STATE OF NEW JERSEY v. JONATHAN C. BELLAMY

NOT FOR PUBLICATION WITHOUT THE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.

JONATHAN C. BELLAMY,

Defendant-Appellant.

________________________________________

December 16, 2015

Submitted January 6, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-03-0855.

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

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

SUMNERS, JR., J.A.D.

Following a jury trial, defendant Jonathan Bellamy was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b), third-degree theft of movable property, N.J.S.A. 2C:20-7, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a). Defendant was sentenced to an eight-year term for eluding, and concurrent four-year and eighteen-month terms for theft of movable property, and resisting arrest by flight, respectively.1 On appeal, defendant raises the following arguments

POINT I

THE PROSECUTOR COMMITTED MISCONDUCT WHEN HE: ASKED JURORS TO DRAW AN ADVERSE INFERENCE BECAUSE A DEFENSE WITNESS ALLEGEDLY TRAVELED "ALL THE WAY FROM NORTH CAROLINA" TO TESTIFY ON [DEFENDANT'S] BEHALF; ASKED [DEFENDANT] WHETHER HIS WITNESS HAD "LIED" DURING HIS TESTIMONY; AND CLAIMED THAT A POLICE OFFICER'S IDENTIFICATION OF [DEFENDANT] AS THE DRIVER COULD BE TRUSTED BECAUSE POLICE OFFICERS ARE TRAINED IN OBSERVATION. (PARTIALLY RAISED BELOW)

POINT II

BECAUSE [DEFENDANT] EXPRESSED GENUINE REMORSE AND BECAUSE THE ELUDING DID NOT RESULT IN ANY SERIOUS INJURIES, THE JUDGE ERRED IN IMPOSING A SENTENCE IN EXCESS OF THE MIDPOINT OF THE SENTENCING RANGE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We discern the following facts from the trial relevant to this appeal. Bloomfield Police Officer Michael Malia testified on behalf of the State that he chased a suspected stolen car, attempted to pull over the suspects, and when the car came to a halt following a collision, identified defendant as the driver and Harry Moore as the passenger. Defendant was also identified as the driver by another State witness, an innocent bystander, who was driving home from work when he observed defendant driving a car being chased by police and leaving the scene after the car's collision.

Defendant and his witness, Moore, disputed the State's contention that defendant drove the stolen car. Moore testified that he was intoxicated after a night of drinking at a Newark bar, and when he could not get a taxi, he decided to get a ride in an unlicensed "car service" driven by an unknown man. When he got into the car, defendant, whom Moore had never met before, was lying in the rear. Moore stated that he did not recall the car crashing. He only remembered hearing sirens, the driver speeding off, then the police arriving at the scene and arresting him and defendant. Moore testified that he did not get out of the car until the police directed him to do so.

Moore acknowledged a prior criminal history, and that charges of theft of movable property, resisting arrest by flight, and unlawful taking of a means of conveyance (joy riding2) against him for this incident were dismissed prior to trial. Moore testified that he worked for a tele-marketing company located in North Carolina, but he did not indicate he lived or worked there.

Defendant's testimony confirmed Moore's assertion that defendant was in the back seat of the car when the collision occurred. Defendant claimed that he did not know how to drive a car and never did so. He secured a ride with a "car service" to get a ride to Bloomfield, and after picking up another passenger (Moore), the car was involved in a collision. Defendant testified that after the collision, both the driver and Moore got out of the car to get away. This contradicted Moore's testimony that Moore remained in the car until ordered by police to get out. Fearing the car was stolen or contained guns or drugs, defendant got out of the car as well. However, he was apprehended and subdued by the police.

When asked on cross-examination if Moore was telling the truth that he did not get out of the car until the police arrived, defendant stated that he was not sure. To undermine the defense's theory that defendant and Moore were strangers before the incident, the following colloquy occurred between the prosecutor and defendant

Q: So you, you don't know who Harry Moore is; right?

A: Before this no, I did not know who Harry Moore was.

Q: Okay. You heard testimony that Harry Moore is working or living in North Carolina; right?

A: Yes.

Q: Yet he came all the way from North Carolina to come testify for you today; am I correct? Does that make sense?

A: I'm not sure. Maybe he's still up here from, he came up here to start trial on Monday.

Q: Well, listen to my question. If you don't know the answer, just tell me you don't know the answer.

A: I no, I'm not sure where he traveled from.

Q: Okay.

A: To get here.

At no time did defense counsel object to the questioning.

