STATE OF NEW JERSEY v. STERLING STRAUSS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2789-08T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STERLING STRAUSS,

Defendant-Appellant.

___________________________________

June 3, 2011

Submitted May 10, 2011 - Decided

Before Judges Graves and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-06-2170.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane D. Plaisted, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Sterling Strauss appeals his conviction for carjacking, contrary to N.J.S.A. 2C:15-2, as well as the resulting sentence of incarceration for a term of twenty-two years, of which he was required to serve eighty-five percent prior to becoming eligible for parole. We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

At about 9:45 p.m. on October 18, 2006, Velma Williams and her daughter, Raymona Williams,1 were seated in the front of Velma's Nissan Pathfinder adjacent to Velma's house in Newark. Velma's younger daughter was in the backseat.

Two men walked past the car. According to Raymona, one of the men was thin and the other was heavy, and both were dark-skinned and wearing dark clothing. According to Velma, one of the men was short and wore a dark "hoodie." She estimated that the shorter man was approximately five feet, five inches tall, and was the heavier of the two. She estimated the height of the other man to be five feet, six or seven inches.

After walking past, the men returned to the car. The man subsequently identified as Strauss yelled "Boo," which startled Velma and Raymona. He said: "Oh my God. I'm sorry. Did I scare you?" Velma responded that he had scared her. The man walked over to the driver's side, where he apologized again and said that he had thought Velma was his aunt.

As Velma was getting out of the car, the man held out his hand. She thought he wanted to shake hands, but then realized that he had a gun in his left hand. He said: "Get out the car and give me everything you have." She threw her car keys down, screamed, and ran from the car. Her daughters, also screaming, got out of the car and ran. The man jumped into the car and drove away.

By the time the Newark Police arrived at the scene, Velma's car had been in an accident. Prior to getting out, Velma had applied a brake lock, which made the car brakes nonfunctional and unable to stop the car. She identified the car as the police were taking her to the police station.

The following day, Raymona reviewed approximately 200 photographs, which had been computer generated on the basis of her description of a bald, black male, between thirty and forty years old, as the man who drove away with her mother's car. She picked out Strauss's picture and identified him as the carjacker. An officer who was not familiar with the case showed Velma a photo array of six pictures, including Strauss's, sequentially. Velma identified Strauss as the perpetrator. Both Velma and Raymona also identified Strauss while testifying.

On June 22, 2007, Strauss was indicted for carjacking and two related weapons offenses. He was tried before a jury on August 7 and 12, 2008. Although Velma testified that she saw a gun in Strauss's hand, Raymona testified that she did not see a gun. No gun was found in the car. In summation, defense counsel emphasized the lack of physical evidence to support the identifications, inconsistencies in the testimony, and the fact that only Velma testified about a gun. The jury found Strauss guilty of carjacking, but acquitted him of the weapons charges.

Strauss was sentenced on October 27, 2008. The sentencing range for first-degree carjacking is a period of incarceration between ten and thirty years, subject to the eighty-five percent parole ineligibility provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The carjacking was Strauss's fifth indictable conviction. The judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), and (9), with no mitigating factors. He imposed a sentence of incarceration for twenty-two years, subject to NERA and five years of parole supervision upon release, plus the required penalties and assessments.

This appeal followed.

II.

Strauss raises the following issues on appeal:

POINT I: THE DETECTIVE'S TESTIMONY THAT DEFENDANT'S "PHOTO [WAS] RETRIEVED FROM THE MUG SHOT UNIT" WAS IMMEASURABLY PREJUDICIAL AND MANDATES REVERSAL. (Not Raised Below)

POINT II: THE INSTRUCTIONS FAILED TO MENTION FACTORS NECESSARY TO GUIDE THE JURY IN EVALUATING THE EYEWITNESSES'S INCONSISTENT DESCRIPTIONS OF THE PERPETRATOR. (Not Raised Below)

POINT III: THE CONVICTION MUST BE VACATED BECAUSE THE STATE FAILED TO PROVE AN ESSENTIAL ELEMENT OF THE OFFENSE. (Not Raised Below)

POINT IV: THE SENTENCE OF 22 YEARS, 85% WITHOUT PAROLE, IS EXCESSIVE FOR THIS OFFENSE, WHERE THE JURY ACQUITTED OF POSSESSION OF A GUN AND NO ONE WAS INJURED, AND FOR THIS OFFENDER, WHO HAS NO HISTORY OF VIOLENCE.

