was completed, Asbell, Marina and Bryant all signed the identification form, although Marina later testified that Bryant signed the form as part of the procedure even though Bryant was not in the room when Asbell made the identification.

On May 29, 2006, Bryant obtained a warrant to search defendant's one-room apartment in East Orange. Upon Bryant's arrival at the apartment, defendant, who was there with his girlfriend, demanded to know why he was being arrested and why his apartment was being searched. After Bryant advised defendant that he was there to look for stolen coins and jewelry, defendant insisted that there was nothing stolen in his apartment. Bryant responded by explaining that if any stolen items were found, he would "have no choice but to arrest whoever is in the room" because "no one's taking possession of them[.]"

Bryant asked defendant to tell him where the jewelry was located, reiterating his earlier statement that both defendant and his girlfriend would be arrested unless one of them took responsibility for the items. At that point, defendant asserted that his girlfriend was not involved, and told Bryant that the jewelry could be found in a brown paper bag near the bed. Of the five pieces of jewelry Bryant recovered from inside the paper bag, Asbell's wife identified four as hers.

Judge Sivilli denied defendant's motion to suppress the evidence found in his apartment, reasoning that even if Bryant had not declared his intent to arrest defendant and his girlfriend, Bryant would inevitably have discovered the items in the one-room apartment pursuant to the search warrant that had been issued earlier. That same day, six days before trial began, the judge granted the State's motion to amend count four of the indictment from third-degree theft to third-degree receiving stolen property. The judge reasoned that both offenses are "consolidated under the same chapter" and therefore such an amendment was permissible, especially because defendant was already aware "that the State was accusing [him]" of being "a thief."

Last, at the conclusion of the Wade hearing, the judge denied defendant's motion to suppress the photo identification made by Asbell. In particular, she concluded that Bryant's statement that he hoped the photograph of the intruder would be among the photos shown to Asbell was not unduly suggestive because the remark was not tantamount to a statement that defendant's photo was indeed in the array. The judge also found that Bryant was not present in the room when the photos were shown to Asbell, and concluded that only Marina was present at the time. She also held that all of the individuals depicted in the photographs had similar features and all of the photographs were "of a similar quality." Consequently, the judge found that the photo array was not impermissibly suggestive and denied defendant's motion to exclude the results of the photo identification.

During trial, defendant moved to reopen the Wade hearing after Asbell testified that he had been shown a computer-generated photograph at an earlier stage of the identification but could not identify the person in the photograph as the individual he found in his home on May 2, 2006. In a hearing outside the presence of the jury, Bryant disputed Asbell's contention that he had shown Asbell a single photograph. The judge denied defendant's motion to reopen the Wade hearing, finding that there was no basis to reopen the hearing because Asbell's testimony was not sufficiently reliable as to when any such single photograph had allegedly been shown to him and defense counsel was free to pursue the issue during cross-examination. The judge also reasoned that the jury charge on identification "would address any concerns that [defendant] may have as to this photo that might have been shown to Mr. Asbell."

When the trial resumed, defense counsel moved for a mistrial when Bryant testified that in addition to taking a photograph of defendant, he had also obtained a photograph of him from the Essex County Sheriff's Department. After denying defendant's motion for a mistrial, the judge issued the following curative instruction:

You are not to consider the fact that the Essex County Sheriff's Department or any law enforcement agency had a photograph of defendant as prejudicing him in anyway.

The photographs are not evidence that the defendant has ever been arrested or convicted of any crimes. Such photographs come into the hands of law enforcement from a variety of sources including but not limited to driver's license applications, passports, Alcohol Beverage Control identification cards, various forms of government employment, private employment requiring State regulation, including but not limited to casino license applications, security guard applications or from a variety of other sources totally unconnected with any criminal activity.

Defendant rested without testifying or calling any witnesses. On appeal, defendant raises the following claims:

I. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO SUPPRESS THE EYEWITNESS'[S] IDENTIFICATION BECAUSE THE PHOTO IDENTIFICATION PROCEDURE WAS IMPERMISSIBLY SUGGESTIVE, THEREBY CAUSING A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

II. THE TRIAL COURT ERRED IN REJECTING DEFENSE COUNSEL'S MOTION TO REOPEN THE WADE HEARING DURING THE TRIAL.

III. THE TRIAL COURT ERRED BY PERMITTING THE STATE TO AMEND COUNT 4 OF THE INDICTMENT PRIOR TO THE COMMENCEMENT OF TRIAL, THEREBY DEPRIVING DEFENDANT OF DUE PROCESS OF LAW.

IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS JEWELRY DISCOVERED IN HIS HOME.

V. THE TRIAL COURT ERRED IN NOT GRANTING DEFENDANT'S REQUEST FOR A MISTRIAL AFTER A STATE'S WITNESS REVEALED THE SOURCE OF A PHOTOGRAPH OF DEFENDANT.