However, defense counsel did object when the prosecutor stated during summation

And isn't it amazing, as I said, that the, Mr. Moore comes up from North Carolina to testify for the [d]efendant. Why does he come up here? I, I concur with the [d]efense that he doesn't really, he doesn't make sense. Why would he come up here?

Counsel contended that the prosecutor had no way of knowing where Moore actually came from. The judge overruled the objection, merely stating "[i]t's argument."

Later, in the prosecutor's summation, defendant did not object when the prosecutor commenting on the identification of defendant as the driver, declared

And we didn't have just one person identify the [d]efendant and his co-[d]efendant, we had two. Two people who've seen the [d]efendant while inside that car: Officer Malia, who is an officer, he has a job. He's trained to do these things.

At the close of trial, the jury found defendant guilty on all charges. At sentencing, the prosecutor acknowledged defendant's apology and remorse for the incident but sought an eight-year flat sentence due to defendant's criminal history. The judge did not find any mitigating factors, but applied aggravating factors three, six, and nine in sentencing defendant. N.J.S.A. 2C:44-1(a)(3) (the risk of re-offense); 1(a)(6) (the extent of defendant's prior criminal record and the seriousness of the current offense); and -1(a)(9) (the need for deterrence). In accord with the State's request, defendant was given an aggregate eight year sentence.

II.

In Point I, defendant contends that he was deprived of due process and a fair trial by the prosecutor's improper cross-examination of him and Moore, and his summation comments, individually and cumulatively. Specifically, defendant contends the prosecutor should not have asked him if Moore was lying when Moore testified that he did not leave the car until ordered by the police. Defendant also contends that the prosecutor should not have asked him if Moore traveled from North Carolina to testify on defendant's behalf. Defendant next argues that the trial judge erred in overruling his objection to the prosecutor's closing remarks that Moore had traveled from North Carolina to testify on defendant's behalf because defendant and Moore were friends. He argues the comment, without any factual support, inappropriately called into question the credibility of both his and Moore's testimony that they were not friends. Lastly, defendant claims that the comment that Malia was trained to make identification was improper because there was no testimony suggesting that Malia had any special training during his eleven to twelve years as a police officer that would make his identification more accurate than any other witness. Defendant cites scientific research which demonstrates that law enforcement personnel have no greater ability to make identifications than lay-persons.

Prosecutors are required to act in accord with fundamental principles of fairness. State v. Wakefield, 190 N.J. 397, 436 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The job of a prosecutor is peculiar; they are tasked not to win, but to see that "'justice shall be done.'" Ibid. (quoting Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633, 79 L. Ed. 1314, 1321 (1935)). While prosecutors may strike hard blows in presenting their case, they may not strike "foul ones." Ibid. And if a prosecutor crosses the line from zealous enforcement of the law into foul play, a reviewing court will reverse a conviction. Id. at 437 (quoting State v. Siciliano, 21 N.J. 249, 262 (1956)).

The question of whether alleged misconduct has prejudiced a defendant sufficient to reverse a conviction is whether on the whole the conduct was "'so egregious as to deprive defendant of a fair trial.'" Ibid. (quoting State v. Papasavvas, 163 N.J. 565, 625 (2000)). A defendant must establish two separate prongs to justify reversing a conviction based on prosecutorial misconduct: (1) the prosecutor's conduct must be "'clearly and unmistakably improper'" and (2) it "'must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense.'" Id. at 438 (quoting Papasavvas, supra, 163 N.J. at 625).

As part of this analysis, reviewing courts should consider whether a timely objection was made by the defense, and whether the trial court sustained the objection. Ibid. The failure to object demonstrates that "counsel did not perceive the conduct was prejudicial and also made it impossible for the court to take timely curative action to ameliorate any adverse effect from the improper questioning." State v. T.C., 347 N.J. Super. 219, 238 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003).

Our courts have frequently admonished prosecutors for asking one witness whether another witness is lying. See State v. Bunch, 180 N.J. 534, 549 (2004); T.C., supra, 347 N.J. Super. at 237-38; State v. Green, 318 N.J. Super. 361, 377-78 (App. Div. 1999), aff d, 163 N.J. 140 (2000). Thus, the prosecutor's questions asking defendant to determine if the witnesses were lying were improper. Bunch, supra, 180 N.J. at 549; see also T.C., supra, 347 N.J. Super. at 237-38. Despite the improper nature of the prosecutor's conduct, under the circumstances of this case, the conduct did not substantially prejudice defendant's right to a fair trial. Bunch, supra, 180 N.J. at 549; T.C., supra, 347 N.J. Super. at 238.