The first three issues are being raised for the first time on appeal. Pursuant to Rule 2:10-2:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

"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)). We review Strauss's arguments according to that standard.

First, Strauss argues that he was "immeasurably" prejudiced when one of the testifying detectives responded to a question about the source of his picture from the photo array by stating that it was "a photo that I retrieved from the Mug Shot Unit." There was no objection, and no repetition of the reference to mug shots. Citing our opinion in State v. Taplin, 230 N.J. Super. 95, 99 (App. Div. 1988), Strauss argues that the reference to a mug shot was "suggestive of a prior criminal record." He further argues that it constituted an inadmissible reference to his prior convictions, which suggest to the jury that he was more probably guilty because he is "a person of criminal character." State v. Weeks, 107 N.J. 396, 406 (1987). He characterizes the prejudice as severe because of the discrepancies in the identification evidence.

Although reference to the use of mug shots in identifying a defendant can constitute reversible error, it has been deemed harmless error when identification is genuinely at issue, only a single reference to a mug shot occurred, and the trial judge delivered a curative instruction. See State v. Harris, 156 N.J. 122, 173 (1998) (stating solitary, fleeting references to mug shots will generally not require a new trial), cert. denied, 532 U.S. 1057, 121 S. Ct. 2204, 149 L. Ed. 2d 1034 (2001); Taplin, supra, 230 N.J. Super. at 99 ("[W]here identification is an issue and the State's use of a mug shot is reasonably related to that issue . . . the mug shot is admissible for that purpose, in as neutral a form as possible and despite the inferences it nevertheless raises."); State v. Porambo, 226 N.J. Super. 416, 425-26 (App. Div. 1988) (concluding the combination of the "fleeting" nature of the officer's comment and the subsequent curative instruction was sufficient to support a finding of no reversible error); State v. Miller, 159 N.J. Super. 552, 562 (App. Div.) (holding a solitary and fleeting reference to a mug shot, coupled with an appropriate curative instruction does not require a reversal), certif. denied, 78 N.J. 329 (1978). In contrast, we reversed in Taplin because the only purpose of the mug shot testimony was "unfairly to permit the jury to draw the inference that defendant had a prior criminal record." Taplin, supra, 230 N.J. Super. at 99.

Here, identification was an issue and there was a single, fleeting reference to "the Mug Shot Unit" during a larger discussion of the process through which the police assembled photo arrays for review by Velma and Raymona. Because there was no objection, there was no opportunity for the judge to deliver an immediate curative charge. Indeed, we deem it likely that defense counsel chose not to highlight the issue by objecting.

Obviously, the police obtained photos of Strauss and approximately 199 others from some source. During his final charge, the judge cautioned the members of the jury that they were "not to consider the fact that the [police] agency obtained a photograph of the defendant as prejudicing him in any way. The photographs are not evidence that the defendant has ever been arrested or convicted of any crime."

Having reviewed the incident in context, we are satisfied that, under these circumstances, the single reference to the Mug Shot Unit was not "clearly capable of producing an unjust result." Bunch, supra, 180 N.J. at 541. Consequently, any error was harmless.

Next, Strauss argues that the judge did not properly instruct the jury with respect to the issue of identification. He makes the argument for the first time on appeal, and relies primarily on the report of a special master that was not issued until two years after his trial and has not yet been acted upon by the Supreme Court. See State v. Harris, 181 N.J. 391, 436 (2004) (criticizing a defendant for asking the Supreme Court to "find trial counsel ineffective for not anticipating a change in law--a change which [the] Court has not indicated that it will adopt"). Because the Supreme Court has neither adopted the special master's recommendations nor decided a case that applies them retroactively, we will not apply them in this appeal.

Nevertheless, we have reviewed the charge as it relates to the issue of identification in the light of applicable law, and find no error. In doing so, we are cognizant of the principle that jury charges providing "incorrect instructions of law 'are poor candidates for rehabilitation under the harmless error theory.'" State v. Harrington, 310 N.J. Super. 272, 277 (App. Div.) (quoting Weeks, supra, 107 N.J. at 410), certif. denied, 156 N.J. 387 (1998). The judge's charge in this case was not incorrect under current law.

The charge given by the trial judge, to which Strauss did not object, was compliant with the Model Jury Charge. Strauss contends that the judge's charge was incorrect with respect to witness confidence and inconsistencies in the witnesses' descriptions. The judge charged the jury as follows:

According to the witnesses, their identification of the defendant was based upon the observations and perceptions that they made of the perpetrator at the time the offense was being committed. It is your function to determine whether the witness' identification of the defendant is reliable and believable, or whether it is based on a mistake or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged.

