STATE OF NEW JERSEY v. THOMAS YOUNG

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1022-08T41022-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS YOUNG, a/k/a THOMAS L. YOUNG,

Defendant-Appellant.

__________________________________

Argued March 2, 2010 - Decided June 17, 2010

Before Judges Wefing, Grall and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No.

06-12-4020.

Frank J. Pugliese, Assistant Deputy Public Defender,

argued the cause for appellant (Yvonne Smith

Segars, Public Defender, attorney; Mr. Pugliese,

of counsel and on the brief).

Luanh L. Lloyd, Assistant Prosecutor, argued

the cause for respondent (Robert D. Laurino,

Acting Essex County Prosecutor, attorney; Ms.

Lloyd, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant, together with his co-defendant Sean Richardson, was indicted for second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1; first-degree robbery, N.J.S.A. 2C:15-1; fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a. Tried to a jury, defendant was convicted of second-degree robbery as a lesser-included offense of first-degree robbery and acquitted of all other offenses. The trial court granted the prosecutor's motion to impose an extended-term sentence, N.J.S.A. 2C:44-3a; and it sentenced defendant to eighteen years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we reverse defendant's conviction and remand for further proceedings.

Defendant's conviction rests upon an incident which occurred at approximately 3: 30 A.M. on July 21, 2006. Raymond Nesby was driving his motorcycle southbound on the Garden State Parkway when he ran out of gas at exit 143A. He knew there was a twenty-four gas station nearby but did not want to leave his motorcycle. Using his cell phone, Nesby called a towing company for assistance and was told it would take between thirty and forty-five minutes for someone to arrive. While he was waiting, he saw two black males walking on a nearby street. He said one wore camel-colored military-style pants, a black T-shirt with white lettering and a dark military type hat, and the other wore a white T-shirt, blue denim jeans and black boots. Nesby became wary and decided to leave the motorcycle and walk to the gas station, taking his two cell phones and money clip with him. He had only gone a short distance when he saw that the two men had turned around and were heading back in his direction; Nesby decided to return to his motorcycle. The two men approached and asked if he had a cigarette. He replied that he did not smoke and walked away. As he did so, one of the two said they had a gun and Nesby raised his hands in the air. Nesby said that when he turned around, the man in the black T-shirt held a gun to his face. He was told to empty his pockets, and he handed everything over to the man in the white T-shirt. The two men then walked to a nearby housing complex owned and operated by the Irvington Housing Authority. Nesby tried to flag passing motorists for help; eventually a taxi driver stopped and drove him to the gas station where he spoke to the 911 operator.

Nesby was later shown video footage taken from surveillance cameras at the housing complex. The footage showed two men walking, one in a dark T-shirt, the other in a white T-shirt. He said those were the two men who had robbed him. On cross-examination, he agreed that the man in the dark T-shirt was wearing a light-colored hat and the other man light-colored shoes.

Also on cross-examination, defendant's attorney showed Nesby the transcript of a statement he provided to the police shortly after the incident. In that statement, Nesby said the man wearing the black T-shirt with white lettering was wearing blue denim shorts and black boots while the man in the white T-shirt wore blue jeans with black shoes. Nesby did not identify defendant to the jury as one of the men who robbed him.

Two employees of the Irvington Housing Authority testified and identified video footage taken from the Authority's surveillance cameras for the time period identified by Nesby. This footage showed two men walking along the route described by Nesby. One man was wearing a white T-shirt and jeans, the other a black T-shirt, camouflage hat and jeans. Both said they recognized the man in the white T-shirt as Sean Richardson and identified defendant as the second man. This identification of defendant was not based upon seeing his face, which was not visible in this footage, but on the clothes the individual was wearing.

Based upon the identification supplied by the Authority's employees, both defendant and Richardson were arrested and charged. Richardson subsequently entered a negotiated plea of guilty and testified for the prosecution at defendant's trial. He said he and defendant were "chilling" together. They had gone to a gas station to buy loose cigarettes but were unsuccessful because the station would only sell a complete pack, and the men did not have enough money to purchase a whole pack. On their way to the gas station, they saw a "Caucasian dude" stranded with his motorcycle. He was still there when they came back from their attempt to buy cigarettes. Richardson said he and defendant approached the man and defendant asked for a cigarette; the man responded he did not have any and turned away. Richardson said that defendant pulled out a gun, and the man handed over two cell phones and a money clip. Richardson said he and defendant headed to the nearby apartment complex and entered a building. After five to ten minutes, defendant left. The prosecutor showed Richardson the video footage taken from the Authority's surveillance cameras. He identified himself and defendant as the two men seen on the film.

Richardson admitted that in April 2007 he wrote a letter to defendant in which he stated that defendant had nothing to do with this incident. The following month, Richardson entered his own plea of guilty and identified defendant as having participated with him. He said that at the time he wrote the letter, he was in custody and he wrote the letter for his "protection." Richardson had not been sentenced at the time of defendant's trial but said he understood he would receive a sentence of seven years in prison, and would be ineligible for parole until he served 85% of that time. He admitted that he had two prior criminal convictions, both for possession of a controlled dangerous substance with the intent to distribute, within one thousand feet of school property. N.J.S.A. 2C:35-7.

