STATE OF NEW JERSEY v. BIN CHEN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2107-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BIN CHEN,

Defendant-Appellant.

____________________________

April 4, 2012

 

Submitted February 28, 2012 - Decided

 

Before Judges Carchman and Fisher.

 

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 09-02-0534.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Lee March Grayson, Designated Counsel, on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Bin Chen1 was convicted of third-degree theft, N.J.S.A. 2C:20-3a and N.J.S.A. 2C:20-2b(2)(d). As a result of his conduct at trial, defendant was charged with four separate acts of criminal contempt. Following the trial, a hearing was held before the trial judge, at which time the judge concluded that defendant was guilty of four separate acts of criminal contempt. N.J.S.A. 2C:29-9a. On the first contempt charge, defendant was sentenced to a three-month jail sentence and a fine of $500. On the subsequent three contempt charges, defendant was sentenced to three six-month jail sentences and fined $1,000. All sentences were to run consecutively; therefore, the aggregate sentence for the contempt offenses was twenty-one months of incarceration and a fine of $3,500. Thereafter, the judge granted the State's motion to sentence defendant for the theft to an extended term as a persistent offender. The judge sentenced defendant to an extended term of nine and one-half years of imprisonment, together with a period of parole ineligibility of four and three-quarter years. This sentence was ordered to run consecutively to the sentences imposed on the contempt convictions. Defendant appeals. While we affirm the conviction as to the theft and the contempt charges and affirm the sentence as to the theft, we exercise original jurisdiction and order the sentences on the four extant contempt charges to run concurrent to the sentence on the theft charge.

Our focus on this appeal is narrow. As such, we provide an abbreviated recitation of the facts. On August 6, 2008, defendant was observed on a recording security camera focused on him as a result of his suspicious conduct while on the gaming floor of Bally's Casino in Atlantic City. While the camera and casino personnel were observing defendant, defendant proceeded to snatch the purse of a casino guest seated at a poker table. Defendant was quickly apprehended while carrying the purse, arrested and charged with the theft.

At trial, the recorded videotape of the incident was played for the jury. After the State had rested its case, defendant, who is a Chinese national and spoke through an interpreter, indicated that he wanted to make a statement. The judge instructed defendant that if defendant wanted to testify, he had to answer questions posed by his attorney. In addition, defendant was instructed that he would not be allowed to testify about his belief that he was previously convicted on the alleged offense and was further warned that he would be held in contempt if he violated the trial judge's instructions. When defendant started to testify, the following colloquy ensued:

[Defense Counsel]: Did you have a chance to see the video that was shown to the jury in this courtroom today?

 

The Interpreter: Yes, I did see it.

 

 

[Defense Counsel]: Is that you on the video tape?

 

The Interpreter: Yes.

 

[Defense Counsel]: What do you want to tell the jury about that?

 

The Court: About what? About that. What's that mean?

 

[Defense Counsel]: About the incident.

 

The Court: About the incident.

 

The Interpreter: I want to tell the jury what exactly happened at that time.

 

[Defense Counsel]: Go on.

 

The Interpreter: First I want to admit the person show[n] on this video is me. This is a stupidest thing I did, two years ago when I lose money out of the casino. I regret it to have done such thing. This is what happen two years ago. I was jailed for two years for this offense.

 

[Prosecutor]: I'll object to that, your honor.

 

The Court: That objection is sustained and you are to disregard that answer as that statement -- that statement is not true as a matter of law and you are to disregard that statement.

 

The Interpreter: I don't know why, but this is the facts. I was jailed for this crime.

 

[Prosecutor]: Again, Your Honor, objection.

 

The Court: That objection is sustained. You'll disregard that answer as that is not a factual or legal correct answer. It is not true. You will disregard it and I admonish the witness not to give such an answer again as it is not true.

 

The Interpreter: All I want to tell the jury is that I was jailed for this offense. I'm sitting in jail right now.

 

The Court: That appears to be a third time. He's invoked that answer for the third time. I'll indicate to the jury disregard that answer. it is not legally or factually true and again, tell him not to -- ask him if there's anything about the incident that occurred on the tape that he wants to testify to.

 

The Interpreter: What I have to hide? The fact that I was jailed, I'm sitting in jail right now.

 

The Court: That's a fourth time he's invoked a false answer. And the jury is directed to disregard that answer. Tell him not to repeat that because it's not true.

 

The Interpreter: That's a fact. Why we should hide this fact from the jury?

