STATE OF NEW JERSEY v. HASSAN SHOULARS

NOT FOR PUBLICATION WITHOUT THE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.

HASSAN SHOULARS,

Defendant Appellant.

________________________________

December 1, 2016

Submitted October 20, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-02-0178.

Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant Hassan Shoulars guilty of theft of movable property, burglary, and resisting arrest. The judge sentenced defendant to an aggregate term of five years of imprisonment, consecutive to a prison term defendant received for an unrelated offense. Defendant appeals from his conviction and the sentence imposed, arguing

POINT I

DEFENDANT'S CONVICTION FOR THEFT SHOULD BE SET ASIDE BECAUSE THE TRIAL COURT FAILED TO INSTRUCT JURORS ON A LESSER-INCLUDED OFFENSE CLEARLY INDICATED BY THE EVIDENCE.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ACCUSATION THAT THE DEFENDANT HEARD TESTIMONY FOR TWO DAYS PRIOR TO TESTIFYING AND THEN "TAILORED" HIS OWN TESTIMONY. (Not Raised Below)

POINT III

THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCE[ED] THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.

Following review of the record and applicable law, we reject defendant's arguments and affirm.

I.

A grand jury indicted defendant on charges of first-degree robbery, N.J.S.A. 2C:15-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count three); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree possession of a weapon for unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (count five); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count nine); and fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count ten).

We discern the following facts from the trial record. The victim, M.J. (Jensen),1 testified that on October 25, 2012, he left his BMW 7 series car running outside his father's house in Elizabeth in order to unpack a case of water, planning to properly park the car afterwards. While Jensen unloaded the water from his car, two males in masks approached him from behind, one wearing a lighter colored hoodie and the other wearing a darker hoodie. Jensen was unable to see their faces.

According to Jensen, the man in the lighter hoodie, later identified as defendant, held a gun and demanded Jensen's wallet and cell phone. Jensen told the men everything they needed was in the car. The other man, co-defendant Marcus Kelley, told defendant to shoot Jensen and flashed the butt of his own gun. The two men then entered the vehicle and drove away. Jensen called the police and provided a description of his vehicle and the co-defendants' clothes.

The State next presented the testimony of several officers of the Elizabeth Police Department. Officer Isa McClendon testified she responded to a reported carjacking incident around 1 a.m. After observing the stolen BMW traveling on Routes 1 and 9 and verifying the car's license plate, she activated her lights and siren. At this point, the BMW picked up speed, and other police units joined the pursuit.

Officer McClendon testified the BMW eventually exited Routes 1 and 9 and proceeded down several other streets, traveling erratically at a high rate of speed and running several red lights and stop signs. The pursuit eventually ended after the BMW crashed on a dead-end street in Hillside. The two men inside then fled the vehicle.

Officer Daniel Rivera testified next, stating he observed the BMW travelling "at least 95, 100 miles an hour" and saw it make an illegal left turn on the highway with "ill regard to the public." He further said the vehicle hit construction cones and blew through traffic lights and stop signs. Officer Rivera stated defendant was the passenger of the car. He also observed other officers arrest defendant, who was discovered hiding underneath a car in a nearby garage.

After the State's case, defendant testified as to his version of the events. Defendant said a friend gave him and Kelley a ride from Newark to defendant's girlfriend's house in Elizabeth. This took place around 8:30 to 9:00 p.m., or about four hours before defendant's eventual arrest. Around midnight, the mother of defendant's girlfriend came home and made defendant and Kelley leave. Kelley tried to call the same friend to give them a ride home, but he did not answer the call. The co-defendants then called a cab to pick them up, even though defendant only had fifty-five cents on him at the time, and Kelley had no money. After waiting for the cab for fifteen to thirty minutes, they decided to walk in the hope of catching a cab on the road.

