STATE OF NEW JERSEY v. JERRY ANTHONY COUNCIL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0138-07T40138-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JERRY ANTHONY COUNCIL,

Defendant-Appellant.

________________________________________________________________

 

Submitted September 16, 2009 - Decided

Before Judges Graves, Sabatino and Harris.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

06-02-0161.

Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Council, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Sara B. Liebman,

Assistant Prosecutor, of counsel; Kimberly

Donnelly, on the brief).

PER CURIAM

In February 2006, a Union County grand jury charged defendant Jerry Anthony Council with first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3 (count one); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count two); first-degree robbery, N.J.S.A. 2C:15-1 (count three); third-degree unlawful possession of a weapon (a baseball bat and/or bottles and/or bricks), N.J.S.A. 2C:39-4(d) (count four); and fourth-degree unlawful possession of a weapon (the same items under circumstances not manifestly appropriate), N.J.S.A. 2C:39-5(d) (count five). Co-defendant Steven Arrington was charged on each count with the same offenses as defendant. Prior to trial, count one (attempted murder) and count three (robbery) were dismissed.

Pursuant to a negotiated plea agreement, co-defendant Arrington agreed to testify for the State and defendant stood trial alone. Following a five-day trial, a jury acquitted defendant of second-degree aggravated assault (causing serious bodily injury or attempting to cause serious bodily injury), and third-degree possession of a weapon for an unlawful purpose, but he was convicted of a lesser included offense of third-degree aggravated assault (causing significant bodily injury or attempting to cause significant bodily injury), N.J.S.A. 2C:12-1(b)(2) (count two), and fourth-degree unlawful possession of a weapon (count five). At sentencing on April 20, 2007, the trial court granted the State's motion to sentence defendant to a discretionary extended term, pursuant to N.J.S.A. 2C:44-3(a). After noting that defendant had "pummeled" the fifty-nine-year-old victim "senselessly for no purpose" with a baseball bat; and finding that aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), clearly and substantially outweighed "the nonexistent mitigating factors"; the court merged count five with count two and sentenced defendant to an eight-year extended term of imprisonment with a three-year period of parole ineligibility.

On appeal, defendant presents the following arguments:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY REQUIRING THE JURY TO CONTINUE DELIBERATIONS DESPITE THE JURY'S INDICATION IT WAS DEADLOCKED. (NOT RAISED BELOW).

POINT II

THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF THIRD DEGREE AGGRAVATED ASSAULT WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE. (NOT RAISED BELOW).

POINT III

The trial court abused its discretion in deciding to impose a discretionary extended term on count II, warranting a remand to impose a sentence commensurate with a third degree offense.

POINT IV

In the event the trial court's decision to impose a discretionary extended term on count II was proper, the defendant is entitled to a remand pursuant to State v. Pierce since the court did not follow the Pierce guidelines regarding the applicable extended term range for a third degree offense.

POINT V

In the event THE defendant is not entitled to a remand pursuant to State v. Pierce, the sentence imposed was manifestly excessive.

Based on our examination of the record, the briefs, and the applicable law, we have concluded that defendant's arguments pertaining to his convictions are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We remand, however, for resentencing in light of State v. Pierce, 188 N.J. 155 (2006).

The facts are not complicated. On the evening of September 15, 2006, after visiting his wife at a hospital, Thomas Martinez was "down" and decided he would "get a date" with a prostitute. Martinez drank some malt liquor and then took a bus to a McDonald's located in the vicinity of Frelinghuysen Avenue in the City of Elizabeth. According to Martinez, a young lady approached him and after they agreed "to do something," she took him to an apartment at the Seth Boyden Project.

Once Martinez and the prostitute reached the apartment, they began smoking crack. Martinez noticed that the prostitute "went back to the door" and was talking to somebody standing outside the door. Martinez felt he was about to be robbed and decided to leave the apartment. On his way out, Martinez noticed a baseball bat near the door and took the bat. As he began to walk toward the stairs, Martinez noticed a young man watching him, so he said, "hey, man, I want no trouble." But the young man "just stood there."

Martinez became scared and sought help by knocking on "a few" apartment doors. Martinez also "pulled" a fire alarm in the building hoping that the police would respond. When the police did not come, Martinez testified he "started running with the bat down the stairs," and as he was doing so, he realized there were some "guys" behind him that were chasing him.

Once outside, Martinez dropped the bat and started running in the direction of a nearby factory parking lot where he thought a security guard might be stationed. As he ran, the individuals who were chasing him were throwing bricks and bottles at him and, unfortunately, he found he was "trapped" after he ended up in the wrong parking lot.

Martinez testified he was attacked and beaten by five individuals, but only one of the men--the defendant--struck him with a baseball bat. According to Martinez, the assault continued until he heard police sirens and at that point, defendant and the others ran off.

When the Elizabeth Police arrived, they began treating the victim and immediately called an ambulance. Shortly thereafter, Elizabeth Police officers brought three men to the scene, and Martinez identified defendant and co-defendant Arrington as two of his assailants. As a result of the assault, Martinez testified he sustained a fractured ankle, head injuries that required eighteen staples and "four or five stitches," and he was hospitalized for "about four or five days."

