STATE OF NEW JERSEY v. LATOYA S. CAMPBELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,
 

Plaintiff-Respondent,

v.

LATOYA S. CAMPBELL, a/k/a DESTINY

NELSON, TIFFANY WILLIAMS,

Defendant-Appellant.

__________________________________

October 22, 2013

Submitted September 23, 2013 Decided

Before Judges Parrillo and Harris.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 10-03-0595, 12-02-0310 and

12-03-0186.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Miriam Acevedo, Special Deputy Attorney General/

Acting Assistant Prosecutor, on the brief).

PER CURIAM

Tried by a jury, defendant Latoya Campbell, a/k/a Destiny Nelson, was convicted of first-degree carjacking, N.J.S.A. 2C:15-2; third-degree receipt of stolen property, N.J.S.A. 2C:20-7; third-degree fraudulent use of a credit card, N.J.S.A. 2C:21-6(h); third-degree hindering apprehension or prosecution, N.J.S.A. 2C:29-3(b)(4); and the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1(a). Thereafter, defendant pled guilty to one count of a multi-count indictment charging third-degree possession of cocaine, N.J.S.A. 2C:35-10(a)(1), and to third-degree bail jumping, N.J.S.A. 2C:29-7, charged in a separate accusation. On the crimes for which she was convicted by a jury, defendant was sentenced to an aggregate fifteen-year term subject to an eighty-five percent parole disqualifier. She received a concurrent five-year term on the drug offense and a consecutive five-year term on the bail jumping conviction. Defendant appeals, and we affirm.

According to the State's proofs at trial, on October 11, 2009, at about 4:00 p.m., defendant and another woman, Q.D., laid in wait in the parking garage of the Newport Mall in Jersey City, until Theresa Capan, whom they had earlier approached under the pretext of requesting her help, returned to her car from shopping. As Capan approached her silver Scion coupe, defendant and her accomplice emerged from their hiding spot and started to repeatedly punch Capan in the face and head. Capan put her purse in the car and attempted to flee, but was pulled from the driver's seat, striking the ground with her knee, and had her keys ripped from her hand. Before she regained her composure, the two women drove off with the car.

The car, equipped with a LoJack homing device that allows law enforcement to track its location, was found that same night at around 7:00 p.m., in the parking lot of another shopping destination the Jersey Gardens Mall in Elizabeth. After confirming it was the right silver Scion, Port Authority police officer Joseph Cascarelli and fellow officers staked out the car to see who would be returning to the vehicle. Minutes later, defendant and Q.D. approached the Scion and loaded the car with shopping bags.

When ordered to stop and raise their hands, defendant dropped an object to the ground and the Scion keys were recovered by defendant's feet. Defendant also had Capan's driver's license in her hand at the time of arrest. A search of the vehicle revealed several shopping bags of women's clothing and boots. One of the bags contained a purse and a receipt from Aldo for $46.58 charged to Capan's bank card. Another bag contained Uggs boots and a receipt from Journeys Kidz for $239.98, also charged to Capan's bank card. Capan had neither purchased nor authorized the purchase of these items.

Defendant, who testified in her own defense, denied ever being at the Newport Mall and claimed she was at the Jersey Gardens Mall with her mother when she encountered two of her friends, Q.D. and Raquesha Williams. At some point, Williams left defendant and Q.D., and agreed to meet them back at Q.D.'s aunt's car, which Q.D. told defendant that she had borrowed. While shopping, Q.D. bought defendant Uggs boots at Journeys Kidz. After they finished shopping, and as they approached the silver Scion, police officers emerged with guns drawn. The two women were arrested and taken into custody, at which point they told police that they were waiting for Williams, who never did return to the vehicle after the police once again staked out the scene.

At the police station, defendant gave the officers a false name and date of birth, indicating she was a juvenile, in the hope of receiving more favorable treatment and not, according to defendant, to evade responsibility for the carjacking. At around 11:00 p.m., Capan bruised and swollen arrived at the detention facility where defendant and Q.D. were being held, and identified both women as her assailants.

On appeal, defendant raises the following issues:

I. DEFENDANT WAS DENIED HER RIGHTS TO DUE PROCESS AND A FAIR TRIAL BY THE COURT'S FAILURE TO SANITIZE A PRIOR CONVICTION THAT WAS TOO SIMILAR TO A PRESENT OFFENSE. U.S. CONST., AMENDS. V, XIV; N.J. CONST., ART. 1, PARS. 1, 10.

II. THE COURT IMPOSED A MANIFESTLY EXCESSIVE, UNDULY PUNITIVE SENTENCE ON THE CARJACKING CONVICTION.

I.

