STATE OF NEW JERSEY v. JEROME D. BROOKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4760-06T44760-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME D. BROOKS A/K/A MACK JAMES,

JAMES MACK, JEROME DONOVAN BROOKS,

JAMES JERMEL MACK,

Defendant-Appellant.

___________________________

 

Submitted September 15, 2009 - Decided

Before Judges Wefing, Messano and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-10-1814.

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

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury in October 2006, defendant was convicted of one count of knowing and purposeful murder, in violation of N.J.S.A. 2C:11-3(a)(1)(2), and two counts of felony murder, in violation of N.J.S.A. 2C:11-3(a)(3). On February 9, 2007, defendant was sentenced to a term of life with a thirty-year parole ineligibility period; this sentence was consecutive to any sentence defendant was then serving. Defendant appeals, raising four claims of trial error and an argument that his sentence is excessive.

The pertinent factual background may be summarized as follows. Roberto Arenas, known as a small-time narcotics dealer, was murdered in Fair Lawn, New Jersey, on November 21, 1983. The Fair Lawn Police Department initiated an investigation into the homicide, which proved fruitless. The case remained dormant until sometime in 2004 when it was assigned to Detective Mark Bendul of the Bergen County Prosecutor's Office (BCPO) as a "cold case" for review. Bendul's review of the file revealed the names of Albert Bolt and defendant. Bendul focused his investigation on Bolt and defendant and coordinated with Detective John Ietto of the Fair Lawn Police Department, who had been the original detective assigned to the homicide.

At trial, the State's case was essentially based upon defendant's confession. Bendul was the only witness to testify at the pre-trial hearing on defendant's motion to suppress his confession. Bendul stated that he located defendant in the Passaic County Jail. On March 16, 2005, Bendul and Ietto met defendant at the jail and told him that they wanted to speak to him about an old case. Defendant agreed to accompany the detectives to the BCPO's Paramus office, arriving at approximately 10:30 a.m. Bendul told defendant that he had information that defendant, Albert Bolt and another individual named Ronald Wimbush had been involved in a murder in Fair Lawn in 1983. Defendant agreed to speak to Bendul and executed a Miranda rights form. Bendul read all of the rights aloud to defendant who indicated that he understood each of them. At Bendul's request, defendant wrote the word "yes" next to each right and signed his initials. Bendul then asked defendant if he would speak to the officers without an attorney; defendant "verbally agreed."

Bendul showed defendant two photographs of Albert Bolt; defendant identified both photographs and stated that he knew Bolt as "Tafari." Defendant wrote the name Albert Bolt and the alias "Tafari" on the margin of each photograph and initialed them.

Bendul began discussing the investigation of the 1983 homicide. Defendant stated that he was not in Fair Lawn at that time and, in fact, had been in jail. Bendul took a break from the interview and ascertained defendant's incarceration status in 1983; he learned that defendant had been lodged in the Passaic County Jail on May 15, 1983, and was released on bail on June 28, 1983; the next time defendant was in the Passaic County Jail was December 5, 1983. Bendul informed defendant that the homicide had occurred in November 1983, and that the detective had determined that defendant was not in jail at that time. Defendant asked Bendul for the exact date of the homicide; when Bendul told him it was November 21, 1983, defendant "said that . . . he could have been on the street at that time." Bendul told defendant that "based on the information that was . . . obtained during the investigation[,] . . . he was clearly involved in the murder of Roberto Arenas." Bendul also told defendant "that the investigation revealed that he was not the mastermind, that this was not his plan, that he was simply doing what . . . he was told by Albert Bolt." When "confronted with that scenario," defendant "became quiet, and put his head down, and stared at the floor."

When Bendul specifically asked defendant "if it was his idea[,]" defendant "shook his head, and said that it was not his idea. . . . He became very emotional, and he actually broke down and cried." Defendant stated "that he never killed anyone on his own, and . . . that since the incident he has become very religious and swore off all violence."

Bendul asked defendant "how many times he shot the victim," and defendant responded "that he didn't shoot the victim, that it was Albert Bolt who shot the victim." Defendant stated that Bolt shot the victim in the back of the head, which matched the file information that Arenas "had been shot four times in the back of the head." "[E]ventually[,]" defendant "stated that he did, in fact, shoot Roberto Arenas in the back of the head. . . . He said he shot him once."

