STATE OF NEW JERSEY v. CRAIG O'REILLY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0459-04T40459-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CRAIG O'REILLY,

Defendant-Appellant.

___________________________________________________________

 

Submitted December 6, 2005 - Decided

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 03-04-1234-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean B. Bennett, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction and sentence for second-degree robbery. We affirm the verdict, but remand for reconsideration of the sentence in accordance with State v. Natale, 184 N.J. 458 (2005).

On Sunday September 17, 2002, the victim, Sheila Darden was working at the New Hope Church in Newark. She is a contractor and was at the church fixing a leak in the bathroom with the assistance of Christopher Reeves, her employee. They finished the repairs at 12:30 a.m. that night and were invited to stay and partake in a party that was going on at the church. During the party, Darden consumed one or two Corona beers. After enjoying the party, Darden and Reeves went to the Royal Fried Chicken restaurant because Darden was hungry.

Reeves was in the restaurant waiting for Darden when defendant, Craig O'Reilly, approached him and tried to sell him a bicycle. Defendant then asked Reeves for a cigarette. Reeves told defendant he would save him some of the cigarette he was smoking. Defendant walked to the front of the restaurant where Darden was ordering her food and asked her for a cigarette. Defendant was standing next to Darden as she took money out of her pocket and looked for a twenty dollar bill with which to pay for her food. He then went back to Reeves who gave him a cigarette. At no time during this encounter did Reeves see a teardrop tattoo on defendant's face.

After leaving the restaurant, Darden was going to get into her car. As she put her foot on the car, defendant hit her in the back. He then put his hand in Darden's pocket. Darden grabbed defendant's hand and called out to Reeves for help. She grabbed defendant by the shoulder. Darden again called for help, and Reeves jumped on both of them. Defendant's coat came off during the altercation, but he escaped down an alley. In addition to leaving his coat, defendant dropped a key access card.

A short while later, Darden and Reeves, still at the restaurant, were approached by a man on a bicycle, who looked similar to defendant. The person on the bicycle apologized for what he said his brother had done to them and asked them to return his brother's key access card. No teardrop tattoo was observed on the face of this person.

At approximately 1:15 a.m. Darden and Reeves came into contact with Newark Detective Levi Holmes. Detective Holmes conducted an initial interview with Darden and then canvassed the area with Darden and Reeves. Afterward, Darden and Reeves accompanied Holmes to the police station. There, Holmes took a formal written statement of the events of the evening from Darden. During this time, Holmes smelled alcohol on Darden's breath, but Darden was very coherent and of full faculty. Detective Luis Hernandez took Reeves's statement. Neither Darden nor Reeves mentioned a teardrop tattoo on the person or persons who approached them at the car or in the restaurant before and after the robbery.

On November 26, 2002, Detective Mario Suarez spoke to Cheryl Butts, the resident manager of the building in which defendant was a tenant. Butts entered the key card number into her computer and learned that the card belonged to defendant. Detective Suarez obtained a photograph of defendant and five similar-looking individuals for a photographic array. On December 4, 2002, Darden returned to the police station to review her statement and to look at the photo array. She selected defendant's photograph as the person who robbed her. She stated she was "two-hundred percent certain" of her identification.

After this identification, Detective Suarez prepared a warrant for defendant's arrest. He was arrested on December 12, 2002. At the time of his arrest, defendant had a teardrop tattoo on his face and a tattoo that said "renegade" on his neck.

At trial, defendant testified on his own behalf. He testified he received his tattoos in 2001, prior to the robbery. Defendant further testified that he was in his apartment at the time of the incident and that he was the man Darden and Reeves encountered on the bicycle. Defendant stated that he had given his key card to his friend Hassan Mustafa. He added that he does not smoke, but Mustafa does. The State did not have the opportunity to cross-examine defendant on these issues because he failed to return from the break in proceedings before his direct examination was completed. No other evidence nor any other witnesses were presented on behalf of defendant.

The jury returned a verdict finding defendant guilty of second-degree robbery. The trial court imposed a sentence of eight years in prison subject to the eighty-five percent parole ineligibility of the No Early Release Act (NERA).

Defendant makes the following arguments on appeal:

POINT I: DEFENDANT'S CONVICTION FOR ROBBERY SHOULD BE VACATED SINCE THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE.

POINT II: THE FAILURE OF TRIAL COUNSEL TO MOVE FOR A JUDGMENT OF ACQUITTAL RENDERED DEFENDANT'S COUNSEL INEFFECTIVE IN VIOLATION OF THE FEDERAL AND STATE CONSTITUTION.

