STATE OF NEW JERSEY v. FREDERICK KING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4654-07T44654-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK KING,

Defendant-Appellant.

__________________________________________

 

Submitted March 18, 2009 - Decided

Before Judges Lyons and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-08-1251.

Yvonne Smith Segars, Public Defender, attorney for appellant (Diane Toscano, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (John R. Cascarano, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Frederick King, appeals his conviction after trial by jury on both counts of an indictment charging him with theft by unlawful taking of an automobile, contrary to N.J.S.A. 2C:20-3 (count one), and burglary, contrary to N.J.S.A. 2C:18-2 (count two). Upon review of the facts and the applicable law, we affirm. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On April 19, 2007, at about 3:00 p.m., Jersey City Police Officers James Crecco and Eric Infantez, who were engaged in plainclothes surveillance in an unmarked police vehicle on Tonnele Avenue, observed defendant, whom they recognized from previous arrests, in a used car lot. In that area, Tonnele Avenue is a divided four lane highway, lined with several businesses and used car dealerships. The officers were across Tonnele Avenue from defendant when they first observed him.

Officer Crecco watched as defendant walked around the used car lot and examined the vehicles. When he observed defendant walk to another dealership, Officer Crecco exited the unmarked police vehicle and followed defendant on foot, matching his pace from across the road. Officer Crecco estimated that he was approximately twenty to thirty feet away from defendant, with Tonnele Avenue separating them. Officer Infantez followed Officer Crecco in the police vehicle, driving slowing along the shoulder of the road. Both officers watched defendant as he looked at several of the cars on the lot.

When defendant was eventually approached by a salesperson, he left the dealership's lot and walked by an auto paint and repair shop. He then turned around and entered the repair shop's lot, where he approached a gold 1983 Buick Electra. Officer Crecco observed as defendant opened the car's door, sat in the front seat, ducked down under the dashboard, popped back up and then started the car. Defendant drove the vehicle off the repair shop's lot and headed north on Tonnele Avenue.

Officer Crecco immediately broadcasted the car's license plate number over his police radio and attempted to cross Tonnele Avenue on foot in order to get to the repair shop. He was unsuccessful because of the high volume of traffic. Officer Infantez, who was still driving the police vehicle along the shoulder on the road, was likewise unable to turn the police car around and follow defendant. Both officers lost sight of the Buick. A warrant was issued for defendant's arrest.

Later that day, officers located the Buick parked on Orient Avenue in Jersey City, approximately one mile away from the repair shop on Tonnele Avenue. At approximately 7:00 p.m., Sergeant Michael Kenny arrived and parked his police vehicle two cars away from the Buick. Based on information in the warrant, Sergeant Kenny knew that defendant lived on Orient Avenue.

The police placed a telephone call to the number listed for defendant's address, and based on that call, determined that defendant was inside. Sergeant Kenny positioned officers in the backyard of defendant's home and the adjacent properties. He and another officer then knocked on defendant's front door and a woman inside asked who it was. The officers responded that it was the police and told her that they needed to speak to her. When she opened the front door, Sergeant Kenny, looking into the house, observed defendant opening the back door in an attempt to leave. Sergeant Kenny called defendant by name, saying "Freddy, come here, I need to talk to you." Defendant complied and Sergeant Kenny placed him under arrest.

Sergeant Kenny then searched defendant and recovered car keys from his right front pocket. The police used those keys to start the engine of the Buick, which was taken to the police station.

On August 2, 2007, a Hudson County Grand Jury returned Indictment No. 07-08-1251 charging defendant with theft by unlawful taking of an automobile, contrary to N.J.S.A. 2C:20-3 (count one), and burglary, contrary to N.J.S.A. 2C:18-2 (count two). After a three day trial, on December 6, 2007, the jury found defendant guilty on both counts. The trial court sentenced defendant on January 18, 2008, to an extended term of ten years imprisonment, with five years of parole ineligibility on count one and a concurrent term of five years with two and one-half years of parole ineligibly on count two. Defendant now appeals and presents the following arguments for our consideration:

POINT ONE

Defendant, who did not testify, was denied his right to due process and a fair triAl because the jury heard, over and over again, that the police officers who testified in this case knew defendant prior to the within incident, and the jury was left with the inescapable conclusion that the officers watched and followed defendant because they knew he was a car thief. U.S. Const. Amends. VI, XIV; N.J. Const. (1947) Art. I, Pars. 1, 9, 10.