Bendul told defendant that Arenas "exhibited multiple gunshot wounds to the back of the head[,]" and advised defendant "that at this point it would be in [his] best interest to be honest and truthful with regards to the amount of shots he fired." Defendant then stated that he shot Arenas "two or three more times in the back of the head."

At that point, defendant asked Bendul what would happen to certain Passaic County charges for which he had been arrested in November 2004. Bendul advised defendant that "those charges are independent[,]" but that defendant's "level of cooperation, truthfulness and honesty would be made known . . . to the assistant prosecutor investigating the case."

Bendul then asked defendant, "[W]hat happened on that day, the day of the murder?" Defendant stated that "he was hanging out in the area" of 12th Avenue and 24th Street with Wimbush, when Bolt and Arenas approached them in a blue Datsun. Bendul showed defendant a photograph of the Datsun and defendant recognized it as the vehicle in question. Defendant told Bendul that he and Wimbush "worked for Albert Bolt as drug runners in . . . marijuana for 12th Ave[nue], . . . [and] 24th Street[]."

Defendant said that Bolt told Wimbush and him to get into the car, "that they had something to take care of . . . ." Arenas then drove the car "to an unknown apartment . . . some place out of Paterson . . . ." Bolt and Arenas exited the car, went into the apartment, and returned several minutes later. Defendant stated that he believed Bolt was "going to take Roberto Arenas['s] . . . cocaine in his apartment." Bolt instructed Wimbush to drive and told Arenas to sit in the back.

Once they were all in the car, "that's when Albert Bolt pulled out a gun, and pointed it toward Roberto Arenas, and told him that he was not going to pay for the drugs." Bolt told Wimbush to drive "to the eventual location of the shooting." They "went over a bridge and then went into a residential area." Bolt then exited the car and instructed defendant to follow him. Bolt also told Arenas to get out of the car. The three of them "then walked away from the car, between two houses, down the driveway a little bit[,]" and Bolt told Arenas "to get down, and when . . . Arenas resisted a little bit[,] . . . Bolt kicked the knees out from . . . Arenas, forcing him face down onto the ground." Defendant stated he was "[r]ight there . . . with them[,]" and "that . . . Bolt then gave him a gun[,]" which he described as "possibly a .357 Magnum."

Defendant stated that, after giving him the gun, Bolt "took out . . . some type of a plastic rope, and . . . proceeded to tie . . . Arenas's wrists behind his back." Arenas was lying flat on the ground face down at that time. Bolt then "told [defendant] to shoot . . . Arenas[, a]t which time [defendant stated that he] shot . . . Arenas multiple times in the back of the head."

Bolt and defendant then returned to the car, and Bolt "told Wimbush to drive away." They stopped after driving a distance, and Bolt provided defendant and Wimbush "with pieces of cloth, and said wipe down the car for any fingerprints. They did that for several minutes." When they left the area, Bolt told defendant and Wimbush "to lay low. Stay cool. Not say anything." Defendant added that "Wimbush did not want to get rid of the gun for a couple of days[,]" but that defendant was "finally able to convince Wimbush to throw the gun away."

At the conclusion of his interview, Bendul asked defendant if he would provide a stenographic statement regarding the information he had just disclosed, "and he agreed." Bendul commenced taking defendant's stenographic statement at 1:40 p.m., and completed it at 2:15 p.m. Throughout this time, Bendul described defendant's demeanor as "very cooperative. He appeared to be very relieved."

Defendant's acknowledgement of the accuracy of the stenographic statement was videotaped, albeit without his knowledge. Defendant reviewed each page and confirmed its accuracy; he initialed the bottom of each page, as did Detectives Bendul and Ietto. After reading the entire statement, defendant voluntarily signed his name following the written acknowledgement that he had read the foregoing statement and that it was "a true and accurate transcript of the statement" he gave on March 16, 2005. He further acknowledged that he was signing the statement "freely and voluntarily."

Because defendant is a citizen of Jamaica, Bendul asked him if he wanted the officer "to contact the Jamaican embassy, and notify them of . . . these charges." Defendant responded "that he did not want [Bendul] to do that." At Bendul's request, defendant wrote and signed the following statement on a consular rights form: "'I don't want the police to contact the Jamaican Consulate about my arrest'"

Based upon defendant's stenographic statement, Bendul swore out a complaint for his arrest for Arenas's murder. Bendul advised defendant that "complaints were being processed[,]" and that he "had to be processed, photographed and fingerprinted." Defendant remained "cooperative." Defendant was formally arrested at approximately 10:30 p.m., and was transported to the Passaic County Jail.

