A-0STATE OF NEW JERSEY v. NETANEL D. WEISS, a/k/a TONY WEISS, NATE WEISS NATHANEL D WEISS, NATANEL D WEISS November 12, 2013

NOT FOR PUBLICATION WITHOUT THE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.

NETANEL D. WEISS, a/k/a TONY

WEISS, NATE WEISS, NATHANEL D.

WEISS, NATANEL D. WEISS,

Defendant-Appellant.

_________________________________

November 12, 2013

 

Submitted October 30, 2013 Decided

 

Before Judges Fuentes, Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-08-1344.

 

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

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Defendant appeals from his convictions for third-degree burglary, N.J.S.A. 2C:18-2; and fourth-degree hindering prosecution, N.J.S.A. 2C:29-3b(4). We affirm.

In February 2011, a judge and jury tried this case over three days. The State produced testimony from five officers and two lay witnesses. Defendant did not testify. We discern the following facts from the evidence adduced at trial.

Brian Bulfur resided at Nancy Devlin's house while attending school. On December 2, 2008, at approximately 3:30 a.m., Bulfur returned to the house, where he found the garage door open and saw a flashlight shining inside the premises. He approached the garage and noticed a stocky Hispanic1 man with dark hair and a moustache. This man, whom the jury subsequently found to be defendant, left his cell phone in the house before leaving the premises. Bulfur heard yelling and watched the man run towards a gray SUV, enter it, and then drive away. Bulfur contacted the police and two officers arrived at the house. Officer Ernest Hanrahan noticed that "multiple rooms were ransacked" and the back door was partially open. Detective William Lynch dusted for fingerprints, but was unable to detect or lift any usable prints.

At 3:55 a.m. that same day, defendant's girlfriend, with whom defendant resided, reported that her cell phone, a GPS unit, and a radar detector had been stolen from an unlocked car behind the girlfriend's house. Nancy Devlin eventually found a cell phone under a dresser in her residence and turned it over to Detective Lynch, who used it to call defendant's father to obtain defendant's phone number. When Detective Lynch called defendant, he told the officer that his cell phone, a GPS unit, and a radar detector had been stolen. The investigation revealed that the cell phone found in the Devlins' home was defendant s own.

The jury found defendant guilty of burglary and hindering prosecution. In April 2011, the judge granted the State's motion to impose an extended term as a persistent offender and sentenced defendant to an aggregate ten-year prison term with four years parole ineligibility.2

On appeal, defendant raises the following points:

POINT I

DEFENSE COUNSEL'S CROSS-EXAMINATION OF THE SOLE WITNESS, IN AN ATTEMPT TO SHOW THAT THE WITNESS COULD NOT IDENTIFY THE INTRUDER, WAS UNFAIRLY UNDERMINED SINCE THE PROSECUTOR FAILED TO INFORM DEFENDANT OF A PRIOR OUT-OF-COURT PHOTO IDENTIFICATION BY THE WITNESS WHO INDICATED THAT THE PHOTO OF "THE SUSPECT" LOOKED "VERY SIMILAR" TO THE INTRUDER.

 

POINT II

THE ABSENCE OF A JURY INSTRUCTION ON IDENTIFICATION IN LIGHT OF THE UNEXPECTED TESTIMONY BY THE SOLE WITNESS THAT HE IDENTIFIED A PHOTO OF THE SUSPECT AS LOOKING VERY SIMILAR TO THE INTRUDER, WAS CAPABLE OF PRODUCING AN UNJUST RESULT, REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS (Not Raised Below).

 

POINT III

THE IMPOSITION OF A MAXIMUM EXTENDED [TEN]-YEAR TERM OF IMPRISONMENT SUBJECT TO A FOUR-YEAR PAROLE BAR FOR BURGLARY WAS EXCESSIVE.

 

I.

We begin by addressing defendant's argument that his counsel's cross-examination of Bulfur was undermined because defense counsel was unaware that Bulfur performed an out-of-court identification. According to defendant, the trial judge committed reversible error by failing to grant defendant's motion for a mistrial under these circumstances.

The decision whether to grant a mistrial is "within the sound discretion of the trial judge" and a trial judge should only grant a mistrial when not doing so would "result in manifest injustice." State v. DiRienzo, 53 N.J. 360, 383 (1969). Under Rule 3:13-3(c)(10), a prosecutor must provide defense counsel with "all records . . . relating to an identification procedure, as well as identifications made or attempted to be made." Here, Bulfur did not perform an identification procedure and the judge did not err in denying the motion.

