STATE OF NEW JERSEY v. ARDONES V. LIVINGSTON

NOT FOR PUBLICATION WITHOUT THE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.

ARDONES V. LIVINGSTON a/k/a

ARDONES VASQUES LIVINGSTON,

Defendant-Appellant.

__________________________________

September 16, 2014

Submitted: September 9, 2014 Decided:

Before Judges Reisner, Haas and Higbee.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10-0142.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

A Middlesex County grand jury charged defendant Ardones Livingston in five counts of a six-count indictment with second-degree conspiracy to promote or facilitate the crimes of (1) official misconduct, N.J.S.A. 2C:30-2a; (2) bribery, N.J.S.A. 2C:27-2c; (3) unlawful transfer of a certain electronic device into a correctional facility, N.J.S.A. 2C:29-10d; and/or (4) acceptance or receipt of an unlawful benefit by a public servant for official behavior, N.J.S.A. 2C:27-10; N.J.S.A. 2C:5-2 (count one); second-degree official misconduct, N.J.S.A. 2C:2-6 and N.J.S.A. 2C:30-2 (count two); second-degree bribery, N.J.S.A. 2C:27-2c (count three); second-degree unlawful transfer of an electronic device into a correctional facility, N.J.S.A. 2C:27-10d and N.J.S.A. 2C:2-6 (count five); and second-degree acceptance of an unlawful benefit by a public servant for official behavior, N.J.S.A. 2C:27-10a (count six). Co-defendants Latasha Walker, Frank Rodriguez, and Traci Baio were also named in the indictment.1

Defendant and Walker were jointly tried before a jury. At the close of the State's case, the trial judge denied defendant's motion for a judgment of acquittal. At the conclusion of the trial, the jury found defendant guilty of second-degree conspiracy (count one) and third-degree bribery, as a lesser-included offense of second-degree bribery (count three). The jury found defendant not guilty of counts two, five, and six.2

The judge denied defendant's subsequent motion for a new trial. At sentencing, the judge sentenced defendant to a five-year term of imprisonment on count one and a concurrent term of three years on count three. Appropriate fines and penalties were assessed.

After defendant filed a notice of appeal, the State moved before the trial court for reconsideration of defendant's sentence and requested the imposition of the mandatory two-year period of parole ineligibility on the sentence imposed for count three as required by N.J.S.A. 2C:43-6.5a. A different judge granted the motion and amended defendant's sentence to include the statutorily-mandated two-year period of parole ineligibility for the conviction of third-degree bribery. Defendant thereafter filed an amended notice of appeal.

On appeal, defendant raises the following contentions:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE ON COUNT THREE BECAUSE THERE WAS ONLY SPECULATIVE PROOF OF GUILT, AND DEFENDANT'S POST-VERDICT MOTION TO SET ASIDE THE GUILTY VERDICT ON COUNT ONE SHOULD HAVE BEEN GRANTED BECAUSE BRIBERY IS NOT A CONSPIRATORIAL CRIME (RAISED IN PART BELOW).

(A) THE EVIDENCE AT THE END OF THE STATE'S CASE WAS NOT SUFFICIENT TO WARRANT A CONVICTION FOR BRIBERY ON COUNT THREE.

(B) DEFENDANT'S ACQUITTALS FOR OFFICIAL MISCONDUCT ON COUNT TWO, UNLAWFUL TRANSFER OF A CELL-PHONE ON COUNT FIVE AND ACCEPTANCE OF AN UNLAWFUL BENEFIT ON COUNT SIX, RENDERED HIS CONVICTION FOR CONSPIRACY ON COUNT ONE A MANIFEST DENIAL OF JUSTICE BECAUSE BRIBERY IS NOT A CONSPIRATORIAL CRIME.

POINT II

COMMENTS MADE BY THE PROSECUTOR IN SUMMATION UNDERMINED DEFENDANT'S PRESUMPTION OF INNOCENCE AND DILUTED THE STATE'S BURDEN OF PROOF (NOT RAISED BELOW).

POINT III

THE [FIVE-]YEAR BASE CUSTODIAL SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR CONSPIRACY ON COUNT ONE WAS MANIFESTLY EXCESSIVE.

In a supplemental brief, defendant adds the following arguments:

POINT [IV]

THE [TWO-]YEAR PERIOD OF PAROLE INELIGIBILITY SHOULD BE WAIVED BECAUSE THERE EXISTED EXTRAORDINARY CIRCUMSTANCES JUSTIFYING SUCH A WAIVER.