Defendant did not testify at the Miranda hearing; he did, however, testify on his own behalf at trial. Defendant repudiated his confession and claimed that he had requested an attorney which Bendul refused to provide. Defendant further claimed that he only admitted to the crimes because Bendul promised he would be charged with manslaughter and would receive a sentence concurrent with his sentence on the Passaic County offenses. In addition, defendant testified that he only admitted to shooting Arenas four times because Bendul told him the police could use his statement against Bolt and that he would be charged with a lesser offense.

Defendant also testified that when Bolt told him to shoot Arenas, he refused to do so and held the gun down at his side. Defendant stated that he and Bolt began to argue; Bolt reached for the gun and managed to cock it, as a result of which the gun accidentally went off in defendant's hands, with the shot hitting Arenas behind his right ear, causing a wound that was not fatal. Defendant testified that, at this point, he returned to the car despite Bolt's insistence that he come back. Defendant sat in the back seat of the car and stated that he then heard more shots fired. Bolt returned to the car cursing and making threats, gave the gun to Wimbush and stated that if defendant told anyone about Arenas's murder, he would kill defendant's family. Defendant stated that Bolt ordered Wimbush and him to drive to another location and to wipe down the car.

On appeal, defendant raises the following contentions for our consideration:

POINT ONE

THE STATEMENT TAKEN FROM DEFENDANT WAS NOT VOLUNTARILY MADE AND ITS ADMISSION INTO EVIDENCE DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND VIOLATED HIS PRIVILEGE AGAINST SELF INCRIMINATION. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. Const. (1947), ART. I, PAR. 1)

POINT TWO

DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW BECAUSE THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON ATTEMPTED MURDER AS A LESSER-INCLUDED OFFENSE OF KNOWING AND PURPOSEFUL MURDER. (U.S. Const. Amends. V, VI AND XIV; N.J. Const. (1947), Art. I, Pars. 1, 9 and 10. (Not Raised Below)

POINT THREE

THE TRIAL COURT'S WOEFULLY INADEQUATE INSTRUCTION ON ACCOMPLICE LIABILITY, WHICH WAS AWKWARDLY SEPARATED FROM THE SUBSTANTIVE CHARGES AND NOT TAILORED TO THE FACTS OF THE CASE, TOGETHER WITH ITS FAILURE TO GIVE A LESSER-INCLUDED CHARGE FOR KIDNAPPING, DEPRIVED THE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)

A. Felony Murder Based on Robbery

B. Felony Murder Based on Kidnapping

C. The Inadequacy of the Instructions

POINT FOUR

THE PROSECUTOR'S TRIAL TACTICS GROSSLY EXCEEDED THE BOUNDS OF PROPRIETY, THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (Not Raised Below)

POINT FIVE

IN LIGHT OF THE CIRCUMSTANCES SURROUNDING THE OFFENSE, THE AGGRAVATING FACTORS THAT WERE INAPPROPRIATE OR GIVEN TOO MUCH WEIGH[T], AND THE MITIGATING FACTORS THAT THE TRIAL COURT FAILED TO CONSIDER, THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE. THEREFORE, THE SENTENCE SHOULD BE REDUCED OR THE MATTER REMANDED FOR RE-SENTENCING

Having reviewed these contentions in light of the record and the controlling legal principles, we conclude they are without merit; therefore, we affirm. We add the following comments.

Defendant first argues that the trial court erred in failing to suppress his confession "[b]ecause there is significant evidence indicating that the statement was not voluntary . . . ." Such "evidence," however, consists only of defendant's testimony before the jury, in which he refuted Bendul's description of the conditions under which his statement was taken. None of this "evidence" was before the trial judge when he rendered his decision at the conclusion of the Miranda hearing.

In denying suppression of defendant's confession, the judge found that Bendul was "a trustworthy, truthful witness" and "accept[ed] his testimony." The judge found that defendant "certainly signed" the Miranda rights form, "and initialed all of the questions, and . . . a proper procedure was done." Moreover, the judge found that defendant "freely, [and] voluntarily waived his right to have an attorney present and he never requested an attorney or requested to have the interrogation stop . . . ."