As the co-defendants walked down Routes 1 and 9, they noticed an empty white BMW with the engine running. Defendant further noticed Jensen and another man were outside, but stated Jensen was about twenty feet away from the car and walking into a house. Defendant and Kelley began talking to each other and contemplated for five minutes about "jumping in" the car. Because nobody was near the car, defendant and Kelley decided to "jump[] in." Defendant stated they did not intend to steal the car, but they were just trying to get home. However, defendant acknowledged he and Kelley wore masks and hooded sweatshirts to hide their appearance.

After defendant and Kelley entered the car, Jensen and the other man ran off. Defendant stated he did not say anything to either of the two men and did not threaten them in any way. Defendant also stated he did not have a handgun nor did he see Kelley with a handgun. Defendant stated they did not intend to hurt anyone. Defendant denied making any physical contact with Jensen.

The co-defendants proceeded onto Routes 1 and 9, with Kelley driving. Within minutes, the police initiated their pursuit. Defendant admitted they attempted to elude police and claimed they got out of the car in Hillside after it ran out of gas (defendant denied they crashed). After defendant and Kelley exited the car, they jumped over a fence. Defendant hid in a garage underneath a car, where police soon discovered him.

Following a joint jury trial, defendant was convicted of theft of movable property (the lesser-included offense of count two); third-degree burglary (the lesser-included offense of count three); and fourth-degree resisting arrest (count nine). The jury acquitted defendant on the remaining charges.

II.

A.

Defendant first argues the court erred in failing to charge unlawful taking of means of conveyance, N.J.S.A. 2C:20-10 (commonly referred to as the joyriding statute), as a lesser-included offense of theft of movable property, N.J.S.A. 2C:20-3(a). Defendant asserts this omission denied the jury the option of finding he did not intend to permanently deprive Jensen of his car, but only meant to take it temporarily in order to get home.

Initially, we note defendant does not specify which subsection of the joyriding statute the judge should have charged. The joyriding statute contains three subsections pertaining to motor vehicles. See N.J.S.A. 2C:20-10(b) to (d). We have held N.J.S.A. 2C:20-10 is a lesser-included offense to theft of movable property. State v. Dandy, 243 N.J. Super. 62, 64 (App. Div. 1990) (citing State v. Alexander, 215 N.J. Super. 523, 531 n.3 (App. Div. 1987)).2 However, subsection (c), third-degree joyriding, cannot be a lesser-included offense of theft because additional proofs of risk of harm are necessary. See State v. Roberson, 356 N.J. Super. 332, 339-40 (Law Div. 2002).

We next address subsection (d). A person is guilty under N.J.S.A. 2C:20-10(d) "if he [or she] enters and rides in a motor vehicle knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent." Although defendant rode in the passenger seat, this section does not apply as it refers to a person entering a vehicle knowing it "has been taken" without consent. This describes a situation where a person later enters a vehicle he knows was taken by another, rather than participating in the commission of the offense itself. See State v. Moore, 330 N.J. Super. 535, 544-45 (App. Div.) (applying subsection (d) where the defendant entered a car knowing it was "probably stolen"), certif. denied, 165 N.J. 531 (2000).

Finally, turning to subsection (b), a person is guilty under N.J.S.A. 2C:20-10(b) "if, with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." Defendant implicitly suggests subsection (b) applies, arguing in his brief he only "borrowed" the car, consistent with an intent to take the BMW temporarily. Therefore, we proceed with our analysis considering only subsection (b).

Because defendant did not raise this issue before the trial court, we restrict our review to determining whether plain error exists, meaning error "clearly capable of producing an unjust result." R. 2:10-2. Absent plain error, "no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict." R. 1:7-2.

Generally, "a trial court has an independent obligation to instruct on lesser-included charges when the facts adduced at trial clearly indicate that a jury could convict on the lesser while acquitting on the greater offense." State v. Jenkins, 178 N.J. 347, 361 (2004) (citations omitted); see also N.J.S.A. 2C:1-8(e) (stating the jury shall not be charged with a lesser offense absent a "rational basis" for a conviction of such offense).

