STATE OF NEW JERSEY v. IBRAHIM S. DAO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

IBRAHIM S. DAO, a/k/a ACE,

Defendant-Appellant.

______________________________

November 2, 2016

Submitted October 11, 2016 Decided

Before Judges Haas and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 13-06-1877.

Joseph K. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Ibrahim Dao appeals from his conviction after a jury trial, asserting the trial judge erred in the admission of certain evidence. He also contends the imposed sentence was excessive. After a review of the record in light of the applicable legal principles, we affirm.

On the evening of these events, police officers were dispatched to a residence for a domestic dispute. Although Corporal James Kaelin was not assigned to the call, he testified that he responded to the call since he was in the area and there was a "flag file for that residence." Kaelin was the first officer to arrive at the home. He described for the jury the altercation he and the other officers had with defendant, who resisted their efforts to subdue and arrest him, and the injuries that he and the other officers sustained during the skirmish.

Defendant was charged in an indictment and convicted after trial of third-degree aggravated assault, and third-degree resisting arrest. Defendant was sentenced to an aggregate prison term of five years with a parole ineligibility period of two and one-half years.

On appeal, defendant raises the following issues

POINT I- SINCE OFFICER KAELIN'S TESTIMONY SUGGESTING THAT DEFENDANT HAD COMMITTED A PRIOR ACT OF DOMESTIC VIOLENCE VIOLATED STATE v. BANKSTON, THE TRIAL COURT'S FAILURE TO ISSUE A LIMITING INSTRUCTION SUA SPONTE WAS PLAIN ERROR. (NOT RAISED BELOW)

POINT II- THE TRIAL COURT MISAPPLIED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY ADMITTING PROOF OF DEFENDANT'S PRIOR CRIMINAL CONVICTION TO IMPEACH HIS CREDIBILITY.

POINT III- THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTIONS. (NOT RAISED BELOW)

POINT IV- THE FIVE (5) YEAR BASE CUSTODIAL TERMS WITH TWO AND ONE-HALF (2 1/2) YEARS OF PAROLE INELIGIBILITY IMPOSED ON DEFENDANT'S CONVICTIONS FOR AGGRAVATED ASSAULT ON COUNTS ONE, TWO, THREE, AND FOUR, AND FOR RESISTING ARREST ON COUNT FIVE, ALTHOUGH CONCURRENT, WERE MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT FAILED TO ENGAGE IN A PROPER AGGRAVATING FACTOR/MITIGATING FACTOR ANALYSIS.

In response to a question as to why he responded to the dispatcher's call, Kaelin said: "there was a flag file for that residence." He repeated that information on cross-examination when questioned by defense counsel and added: "When I heard that there was a previous incident at that residence for whatever reasons, I thought, you know, additional units should be responding there." There was no objection to either statement.

Defendant argues that this testimony suggested to the jury that he was guilty of a prior domestic violence incident, and therefore, may have led the jury to conclude that he "was a violent person with a predisposition to attack police officers." Defendant contends the trial judge was compelled to issue a sua sponte limiting instruction and his failure to do so was plain error. We disagree.

As this issue is raised for the first time on appeal, we review it under the plain error standard. To meet this standard, defendant must demonstrate that the trial court's error was "clearly capable of producing an unjust result." R. 2:10-2; see State v. Singleton, 211 N.J. 157, 182-183 (2012) (quoting State v. Chapland, 187 N.J. 275, 289 (2006)).

It is well settled that a police officer may explain the reason he went to the scene of the crime by stating that he did so "upon information received." State v. Bankston, 63 N.J. 263, 268 (1973). "Such testimony has been held to be admissible to show that the officer was not acting in an arbitrary manner or to explain his subsequent conduct." Ibid. However, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271.

The comment made by Officer Kaelin does not offend the principles addressed in Bankston. The fleeting mention, without further information, that a previous incident had taken place at the dispatched residence was innocuous. There was no testimony that defendant had been involved in the prior incident nor did Kaelin advise the jury he had any information about the dispatched call. We find the officer's testimony did not meet the plain error standard. See also State v. Long, 137 N.J. Super. 124, 134 (App. Div. 1975) (finding that an incidental reference by the witness was not of sufficient importance in the totality of the trial to bring about an unjust result, especially where no objection was made).

Defendant also contends the judge erred in admitting a prior 2004 criminal conviction. In addressing defendant's argument against admissibility, the judge noted that the conviction was less than ten years old, and stated: "I'm going to exercise my discretion and permit it. It's not horrendously old . . . . [T]here's nothing that strikes me as being in any way unfair by saying that I'm focusing on the date of the conviction being younger than ten years."

We review the judge's decision under an abuse of discretion standard. Under that standard, an appellate court should not substitute its own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)) (internal citations omitted).

Under N.J.R.E. 609,1 a witness's conviction of a crime "shall be admitted unless excluded by the judge as remote or for other causes." We find no reason to disturb the judge's determination that the conviction was not too remote in time so as to require its exclusion. We also note the judge properly instructed the jury that evidence of defendant's prior conviction could only be used to determine the credibility of his testimony and that the jury could not conclude that defendant committed the crime simply because he had committed a crime on another occasion. See State v. Sands, 76 N.J. 127, 142 n.3 (1978) (noting jury instructions are necessary to inform the jury of the limited purpose of prior conviction evidence). There was no abuse of discretion in the judge's decision to permit evidence of defendant's prior conviction.

In addressing defendant's final argument contesting his conviction, we conclude he has failed to support his claim of cumulative errors so as to raise a reasonable doubt that could have "led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). The four testifying police officers gave corroborating accounts of the altercation that took place with defendant and their struggle to subdue and arrest him. There was ample evidence for the jury to reach the conclusion it did.

We also reject defendant's argument that his sentence was manifestly excessive because the sentencing judge failed to conduct a proper aggravating and mitigating factor analysis. The judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), six, N.J.S.A. 2C:44-1(a)(6), and nine, N.J.S.A. 2C:44-1(a)(9), based on defendant's prior criminal record and acts; he declined the State's request to also find aggravating factor eight, N.J.S.A. 2C:44-1(a)(8). He weighed those aggravating factors against the one mitigating factor he found applicable, N.J.S.A. 2C:44-1(b)(2), and determined the aggravating factors outweighed the mitigating factor. The judge supported his findings with evidence in the record. We decline to find any abuse of discretion. State v. Bolvito, 217 N.J. 221, 228 (2014) (establishing that an appellate court's review of a criminal sentence is generally limited to determining whether there is a clear showing of abuse of discretion).

Affirmed.

1 Just months after this trial, on July 1, 2014, this rule was amended, establishing a rule that convictions less than ten years old on the date of the commencement of trial were presumptively admissible to impeach the credibility of a witness.