VI. THE TRIAL COURT IMPROPERLY DENIED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

VII. DURING HER SUMMATION, THE PROSECUTOR COMMITTED MISCONDUCT AND DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE I, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION.

VIII. THE EXTENDED TERM SENTENCE IMPOSED BY THE TRIAL COURT WAS AN ABUSE OF DISCRETION AND UNDULY EXCESSIVE.

II.

We turn first to Point I, in which defendant asserts that the judge's refusal to suppress the results of the photo identification constitutes reversible error entitling him to a new trial. In particular, he maintains that Bryant's comment to Asbell that he hoped the intruder's photograph would be among those shown to Asbell during the array was unduly suggestive. Defendant also contends the judge erred when she rejected defendant's argument that Bryant must have been in the room in the photo array, despite Bryant's testimony to the contrary, because Bryant signed the photo array document.

In Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), the United States Supreme Court developed a multi-part test to determine the admissibility of an eyewitness's identification. In State v. Herrera, 187 N.J. 493, 503-04 (2006), the Court analyzed the Manson criteria, and held that the judge must first determine whether the pretrial identification procedure was impermissibly suggestive. Ibid. If so, the judge must decide whether the objectionable procedure resulted in a substantial likelihood of misidentification. Ibid.

An identification procedure will be deemed unduly suggestive only when "all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1972). Moreover, a trial judge's determination at the conclusion of a Wade hearing -- that the challenged identification procedure was not so impermissibly suggestive as to give rise to a very substantial risk of irreparable misidentification -- is entitled to "very considerable weight" on appeal. Ibid.

Like Judge Sivilli, we reject defendant's claim that Detective Bryant's comment caused Asbell to select a photograph that he would not otherwise have selected. In particular, nothing in Bryant's remark would have led Asbell to focus on defendant's photograph, nor could Bryant's comment have reasonably been taken as an affirmation that the intruder's photograph would be among those shown to Asbell. Moreover, Asbell himself observed the intruder in his home in broad daylight, was face-to-face with him while the intruder brandished a knife, and followed the man down the street taking several photographs. Additionally, Asbell testified "he was 100%" certain that the photograph he selected from the array depicted the man who broke into his home. Under those circumstances, we reject as meritless defendant's claim that Bryant's passing remark rendered the identification unduly suggestive.

We likewise reject defendant's claim that Judge Sivilli erred when she found that Bryant was not present in the room during the photo identification. We will not interfere with a trial judge's findings of fact where substantial evidence in the record support those findings. State v. Locurto, 157 N.J. 463, 470-71 (1999). Here, Judge Sivilli had the opportunity to see and hear Bryant. Under those circumstances, we will not interfere with her findings of fact. Farrow, supra, 61 N.J. at 451. We thus reject the argument defendant raises in Point I.

III.

Next, defendant contends that the court erred by refusing to reopen the Wade hearing after Asbell testified that he had been shown a photograph that had apparently not been preserved. Although the Court held in State v. Delgado, 188 N.J. 48, 59 (2006), that photographic arrays must be kept intact even when no identification was made, Delgado was not decided until after defendant's trial was concluded. Because the Court did not require its holding in Delgado to be applied retroactively, we decline to apply its rule here.

Moreover, as we observed in State v. Ruffin, 371 N.J. Super. 371, 395-97 (App. Div. 2004), different rules apply to photographs of suspects and photographs merely used for investigative purposes. To require preservation of all photographs shown to a victim or witness, even before suspicion focuses on a particular suspect, would be cumbersome and unnecessarily burdensome. Ibid. Consequently, we held that "pre-trial photographic identification will be suppressed only where the identification procedures were unnecessarily suggestive and conducive to irreparable mistaken identification." Id. at 1398. Thus, in light of Ruffin, and in the absence of any evidence demonstrating that any such failed photo identification was suggestive, much less unduly suggestive, Judge Sivilli did not err when she declined to reopen the Wade hearing.

IV.

In Point III, defendant claims the court erred by permitting the State to amend the indictment on the eve of trial from third-degree receiving stolen property to third-degree theft by unlawful taking. Rule 3:7-4 permits the State to amend an indictment to correct the description of a crime, provided that the defendant will not be prejudiced by such amendment. We agree with Judge Sivilli's conclusion that regardless of whether defendant was charged with theft or with receiving stolen property, all of the pretrial discovery put defendant on notice that he was being charged with being the person inside the Asbells' home, and the amendment of the indictment from one form of theft to another did not change that fact. Consequently, we reject as meritless the claim defendant advances in Point III.

V.

Defendant maintains in Point IV that the judge erred by denying his motion to suppress the jewelry found in his apartment. He asserts that the seizure of the jewelry was the result of Bryant's coercive remark and not the fruit of a valid search. The judge held that Bryant's remark, though improper, had no bearing on the validity of the search because the jewelry would have been discovered regardless of the remark. In order to satisfy the inevitable discovery rule, the State must show by clear and convincing evidence that:

(1) proper, normal and specific investigatory

procedures would have been pursued in order to complete the investigation of the case;

(2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in the discovery of the evidence; and (3) the discovery of the evidence through use of such procedures would have occurred wholly independent of the discovery of such evidence by unlawful means.