POINT [V]

THE STATE SHOULD HAVE BEEN EQUITABLY ESTOPPED FROM MOVING TO RECONSIDER THE "FLAT" SENTENCE IMPOSED BECAUSE IT ACQUIESCED IN AND/OR CONSENTED TO THE "FLAT" SENTENCE, AND BECAUSE DEFENDANT HAD STARTED TO SERVE THE CUSTODIAL PORTION OF HIS SENTENCE.

After reviewing the record in light of the contentions advanced on appeal, we affirm.

I.

The State developed the following proofs at trial. The New Jersey Department of Corrections employed defendant as a senior corrections officer at the Adult Diagnostic and Treatment Center (ADTC) from December 1999 through August 2009. Co-defendant Walker also worked as a corrections officer in the facility. Rodriguez was an inmate at ADTC. He had an ongoing personal relationship with Baio, who had formerly worked at the institution.

For security reasons, the Department strictly prohibits the use of cell phones in a correctional facility like ADTC and neither inmates nor corrections officer may possess them "within the secured perimeter." The Department also prohibits corrections officers from fraternizing with inmates, their families, or their friends. The Department's human resources manager testified that defendant received training on these policies.

Inmates are permitted to use the prison phone system, known as Global TelLink (GTL), to speak to pre-approved individuals in the community. The Department charges the inmates for these calls and all of their conversations are digitally recorded and retained by the institution.

On February 27, 2009, inmate Kenyon found a plastic cup containing a cell phone charger and a cell phone. Kenyon reported this discovery to Investigator Randy Valentin. Kenyon testified he told Valentin that, about a week before, he knocked over the same cup while sweeping the commissary. At that time, Rodriguez told him "'Don't worry about it, it's mine.'" Kenyon testified he had previously observed defendant "joking around" with Rodriguez and stated, "It didn't seem like there was a boundary between a corrections officer and an inmate."

After receiving this information, Investigator Valentin listened to some of Rodriguez's recently recorded GTL phone conversations. He found a number of conversations between Rodriguez and Baio. In one conversation, Baio was heard complaining to Rodriguez that "the phone bill was pretty high[.]" Rodriguez told Baio that another inmate had "approached him telling him that the phone was blinking" and the inmate did not know how to turn it off.

Investigator Valentin then interviewed Rodriguez, who denied knowing anything about the cell phone. However, when confronted with the recorded conversation concerning the use of the phone inside the facility, Rodriguez admitted he owned the phone Kenyon found, and told the investigator that two corrections officers helped him obtain it. Rodriguez stated that Walker was one of the two officers, but he refused to identify the other officer. Rodriguez also told the investigator that Baio had documents concerning the phone.

A few days later, Baio faxed some phone and postal records to Investigator Valentin, who discussed them with Rodriguez. At that time, Rodriguez told the investigator that defendant was the second officer involved in the scheme and that Rodriguez paid defendant and Walker $500 to bring him the cell phone.3

Investigator Valentin subpoenaed the phone records for defendant, Walker, Baio, and the cell phone used by Rodriguez in the facility. The records revealed that Baio owned the confiscated phone. The investigator then listened to several recorded GTL phone conversations between Rodriguez and Baio concerning how the phone was brought into the facility. These taped conversations were played to the jury at the trial. In a December 12, 2008 conversation, Rodriguez told Baio he had arranged for "Santa Claus[]" to bring him a "toy." Rodriguez told Baio she would be receiving a total of $500 and that she should "[m]ail that with our toy . . . for Santa so he can deliver it." Rodriquez stated he would provide Baio with the address to which the "toy" and money should be mailed and that, once he received "the toy," they would not have to spend so much money on phone calls and their conversations would not be interrupted.

In a December 22, 2008 telephone conversation, Rodriguez told Baio she only had to send "the toy" and no longer had to send any money because Rodriguez had "already sent a hundred and a half to him[.]"

In a December 27, 2008 recording, Rodriguez instructed Baio to send "the toy" to Walker, and provided her with Walker's address. Rodriguez told Baio that he had paid "them" $170 from his facility account and had borrowed an additional $150. He gave Baio a telephone number, and instructed her to call it and leave a message saying "the money will be there by the end of the week." Defendant's phone records confirmed that the number Rodriguez gave Baio was defendant's phone number. Within a half hour of this telephone call, Baio's phone records indicate that she called defendant's phone number four times.