You should consider the observations and perceptions on which the identification was based, and the circumstances under which the identification was made. Although nothing may appear more convincing . . . than a witness' categorical identification of a perpetrator, you must critically analyze such testimony. Such identification, even if made in good faith, may be mistaken. Therefore, when analyzing such testimony, be advised that a witness' level of confidence, standing alone, may not be an indication of the reliability of the identification.

In evaluating the identifications, you should consider the observations and perceptions on which the identifications were based, and the witness' ability to make those observations and perceptions. If you determine that the out-of-court identification is not reliable, you may still consider the witness' in-court identification of the defendant if you find it to be reliable. Unless the in-court identification resulted from the witness' observations or perceptions of the perpetrator during the commission of the offense, rather than being the product of an impression gained at the out-of-court identification procedure, it should be afforded no weight. The ultimate issue of the trustworthiness of both the in-court and out-of-court identification are for you to decide.

To decide whether the identification testimony is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offenses charged, you should evaluate the testimony of the witnesses in light of the factors for considering credibility that I have already explained to you. In addition, you may consider the following factors:

The witness' opportunity to view the person who committed the offense at the time of the offense; the witness' degree of attention to the perpetrator at the time of the offense; the accuracy of any description the witness gave prior to identifying the perpetrator; the degree of certainty expressed by the witness in making any identification; the length of time between the witness' observation of the offense and the first identification; discrepancies or inconsistencies between identifications, if any; the circumstances under which any out-of-court identification was made and whether or not it was the product of a suggestive procedure, including everything done or said by law enforcement to the witness before, during or after the identification process. In making this determination you may consider the following circumstances:

Whether anything was said to the witness prior to viewing a photo array; whether a photo array shown to the witness contained multiple photographs of the defendant; whether the other participants in the array were grossly dissimilar in appearance to the defendant; whether the defendant is pointed out, before or during the array; whether the witness' identification was made spontaneously and remained consistent thereafter; whether the individual conducting the array either indicated to the witness that a suspect was present or failed to warn the witness that a perpetrator may or may not be in the procedure; whether the witness was exposed to opinions, descriptions or identifications given by other witnesses, or to any other information or influence that may have affected the independence of her identification, and any other factors based on the evidence or lack of evidence in the case which you consider relevant to your determination whether the identification was reliable.

Unless the in-court and out-of-court identifications resulted from the witness' observations or perceptions of the perpetrator during the commission of the offense, rather than being the product of impression gained at the in-court or out-of-court identification procedure, it should be afforded no weight. The ultimate issue of the trustworthiness of the identification is for you to decide.

If, after consideration of all the evidence, you determine that the [S]tate has not proven beyond a reasonable doubt that the defendant was the person who committed the offenses, then you must find him not guilty. If, on the other hand, after consideration of all the evidence you are convinced beyond a reasonable doubt that the defendant was correctly identified, you will then consider whether the [S]tate has proven each and every element of the offenses charged beyond a reasonable doubt.

Based upon those instructions, we are satisfied that "the appropriate guidelines [were] given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness of [the out-of-court and] in-court identification[s]." State v. Green, 86 N.J. 281, 292 (1981).

Strauss's final plain-error argument relates to his assertion that the State failed to prove an essential element of the offense of carjacking.2 The indictment in this case required the State to prove that Strauss "threaten[ed] an occupant or person in control [of the vehicle] with, or purposely or knowingly put[] an occupant or person in control of the motor vehicle in fear of, immediate bodily injury." See N.J.S.A. 2C:15-2(a)(2). Strauss argues that the fact that the jury acquitted him of possession of a weapon means that it could not have convicted him of carjacking. We disagree.

In reviewing this issue, we apply the standard set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967),

whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

Velma testified that she "scream[ed]," was "afraid" and "paranoid" after Strauss told her to "Get out [of] the car and give me everything you have." Raymona testified that they "all started screaming" when Strauss told them to "get out [of] the car" and "give him the keys." We are satisfied that the jury could have convicted Strauss on the charge of carjacking based on that testimony. A reasonable jury could conclude from the trial testimony that Velma was in fear of immediate bodily injury if she did not comply with Strauss's orders. In addition, although the jury may have concluded that Velma was wrong about the presence of a gun, it could reasonably have concluded from her testimony that Strauss acted so as to lead her to believe that he had a gun. Actual possession of the gun was not a necessary element of the offense.