POINT TWO

The trial court improperly refused to instruct the jury on the lesser included offenSe of joyriding.

POINT THREE

Defendant's extended term sentence is excessive, and, must be remanded pursuant to State v. Pierce and State v. Dalziel.

Defendant first argues he was unduly prejudiced because, at numerous times throughout his trial, the police, when questioned, responded that they knew him prior to his arrest. Defendant contends that the police officers' statements made it obvious to the jury that "the officers kept a watch on defendant because they knew him to be a car thief," thus exposing defendant to prejudice, contrary to N.J.R.E. 404(b).

N.J.R.E. 404(b) states:

Except as otherwise provided by Rule 608(b) evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

Pursuant to this rule, in general, evidence of other crimes, wrongs or acts may not be introduced to show that a defendant is disposed toward criminal or tortious behavior, or to any specific conduct, and therefore guilty of committing the crime, tort or act which is the subject of the action. State v. Reddish, 181 N.J. 553, 608 (2004). Such evidence should not be used to "suggest that because defendant is a person of criminal character, it is more probable that he committed the crime for which he is on trial." State v. Weeks, 107 N.J. 396, 406 (1987).

In this case, defendant objected to the following testimony of Officer Crecco:

The Prosecutor: You've met Mr. King before, right?

Officer Crecco: Yes.

The Prosecutor: And you've talked to him a number of times, right?

Officer Crecco: Yes.

Defendant also objected to the prosecutor questioning Officer Infantez as to whether he recognized defendant from meetings prior to his arrest:

The Prosecutor: Okay. And when you got to Tonnele Avenue there and set up your surveillance, did you see anyone that you recognized?

***

Officer Infantez: Yes.

The Prosecutor: Who was that, sir?

Officer Infantez: That gentleman in the suit right there with the glasses on.

The Prosecutor: Okay, what's his name sir?

Officer Infantez: Frederick King.

* * *

The Prosecutor: Okay. Now had you met Mr. King before that day?

Officer Infantez: There was a couple of instances where I had met him in the past.

Defendant also contends that the prosecutor's summation violated N.J.R.E. 404(b). In his summation, the prosecutor stated, "Both [officers] got up here and told you that they knew who this guy was. They know Freddy King, they've met him before. This isn't some stranger; they know him."

In the past, we have held that an officer's testimony in a criminal case that he was familiar with the defendant is not excludable if it could not reasonably have implied that he committed previous acts or civil wrongs. State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.), certif. denied, 108 N.J. 677 (1987). We have also held that when the testimony is necessary, references at trial to other unrelated charges can be avoided by using euphemisms without otherwise restricting pertinent information. State v. Porter, 210 N.J. Super. 383, 394-95 (App. Div.), certif. denied, 105 N.J. 556 (1986).

In this case, the credibility of the officers' identifications was critical to the State's case, and it was therefore crucial for the jury to be aware of the officers' familiarity with defendant. Neither the testifying officers nor the prosecutor said anything, however, regarding defendant's prior involvement in crime. They merely said that he was known by the police. Their testimony may well have caused a jury to conclude they knew him from the neighborhood. There was no implication in their testimony that he was a car thief or that they had arrested him for other violations of the law. Therefore, the trial court did not err in balancing the need for the jury to hear about the officers' familiarity with defendant and defendant's right not to have his unrelated crimes considered.

Defendant next contends that the trial court committed reversible error by not instructing the jury as to the lesser included offense of joyriding. When the defense requests the charge of a lesser included offense, the facts proved at trial should be evaluated to ensure that there is a rational basis for a jury to reject the greater charge and convict on the lesser.
State v. Crisantos, 102 N.J. 265, 276-77 (1986); John C. Cannel, New Jersey Criminal Code Annotated, comment 12 on N.J.S.A. 2C:1-8 (2008). Wherever there is such a basis, the lesser charge should be given. State v. Crisantos, supra, 102 N.J. at 277. The standard is whether the jury would have a rational basis on which to acquit the defendant of the greater charge and convict the defendant of the lesser charge. State v. Cassady, 396 N.J. Super. 392, 398 (App. Div. 2007), certif. granted, 193 N.J. 587 (2008).

Defendant was charged with theft by unlawful taking, contrary to N.J.S.A. 2C:20-3, which states "[a] person is guilty of theft if he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." Defendant met the elements of this offense. He took the vehicle without the permission of its owner, drove it away from the repair shop, parked it near his home and kept the keys on his person. These actions strongly suggest he had no intention of returning the vehicle and meant to permanently deprive its owner of his property.