The State's final witness was Detective Sergeant Salvatore Ingui of the New Jersey State Police, who interviewed defendant. Sergeant Ingui first advised defendant of his Miranda rights, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and questioned him about the events of that night. Defendant said he had been with Richardson and the two had tried to buy loose cigarettes. They had seen Nesby with his motorcycle, and they approached to ask for a light for a cigarette. Defendant denied taking anything from Nesby. When Sergeant Ingui referred to the video footage, defendant responded that he "had the wrong guy" and that he had not taken anything from Nesby.

Defendant, despite the fact that he had three prior criminal convictions, took the stand and testified. Prior to defendant testifying, the trial court held a hearing as to whether the fact of defendant's convictions would be admissible, State v. Sands, 76 N.J. 127 (1978), and whether they should be sanitized, State v. Brunson, 132 N.J. 377 (1993). The trial court answered both questions in the affirmative.

Defendant testified that he headed off with Richardson to the gas station to buy some loose cigarettes and saw a "White dude standing by the Parkway." Defendant said they did not reach the gas station because on the way, another man, dressed in a black shirt and dark hat, called out to Richardson. Richardson crossed the street and the two men talked; defendant said he stayed where he was. He said after the two men spoke, they headed back in Nesby's direction. Defendant testified that he had a sense of what was going on and turned around and headed back to the housing complex. He said when he reached the complex, Richardson came hurrying up behind him and joined him. He said Richardson led the way into the building and then showed him a cell phone and wallet. Defendant said he left after a few minutes. Defendant described his outfit that night as a black T-shirt, dark pants and a straw hat.

Defendant raises two arguments on appeal:

POINT I THE TRIAL COURT FAILED TO INSTRUCT THE JURY NOT TO CONSIDER DEFENDANT'S PRIOR CONVICTIONS AS EVIDENCE OF GUILT IN THE PRESENT MATTER, DEPRIVING DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. FIFTH AND FOURTEENTH AMENDS.; N.J. CONST. ART. I PARS. 1 & 10.

POINT II THE DEFENDANT'S DISCRETIONARY EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:44-3(a), OF AN EIGHTEEN-YEAR BASE TERM WITH AN 85% PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND REQUIRES REMAND.

Correct jury charges are, of course, essential to a fair trial. State v. Martini, 187 N.J. 469, 477 (2006). If the jury is not correctly instructed as to the applicable law governing its deliberations, the verdict it returns is subject to challenge. The Supreme Court has recognized on many occasions that erroneous charges in a criminal matter are "poor candidates for rehabilitation under the plain error theory." State v. Rodriguez, 195 N.J. 165, 175 (2008) (quotations omitted) (reversing defendant's conviction for reckless manslaughter due to an erroneous charge on self-defense). It is thus not dispositive that defendant's attorney did not object to the court's charge to the jury in this matter. "Because proper jury instructions are essential to a fair trial, erroneous instructions on material points are presumed to possess the capacity to unfairly prejudice the defendant." State v. Grenci, 197 N.J. 604, 623 (2009) (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).

As part of its general instructions, the trial court gave the following charge to the jury on the task of weighing the credibility of Sean Richardson.

You've heard evidence that Sean Richardson has previously been convicted of crimes. This evidence may be only used in determining the credibility or believability of his testimony. A jury has a right to consider whether a person has previously failed to comply with society's rules, as demonstrated through criminal convictions would be more likely to ignore the oath requiring truthfulness on the witness stand than a person who has never been convicted of crimes.

You may consider, in determining this issue, the degree of the convictions and when they occurred. That applies to the defendant as well.

You heard evidence that he had prior convictions. So you can use that evidence the same way as you would judge the credibility of Mr. Richardson in that very narrow respect. We're talking about the evidence of prior convictions. How to use them for limited and prohibited use of that.

Now, you're not, however, obligated to change your opinion as to the credibility of these witnesses, and that's -- you understand that Mr. Young here is a defendant and a witness, so his credibility is evaluated like any other witnesses.

You're not, however, obligated to change your opinion as to the credibility of these witnesses simply because of prior convictions. You may consider such evidence along with all the other factors we previously discussed in determining credibility of witnesses.

Sean Richardson, who was indicted for the crime the defendant is on trial for, has pleaded guilty to some of those charges. Namely, conspiracy and robbery. Has testified on behalf of the State and has, yet, to be sentenced.

This evidence may be used only in determining the credibility or believability of his testimony. A jury has a right to consider whether a person who has admitted that he failed to comply with society's rules will be more likely to ignore the oath required and truthfulness on the witness stand than a person who has never been convicted or pleaded guilty to a crime. You may consider such evidence along with all the other factors that I mentioned previously in determining the credibility of a witness.