The trial judge rendered his decision based upon the evidence before him, which, as noted, consisted solely of Bendul's testimony, as well as defendant's signed confession. Where, as here, the trial court has made credibility determinations, it is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). While our review of a trial court's admission of a confession into evidence must be "'wide and penetrating' to assure that the fundamental fairness requirement of due process is met[,]" we must, nonetheless, defer to the trial court's factual findings. State v. Cook, 47 N.J. 402, 415-16 (1966) (quoting State v. Smith, 32 N.J. 501, 544 (1960), cert. denied, 364 U.S. 936, 81 S. Ct. 383, 5 L. Ed. 2d 367 (1961)); State v. Johnson, 42 N.J. 146, 161 (1964).

Under the circumstances, we are satisfied that Bendul's promise to defendant that he would advise the prosecutor of defendant's cooperation in an effort to assist him in resolving his then-outstanding charges from Passaic County, did not rise to the level of overbearing his will, as defendant contends. State v. Galloway, 133 N.J. 631, 654-56 (1993). "Cases holding that police conduct had overborne the will of the defendant have typically required a showing of very substantial psychological pressure on the defendant." Id. at 656. No such showing was made here.

Defendant further contends that the fact that only his confession was recorded and not the interrogation that preceded it, raised serious questions as to the voluntariness of that confession. Defendant points to Rule 3:17(a), which requires that, subject to certain exceptions, "all custodial interrogations conducted in a place of detention must be electronically recorded when the person being interrogated is charged with murder . . . ." However, Rule 3:17 became effective on October 14, 2005 "in respect of all homicide offenses as of January 1, 2006 . . . ." Pressler, Current N.J. Court Rules, note following, R. 3:17 (2009).

Defendant's interrogation occurred on March 16, 2005, prior to the effective date of that rule. We are satisfied that, under the circumstances, Bendul was under no obligation to videotape defendant's interrogation prior to his statement; the failure to do so does not render suspect the voluntariness of that statement.

Defendant's final challenge to the admission of his confession is the claim that he was not advised of his right to contact the Jamaican Consulate until after his statement was completed, in contravention of the Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596 U.N.T.S. 261 (VCCR). However, defendant fails to demonstrate any prejudice stemming from this aspect of his interrogation; when afforded the opportunity to contact the Jamaican Consulate, defendant declined.

Under the totality of the circumstances, we are satisfied that the trial judge properly admitted defendant's confession into evidence, based on the testimony of Detective Bendul at the Miranda hearing.

Defendant next contends that the trial judge erred in failing to charge the jury on attempted murder. This issue is raised as plain error and, therefore, defendant must persuade us that this deficiency in the charge was "clearly capable of producing an unjust result . . . ." R. 2:10-2.

The trial judge instructed the jury that "for a defendant to be guilty of murder, all jurors must agree that the defendant either knowingly or purposely caused the death or serious bodily injury resulting in the death of Roberto Arenas." The judge immediately thereafter charged the jury on defendant's theory of the case, namely that the first shot was fired accidentally as he struggled with Bolt and that defendant was not responsible for the three subsequent shots. The judge charged the jury:

Defendant argues that the first shot was an accident and that he was not involved with the fatal shots. The defendant has neither the burden nor the duty to show that the homicide was by accident. The State must prove beyond a reasonable doubt that the death was not the result of defendant's accidental conduct.

This charge was entirely consistent with defendant's theory that he shot Arenas once, accidentally. Such a theory is inherently inconsistent with the premise underlying attempted murder. A defendant

is guilty of attempted murder only if he . . . actually intended the result, namely, death to occur. Thus, the [Criminal] Code requires that to be guilty of attempted murder, a defendant must have purposely intended to cause the particular result that is the necessary element of the underlying offense -- death.

[State v. Rhett, 127 N.J. 3, 7 (1992)].

N.J.S.A. 2C:5-1(a)(1) defines criminal attempt as follows: "A person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for commission of the crime, he . . . [p]urposely engages in conduct which would constitute the crime if the attendant circumstances were as a reasonable person would believe them to be . . . ."

Defendant proffered an accidental shooting as his defense; this was clearly incompatible with the elements of attempted murder. We are satisfied that this omission in the jury charge does not rise to the level of plain error. State v. Macon, 57 N.J. 325, 341 (1971).

Defendant next challenges the trial judge's instructions to the jury on felony murder. Once again, these contentions are raised as plain error. R. 2:10-2.