The postmaster of the local post office testified that Walker picked up a package on January 8, 2009. It had been mailed to her at the same address Rodriguez had previously provided to Baio. Through the testimony of the records custodian for defendant's telephone company, the State introduced defendant's phone records in evidence. The records revealed that several calls and texts were exchanged between defendant's phone and the confiscated cell phone in January and February 2009. Walker's phone records indicated she also made and received a number of calls to and from the confiscated cell phone during this same period.

Neither defendant nor Walker testified at trial. Defendant presented a character witness, who stated defendant's reputation for telling the truth was "exemplary."

II.

In Point IA, defendant argues that the trial judge improperly denied his motion for a judgment of acquittal on the bribery charge at the end of the State's case because "there exists no direct proof that defendant accepted money to violate his official duties as a correction officer." We disagree.

A motion for acquittal must be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1.

On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 459 (1967)).]

We have stated that "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 341 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 553, 620 (2004).

Under N.J.S.A. 2C:27-2c, "[a] person is guilty of bribery if he directly or indirectly offers, confers or agrees to confer upon another, or solicits, accepts or agrees to accept from another . . . [a]ny benefit as consideration for a violation of an official duty of a public servant or party official[.]" Bribery is a crime of the second degree unless the value of the benefit is $200 or less, in which case it is a crime of the third degree. N.J.S.A. 2C:27-2. The plain language of N.J.S.A. 2C:27-2c does not require that the benefit actually be accepted; mere agreement to accept a benefit is sufficient. Further, the defendant need not personally receive the benefit to be guilty under the statute. See State v. Smagula, 39 N.J. Super. 187, 190-91 (App. Div. 1956) (solicitation for campaign funds in exchange for votes is sufficient for a bribery conviction).

Applying these standards, we conclude there was more than sufficient competent evidence presented by the State to enable a jury to properly find defendant guilty of bribery. Kenyon found a cell phone and charger in the prison and reported that Rodriguez and defendant had a friendly relationship. The State introduced the duly authenticated telephone records for defendant, Baio, Walker, and the confiscated cell phone, and it played the recorded telephone conversations between Rodriguez and Baio to the jury.

Although neither Rodriguez nor Baio testified at trial, the statements they made during these recorded calls were clearly admissible under N.J.R.E. 803(b)(5), which permits an exception to the hearsay rule when "a statement made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and the statement was made in furtherance of that plan." Such statements are admissible against any other member of the conspiracy. State v. Phelps, 96 N.J. 500, 508 (1984). The rationale for the co-conspirator exception is the belief that "[p]articipation in a conspiracy confers upon co-conspirators the authority to act in one another's behalf to achieve the goals of the unlawful scheme." State v. Harris, 298 N.J. Super. 478, 487 (App. Div.), certif. denied, 151 N.J. 74 (1997).

The recorded telephone calls revealed that Rodriguez and Baio had a plan to get a "toy" delivered to him in the institution in return for money. The "toy" would solve the couple's problems with the prison telephone system. In one call, Rodriguez told Baio to mail the "toy" to Walker at her home address. A postal receipt confirmed Walker received a package shortly thereafter. Rodriguez also told Baio to call a specific telephone number and leave a message saying "the money will be there by the end of the week." Baio's phone records indicated that she then called defendant's telephone number four times. After the "toy" was delivered, the parties' telephone records demonstrated that defendant made calls to, and received calls and texts from, the confiscated phone, as did Walker.

This strong circumstantial evidence, "viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom," provided a solid basis by which the jury could properly find beyond a reasonable doubt that defendant was guilty of bribery. D.A., supra, 191 N.J. at 163. From this evidence, a jury could certainly conclude that defendant was the individual who was to receive the payment because Baio called his phone number four times immediately after Rodriguez told her to advise the person she called that the money was on its way. Therefore, we discern no basis for disturbing the trial judge's decision denying defendant's motion for a judgment of acquittal on the bribery charge.

III.

In Point I(B), defendant contends the trial judge erred in denying his motion for a new trial. Under Rule 3:20-1, a trial court may, on a defendant's motion, grant a new trial "if required in the interest of justice." A trial judge may not set aside a jury's verdict "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." Ibid. In deciding whether the evidence was sufficient to support a conviction, a reviewing court must determine

whether, viewing the State's evidence in its entirety . . . 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.

[Reyes, supra, 50 N.J. at 458-59.]

Put another way, the test is "'whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting State v. Carter, 91 N.J. 86, 96 (1982)), certif. denied, 134 N.J. 476 (1993). A verdict will not be set aside as against the weight of the evidence unless "it clearly and convincingly appears that the verdict was the result of mistake, partiality, prejudice or passion." Reyes, supra, 50 N.J. at 464.

