STATE OF NEW JERSEY v. JAMAL S. COLEY

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE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.

JAMAL S. COLEY,

Defendant-Appellant.

_________________________________

October 22, 2014

Submitted September 17, 2014 Decided

Before Judges Ashrafi and O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-12-1117.

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

John J. Hoffman, Acting Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Jamal S. Coley appeals from his conviction by a jury for aggravated sexual assault, armed robbery, and weapons offenses, and his sentence of life imprisonment without parole plus ten years based on the nature of the crimes and his prior criminal record. We affirm.

Defendant was indicted and stood trial on eight charges: (count one) first-degree aggravated sexual assault while using a weapon, N.J.S.A. 2C:14-2(a)(4); (count two) first-degree aggravated sexual assault in the course of committing a robbery, N.J.S.A. 2C:14-2(a)(3); (count three) second-degree sexual assault with the use of force or coercion but without causing serious injury, N.J.S.A. 2C:14-2(c)(1); (counts four and five) first-degree armed robbery, N.J.S.A. 2C:15-1; (count six) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); and (count seven) second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). A separate indictment charged defendant with second-degree certain persons (felon) in possession of a firearm, N.J.S.A. 2C:39-7(b).

The evidence presented at defendant's trial showed the following facts. At about 5:00 a.m. on August 2, 2009, police officers Michael Carreto and Joe Pevonis were patrolling on Union Avenue in Elizabeth when they saw two people in a dark alley. Approaching and shining a flashlight, the officers saw a woman hunched over with her face pressed against a fence and defendant behind her with his pants down and having intercourse with the woman. The officers ordered them to stop and to put their hands up. Defendant reached over the fence, and something shiny fell from his hand.

The woman then came toward the officers with a terrified look in her face and repeatedly whispered to them "he's got a gun." Officer Carreto recognized the woman as a prostitute he had encountered before. She tried to hug the officer and hysterically thanked him for saving her life. Officer Carreto went to the fence and shined his flashlight onto the ground. He saw a black, shiny handgun on the other side of the fence. The gun was later determined to be an operable .177 caliber BB gun. Defendant was arrested and placed in the police vehicle.

The woman told the officers she had been soliciting a customer in a pickup truck when defendant surprised her from behind. Defendant pushed her to the side, struck the man in the pickup truck with his gun, and took the man's money. The man quickly drove away. Defendant then demanded money from the woman. When he saw she had only a few dollars, he said she was going with him, and he forcibly pulled her into the alleyway. At gunpoint, he ordered her to perform fellatio on him, then made a comment about her "white" vagina and said he was "going to take it right now." He attempted frontal intercourse with her and penetrated her several times, but then stopped to masturbate. He then turned her around, forced her up against the fence, and was about to penetrate her anally when the police arrived.

The woman also said that defendant had attempted to place a condom on his penis but had discarded it in the area. One of the officers found a used condom on the ground, and it was presented as evidence at defendant's trial. Although defendant's DNA was not found on the condom, or on the handgun retrieved from the other side of the fence, the victim's DNA was found on both items.

At defendant's trial, the woman, the police officers, and several other law enforcement witnesses testified, as well as an inmate who had shared a jail cell with defendant for about five months after his arrest. The sixty-seven-year-old inmate acknowledged he had a lengthy criminal record. He testified that defendant admitted to him that he had robbed a man in a pickup truck and raped a white woman. The inmate testified further that he had initially hoped to be released from jail earlier in exchange for his revealing defendant's admissions, but that he had not in fact received any benefit for his testimony. He claimed he disclosed the information and was testifying against defendant because he did not like rapists. Defendant did not testify at his trial and did not present any witnesses.

During its deliberations, the jury requested a part of the inmate's trial testimony and reheard the court's recording of that testimony. After further deliberations, the jury returned a verdict of guilty on all seven counts of the first indictment. It then heard evidence and argument on the charge of felon in possession of a firearm and returned a verdict of guilty on the second indictment.

At defendant's sentencing hearing, the court reviewed defendant's criminal record, indicating that it showed eleven prior indictable convictions. On the basis of his 1997 conviction for sexual assault, for which defendant was serving a sentence of lifetime parole supervision when he committed the present crimes, the court granted the State's motion for a mandatory extended term of imprisonment pursuant to N.J.S.A. 2C:43-6.4(e). The court merged the sexual offense counts and sentenced defendant to life in prison without eligibility for parole because he was a repeat offender and had committed the first-degree aggravated sexual assault with a weapon. Concurrent sentences were imposed on the other counts of the first indictment. On the second indictment, the court sentenced defendant to a consecutive term of ten years in prison with five years of parole ineligibility.

On appeal, defendant argues

POINT I

AFTER PLAYING BACK A PORTION OF [THE INMATE'S] TESTIMONY TO THE JURY, THE COURT FAILED TO INSTRUCT THE JURORS TO CONSIDER ALL OF THE EVIDENCE AS A WHOLE AND NOT TO OVERLY EMPHASIZE ANY SINGLE PIECE OF EVIDENCE OR TESTIMONY. (Not Raised Below).