First, regarding the felony murder charge in count two of the indictment predicated upon the crime of robbery, defendant contends that, "[a]lthough the judge read the statutes on felony murder and accomplice liability, and charged the jury on the elements of robbery, he did not instruct the jurors that they could not find [defendant] guilty of felony murder on this basis unless they could convict him of the underlying felony . . . ." Our review of the charge in its entirety convinces us that this issue is without merit.

Following his instructions to the jury on the statutory elements of felony murder under N.J.S.A. 2C:11-3(a)(3), and the elements of the predicate offense of robbery charged in count two, the trial judge gave the Model Jury Charge on accomplice liability. See Model Jury Charge (Criminal), "Liability for Another's Conduct" (1995).

The judge instructed the jury on accomplice liability with respect to both counts of felony murder together. We disagree with defendant that in so doing the judge "awkwardly separated" the accomplice liability charge from the substantive offenses. The judge instructed the jury as follows:

In order to find that defendant committed murder, robbery and kidnapping as an accomplice, the State must prove beyond a reasonable doubt each of the following elements: One, that Albert Bolt committed the crimes of murder, robbery and/or kidnapping.

Two, that defendant . . . aided or agreed or attempted to aid Albert Bolt in planning or committing murder, robbery and/or kidnapping.

Three, . . . defendant['s] purpose was to promote or facilitate the murder, robbery and/or kidnapping.

Four, that defendant . . . possessed the criminal state of mind that is required to be proved against the person who actually committed the murder, robbery and/or kidnapping.

One acts purposely with respect to his conduct or as a result thereof if it is his conscious object to engage in conduct of that nature or to cause such a result.

. . . .

Mere presence at or near the scene does not make one a participant in the crime, nor does the failure of a spectator to interfere make him a participant in the crime. It is, however, a circumstance to be considered with the other evidence in determining whether [defendant] was present as an accomplice.

Presence is not in itself conclusive evidence of that fact. Whether presence has any probative value depends upon the total circumstances. To constitute guilt, there must exist a community of purpose and actual participation in the crime committed.

. . . .

Remember that this defendant can be held to be an accomplice with equal responsibility only if you find as a fact that he possessed the criminal state of mind that is required to be proved against the person who actually committed the criminal acts.

. . . .

It is not sufficient to prove only that the defendant had knowledge that another person was going to commit a murder and armed robbery. The State must prove that it was defendant's conscious object that the specific conduct charged be committed.

Defendant appears to argue additionally that the jury's verdict on count two was against the weight of the evidence, "[b]ecause there was no evidence to find beyond a reasonable doubt that [defendant] possessed this requisite intent . . . ." Defendant, however, has not asserted a claim that the verdict was against the weight of the evidence. Rather, his argument is couched in terms of the adequacy of the jury instruction on accomplice liability. For the reasons stated, we are satisfied that the trial judge met his "obligat[ion] to provide the jury with accurate and understandable jury instructions regarding accomplice liability . . . ." State v. Bielkiewicz, 267 N.J. Super. 520, 527 (App. Div. 1993).

Regarding the felony murder charge in count three of the indictment, predicated upon the offense of kidnapping, defendant argues that the trial judge erred in failing sua sponte to charge the jury on the lesser-included offense of criminal restraint, thereby obviating a conviction on felony murder. We disagree.

N.J.S.A. 2C:13-2 defines criminal restraint as follows:

A person commits a crime of the third degree if he knowingly:

a. Restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury; or

b. Holds another in a condition of involuntary servitude.

By contrast, the offense of kidnapping is defined by N.J.S.A. 2C:13-1(b) as follows:

A person is guilty of kidnapping if he unlawfully removes another from his place of residence or business, or a substantial distance from the vicinity where he is found, or if he unlawfully confines another for a substantial period, with any of the following purposes:

(1) To facilitate commission of any crime or flight thereafter;

(2) To inflict bodily injury on . . . the victim . . . .

N.J.S.A. 2C:1-8(d) defines an "included offense" as one

where:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person . . . or a lesser kind of culpability suffices to establish its commission.

Pursuant to N.J.S.A. 2C:1-8(e), a 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." This statute "has been characterized and construed as requiring not only a rational basis in the evidence for a jury to convict the defendant of the included offense but requiring also a rational basis in the evidence for the jury to acquit the defendant of the charged offense before the court may instruct the jury on an uncharged offense." State v. Brent, 137 N.J. 107, 113-14 (1984).