However, you may -- however, you may not use Sean Richardson's plea of guilty as evidence that defendant Thomas Young is guilty of the crimes for which he is charged.

The law requires that the testimony of such a witness, that is a cooperating codefendant be given careful scrutiny. And when his testimony, therefore, you may consider whether he has a special interest in the outcome of the case and whether his testimony was influenced by the hope or expectation of any favorable treatment or reward or by any feelings of revenge or reprisal. And in this connection you may, also, consider that Mr. Richardson has not, yet, been sentenced on the crimes for which he pleaded guilty.

The trial court did not give any further instructions to the jury on the permissible uses of defendant's admission that he had three prior convictions. Specifically, the trial court omitted the following passage from the model charge on assessing the credibility of the testimony of a defendant who has a prior criminal conviction:

You may not conclude that the defendant committed the crime charged in this case or is more likely to have committed the crime charged simply because he/she committed a crime on another occasion.

. . .

Our law permits a conviction to be received in evidence only for the purpose of affecting the credibility of the defendant and for [no] other purpose.

We concur with defendant's contention that the effect of this omission was to tell the jury how it could use the fact of his prior convictions but to fail to tell them how it could not use the fact of his prior convictions. "[A]s long as former conviction of crime remains admissible on the cross-examination of the accused . . . jurors have to be told their consideration of such conviction must be limited entirely to the issue of his credibility." State v. Manley, 54 N.J. 259, 270 (1969). "A jury must be instructed that they cannot consider a defendant-witness's conviction as substantive evidence of defendant's guilt." State v. Dreher, 302 N.J. Super. 408, 476 (App. Div.), certif. denied, 152 N.J. 10 (1997), cert. denied, 542 U.S. 943, 118 S. Ct. 2353, 141 L. Ed. 2d 723 (1998), overruled on other grounds by State v. Brown, 190 N.J. 144 (2007); State v. Farquharson, 321 N.J. Super. 117, 121, (App. Div.), certif. denied, 162 N.J. 129 (1999) (noting that a defendant's prior convictions are admissible only to challenge his credibility in the event he testifies).

We cannot help but take note of the extended deliberations in this matter. The trial court charged the jury on Friday, November 2. The transcript indicates that the jury commenced its deliberations at 11:05 A.M. The jury did not reach a verdict that day. It returned on Monday, November 5, and deliberated most of the day without reaching a verdict. The transcript of that day's proceedings indicates that at 3:55 P.M. the jury reported it was unable to come to agreement on any of the charges. The trial court gave what it referred to as a "modified Allen charge" and the jury resumed deliberations until 5:00 P.M., at which point the trial court excused the jury for the day. Election Day intervened, and the matter resumed on Wednesday, November 7; the jury reported reaching a verdict shortly after twelve noon. It acquitted defendant of conspiracy to commit robbery, aggravated assault, the weapons offenses and robbery while armed but convicted him of second-degree robbery, a verdict which does not comport with either the State's theory of the case or defendant's denial of any involvement. In sum, the State's evidence cannot fairly be characterized as overwhelming.

To prevail on a claim of plain error in a jury charge, a defendant must demonstrate "legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Chapland, 187 N.J. 275, 289 (2006) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). The State contends that the charge given to this jury does not fall within the plain error penumbra because the court did instruct the jury that defendant's prior convictions were admissible "only" in considering his credibility as a witness. In light of the clear prejudice which flows from the disclosure that a defendant has previously been convicted of a crime, we consider it inherently unfair to a defendant to permit a conviction to stand on so slim a reed.

Defendant has filed a pro se supplemental brief in which he raises the following contentions:

POINT I THE TRIAL JUDGE ERRED BY NOT GRANTING A JUDGMENT OF ACQUITTAL AFTER THE STATE FAILED TO MEET ITS BURDEN. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, WHEREFORE, THE CONVICTION SHOULD BE REVERSED.

POINT II THE TRIAL JUDGE ERRED BY GIVING A COERCIVE ALLEN CHARGE, AFTER THE JURY ANNOUNCED IT COULD NOT REACH A VERDICT, WHICH RESULTED IN A COMPROMISED AND INCONSISTENT RESULT. THE FULL CHARGE WAS NOT INCLUDED IN THE TRANSCRIPT. THIS COURT MAY BE AIDED BY THE ACTUAL AUDIO/VIDEO RECORD OF THE TRIAL OR FROM THE LAW DIVISION'S RECORD OF THE TRIAL.

POINT III THE DEFENDANT WAS DENIED HIS RIGHT OF A FAIR TRIAL BY PROSECUTORIAL MISCONDUCT, WHEREFORE THE CONVICTION MUST BE SET ASIDE AND A NEW TRIAL AWARDED.

In light of our conclusion that defendant's conviction must be reversed for the reasons we have set forth, it is unnecessary to address these arguments, just as it is unnecessary to address the argument put forth by his counsel that his sentence was excessive.

Reversed and remanded for further proceedings.

 

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