By comparison, a person commits the offense of joyriding if, "with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." N.J.S.A. 2C:20-10(b). Thus, joyriding in cars is a temporary deprivation of the vehicle as opposed to a theft of the vehicle. Here, the car was driven over a mile away, was found parked near defendant's home four hours later, and defendant kept the keys in his pocket.

Consequently, there does not appear to have been any rational basis for the jury to reject the theft by unlawful taking but convict on the lesser charge of joyriding. Therefore, the trial court did not err by refusing to give the charge.

Lastly, defendant contends the sentence was improper because the trial court imposed the sentence using the incorrect minimum of the range for the sentence and did not recognize certain necessary mitigating factors in its analysis. The trial court sentenced defendant to an extended term of ten years imprisonment, with five years of parole ineligibility on count one and a concurrent term of five years with two and one-half years of parole ineligibly on count two. Both were crimes in the third-degree. Defendant qualified for extended sentencing because he was a persistent offender pursuant to N.J.S.A. 2C:44-3(a), having been convicted three previous times within the past ten years.

Defendant argues that the trial court erred in sentencing defendant because the court mistakenly found that the minimum sentence range for defendant's offenses was five years imprisonment, when it was in fact three years. However, our Supreme Court has made clear that, while the "top" of the extended term range is the maximum sentence applicable to a persistent offender, a defendant need not be sentenced within the enhanced range. State v. Pierce, 188 N.J. 155, 169 (2006). Rather, "the permissible range has expanded so that it reaches from the bottom of the original-term range to the top of the extended-term range." Ibid. The sentencing court, in its sound judgment, still chooses a defendant's sentence "subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found." Ibid.

Therefore, the applicable sentencing range here was between three and ten years, and the court sentenced defendant to the top of the range. There is no indication that the trial judge would have sentenced defendant to a lower term simply because the bottom of the range was lower. Because the trial court's apparent error, i.e., misstating the minimum term, is not "clearly capable of producing an unjust result," we see no reason to reverse the sentence. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).

We also find no merit in defendant's contention that the trial court failed to consider applicable mitigating factors in sentencing. The trial court found three aggravating factors: N.J.S.A. 2C:44-1a(3) (the risk defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent and seriousness of the prior record); and N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others). The court found that no mitigating factors applied.

Defendant argues that the trial court should have considered mitigating factors N.J.S.A. 2C:44-1b(1) (defendant's conduct neither caused nor threatened serious harm), and N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm). Because defendant is married with three children and two step-children, he also argues that the trial court should have considered N.J.S.A. 2C:44-1b(11) (imprisonment of defendant will result in excessive hardship to a dependant).

We may only disturb a trial judge's sentencing decision in three situations. State v. Carey, 168 N.J. 413, 430 (2001). Those situations are "(1) the trial court failed to follow the sentencing guidelines, (2) the aggravating and mitigating factors found by the trial court are not supported by the record, or (3) application of the guidelines renders a specific sentence clearly unreasonable." Ibid. An appellate court should not "substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989).

In this case, we find that the trial court did not abuse its discretion in finding that the aggravating factors outweighed the mitigating factors. Defendant does not contest that he has a prior record, and, based on his numerous arrests and convictions, it is clear that there is a risk he will re-offend. The court also properly found that the State has an interest in deterrence.

Regarding the trial court's determination that there were no mitigating factors, we also find that was not an abuse of discretion. Defendant at no time suggested that he was the sole provider for his children or that there were any special circumstances arising from his incarceration that would constitute "excessive hardship" on his family.

Secondly, the commission of a theft may result in or threaten serious harm. Harm is defined as "[i]njury, loss, or detriment." Black's Law Dictionary 722 (7th ed. 1999). The definition does not suggest, as defendant argues, that physical injury is necessary. In terms of motor vehicle theft, harm occurs when the owner of the stolen vehicle is deprived of his property. On a larger scale, the safety of the public may be put at risk in the course of apprehending the thief. Moreover, motor vehicle theft also affects the victim's and the public's insurance rates. Given such considerations, the trial court did not err in refusing to apply these mitigating factors.

We, therefore, affirm.

We note that, at sentencing, defendant mistakenly argued that the minimum sentence was five years.

(continued)

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A-4654-07T4

March 30, 2009