Finally, Strauss contends that his sentence was excessive. He argues that the judge should have found mitigating factor one, that "defendant's conduct neither caused nor threatened serious harm," and mitigating factor two, that "defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C:44-1(b)(1) and (2), based on the jury's acquittal on the gun charge. He also argues that the judge failed during sentencing to consider our decision in State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996), which called for a sentencing analysis based on the four statutory elements in N.J.S.A. 2C:15-2 to determine where a carjacking sentence should fall in the ten-to-thirty year range.3

Our review of sentencing decisions is relatively narrow and is generally governed by an abuse of discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)). "In conducting the review of any sentence, appellate courts always consider whether the trial court has made findings of fact that are grounded in competent, reasonably credible evidence and whether 'the factfinder [has] appl[ied] correct legal principles in exercising its discretion.'" Ibid. (quoting State v. Roth, 95 N.J. 334, 363 (1984)). The traditional articulation of this standard limits a reviewing court's scope of review to situations in which the application of the facts to law has resulted in a clear error of judgment and to sentences that "shock the judicial conscience." Roth, supra, 95 N.J. at 363-65. If the sentencing court has not demonstrated a clear error of judgment or the sentence does not shock the judicial conscience, appellate courts are not permitted to substitute their judgment for that of the trial judge. Id. at 364.

"In exercising its authority to impose [a] sentence, the trial court must identify and weigh all of the relevant aggravating factors that bear upon the appropriate sentence as well as those mitigating factors that are 'fully supported by the evidence.'" Blackmon, supra, 202 N.J. at 296 (quoting State v. Dalziel, 182 N.J. 494, 504-05 (2005)).

With respect to the mitigating factors, although the jury apparently concluded that there was no gun, or at least insufficient proof on that issue, it nevertheless concluded that Strauss "threaten[ed]" Velma "with, or purposely or knowingly put[] [her] in fear of, immediate bodily injury." The threat was sufficient to cause Velma to run away from her car screaming, leaving the keys behind. Consequently, we see no error in the judge's failure to find mitigating factors one or two.

Although the judge did not address Zadoyan at sentencing, we have held that failure to do so does not necessarily require resentencing.

Defendant maintains that this trial court did not do so, and thus he is entitled to be resentenced. We disagree.

Initially, we note that the analytical premise underlying Zadoyan, the absence of a presumptive term for the crime of carjacking, id. at 290-91, has been substantially weakened in light of the Supreme Court's abolition of presumptive sentencing in State v. Natale, 184 N.J. 458, 487 (2005). Defendant's sentence, nonetheless, is in the mid-range of permissible sentences for the crime of carjacking. N.J.S.A. 2C:15-2(b). Further, the defendant in Zadoyan was convicted of what the court considered the least serious form of carjacking. Zadoyan, supra, 290 N.J. Super. at 292. Here, however, the victim's car was stolen after he was threatened with a sawed-off shotgun. In such a context, we consider State v. Henry, 323 N.J. Super. 157, 164 (App. Div. 1999), to be instructive.

Under the Zadoyan analysis, the offense here would thus rank as one of "intermediate concern"--less serious than one involving the first factor ("bodily injury" or the use of "force") but more serious than one involving only the fourth factor. Given the use of a gun and the threat of injury, however, the offense would lie on the high side of that intermediate range.

[State v. Leonard, 410 N.J. Super. 182, 189 (App. Div. 2009), certif. denied, 201 N.J. 157 (2010).]

The offense in this case is somewhat similar to that in Leonard, although there the defendant had a weapon. Here, even if Strauss had no weapon, he either led Velma to believe that he did or at least threatened bodily injury sufficient to get her to leave her keys and run away screaming.

The judge noted the extent of Strauss's prior record in imposing a sentence slightly above the middle of the sentencing range. We see no abuse of discretion. The sentence imposed, although severe, does not shock the judicial conscience. Roth, supra, 95 N.J. at 363-65. We will not interfere with the judge's exercise of his broad discretion in sentencing.

Affirmed.

1 Because the victims share the same last name, we refer to them by their first names for the sake of convenience.

2 Although Strauss moved for acquittal at the end of the State's case, he did not move again after the verdict.

3 The four elements of carjacking are: (1) "the infliction of bodily injury or use of force"; (2) "the threat of bodily injury"; (3) "the commission or threat to commit a first or second degree crime"; and (4) "operation of the vehicle with the lawful occupant remaining in it." Zadoyan, supra, 290 N.J. Super. at 291.