STATE OF NEW JERSEY v. NICHOLAS CIPRIANO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1054-07T41054-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NICHOLAS CIPRIANO,

Defendant-Appellant.

_________________________________

Submitted January 26, 2010 - Decided March 8, 2010

Before Judges Carchman and Parrillo.

On appeal from Superior Court of New Jersey,

Law Division, Monmouth County, Indictment No.

06-09-1931.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public

Defender, of counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor,

attorney for respondent (Mary R. Juliano, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Nicholas Cipriano was convicted of the lesser-included offense of second-degree robbery, N.J.S.A. 2C:15-1 (Count 1), and third-degree terroristic threats, N.J.S.A. 2C:12-3 (Count 2). On the State's motion, defendant was sentenced to a mandatory extended term, N.J.S.A. 2C:43-7.1b, of eighteen years subject to an eighty-five percent parole bar on Count 1 and a concurrent five-year term on Count 2. Defendant appeals, and we affirm.

According to the State's proofs, on September 20, 2005, Andrea Alexander was working as a teller at the Provident Bank branch in Freehold. At around 4:00 p.m., a man, later identified as defendant, walked into the bank, handed a note to Alexander, and told her to "read it carefully." The note read: "I have a gun. Give me your 20's, 50's and 100's. If you mess up, you're the first one shot." As she began handing money to defendant, he threatened her "Don't pull any funny [expletive], don't give me the bait money." After receiving the money, defendant started to flee, but turned around to retrieve the note.

As defendant was departing the bank, the bank manager, Allison Monge, came out of her office and was told of the robbery by Alexander, who also pushed the panic button to summon help and alert her fellow co-workers. Afraid he might return, Alexander then retreated to a back room, where she hid crying. Monge meanwhile ran outside and followed the robber into a parking lot where she saw him leave in a late-model black Nissan Pathfinder. Monge then returned to the bank and called 9-1-1. A subsequent audit revealed that $2,222 had been stolen from the bank.

Monge provided police with a surveillance video of the bank interior, which captured defendant committing the robbery, as well as defendant's description: a white male, 5'7" to 5'9" with grayish-white hair in his mid- to late-fifties, wearing a tan "Members Only" jacket, black pants or jeans, and blue and white sneakers. Alexander's description was consistent. Monge then accompanied Detective Donald Swinarski of the Freehold Township Police Department to a nearby Burlington Coat Factory parking lot where Detective Troy Braxton, after given a description of the getaway car, located a vehicle that matched the description. Upon peering through the windows of the Pathfinder, he saw a tan-colored "Members Only" jacket behind the driver's seat. Upon her arrival at the parking lot, Monge identified the vehicle as the one she believed defendant was operating when he fled the bank scene.

Braxton remained in the parking lot waiting for defendant to appear. Eventually he observed a man who fit the robber's description exit a store, look around the parking lot, walk toward the Pathfinder, and then change directions. Braxton exited his vehicle, drew his weapon and commanded defendant to put his hands up. With the defendant detained, Alexander was transported to the parking lot. As they neared the shopping plaza from the highway, Alexander spontaneously identified defendant, who was standing on the sidewalk, unrestrained, with the two plain-clothes officers. Monge was also returned to the scene in a separate police vehicle, and likewise identified defendant.

A search of defendant incident to his arrest uncovered $2,235.77 in his pants pocket. A subsequent search of the Pathfinder pursuant to warrant uncovered a tan jacket, a black valise with white lined paper, and a blue pen with the words "Commerce Bank" on it. A second search of the vehicle, with the owner's consent, revealed a small quantity of heroin and paraphernalia in the center console.

Although he did not testify, defendant disputed, through counsel, the armed feature of the robbery charge. The jury ultimately convicted defendant of second-degree robbery.

On appeal, defendant raises the following issues:

I. THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE VICTIM'S CREDIBILITY, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1 PAR. 10. (Not Raised Below).

II. THE EXTENDED TERM SENTENCE WAS ILLEGAL, THUS THE MATTER SHOULD BE REMANDED FOR RESENTENCING IN THE ORDINARY RANGE FOR A SECOND DEGREE OFFENSE.

A. The 2002 Michigan conviction for Possession of Burglar's Tools does not validate the unlawful imposition of an extended term sentence.

B. The 1998 violation of supervised release from federal prison does not validate the unlawful imposition of an extended term sentence.

C. The motion for an extended term was untimely and should not have been granted.

III. THE SENTENCE OF EIGHTEEN YEARS IMPRISONMENT SUBJECT TO THE NO EARLY RELEASE ACT IS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.

We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

I.

Defendant contends, for the first time on appeal, that the prosecutor, in summation, improperly vouched for the victim Alexander's credibility by commenting that "she . . . was [a] perfectly honest, totally truthful, credible young woman[.]" We discern no error, much less plain error, Rule 2:10-2, in the prosecutor's remarks.