 

The Court: Because number one, it's not true. And ask him if there's anything else he wants to say.

 

The Interpreter: Yes, I have many things to tell the court.

 

The Court: Well, if it's about this incident, he can do that.

 

You want to ask the questions?

 

The Interpreter: I want to talk.

 

The Court: Tell him he'll answer the question of his lawyer.

 

The Interpreter: If, Your Honor, I finish what I have to say, I will answer his question.

 

The Court: No. He'll answer the questions now.

 

[Defense Counsel]: Judge, I have no other questions.

 

The Court: No other questions.

 

The Interpreter: The law allow me to speak to the jury.

 

The Court: Do you have any cross?

 

[Prosecutor]: No.

 

The Court: No. All right.

 

Thank you sir. You may step down.

 

The Interpreter: That's not fair to me.

 

Defendant: Excuse me, I have a question. This clothes not mine.

 

The Court: Sit down.

 

Any other witnesses?

 

[Defense Counsel]: No, Judge. We rest.

 

The Court: Excuse me?

 

[Defense Counsel]: The defense would rest.

 

This colloquy was preceded by extensive discussion throughout the trial among defendant, his attorney and the judge regarding defendant's distrust of his attorney, as well as defendant's position that he was entitled to address the jury directly. In fact, prior to defendant's testimony, the judge stated that "if [defendant] tries to tell the jury that he has already been tried for this offense, I will hold him in contempt of Court for a direct violation of my order and he will be sentenced separately . . . ."

As we have noted, defendant did exactly what he had been ordered not to do, and the judge held him in contempt. The jury returned a verdict of guilty as to the theft offense.2 This appeal followed.

On appeal, defendant raises the following issues.

POINT I

 

BECAUSE THE DEFENDANT'S TESTIMONY WAS LIMITED BY THE TRIAL COURT, HE WAS DEPRIVED OF A FAIR TRIAL IN VIOLATION OF THE NEW JERSEY AND UNITED STATES CONSTITUTIONS.

 

POINT II

 

THE CONTEMPT ISSUES THAT AROSE DURING THE THEFT TRIAL CONTAMINATED THE SENTENCING PROCEEDINGS, RESULTING IN THE IMPOSITION OF AN EXCESSIVE SENTENCE[,] REQUIRING REMAND FOR RE-SENTENCING.

 

POINT III

 

THE SENTENCING COURT ENGAGED IN IMPERMISSIBLE DOUBLE COUNTING WHEN DETERMINING THE LENGTH OF THE SENTENCE TO BE IMPOSED.

 

POINT IV

 

REQUIRING THE DEFENDANT TO SERVE THE SENTENCE IMPOSED IN THIS CASE CONSECUTIVE TO THE CONTEMPT SENTENCE WAS UNREASONABLE AND RESULTED IN MANIFEST INJUSTICE.

 

POINT V

 

REVERSAL IS REQUIRED IN THIS CASE BECAUSE THE CUMULATIVE EFFECTS OF THE ERRORS DEPRIVED THE DEFENDANT OF JUSTICE.

 

We begin our discussion by setting forth basic principles that apply under the unique circumstances presented here.

A criminal defendant's right to testify, while not explicitly provided in either the New Jersey or the United States Constitutions, is derived from and implied by the Fifth Amendment privilege against self-incrimination, the Sixth Amendment right to compulsory process and to conduct one's own defense, and the Fourteenth Amendment right to due process. Rock v. Arkansas, 483 U.S. 44, 51-53, 107 S. Ct. 2704, 2708-10, 97 L. Ed. 2d 44, 46-47 (1987). In New Jersey, the right is implied by Article I, paragraphs 1 and 10 of the New Jersey Constitution. State v. Savage, 120 N.J. 594, 628 (1990).

A criminal "defendant is privileged to testify; that is not the same as having the unlimited constitutional right to testify in the manner of his choosing" or to testify "untruthfully." State v. Burroughs, 344 N.W.2d 149, 156 (Wis. 1984). "Whatever the scope of a constitutional right to testify, it is elementary that such a right does not extend to testifying falsely." Nix v. Whiteside, 475 U.S. 157, 173, 106 S. Ct. 988, 997, 89 L. Ed. 2d 123, 138 (1986) (emphasis in original). Of course, a trial would not be considered unfair because the defendant was prevented from offering perjured testimony. Id. at 173-75, 106 S. Ct. at 138-40, 89 L. Ed. 2d at 997-98. See also Harris v. New York, 401 U.S. 222, 225-26, 91 S. Ct. 643, 645-46, 28 L. Ed. 2d 1, 4-5(1971).