Bulfur testified on cross-examination that no one asked him to review mug-shots or view a lineup. Bulfur explained on cross-examination that while preparing for trial with the assistant prosecutor, he asked to see a photograph of defendant. After looking at the picture, Bulfur noted that "it looked very similar to what I had seen that night in the garage." The judge denied defendant's motion for a mistrial and noted that the State had not asked Bulfur to make an identification or questioned him about any identification. We agree that Bulfur's request to see a photograph of defendant did not amount to an identification procedure. Bulfur testified that "[n]o one has ever asked me to [make] any identification." Defense counsel elicited the information about the photograph during cross-examination.

II.

We reject defendant's contention, raised for the first time on appeal, that the judge erred by not charging the jury on identification. Jury instructions "must provide a 'comprehensible explanation of the questions that the jury must determine . . . .'" State v. Singleton, 211 N.J. 157, 181-82 (2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). The judge must charge the jury as to each essential element of the crime. State v. Vick, 117 N.J. 288, 292-93 (1989). "[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation but [instead] the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). If the defendant did not object to the jury instructions at trial, however, the plain error standard applies. Singleton, supra, 211 N.J. at 182-83. Reversal is warranted only if the error was "clearly capable of producing an unjust result." Ibid. (quoting R. 2:10-2). Against this standard, we conclude that there was no error, let alone plain error.

A trial court must provide jury instructions on identification when identification is a "key issue." State v. Green, supra, 86 N.J. at 291-92. This is particularly true when there is only one eyewitness making an identification, see State v. Frey, 194 N.J. Super. 326, 329 (1984), but "[t]he determination of plain error depends on the strength and quality of the State's corroborative evidence," State v. Cotto, 182 N.J. 316, 326 (2005). When such evidence is overwhelming, the failure to give an identification instruction does not constitute reversible error. Id. at 327 (finding that providing only a brief instruction related to identification was not plain error, where the eyewitness recognized a robber as someone she knew by his voice and part of his face, and the robber displayed knowledge only the defendant and one other person would know).

Defendant argues that identification was a material issue in the case. Although Bulfur did not make a formal identification of Bulfur, defense counsel emphasized Bulfur's failure to make an identification, and pointed out discrepancies between defendant's appearance and Bulfur's description of the burglar. We agree in part with defendant's position. The State did not present direct evidence that linked defendant to the burglary. However, the State is permitted to build its case against defendant on circumstantial evidence. As the Supreme Court recently noted in State v. Cagno, 211 N.J. 488, 512 (2012), cert. denied, __ U.S. __, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013), "[j]uries are routinely instructed that they may draw logical inferences from the evidence presented to them and that circumstantial evidence is of as equal weight as direct evidence."

Here, the State presented strong circumstantial evidence of guilt related to the cell phone found in the Devlins' house. Defendant's girlfriend reported the phone stolen on the same night as the burglary, shortly after the burglary; Detective Richard Evans testified that (1) on November 2, 2008, defendant gave him the number to the cell phone as a contact number and stated that it was his phone number; (2) defendant stated that he was living with his girlfriend; and (3) the detective called the number several times and defendant answered; and Detective Lynch testified that defendant admitted to him that the cell phone was his. Thus, the strength and quality of the State's circumstantial evidence of guilt is overwhelming.

In summation, defense counsel highlighted discrepancies between Bulfur's initial description of the intruder and defendant, and noted that the police never asked Bulfur to identify defendant in a lineup. Defense counsel commented on Bulfur not making an identification:

In real life, just like on TV, when you have an eyewitness on the stand, the Prosecutor always, always, always asks the same question: "Is that the man you saw do it, right there?"

 

. . . .

 

The Prosecutor didn't do that with her own eyewitness. She didn't do that.

 

Defense counsel argued to the jury that even after Bulfur viewed the picture, "he still didn't identify [defendant]. And the [p]rosecutor still didn't ask him" and "[i]f that's not reasonable doubt right there, . . . I don't know what is." Failing to give an identification charge, therefore, was not clearly capable of producing an unjust result.

III.

Regarding the sentence, the judge properly granted the State's motion to impose a discretionary extended term as a persistent offender, N.J.S.A. 2C:43-6f, in light of defendant's extensive criminal history, which included several convictions for residential burglaries and weapons offenses, as well as parole violations. The judge found that aggravating factors N.J.S.A. 2C:44-1a(3), (6), and (9) substantially outweighed the non-existing mitigating factors. There is no reason to second-guess the application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984); see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed.

1 Although the witness used the word "Hispanic" as a racial reference, we have previously rejected such a misconception. "Hispanic is not a race. It is a cultural term, an ethnic identification." State v. Valentine, 345 N.J. Super. 490, 496 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002).

2 The judge imposed the extended term on the burglary conviction, concurrent to an eighteen-month prison term on the conviction for hindering prosecution.