It is improper for a prosecutor to voice a personal opinion as to the veracity of a witness, thereby lending the support of his or her governmental office to the testimony of that witness. State v. Farrell, 61 N.J. 99, 105 (1972); State v. Staples, 263 N.J. Super. 602, 605-06 (App. Div. 1993). However, "[a] prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (citing State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997)), certif. denied, 182 N.J. 148 (2004); see also Staples, supra, 263 N.J. Super. at 605.

Here, the prosecutor preceded the challenged remarks by commenting on those factors traditionally considered by fact-finders in assessing witness credibility, namely, the demeanor of the witness, her interest in the outcome of trial, if any, her possible bias, and the extent to which other evidence corroborates her testimony. These factors simply mirror those contained in the Model Charge on witness credibility, which the jury is permitted to consider. See Model Jury Charges (Criminal), Criminal Final Charge Credibility of Witnesses (revised Feb. 24, 2003). And immediately following the challenged remarks, the prosecutor discussed the evidence corroborating Alexander's testimony, including the surveillance video and the pen and paper seized from defendant's vehicle. Thus, the prosecutor's challenged remarks amounted to no more than argument based on the evidence of record and well-recognized considerations used in weighing witness credibility.

Even assuming some impropriety in the remarks, not every deviation justifies reversal of a conviction. State v. Wakefield, 190 N.J. 397, 446 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910 (1958). To warrant a new trial, the remark must have been "'clearly and unmistakably improper'" and must have "'substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Koskovich, 168 N.J. 448, 488 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)).

Here, defense counsel's failure to object suggests the remarks were not believed prejudicial when made. See State v. R.B., 183 N.J. 308, 333 (2005) (quoting State v. Frost, 158 N.J. 76, 83 (1999)); State v. Jang, 359 N.J. Super. 85, 96 (App. Div.), certif. denied, 177 N.J. 492 (2003). Moreover, the prosecutor's challenged remarks echoed those made in summation by defense counsel, who described Alexander as an "honest" witness. Indeed, the defense wanted the jury to find Alexander credible because she testified that she did not see defendant with a gun, and she did not testify that she saw him make any gesture that simulated gun possession. Lastly, defendant suffered no prejudice because he was convicted only of offenses to which he conceded his guilt.

II.

Defendant next contends that he did not qualify for an extended term sentence under N.J.S.A. 2C:43-7.1b because he had not been convicted of a "crime" within the ten years prior to his present offense, as required under section c of the statutory provision. In this regard, defendant argues that his September 30, 2002 conviction in Michigan for possession of burglary tools, although punishable in that State by imprisonment up to ten years, is not a "crime" for which defendant has a prior conviction within the meaning of section c because its substantial equivalent in New Jersey possession of burglary tools is a disorderly person's offense punishable by up to six months in prison. We disagree.

Under the "Three Strikes Law", N.J.S.A. 2C:43-7.1, a

person shall be sentenced to an extended term of imprisonment pursuant to N.J.S.A. 2C:43-7 if:

[t]he person is convicted of . . . a crime of the second degree under N.J.S.A. 2C:15-1 . . . and the person has been convicted of any of the [crimes enumerated in subsections a. or b. of N.J.S.A. 2C:43-7.1] . . . committed on two or more prior and separate occasions regardless of the dates of the convictions[.]"

[N.J.S.A. 2C:43-7.1b(1).]

Defendant clearly qualifies under section b(1) since he stands presently convicted of second-degree robbery committed on September 20, 2005, and his record reflects two prior convictions for first-degree robbery while armed, in 1971 and 1972 respectively, which are among the enumerated crimes, N.J.S.A. 2C:43-7.1a. These, plus defendant's present conviction, amount to the "three strikes" required by section b(1).

Section c adds a temporal requirement:

The provisions of this section shall not apply unless the prior convictions are for crimes committed on separate occasions and unless the crime for which the defendant is being sentenced was committed either within 10 years of the date of the defendant's last release from confinement for commission of any crime or within 10 years of the date of the commission of the most recent of the crimes for which the defendant has a prior conviction.

[N.J.S.A. 2C:43-7.1c.]

As noted, the crime for which defendant was presently sentenced was committed on September 20, 2005. The most recent crime for which defendant had a prior conviction was possession of burglary tools, committed in Michigan on February 18, 2002. Mich. Comp. Laws 750.116. Thus, since defendant's present crime was committed within four years of the commission of the most recent crime for which he had a prior conviction, defendant satisfies the ten-year temporal requirement of N.J.S.A. 2C:43-7.1c.

Defendant nevertheless argues that his burglary tools conviction is not a "crime" within the meaning of section c because it is denominated a "felony", not a "crime", in Michigan and because its substantial equivalent in New Jersey is only a disorderly person's offense. We find no merit in this argument.