Here, at trial, outside the presence of the jury, defendant indicated that the "only question" that he wanted posed to him on direct examination was about "his belief that he was already convicted of this offense." The trial judge placed a reasonable limitation on the scope of defendant's testimony by precluding defendant from falsely testifying that he had already been convicted of the present offense.

Defendant violated the court's order. In his direct testimony, defendant admitted that he was the person depicted on the videotape committing the instant theft, and he added, not in response to any question, "I was jailed for two years for this offense." Defendant told the jury three more times that he was already jailed for this offense.

On appeal, defendant maintains that "a literal reading" of the record reveals that he did not testify that he was previously convicted of and sentenced for the present offense; therefore, he did not "technically" violate the judge's warnings. Defendant maintains that he testified that he was in jail for two years for this offense, and that he, in fact, had been incarcerated for a substantial period of time awaiting trial on this indictment.

The record reveals facts to the contrary. When defendant committed the theft on August 6, 2008, he was arrested and released from custody on the same day. Defendant was subsequently arrested numerous times for additional crimes, spanning from August 8, 2008, only two days after the instant offense, to March 7, 2009. The trial for the present theft offense was held in January 2010, and the jury found defendant guilty of this crime on January 11, 2010.

The judge's ruling that defendant could not testify as to his incarceration and prior conviction for this offense was, in fact, an evidential ruling. Defendant's testimony was inaccurate, and such inaccuracy made the testimony irrelevant to the merits of the underlying theft charge. Whether defendant was being retried on the same offense and whether defendant had served a sentence for this offense were not issues to be resolved by a jury. The judge could have addressed these issues on application by defendant.

Even if the judge's rulings were erroneous, the proper course of action for defendant was not defiance of the order but appropriate appellate relief. By refusing to comply with the order, defendant mutated an objection to an evidential ruling into contemptuous conduct. Although it is difficult to fathom defendant's strategy from his attempts to enter the challenged testimony, other than to secure jury nullification or sympathy in the face of overwhelming evidence of guilt, we do not find error in the judge's order that defendant was precluded from testifying as to the purpose of his incarceration.

We have considered defendant's arguments as to the quantum of the sentences on the theft conviction and conclude that the arguments are without merit. R. 2:11-3(e)(2).

We reach a different result regarding the sentences as to the contempt convictions. In the first instance, the judge imposed consecutive sentences as to each contempt finding and then imposed these sentences to be consecutive to the theft offense. In sum, the five convictions (four contempt and one theft, including an extended term) ran consecutive to each other.3 We conclude that this was error.

Trial judges have discretion whether to impose concurrent or consecutive sentences for two or more crimes. N.J.S.A. 2C:44-5; State v. Yarbough, 100 N.J. 627, 630, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986); see also State v. Abdullah, 184 N.J. 497, 512-15 (2005) (upholding constitutionality of N.J.S.A. 2C:44-5, which permits imposition of consecutive sentences based on judicial factfinding).

In Yarbough, supra, 100 N.J. at 643, the Supreme Court made clear that "there can be no free crimes in a system for which the punishment shall fit the crime." Ibid. The Court outlined standards to guide the court's discretion in deciding whether to impose consecutive or concurrent sentences for separate offenses: (1) whether "the crimes and their objectives were predominantly independent of each other"; (2) whether they "involved separate acts of violence or threats of violence"; (3) whether they "were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior"; (4) whether they "involved multiple victims"; and (5) whether "the convictions for which the sentences are to be imposed are numerous." Id. at 630, 643-44.

Although the judge found defendant's contemptuous conduct to be separate acts that were independent of each other, we conclude that the acts were part of defendant's continuous misconduct. These were not independent acts but all within the context of the trial with a "common victim." We find no appropriate basis for imposing consecutive sentences as to the contempt convictions either as to each other or as to the theft conviction, especially when defendant already faces an extended term on the theft conviction. We are not satisfied that the Yarbough standards were met here.

While we recognize that the exercise of original jurisdiction, R. 2:10-5, is not a preferred course of action, State v. Thomas, 195 N.J. 431, 437 (2008) (citations omitted), we deem it to be appropriate here. As we have noted, we affirm the imposition of the extended-term sentence on the substantive conviction of theft. Our exercise of original jurisdiction is limited to the issue of whether to impose sentences for the contempt convictions consecutively as to each of the convictions and to the theft conviction.