However, "courts are required to instruct the jury on lesser-included offenses only if counsel requests such a charge and there is a rational basis in the record for doing so or, in the absence of a request, if the record clearly indicates a charge is warranted," meaning circumstances where "the evidence is jumping off the page." State v. Denofa, 187 N.J. 24, 42 (2006) (second emphasis added) (citations omitted). "[W]hen the defendant fails to ask for a charge on lesser-included offenses, the court is not obliged to sift meticulously through the record in search of any combination of facts supporting a lesser-included charge." Ibid. (citations omitted). Trial judges have "no duty to instruct the jury sua sponte . . . [where] the evidence did not clearly indicate or warrant such a charge." State v. Savage, 172 N.J. 374, 401 (2002).

Here, in addition to charges of first-degree and second-degree robbery and carjacking, the judge instructed the jury on theft of movable property. Contrary to defendant's claim, we find no facts mandating the inclusion of joyriding, as the evidence of defendant's intent to "withhold temporarily from the owner," N.J.S.A. 2C:20-10(b), does not "jump[] off the page." Denofa, supra, 187 N.J. at 42.

Indeed, although defendant stated he did not intend to steal the car, and only took the car in order to get home, there was no indication he intended to return the car to Jensen or relinquish his possession after arriving home. In Dandy, supra, 243 N.J. Super. at 63-65, we reversed a trial court on the failure to charge joyriding where the defendant clearly stated to police he intended to return the car to the owner. Such evidence was missing here. See also State v. Richardson, 208 N.J. Super. 399, 405 (App. Div.) (finding no rational basis for a lesser-included joyriding charge where the evidence did not suggest "that defendant only intended to drive the car for pleasure"), certif. denied, 105 N.J. 552 (1986).

We also reject defendant's contention his counsel's theory of the case was based upon joyriding rather than theft. In support of this proposition, defendant points to counsel's statement at closing, describing defendant and Kelley's actions as "two silly little boys hopped into a car that was running and took off in it." Shortly after making this argument, however, defendant's counsel asserted defendant did the right thing when he admitted during his testimony, "I did something wrong. I stole a car." This statement and the rest of the record show defendant's theory of the case was not premised upon defendant committing joyriding, rather than theft. Instead, the defense presented to the jury was that defendant committed a nonviolent theft without a weapon rather than an armed robbery and carjacking.

Therefore, any alleged error resulting from omission of the joyriding charge did not produce an unjust result, as defendant clearly admitting to participating in the theft of the car, with no credible evidence of a plan to return it. We therefore find no plain error.

B.

Defendant next argues the prosecutor committed reversible error during the State's closing by improperly accusing him of tailoring his testimony, thereby violating his due process rights under the United States and New Jersey Constitutions.

Criminal prosecutors are expected "to make a vigorous and forceful closing argument to the jury." State v. Harris, 141 N.J.525, 559 (1995). The task of the prosecutor, however, is not only to obtain victory for the State, but to ensure "justice is served." State v. Reddish, 181 N.J.553, 641 (2004) (citing State v. Smith, 167 N.J.158, 177 (2001)). Prosecutorial misconduct will warrant reversing a conviction where it "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J.76, 83 (1999) (citations omitted). Where defense counsel does not object to the prosecutor's statements, we generally consider the remarks to be non-prejudicial. Id. at 83-84 (citation omitted).

Defense counsel did not object to the prosecutor's tailoring remarks during closing. We therefore review the issue pursuant to the plain error standard. State v. Daniels, 182 N.J. 80, 95 (2004). We will not reverse the trial court's decision based on that error unless it was "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." Ibid. (alteration in original) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Our Supreme Court addressed the issue of tailoring in Daniels, holding prosecutorial accusations that a defendant "tailored his testimony to meet the facts testified to by other witnesses" generally violates the defendant's constitutional rights. Id. at 85, 97-98. However, the Court divided tailoring accusations into two categories: generic and specific. Id. at 98. Generic accusations occur when the prosecutor makes an accusation despite no evidentiary basis, and are strictly prohibited. Ibid. Specific accusations are permitted when there is evidence of tailoring beyond the simple fact defendant was present at trial and heard other witnesses testify. Id. at 98-99. However, in such cases the prosecutor still must not "refer explicitly to the fact that the defendant was in the courtroom or that he heard the testimony of other witnesses." Id. at 99.