Defendant first contends the court erred in failing to sanitize her prior conviction for the third-degree drug-related offense of obtaining prescription drugs by forging the prescription, which she argues is similar to one of the offenses charged, credit card fraud. We disagree.

Under N.J.R.E. 609, "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." Under N.J.R.E. 609, the State may introduce evidence of a defendant's prior convictions to impeach a testifying defendant's credibility. Whether to admit the prior convictions of a testifying defendant is a matter reserved to the sound discretion of the trial court and may only be reversed on appeal upon a showing of an abuse of discretion. State v. Hamilton, 193 N.J. 255, 256-57 (2008); State v. Sands, 76 N.J. 127, 144 (1978); State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff d, 107 N.J. 222 (1987). A defendant's prior convictions are generally presumed to be admissible, and it is defendant's burden to justify exclusion. State v. Spivey, 179 N.J. 229, 243 (2004); Sands, supra, 76 N.J. at 144. To meet this burden, defendant must demonstrate that a conviction is so remote that, in the circumstances of the case, its "probative force" is "substantially outweighed" by the risk that the jury will "believe the defendant has a criminal disposition." Id. at 147.

If the decision is made to admit evidence of a prior crime that is the same or similar to the crime charged, the trial judge must "sanitize" the admissible evidence and restrict its use of the prior conviction to the degree and date of the crime, Hamilton, supra, 193 N.J. at 267-68 (citing State v. Brunson, 132 N.J. 377, 391 (1993)), lest a jury convict the defendant because she was previously convicted of the same or similar offense. In Brunson, supra, the Court held:

[I]n those cases in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged, the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted.

[132 N.J. at 391.]

"Alternatively, the State may introduce without limitation evidence of only the dissimilar convictions." Id. at 394 (emphasis added).

Defendant's sole argument against admission is the failure of the court to "sanitize" the prior conviction. Yet the present charges of carjacking, receiving stolen property, assault and hindering apprehension are entirely dissimilar, obviating any need for sanitization. While the additional charged offense of credit card fraud admittedly contains an element of deceit, defendant's prior conviction for attempting to obtain prescription drugs by forging the prescription is, at its core, a drug-related offense and cannot be said to be substantially similar to credit card fraud. By the same token, the element of deceit inherent in the prior drug conviction renders it highly relevant on the issue of defendant's credibility, but it is not unduly prejudicial given its essential unrelatedness to any of the present charges facing defendant at trial. The balance of interests here clearly favors admission of the prior crime conviction without limitation. See Brunson, supra, 132 N.J. at 394.

Lest there be any doubt that defendant suffered no undue prejudice here, the court instructed the jury as to the limited use of such evidence, advising that defendant's prior conviction "can only be used in determining the credibility or believability of the defendant's testimony." The court further explained to the jurors that they may not conclude that defendant committed the crime charged in this case or is more likely to have committed the crime charged simply because she committed a crime on another occasion. We presume the jury followed these instructions. State v. Manley, 54 N.J. 259, 271 (1969).

Under the circumstances, we perceive no abuse of discretion in the court's evidentiary ruling. State v. Lykes, 192 N.J. 519, 534 (2007); State v. Darby, 174 N.J. 509, 518 (2002).

II.

Lastly, defendant contends the fifteen-year term imposed on her carjacking conviction was manifestly excessive. We disagree.

First-degree carjacking is punishable by a prison term ranging from ten to thirty years, with a mandatory minimum of ten years imprisonment, five years of which are parole ineligible. In imposing the fifteen-year term, the court found aggravating factors (3) risk of another offense; (6) the extent of defendant's prior criminal record and the seriousness of the offenses which she has been convicted; (9) the need to deter; and (13) defendant, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in the possession of a stolen motor vehicle. N.J.S.A. 2C:44-1(a)(3), (6), (9) and (13). The court found no mitigating factors. Even if we were to discount aggravating factor (13) as a redundant consideration, the balance of the aggravating factors, all supported in the record, clearly justify the term imposed. Here, defendant, along with a juvenile accomplice, ambushed the victim while she was approaching her vehicle at the Newport Mall and began punching the victim multiple times. When the victim tried to leave, defendant and her cohort forcefully pulled the victim out of her vehicle and drove off with it. As we held in State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996), the most serious accompanying element in a carjacking offense is when a defendant inflicts bodily injury or uses force. Thus, considering the severity of the offense as well as defendant's prior record, we discern no clear showing of an abuse of discretion in the sentence imposed. State v. Roth, 95 N.J. 334, 364-65 (1984).