Martinez and Arrington were the State's key witnesses. When Martinez was asked if he had "any doubt that Mr. Council hit you with the bat?" he answered: "No, no way." Moreover, that testimony was corroborated by Arrington who admitted that he participated in the assault:

Q. Okay. About how many times did you see the defendant hit this man with the bat?

A. Like three.

Q. Okay. But you said you saw him hit him on the head --

A. And the body, yes.

Q. -- in the back?

A. Yes.

Q. And the legs?

So at least that many times?

A. Yes.

Q. Okay. Do you have any doubt that the defendant, Jerry Council, was hitting this man with the bat?

A. Yes.

Q. Well, do you have any doubt about it?

A. No.

Q. So you are sure he did?

A. Yes.

Q. Was the man fighting back?

A. No.

Q. Now, did you do anything to the man as this was going on?

A. Yes.

Q. What did you do?

A. I kicked him and start[ed] punching him.

After the State rested, the defense presented three witnesses and recalled Arrington. One of the defense witnesses, Raul Pagan, was working as a security guard on the night in question and he witnessed the assault, which occurred at about "2:30 in the morning," from a distance of "approximately 700 feet or more." According to Pagan, he saw two young men hit another young man "really hard" and after "the young man fell to the ground," he could not get up. At that point, Pagan had his sergeant call the police. Pagan described the two men that hit the other man as two young black men, who were "more or less about 19 years old."

In his summation, defense counsel noted there were inconsistencies in the testimony provided by Martinez and Arrington, and he argued that Martinez's judgment was impaired because he had been "using crack cocaine." In addition, defendant's attorney argued that Arrington decided "to lay the finger on Jerry" because Arrington was "getting an incredible sweetheart deal."

In his first point, defendant claims the trial court erred in requiring the jury to continue deliberations after the jury indicated it could not come to a unanimous decision. On the third day of trial, following the trial court's jury charge, the jury began deliberating at 12:52 p.m. At 4:08 p.m., the jury sent a note to the court requesting information regarding a "letter from Steven Arrington to Jerry Council," and that information was provided to the jury the following morning. At 11:40 a.m., the jury asked to "hear the testimony of Mr. Pagan, the security guard." After that testimony was read back, the jury resumed its deliberations. At 12:35 p.m., the court received a note from the jury indicating, "We cannot come to a unanimous decision."

After consulting with counsel, the court provided the jury with the following response:

THE COURT: Ladies and gentlemen, you have a question. We cannot come to a unanimous verdict.

You have been deliberating yesterday about two hours. Today I know you came out at 9:20, you had two long readbacks. You've been deliberating less than two hours today.

Court's going to direct that you continue your deliberations, listen to one another, reflect upon what each of you say, and -- hold on for a moment.

It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to your individual judgment.

Now, each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors.

In the course of your deliberations do not hesitate to re-examine your own views, and change your opinion, if you're convinced it's erroneous. But do not surrender your honest conviction as to the weight or the effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict.

Remember, you're not partisans here, you're judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.

I'm going to ask you to please, after lunch, to come back and redo an effort.

Defendant's attorney did not object to this response, and the jury continued deliberations until 4:00 p.m. on March 1, 2007. The following morning, the jury asked the court for the definitions for serious bodily injury and significant bodily injury, which the court provided, and the jury rendered its verdict at approximately 11:00 a.m.

We recognize, of course, that a trial court must not pressure jurors to surrender "'honest convictions' about guilt or innocence merely to reach a unanimous verdict," State v. Figueroa, 190 N.J. 219, 221 (2007) (quoting State v. Czachor, 82 N.J. 392 (1980)). A supplemental instruction in the case of a jury deadlock should "simply remind jurors of their duty to cooperate in collective deliberations." Czachor, supra, 82 N.J. at 398. The trial court in this case clearly complied with this directive, and we find no error. R. 2:10-2.

Defendant also challenges his sentence, but he does not dispute that he was statutorily eligible for an extended term as a persistent offender. N.J.S.A. 2C:44-3(a). We are satisfied the court's findings with regard to the extended term were appropriate, and its findings regarding the presence of aggravating factors and the absence of mitigating factors were based on competent, reasonably credible evidence. However, as defendant points out, the court erred in finding that the bottom of the sentencing range was five years because defendant was convicted of a third-degree crime, the range for the extended term was from the bottom of the third-degree range, which is three years pursuant to N.J.S.A. 2C:43-6(a)(3), to the top of the extended-term range, which is ten years pursuant to N.J.S.A. 2C:43-7(a)(4). Pierce, supra, 188 N.J. at 169 ("[T]he range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range.").

In view of the foregoing, we affirm defendant's convictions and remand for reconsideration of the sentence. Jurisdiction is not retained.

 
Affirmed in part and remanded in part.

Arrington pled guilty to second-degree aggravated assault. In exchange for the plea, the State agreed that Arrington would be sentenced as a third-degree offender under N.J.S.A. 2C:44-1(f)(2).

(continued)

(continued)

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A-0138-07T4

August 4, 2010