Applying these principles, we conclude the prosecutor's conduct did not prejudice defendant's right to a fair trial. As for the prosecutor's questioning defendant if Moore lied when Moore stated he got out of the crashed car before the police arrived, defendant's attorney did not find the conduct prejudicial as evidenced by the attorney's failure to object at the time. T.C., supra, 347 N.J. Super. at 238. While the prosecutor's cross-examination was improper in form, it was not substantively flawed, as it focused on specific inconsistencies between defendant's testimony and the testimony of Moore, defendant's own witness. See T.C., supra, 347 N.J. Super.at 238. Additionally, any potential prejudice from the question was cured when the trial judge instructed the jury prior to deliberation that it is the jury's role to determine the credibility of witnesses. Ibid. We also note that defendant's conviction was based on more than the credibility of the defendant's witnesses, as the State produced the testimony of Malia and an innocent bystander that defendant was the driver of the car that collided.

Similarly, the prosecutor's question to defendant if Moore travelled from North Carolina to testify should not be considered prejudicial as it was not objected to by defense counsel. Ibid. Moreover, given that the question seeks to attack the credibility of defendant's and Moore's testimony that they were not friends, the jury was properly charged on assessing the credibility of witnesses. Ibid.

With respect to the prosecutor's summation comment that Malia was trained to make identifications, defense counsel also did not object, thereby suggesting that it was not considered prejudicial. Ibid. Further, while a juror might have considered the comment by itself to mean police officers are trained observers, it should be viewed in the context in which it was made. Immediately after making the "training comment," the prosecutor continued,

And we have [an innocent bystander] who has no purpose of being involved in this. He has no purpose. It's not his job to come in. He was here because I subpoenaed him to be here. But he's not a police officer and he doesn't need to make observations. But he comes in, he tells you that's the guy I saw. That's the guy I saw.

Thus, the comment was not meant to bolster Malia's testimony by referring to any special training he received. It was intended to point out that two witnesses identified defendant as the driver of the car that was chased and collided, irrespective of whether it was their occupation to observe incidents of criminal behavior.

On the other hand, defense counsel did object to the prosecutor's summation comment that Moore traveled all the way from North Carolina. However, the judge overruled the objection. We agree with defendant that there was no clear testimony about where Moore travelled from in order to testify. It was unstated whether he lived and worked in New Jersey while working for a company based in North Carolina. Nevertheless, we side with the judge's ruling.

The decision to grant a defendant's objection to a prosecutor's summation comments rests with the sound discretion of the trial judge. State v. Tilghman, 385 N.J. Super. 45, 53-54 (App. Div. 2006). The judge did not abuse his discretion in allowing the comment to stand because it was fair argument based on Moore's testimony that he worked for a North Carolina company. It was fair argument for the State to contend that Moore lived in North Carolina and would only travel to New Jersey to testify for someone who was a friend. Especially, as noted, defense counsel did not object to the cross-examination concerning where Moore traveled from to testify. Moreover, if Moore did not travel from out-of-state, as he was a defense witness, the defense was in a position to refute the State's theory.

Consequently, when considering the totality of the circumstances, we are convinced defendant's right to a fair trial was not substantially prejudiced on the basis of prosecutorial misconduct attributed to cross-examination or closing remarks on witness credibility.

III.

Lastly, we turn to defendant's contention that his eight year sentence is excessive based on his remorse and the fact that no one was seriously injured by the collision. We begin by noting that review of a criminal sentence is limited; a reviewing court must decide "whether there is a 'clear showing of abuse of discretion.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). Under this standard, a criminal sentence must be affirmed unless"(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (citation omitted). If a sentencing court properly identifies and balances the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, this court will affirm the sentence. See State v. Carey, 168 N.J. 413, 426-27 (2001); State v. Megargel, 143 N.J. 484, 493-94 (1996).

Considering these principles, defendant's challenge to his sentence has no merit. He does not dispute the court's findings of aggravating factors three, six, and nine. He does not cite any statutory mitigating factor that should have been applied. Defendant's remorse and the lack of any serious injury in the accident that he caused are not a basis for any mitigating factor. Yet, even considering those contentions, we are not persuaded the sentence would have been less. The sentence imposed on defendant is within our sentencing guidelines and does not shock our judicial conscience. See State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

1 The charges of third-degree resisting arrest by using or threatening the use of physical force or violence, N.J.S.A. 2C:29-2(a)(3)(a), and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1, were dismissed by the State prior to trial.

2 N.J.S.A. 2C:20-10(b).