To determine whether the Michigan conviction qualifies as a conviction for a "crime" under N.J.S.A. 2C:43-7.1, we look to N.J.S.A. 2C:44-4c, which provides that "[a] conviction in another jurisdiction shall constitute a prior conviction of a crime if a sentence of imprisonment in excess of 6 months was authorized under the law of the other jurisdiction." N.J.S.A. 2C:44-4c. This provision is expressly made applicable to the Three Strikes Law by section d of that statute, which plainly states that "[p]rior convictions shall be defined and proven in accordance with N.J.S.A. 2C:44-4." N.J.S.A. 2C:43-7.1d. As noted, the Michigan statute criminalizing possession of burglary tools authorizes a sentence of imprisonment of up to ten years. See Mich. Comp. Laws 750.116. Because the Michigan burglary tools statute authorizes a sentence in excess of six months, defendant's conviction under that statute constitutes a "prior conviction of a crime" as defined by the New Jersey's Criminal Code.

Given the statute's clear and plain wording, defendant is left to argue that it is "fundamentally unfair to authorize a 20[-]year punishment for a second[-]degree offense based on a conviction for an act that would have been a disorderly offense were it committed in New Jersey." This argument misses the point. Defendant's extended term under the "Three Strikes Law" is based on his three first- or second-degree robbery convictions. His burglary tool conviction, in contrast, is not being used as a predicate offense or prior "strike," but merely to establish the temporal requirement of subsection c. Such a conviction is relevant under the statute to demonstrate defendant's continuing and recent pattern of criminal activity. See generally State v. Galiano, 349 N.J. Super. 157, 165 (App. Div. 2002), certif. denied, 178 N.J. 375 (2003). In sum, we find defendant's criminal record satisfies the requirements of N.J.S.A. 2C:43-7.1 for imposition of an extended term sentence.

Defendant also alleges that his extended term sentence is illegal because the State's motion for same was not filed within fourteen days of the jury's verdict as required by Rule 3:21-4f. We disagree.

N.J.S.A. 2C:43-7.1d requires written notice to the defendant and a hearing prior to the imposition of an extended term sentence. The fourteen-day "notice" requirement is imposed by court rule. R. 3:21-4f. Clearly, the purpose of both statute and rule is to insure the defendant has a meaningful opportunity to challenge the State's "extended term" evidence. Cf. State v. Martin, 110 N.J. 10, 17-18 (1988). Here, such a meaningful opportunity was afforded defendant. A notice of motion with attached judgments of conviction was filed two days before the sentencing hearing. At the hearing, the judge offered defendant more time an extra ten days to prepare, but defendant declined the opportunity. Under the circumstances, we find that defendant received adequate notice to contest the grounds for imposing an extended term and therefore suffered no prejudice by the State's failure to file the required notice by the rule's deadline.

III.

Lastly, defendant contends his eighteen-year sentence with an eighty-five percent bar was excessive. Again, we disagree.

As extended-term eligible, defendant faced an enhanced sentence of between ten and twenty years. N.J.S.A. 2C:43-7a(3). His eighteen-year term was based on the sheer weight of aggravating factors, N.J.S.A. 2C:44-1a(3), (6) and (9), over the non-existent mitigating circumstances. Contrary to defendant's argument, we find no impermissible double counting, as defendant's extended term was based on his three robbery convictions, while the court's finding of factors (3), (6) and (9) was based on defendant's entire criminal record which consisted of numerous other crimes in addition to the robberies. See State v. Carey, 168 N.J. 413, 425 (2001); State v. Mara, 253 N.J. Super. 204, 214 (App. Div. 1992).

We also reject defendant's other argument that the court overlooked the mitigating factors that defendant's conduct did not cause serious harm and defendant did not contemplate his conduct would cause serious harm. N.J.S.A. 2C:44-1b(1), (2). However, the judge specifically considered this claim and concluded otherwise:

I have to consider all those things in this case. And we heard what happened. He passed a note in a ba[nk] saying "Give me your money, I'll kill you." Words to that effect. What really upset me about this case, not upset but I guess what really concerns me is -- I don't want to use the word "upset" -- what concerns me about this case is the victim had just started there. I think she was 18. She was recently in high school. She started working at this bank and she came in here and she was scared to death.

And she, it was very, the testimony was she just, once the police were called, she was hysterical. She hovered in a ball in the back room. People had to calm her down, and she never went back to work again. She left that day and I think never, they never, ever, saw her again. No one should ever have to go through that, certainly.

And I think she said she is scared of the defendant. She did not return to work at the bank. She says she will never work in a bank again. She suffers from anxiety attacks since the present offense occurred. So certainly there was harm to the victim here.

We find no warrant for interference with the sentence.

 
Affirmed.

Defendant was acquitted of third-degree heroin possession, N.J.S.A. 2C:35-10a(1) (Count 3).

The vehicle's registration came back to Carol Cipriano from Whiting.

(continued)

(continued)

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A-1054-07T4