STATE OF NEW JERSEY v. TERRENCE JACK

(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NOT FOR PUBLICATION WITHOUT THE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-5228-06T45228-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TERRENCE JACK, a/k/a JOHN

FERREIRA,

Defendant-Appellant.

_________________________________

 

Submitted May 6, 2009 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 04-10-1755.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Nidara Y. Rourk, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Terrence Jack was charged with receiving stolen property, N.J.S.A. 2C:20-7 (count one); resisting arrest, N.J.S.A. 2C:29-2(a) (count two); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count three); possession of prohibited devices, N.J.S.A. 2C:39-3(f) (count four); giving false information to the police, N.J.S.A. 2C:29-3(b)(4) (count five); and possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b) (count six). Counts five and six were dismissed at trial in January 2007. The jury found Jack guilty on counts one and two, and not guilty on counts three and four. On March 23, 2007, Jack was sentenced to a five-year term of imprisonment on count one and a concurrent eighteen-month term on count two.

Jack appeals both the conviction and the sentence. We affirm.

I

Dmitri Bajanovo resided on Winston Drive in Cliffside Park. On July 17, 2002, between approximately 1:00 and 2:00 a.m., he left his black Mercedes in front of his building with the keys inside, expecting the building's valet service to arrange for the car to be parked inside the garage. When the car was missing the following day, he reported it stolen.

On the following day, at approximately 9 p.m., Jack rang the doorbell at 92A Fulton Avenue, and Assia Wilson came to the door. She spoke to Jack on the porch briefly, and observed a black Mercedes parked outside the residence. The two went inside the home for about twenty minutes.

While Jack and Wilson were inside the residence, Police Officers Richard Romanski and Brian Ragauckas of the Jersey City Police Department set up a visual surveillance in the area of 92 Fulton Avenue in Jersey City, based upon a report that a stolen vehicle was parked in front of the building. They observed a black Mercedes, double-parked by a fire hydrant, with the engine running and its lights on. After about twenty minutes, the officers observed Jack exit the residence, sit on the porch briefly, and then walk to the Mercedes.

When Jack returned to the Mercedes, he got in and closed the driver's door. The officers drove up to the side of the Mercedes with their lights flashing. Romanski exited his vehicle with his police badge displayed around his neck, and identified himself as "police." Jack opened the driver's door, got out of the Mercedes, and began running. Romanski pursued him on foot, continually yelling "stop, police, stop, police."

Romanski briefly lost sight of Jack a few blocks later, but then regained sight of him. He eventually found Jack lying in a lot full of overgrown weeds with a dark object in his hand. His attention was drawn to Jack by his pager going off. Jack, who gave "Talafono" as his last name, was placed under arrest and transported to police headquarters.

The Mercedes was impounded. Bajanovo was contacted by the police, and eventually identified and retrieved his vehicle. He subsequently found a loaded twenty-two caliber Smith and Wesson handgun, with a magazine containing four hollow-point bullets, hidden in the Mercedes. A further search of the vehicle revealed additional items that did not belong to Bajanovo, which he turned over to the Cliffside Park police.

II

On appeal, Jack raises the following issues:

POINT I: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER INDICATING THE DEFENDANT WAS INCARCERATED FOLLOWING THE INCIDENT IN QUESTION. (Not raised below).

POINT II: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Having reviewed the record and the arguments raised in the briefs, we find Jack's appellate arguments to be without merit and not warranting extended discussion in a written opinion on appeal. R. 2:11-3(e)(2). We add only the following.

During the trial, a police witness blurted out the fact that Jack had been incarcerated following his arrest. There was no objection, but the trial judge instructed the jury to ignore the remark and admonished the witness to give only responsive answers.

Jack contends that the unsolicited statement by the police officer about his incarceration deprived him of a fair trial because it had the potential to prejudice the jury against him. Because Jack did not raise the issue at trial, we evaluate it on appeal under the plain error standard. See R. 1:7-2; R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

The trial judge gave a curative instruction to the jury sua sponte. Clearly, in our view, the fact that jury convicted Jack on some, but not all, of the charges illustrates that it was not prejudiced by knowledge that he had been incarcerated. Instead, the jury sorted through the evidence and demonstrated a lack of taint by convicting on some counts while acquitting on others.

Jack also contends that the sentence was excessive. Our role in reviewing a sentence is limited.

"[W]e will exercise that reserve of judicial power to modify sentences when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience. We anticipate that we will not be required to invoke this judicial power frequently." [State v.] Roth, 95 N.J. [334,] 364 [(1984)] (citation omitted). The test, then, is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is rather whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review. Id. at 365.

[State v. Ghertler, 114 N.J. 383, 388 (1989).]

Although the sentence imposed was the maximum available for a third-degree offense, we are satisfied that the trial judge's sentence and his reasons for imposing it were amply supported by the record, especially given Jack's prior record.

III

In summary, we affirm both the convictions and the sentence.

Affirmed.

 

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A-5228-06T4

June 1, 2009