The Court proceeded to analyze the record in Daniels, finding the evidence suggested the defendant did tailor his testimony, and therefore the prosecutor's remarks fell into the specific accusation category. Id. at 100. However, the Court took issue with the prosecutor's statement, "[T]he defendant sits with counsel, listens to the entire case and he listens to each one of the State's witness[es], he knows what facts he can't get

past. . . . But he can choose to craft his version to accommodate those facts." Id. at 101. The Court remanded for a new trial, holding these statements impermissibly "highlighted the fact that defendant was able to 'sit' in the courtroom during trial, enabling him to 'listen[]' to other witnesses testify." Ibid. (alterations in original).

The Court revisited this issue in State v. Feal, 194 N.J. 293 (2008), applying plain error because the defendant did not object at trial. Id. at 312. In Feal, the prosecutor also suggested the defendant tailored his testimony based on his ability to hear the other witnesses, thereby violating the rule set forth in Daniels. Feal, supra, 194 N.J. at 303, 313. Unlike in Daniels, however, the Court in Feal found the defendant did not alter his trial testimony to fit the other witnesses, but instead "back-peddle[d]" his earlier pretrial statements. Feal, supra, 194 N.J. at 313. The Court thus declined to reverse, finding the prosecutor's comments did not prejudice the defendant as they could not have "led the jury to a result it otherwise would not have reached" under the plain error standard. Ibid.

Here, we find the prosecutor's following remarks during summation raise a Daniels issue

Now, during the first part of this trial, during the testimony of Mr. Jimenez, the testimony of the officers, Rivera and Lozada, the defense was talking consistently about the fact that there were identification problems. Remember? They didn't know if there were two black hoodies. They were trying to make that aspect of it. There was nothing found in the car. You gave the wrong identification.

And then Mr. Shoulars gets on the stand and he admits after two days of testimony that oh, yeah, I was in the car. Me and Mr. Kelley. Oh, yeah, I had the ski masks on. Yeah, I had the gloves on. Yeah, we were in the white BMW. Yes, we ran red lights. There's a total inaccuracy even in the presentation of their own case.

The prosecutor also explicitly used the term "tailoring" twice, remarking, "[T]he State contends [defendant] tailored his testimony," and "[t]he State contends the defendant tailors his testimony to his advantage."

The State argues these remarks were proper since they were based on the evidence in the record, thereby falling under the specific accusation category of the Daniels framework. We reject this argument, concluding the comments were still improper because they directly highlighted how defendant was present and listening to other witnesses testify, which is not permitted under Daniels, supra, 182 N.J. at 101, even if the evidence shows tailoring occurred.

Despite this Daniels error, however, pursuant to the Court's ruling in Feal, supra, 194 N.J. at 313, we decline to reverse the trial court and find the prosecutor's remarks did not rise to plain error.

Defendant argues plain error, asserting because of the prosecutor's tailoring accusations, the jury did not find him credible. Defendant contends if the jury had found him credible, they would have acquitted him of the theft charge, finding he only took the car because he wanted to get home, and had no intent to permanently deprive Jensen of his vehicle.

Defendant's argument lacks merit. In his brief, defendant admits the jury accepted his version of events, finding him guilty of burglary and theft rather than robbery and carjacking. It would have been impossible to convict defendant of these lesser non-violent offenses had the jury not found his testimony credible.