Here, defendant did not request a jury charge on the lesser included offense of criminal restraint. "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." State v. Savage, 172 N.J. 374, 397 (2002) (quoting State v. Choice, 98 N.J. 295, 298 (1985)). Thus, no matter which statutory construction of a lesser included offense applies, N.J.S.A. 2C:1-8(d) is not "an invitation for the court to scour the statutes to determine if there are some uncharged offenses of which the defendant may be guilty." State v. Sloane, 111 N.J. 293, 302 (1998).

Here, again, defendant argues that his intent was the pertinent focus of inquiry, claiming that his "only intent" was to "leav[e] Arenas alone at night in a secluded spot, bound and helpless . . . ." The evidence, however, is otherwise. The jury could reasonably have concluded, as it did, that defendant participated in the transportation of Arenas, held at gunpoint by Bolt, from his apartment in Paterson to a location in Fair Lawn where Arenas was removed from the car, forced to lie on the ground with his hands tied behind his back, and then shot four times in the head. Under these circumstances, we are satisfied that the "facts in evidence" did not "'clearly indicate' the appropriateness of" a charge on the lesser included offense of criminal restraint. Savage, supra, 172 N.J. at 397; N.J.S.A. 2C:13-2(a).

Defendant next contends that several instances of prosecutorial misconduct deprived him of a fair trial. The first was the prosecutor's question to him on cross-examination: "You're a liar, aren't you?" Later, in his summation, the prosecutor commented that defendant "not only is a murderer but . . . he has no credibility." In addressing defendant's testimony regarding his confession, the prosecutor told the jury that defendant's version was "a crock. What a lie. . . . [H]e thought he could lie enough to get over on the detectives, that he'd be able to lie his way out of this. That was a tactic he chose. That was his decision." Defendant further contends that the prosecutor improperly commented on facts not in evidence when he referred to defendant as a "drug runner" for his "boss," Albert Bolt.

While we acknowledge that the prosecutor vigorously argued his case to the jury, and cross-examined defendant on issues related to his credibility, we are satisfied that such conduct was not "so egregious that it deprive[d] . . . defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Defendant put his credibility in issue when he elected to testify on his own behalf. The prosecutor was entitled to challenge the credibility of defendant's version of the facts by cross-examination. In fact, on cross-examination, defendant acknowledged that he had lied to Bendul when he first told the detective that he knew nothing about the Fair Lawn incident.

Regarding the prosecutor's "drug runner" comment, defendant acknowledged during his direct examination that he had three prior drug-related convictions from 1981, 1984 and 1993. Moreover, defendant's statement to Bendul included his admission that he had worked for Bolt as a "drug runner."

The trial judge charged the jury immediately after the prosecutor's summation, and at the outset of that charge instructed the jury as follows:

You and you alone are the sole and exclusive judges of the evidence, of the credibility of the witnesses and the weight to be attached to the testimony of each witness. Regardless of what counsel said . . . in recalling the evidence in this case it is your recollection of the evidence that should guide you as judges of the facts.

Arguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence.

Although attorneys may point out what they think is important in this case you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial. . . .

Any comments by counsel are not controlling. It is your sworn duty to arrive at a just conclusion after considering all of the evidence which was presented during the course of the trial.

Even if we were to consider some of the prosecutor's comments and/or questions improper, we conclude that they "did not reach the level of reversible error." State v. Ramseur, 106 N.J. 123, 323 (1987). "If no objection is made, the remarks usually will not be deemed prejudicial." Ibid. Furthermore, "the court charged the jury that statements made by the attorneys were not to be considered as evidence." Ibid. We are satisfied that, under the circumstances, these comments and questions did not have the capacity to deprive defendant of a fair trial, either individually or collectively.

Finally, defendant contends that his sentence is manifestly excessive. We disagree, and discern no basis to disturb the term of life with a thirty-year parole ineligibility period imposed by the trial judge.

We are satisfied that trial judge properly "identif[ied] the relevant aggravating and mitigating factors, determine[d] which factors are supported by the preponderance of the evidence, balance[d] the relevant factors, and explain[ed] how [he] arrive[d] at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). We do not "sit to substitute [our] judgment for that of the trial court. An appellate court is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Ibid. (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989)).

We affirm defendant's sentence substantially for the reasons set forth by the trial judge on the record at the sentencing hearing held on February 9, 2007, and are satisfied that defendant's contentions on this point are without sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

 

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

(continued)

(continued)

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October 22, 2009