POINT II

THE NEED FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION ON DISORDERLY PERSONS LEWDNESS WAS CLEARLY INDICATED IN THE RECORD. (Not Raised Below).

POINT III

THE SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE, AND SHOULD BE REDUCED.

We find no merit in these arguments.

Citing State v. Miller, 205 N.J. 109, 122-23 (2011), which was decided about two months before defendant's trial, defendant contends the trial court erred in replaying during the jury's deliberations only a portion of the inmate's testimony, and also in failing to instruct the jury that it was not to place undue emphasis on that testimony.

The jury first sent a note to the judge asking to "see" the inmate's testimony. The court instructed the jury that the trial testimony had not been transcribed, and so, they could not "see" a transcript of the testimony of any witness. However, the court's audio recording of a witness's testimony could be retrieved and replayed for the jury in the courtroom. The court further instructed the jury that it could hear the entire testimony of the inmate or a portion of it. The court told the jury to provide further information indicating what it wished to hear. The jury sent a second note stating, "We would like to hear what [the inmate] said [defendant] told him about what occurred on August 2, 2009 between him and [the victim] only."

Counsel then reviewed the recorded testimony of the inmate and isolated the parts that answered the jury's specific request. Before the judge, the prosecutor represented that defense counsel's cross-examination had not addressed the specific issue of what defendant had allegedly admitted to the inmate. Defense counsel agreed with the prosecutor's statements and with the portions of the inmate's testimony that counsel had selected to be replayed for the jury. The court brought the jury into the courtroom and replayed the agreed portions. Since it was near the end of the workday, the jurors were then dismissed until the following day. The court did not instruct the jury that it was not to place undue emphasis on the selected testimony it had reheard. Neither attorney requested that the court give such an instruction.

"Courts have broad discretion as to whether and how to conduct read-backs and playbacks." Miller, supra, 205 N.J. at 122; accord State v. A.R., 213 N.J. 542, 555 (2013); State v. Wilson, 165 N.J. 657, 660 (2000). "[J]udges should ordinarily grant a jury's request to play back testimony," and "should honor a jury's specific request to hear only limited parts of a witness' testimony provided . . . that playback includes relevant direct and cross examination." Miller, supra, 205 N.J. at 122-23 (citing Wilson, supra, 165 N.J. at 661; State v. Wilkerson, 69 N.J. 452, 460 (1972); State v. Wolf, 44 N.J. 176, 185 (1965)). "Jurors should not be required to watch or hear more testimony than they ask for." Ibid.

In this case, the trial judge essentially followed the procedure set forth in Miller to inform the jury about its options and to determine what the jury wished to hear. It replayed what the jury specifically requested with the approval of both attorneys after they had reviewed the inmate's testimony. There was no error, let alone plain error, see R. 2:10-2; State v. Macon, 57 N.J. 325, 337 (1971), in the judge's permitting the jury to rehear only a part of the inmate's testimony.

Nor did the court commit plain error in failing to instruct the jury not to give undue emphasis to the replayed testimony. Neither side requested such an instruction, and the jury had been properly instructed in its general instructions to consider the evidence as a whole in reaching its verdict. Miller does not hold that failure to give the recommended cautionary instruction is reversible error that deprives a defendant of a fair trial.

In his second point of trial error, defendant contends the trial court erred because it did not instruct the jury to consider a lesser-included offense of lewdness in violation of N.J.S.A. 2C:14-4(a). That statute provides: "A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by other nonconsenting persons who would be affronted or alarmed." This statute did not provide an appropriate option for the jury to consider in assessing the evidence of the sexual charges on which defendant was indicted and tried.

Defense counsel raised no objection to the court's proposed jury charge, and also did not request that a lesser-included instruction be given for lewdness. Therefore, defendant must show plain error in failing to give the proposed lesser-included charge. See State v. Bunch, 180 N.J. 534, 541 (2004); State v. Savage, 172 N.J. 374, 387 (2002).

Defendant cites State v. Zeidell, 154 N.J. 417, 433 (1998), for its holding that "[w]hen the sexual touching also includes exposing intimate parts . . . lewdness becomes a lesser-included offense of the sexual assault . . . ." The facts of Zeidell, however, are much different from this case. In Zeidell, the defendant was charged with sex offenses for masturbating at a beach at a distance of seventy-five feet from several children and an adult. Id. at 420-21. Here, defendant was in a dark alley at 5:00 a.m. engaging in sexual intercourse. He was not knowingly exposing himself publicly.