During his testimony, defendant clearly stated he and Kelley entered a stranger's running car and drove off, with no plans to return it to Jensen. Defendant fails to demonstrate how the accusation of tailored testimony "led the jury to a result it otherwise would not have reached" under the plain error standard. Feal, supra, 194 N.J. at 313.

C.

Defendant further argues he received an excessive sentence, contending the sentencing judge improperly imposed the aggravating factors and disregarded the mitigating factors. Defense counsel did not explicitly identify any mitigating factors during the sentencing hearing, but asked for defendant's release on time served, arguing although defendant's initial charges were serious, he was ultimately not convicted of a violent crime. Defense counsel also noted defendant has a young daughter "that he's been away from for two years" as a result of his incarceration. Before imposing the sentence, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk defendant will re-offend), and nine, N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The judge found no mitigating factors.

Our review of sentencing decisions is "governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). Our role is to ensure the aggravating and mitigating factors applied by the sentencing judge "were based upon competent credible evidence in the record." State v. Miller, 205 N.J. 109, 127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)). We will modify a sentence only where the judgment of the court is such that it "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984) (citing State v. Whitaker, 79 N.J. 503, 512 (1979)). We will affirm the sentence so long as the judge properly identifies and balances the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record. State v. Cassady, 198 N.J. 165, 180-81 (2009) (citations omitted). Remand may be required if we determine the sentencing judge failed to find mitigating factors that "clearly were supported by the record." Bieniek, supra, 200 N.J. at 608 (citing State v. Dalziel, 182 N.J. 494, 505 (2005)).

First, we find the sentencing judge appropriately applied aggravating factors three and nine. The judge stated he found these factors based on defendant's prior criminal history, which included juvenile offenses. Defendant had been adjudicated delinquent eight times and was facing his second adult indictable conviction. In Miller, supra, 205 N.J. at 117, 128, the Court upheld finding aggravating factors three and nine where the defendant had an extensive juvenile criminal history. We conclude the sentencing judge here did not err in applying these factors.

Defendant argues the judge should have applied mitigating factors one, N.J.S.A. 2C:44-1(b)(1) (no serious harm); two, N.J.S.A. 2C:44-1(b)(2) (no contemplation of serious harm); and eleven, N.J.S.A. 2C:44-1(b)(11) (excessive hardship to dependents). Defendant argues factors one and two apply because the jury found defendant had no intent to cause harm, and because there was no ultimate harm as the car was recovered. Defendant argues factor eleven should apply because defendant has a young child.

We find the judge appropriately concluded these factors did not apply, as they were not supported by evidence in the trial record. Dalziel, supra, 182 N.J. at 504-05. Although the jury found defendant lacked violent intent with regard to the theft of the car, the evidence in the record of defendant and Kelley's efforts to elude police, most notably the reckless driving, is sufficient to support a finding defendant threatened and understood his conduct would threaten serious harm. N.J.S.A. 2C:44-1(b)(1), (2). Stealing a car is also a serious harm by itself, even if no violence occurred and the car was recovered. Therefore, the record did not support finding mitigating factors one and two.

The sentencing judge also appropriately declined to find mitigating factor eleven. According to the record, defendant did not provide the primary care for his child. Our Supreme Court has held factor eleven need not apply where a defendant never lived with or supported his fiancée and child. Dalziel, supra, 182 N.J. at 505. We discern no abuse of discretion in the sentence imposed.

Affirmed.

1 We use a pseudonym for the victim to protect his privacy.

2 Dandy was decided under the older version of N.J.S.A. 2C:20-10, which the legislature amended in June 1993. See L. 1993, c. 134, 1. However, the elements of the offense defined in subsections (a) and (b) of the older statute are substantially the same as subsections (a), (b), and (d) of the current version. See N.J.S.A. 2C:20-10; see also State v. Jijon, 264 N.J. Super. 405, 406 (App. Div. 1993) (noting N.J.S.A. 2C:20-10 is a lesser included offense of theft of a motor vehicle), aff'd o.b., 135 N.J. 471 (1994).