[State v. Worthy, 141 N.J. 368, 390 (1995) (quoting State v. Sugar, 100 N.J. 214, 238 (1985) (Sugar II)).]

Here, the record supports Judge Sivilli's conclusion that the apartment was very small and Bryant had a search warrant to look for the jewelry in the apartment. Using normal investigatory techniques in the execution of the search warrant, police would have looked into the bag and found the jewelry. Consequently, the criteria the Court established in Sugar II, and later applied in Worthy, are satisfied. We therefore affirm the denial of defendant's motion to suppress.

VI.

Defendant argues in Point V that the judge erred when she denied his motion for a mistrial after Bryant stated he had obtained a photograph of defendant from the sheriff's office. We review a trial court's denial of a mistrial for an abuse of discretion. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

A trial judge is in the best position to determine whether the prejudice was susceptible of being cured by a limiting instruction or whether, instead, a mistrial was required. Ibid. Here, the judge gave a forceful and immediate limiting instruction. Under those circumstances, we have been presented with no meritorious basis upon which to disturb the judge's conclusion that the comment in question was not of sufficient gravity to warrant a mistrial. We therefore reject the claim defendant advances in Point V.

VII.

Defendant also contends that the trial court committed reversible error when it denied his motion for a judgment of acquittal. A defendant's motion for a judgment of acquittal at the conclusion of the State's case must be denied unless, giving the State the benefit of all favorable inferences a reasonable jury could draw, the jury could not find guilt beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967). We agree with the State's argument that Asbell's testimony that he saw defendant in his home holding a knife, and that he had never given defendant permission to enter his home, was sufficient to enable to a jury to convict the defendant of second-degree burglary. The same testimony describing the knife was sufficient to warrant the denial of the motion to dismiss the count that charged defendant with possession of a weapon for an unlawful purpose. Finally, Iris Asbell's identification of her jewelry among the pieces of jewelry recovered from defendant's apartment was sufficient to support defendant's conviction on the charge of theft. Thus, the denial of defendant's motion for a judgment of acquittal was proper, and we reject the claim defendant advances in Point VI.

VIII.

We turn to Point VII, in which defendant asserts that two portions of the prosecutor's summation denied him a fair trial: 1) her comment that Iris Asbell described her jewelry as worth more than $500 and had a "sentimental" value that made the jewelry "irreplaceable"; and 2) the prosecutor's statement that she was "confident that [the jury] will return a fair" verdict. Defendant's arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

IX.

Last, defendant maintains that the extended-term sentence imposed by the judge was an abuse of discretion and unduly excessive. A judge may impose an extended-term of imprisonment whenever a defendant has been convicted of a first, second, or third-degree crime and is a persistent offender. N.J.S.A. 2C:44-3a. A persistent offender is defined as an individual over age twenty-one who has been previously convicted of two crimes on two separate occasions when he or she was over the age of eighteen, provided that the last crime occurred within ten years of the defendant's prior crime or release from confinement. Ibid.

The imposition of an extended-term sentence is discretionary, State v. Pierce, 188 N.J. 155, 161 (2006), and, if imposed, permits the judge to sentence the defendant from the bottom of the ordinary term range to the top of the extended term range. Id. at 168-69. The record supports Judge Sivilli's conclusion that defendant had seven prior indictable convictions, the most recent of which occurred in 1994 and caused defendant to remain confined until April 2000. The record also demonstrates that four of defendant's seven convictions were for the crime of robbery. Consequently, defendant satisfied the criteria for sentencing as a persistent offender, his claims to the contrary nothwithstanding.

We likewise reject as meritless defendant's claim that the judge should have found as mitigating factors that he did not contemplate his conduct would cause or threaten serious harm, his conduct was the result of circumstances unlikely to recur, and his character and attitude indicate he is unlikely to commit another crime. In light of the circumstances of the offense in question and defendant's prior record, the judge's refusal to find those mitigating factors was appropriate.

We also reject defendant's contention that because the State offered him a sentence of ten years imprisonment in return for a plea of guilty to first-degree robbery, a crime which the jury found he did not commit, he should not now be punished with a greater penalty than if he had accepted the State's plea offer. We agree with the State's contention that a plea offer is irrelevant once defendant rejects that offer and proceeds to trial. State v. Pennington, 154 N.J. 344, 362 (1998). Moreover, the sentence imposed does not shock the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

Count five was dismissed.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

A conviction for third-degree theft requires that the property in question exceed $500 in value. N.J.S.A. 2C:20-2b(2)(a).

The four robbery convictions were incurred on two separate dates.

The jury acquitted defendant of robbery on count one, and instead found him guilty of the lesser-included offense of theft.

(continued)

(continued)

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A-3376-07T4

June 12, 2009