In State v. Cassady, 198 N.J. 165, 178 (2009), the Court stated: "N.J.S.A. 2C:1-8(e) commands that '[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.'" The Court described a "two-prong test" for determining whether a lesser-included offense instruction should be given: "whether an included offense charge is appropriate requires (1) that the requested charge satisfy the definition of an included offense set forth in N.J.S.A. 2C:1-8(d), and (2) that there be a rational basis in the evidence to support a charge on that included offense." Ibid. (quoting State v. Thomas, 187 N.J. 119, 131 (2006)). The court must consider "whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." State v. Brent, 137 N.J. 107, 117 (1994). "An unrequested charge on a lesser included offense must be given only where the facts in evidence 'clearly indicate' the appropriateness of that charge." Savage, supra, 172 N.J. at 397 (quoting State v. Choice, 98 N.J. 295, 298 (1985)).

The fact that defendant was partially naked when the police came upon him did not permit the jury to conclude that he knew or reasonably expected that he was likely to be observed by nonconsenting persons who would be affronted or alarmed. There was no evidence that the victim would be affronted or alarmed simply because defendant's pants were down. She was alarmed and terrified because he held a gun to her head while he sexually assaulted her. And there was no evidence that defendant expected the police officers or any other person to interrupt his criminal behavior. The court had no basis, on its own initiative, to surmise that the jury might find defendant not guilty of the sexual assaults charged but guilty of lewdness as a lesser-included offense. See Cassady, supra, 198 N.J. at 178.

There was no error, plain or otherwise, in the court's omission of a lesser-included instruction on lewdness. See Savage, supra, 172 N.J. at 387, 401.

Finally, defendant challenges as excessive his aggregate sentence of life imprisonment without parole and a consecutive ten years with five years of parole ineligibility. He argues that the sentencing court misapplied relevant aggravating factors under N.J.S.A. 2C:44-1(a) in determining the sentence, and erred in sentencing him to a consecutive term for being a convicted person in possession of a firearm.

In State v. Bieniek, 200 N.J. 601, 608 (2010), the Court reconfirmed that the role of an appellate court is not to substitute its judgment about an appropriate sentence for that of the sentencing judge. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

In this case, the court was required to sentence defendant to an extended term under N.J.S.A. 2C:43-6.4(e) for committing the sexual assault crimes while he was serving a sentence of parole supervision for life based on his 1997 conviction for sexual assault. Any sentence of imprisonment under that statute was to be served without eligibility for parole. Ibid. The applicable sentencing range for an extended term on a first-degree charge of aggravated sexual assault was from twenty years to life imprisonment. N.J.S.A. 2C:43-7(a)(2).

In imposing the maximum sentence of life imprisonment without parole, the court considered that defendant committed an aggravated sexual assault while holding a gun to the victim's head. It found aggravating factors one, two, three, six, and nine under N.J.S.A. 2C:44-1(a). Clearly, there were no mitigating factors applicable under N.J.S.A. 2C:44-1(b) to weigh against a severe sentence.

The forty-one-year-old defendant's criminal record showed a lifetime of serious criminal activity. He had a juvenile offense history, and then committed crimes repeatedly in his adult years. In addition to the 1997 conviction for sexual assault, he had ten other indictable convictions, and he had been sentenced to jail or prison eight previous times. This record supports the court's finding of aggravating factors three, the likelihood that defendant would offend again; six, his prior criminal record; and nine, the need to deter defendant and others from committing crimes. N.J.S.A. 2C:44-1(a)(3), (6), (9).

There was also factual support for the court's finding of aggravating factor one, the nature and circumstances of the offense, including whether the crime was committed in an especially heinous, cruel, or depraved manner. N.J.S.A. 2C:44-1(a)(1). Defendant forced the victim at gunpoint to engage repeatedly in unwanted acts of sexual penetration in a dark alley. She was in fear of losing her life. The victim may have been a prostitute, but that fact does not change a rational finding by the court that the three merged sex crimes were committed in an especially cruel and depraved manner because of the immediacy of the threats to the victim's life.

While we question whether the court properly found aggravating factor two, N.J.S.A. 2C:44-1(a)(2), the gravity and seriousness of harm inflicted on the victim, including whether defendant knew that the victim was particularly vulnerable or incapable of resistance, that factor did not add significantly to the court's assessment of the other aggravating factors weighed against the absence of any mitigating factors. At most, the court's finding of aggravating factor two was harmless error in its overall sentencing decision.

We find no abuse of discretion or other reversible error in the life sentence imposed on count one of the first indictment. See State v. Roth, 95 N.J. 334, 364-66 (1984).

Nor do we find reversible error in the court's imposition of a consecutive sentence on the second indictment. In determining whether a sentence should be consecutive or concurrent with other sentences, the court must apply the analysis set forth in State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). Here, the sentencing court considered the Yarbough factors and justified its imposition of a consecutive sentence because defendant's illegal possession of a handgun as a previously convicted person was a separate offense. He was guilty of that offense before he ever began committing the robberies and sexual assaults that were the "episode" of continuing criminal behavior resulting in the life sentence. The court did not abuse its discretion in running defendant's sentence on the separate indictment consecutively to the other sentences.

Affirmed.