We conclude that under the principles enunciated in Yarbough, the imposition of consecutive sentences here was error. The narrow issue is not the alteration of a sentence as was the circumstance in Thomas, supra, 195 N.J. at 437, State v. Kromphold, 162 N.J. 345, 355 (2000), or State v. Jarbath, 114 N.J. 394, 409-12 (1989), but whether a sentence should run concurrently or consecutively. See State v. Clark, 65 N.J. 426, 437 (1974) (observing that a claim of "excessive" sentence by reason of the aggregation of the custodial terms imposed was "distinct from [an argument of sentence illegality] by reason of being beyond or not in accordance with legal authorization"). See also State v. Flores, 228 N.J. Super. 586, 596-97 (same). The reviewing courts have endorsed the use of consecutive sentencing when crimes that lack independence from each other are nonetheless heinous. See, e.g., State v. Swint, 328 N.J. Super. 236, 264 (App. Div. 2000) (commenting that, although the offenses in question "were not predominately independent of each other and were committed close in time and place, considering the nature of each offense, the purpose for which they were committed, and the manner in which they were committed, including the maiming of the victim by cutting off each of his ears, shooting him, and stabbing him, our judicial conscience is not the least bit shocked by the imposition of consecutive sentences"). By contrast, in State v. Allen, 139 N.J. Super. 285 (App. Div. 1976), we reversed the trial court's decision to impose consecutive sentences:

These counts involve two of the patrons in the bar who were not robbed but were held at gunpoint with all the other occupants of the establishment. Since these charges arose out of the single transaction of the holdup of the bar and all its patrons we are of the opinion that the imposition of additional consecutive sentences for these charges are so unduly punitive as to require appellate modification. Under the circumstances, these sentences are manifestly excessive.

 

[Id. at 289-90.]

 

Similarly, in rejecting the trial judge's decision to impose consecutive sentences, in State v. Rodgers, 230 N.J. Super. 593 (App. Div. 1989), we focused on the magnitude of the harm the defendant's victims suffered: "[e]ven though defendant's conduct as an attorney is reprehensible because he stole millions of dollars, there has been some restitution made from his assets. While restitution is irrelevant to the issue of guilt and unprofessional conduct, it is a relevant consideration in sentencing." Id. at 604 (internal citations omitted). In this case, the contempts occurred in rapid succession and were based on defendant's refusal to cooperate with the judge's instructions during the trial. The harm to any victims of defendant was minimal, particularly as the judge instructed the jury to disregard defendant's conduct that instigated the contempts. As in Allen, the charges arose from a short period of time, in a single instance of defendant's failure to comply with the judge's instructions to him. The case law dictates that consecutive sentences for defendant's contempts were manifestly excessive. See State v. Amodio, 390 N.J. Super. 313, 331, 334 (App. Div.) (finding no error where trial court determined that contempt sentence would run concurrent to other sentences), certif. denied, 192 N.J. 477 (2007); State v. Colon, 298 N.J. Super. 569, 572, 579 (App. Div. 1997) (same).

We conclude that the sentences imposed were properly concurrent sentences. The imposition of five consecutive sentences was neither warranted by the facts nor the weighing of the aggravating or mitigating factors. The extended-term sentence of nine and one-half years with a four and three-quarter year period of parole ineligibility was warranted by the record with the additional contempt sentences to run concurrent to each other and to the extended-term sentence.

We affirm the judgment of conviction as to the theft offense and the extended-term sentence imposed on that conviction. We affirm the judgment of conviction as to the contempt offenses; we modify the sentences on the contempt offenses to run concurrent to each other and to the sentence imposed on the theft conviction.

1 Defendant is also known as Bin Wang; Bin Sun; Qui Wang; Bing Yang; Yang, Bin; Yi B. Cao; Hubi Chen; Yi Cho; and Cao Y. Gu.

2 Defendant does not challenge the jury's verdict as to the theft. He challenges the sentence imposed. Defendant had been ordered to be deported to China in March 2004, and he was placed on an "order of supervision" as a person pending deportation. On July 14, 2009, the United States Immigration and Customs Enforcement (ICE) took him into custody on an immigration warrant.

3 Defendant did not challenge the consecutive sentences on each contempt ruling but focused on the contempt sentences being consecutive to the theft sentence.