Defendant argues that, because he was acquitted of the substantive charges lodged against him, with the exception of bribery, his conviction for conspiracy to commit these offenses must be overturned. With regard to his bribery conviction, defendant asserts that an agreement between the parties was "inevitably incident to the commission" of that offense and, therefore, could not form the basis for a conspiracy conviction. We disagree.

Conspiracy is an inchoate offense, which means that completion of the underlying substantive offense is not required to sustain a conspiracy conviction. State v. Samuels, 189 N.J. 236, 245-46 (2007)("[T]he agreement to commit a specific crime is at the heart of a conspiracy charge. . . . Actual commission of the crime is not a prerequisite to conspirator liability."). In this case, the jury determined that defendant made an agreement to promote or facilitate the commission of four separate substantive offenses: official misconduct, bribery, unlawful transfer of a cell phone, and acceptance of an unlawful benefit. That determination is wholly separate from the jury's determination that defendant completed the substantive offense of bribery, but did not complete the other substantive offenses. As discussed above, the evidence produced at trial, albeit circumstantial, was more than sufficient to support a finding of guilt beyond a reasonable doubt with regard to defendant's agreement to commit the four substantive offenses. Therefore, we reject defendant's contention on this point.

IV.

In Point II, defendant contends for the first time on appeal that the prosecutor's comments during summation "undermined [his] presumption of innocence and diluted the State's burden of proof." We disagree.

During summation, the prosecutor stated:

Being a corrections officer is a hard job. It is a noble job. It is a very difficult place to work. I can imagine the stuff that they see; the things that they have to be involved in, and we should be proud of the Department of Correction[s] Officers who do this job every day and protect our lives, protect the lives of the inmates.

But when guards do something like they did in this case, and compromise the security of the facility to enrich themselves, that's a crime. The State has proven every element of every charge here beyond a reasonable doubt. And the State implores you to look at the evidence critically. And it will lead you to that inevitable conclusion[] that they're guilty of every single crime, every single charge here, all five counts. And you must return verdicts of guilty as to all counts.

Notably, defendant did not object to these comments at the time they were made.

With regard to their summations, prosecutors are "expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). They "are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." Ibid. Still, a prosecutor's summation "is limited to commenting upon the evidence and the reasonable inferences to be drawn therefrom." State v. Swint, 328 N.J. Super. 236, 261 (App. Div.), certif. denied, 165 N.J. 492 (2000).

To warrant a reversal, the prosecutor's conduct "must have been clearly and unmistakably improper, and [it] must have substantially prejudiced defendant's fundamental right" to a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999) (internal quotation marks omitted), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In assessing the impact of prosecutorial misconduct, "an appellate court must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." Frost, supra, 158 N.J. at 83 (internal quotation marks omitted). This assessment requires the court to consider "(1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." Ibid. If opposing counsel fails to object to the improper remarks, "the remarks will not be deemed prejudicial[,]" because the failure to object "suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." Id. at 83-84. Moreover, the failure to object "deprives the court of an opportunity to take curative action." Id. at 84.

Applying these standards, we discern no impropriety in the prosecutor's comments. Nothing in the prosecutor's summation was outside of the evidence presented. Contrary to defendant's contention, the prosecutor did not suggest that there was a lesser burden of proof because defendant was a corrections officer. Instead, the prosecutor simply urged the jury to focus on the evidence presented and return a guilty verdict on all charges in the indictment. Therefore, defendant's argument on this point lacks merit.

V.

Finally, in Points III, IV, and V, defendant argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). In performing our review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984).

We are satisfied the judge made findings of fact concerning aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). The judge appropriately corrected defendant's sentence on count three to include the two-year period of parole ineligibility required by N.J.S.A. 2C:43-6.5a. See State v. Eigenmann, 280 N.J. Super. 331, 345 (App. Div. 1995) (explaining that where an initial sentence is illegal, the trial judge may correct the sentence to bring it into compliance with the statute). Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

1 Some time prior to the trial, Baio pled guilty to conspiracy and received a five-year sentence. Rodriguez pled guilty to certain charges not disclosed in this record, and was sentenced to a ten-year term.

2 The jury found Walker guilty of second-degree conspiracy (count one), and not guilty of the remaining charges against her.

3 Defendant did not object to this testimony at trial and, on appeal, has not argued that the testimony was improperly introduced.