POINT III: THE SENTENCE IMPOSED BY THE COURT BELOW VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS, IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.

Ordinarily, an appellate court will not consider an argument that a jury verdict is against the weight of evidence unless the appellant moved for a new trial on that ground. R. 2:10-1; Fiore v. Riverview Medical Center, 311 N.J. Super. 361, 362-63 (App. Div. 1998); State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). The appellate court may decline to hear a case for failure to make a motion for a new trial or it can decide to entertain such an argument in the interest of justice, particularly in criminal appeals. Pressler, Current N.J. Court Rules, comment 3 on R. 2:10-1; see State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1993). If the reviewing court, in the interest of justice, decides to hear such a case, it would have to address the merits of the claim pursuant to the plain error rule, R. 2:10-2. That rule states "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court."

In the interests of justice, we elect to entertain, pursuant to the plain error rule, R. 2:10-2, defendant's argument that the jury's verdict was against the weight of the evidence.

Defendant contends the evidence was inadequate because he believes his identification by Darden and Reeves was weak. Defendant points out that when Darden gave her statement to the police, the detectives noted the smell of alcohol on her breath. Darden testified that she had been working late, and prior to going to the Royal Fried Chicken Restaurant, she had consumed one or two beers at a birthday celebration for one of the deacons at the church where she had been working. The questioning of Darden's ability to identify defendant was raised at trial. In spite of the smell of alcohol on her breath, the detectives testified that Darden had been coherent and of full faculty. There was no evidence that she was intoxicated or so impaired that her ability to perceive or to accurately report or to recall her observations was significantly affected.

Reeves also identified defendant. He had been approached by defendant twice in the restaurant where defendant had asked him for a cigarette. Reeves had ample opportunity to observe and remember what defendant looked like.

Defendant also contends that the witnesses' identification of him was flawed because they failed to include in their descriptions any mention of either the teardrop tattoo on his face or the tattoo "renegade" on the left side of his neck. At trial, defendant testified that he had those tattoos prior to the date of the incident; but that testimony was not tested by cross-examination because defendant never completed his direct testimony and did not return to court after an overnight recess of the proceedings.

Although his testimony was not stricken from the record, the jury obviously rejected defendant's testimony that his tattoos predated the event and found Darden's and Reeves's identifications credible. Such was the prerogative of the jury in its function of weighing credibility. "The jury was at liberty to reject any portions of the . . . testimony which they discredited and to consider the evidence in the light of human experiences and understandings." State v. Coleman, 46 N.J. 16, 43 (1965), certif. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966); State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990). Therefore, we will not disturb the jury's verdict.

When ineffective assistance of counsel is raised, New Jersey courts have adopted the standard set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984). In order to show ineffective assistance of counsel under our constitution, a defendant must demonstrate acts or omissions that assert unreasonable professional judgment by the attorney, as well as a showing that those acts or omissions prejudicially affected the judgment. State v. Fritz, 105 N.J. 42, 58 (1987).

In Fritz, our Supreme Court adopted the two-part Strickland test in cases where ineffectiveness of counsel is asserted. The Court explained that:

First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.

[Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693).]

A reviewing court must look at "the fundamental fairness of the proceeding whose result is being challenged." Fritz, supra, 105 N.J. at 58 (citing Strickland, supra, 446 U.S. at 696, 104 S. Ct. at 2069, 80 L. Ed. 2d at 699). A reviewing court should also be extremely deferential to counsel's performance, which requires "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 688-89, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). "The benchmark for judging ineffectiveness must be whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." Ibid. (quoting Strickland, supra, 446 U.S. at 686, 104 S. Ct. at 2064, 80 L. Ed. 2d at 692-93). Stated another way, defendant must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Ibid. Lastly, our Supreme Court determined that "a conclusive presumption of prejudice is inappropriate except in cases exemplified by egregious shortcomings in the professional performance of counsel." Fritz, supra, 105 N.J. at 61.

Defendant argues that trial counsel was ineffective for failing to move for a judgment of acquittal prior to the submission of the case to the jury, and again after the jury returned its verdict. We are satisfied that such motions would have been unsuccessful. Fritz, supra, 105 N.J. at 52 (quoting Strickland, supra, 446 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698). There was sufficient evidence presented to submit the factual disputes to the jury. Therefore, motions by counsel for a judgment of acquittal would not have changed the outcome of the case.

Finally, defendant claims that his eight year sentence exceeded the presumptive term of seven years for conviction of a second-degree offense and, therefore, the sentence violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Our Supreme Court recently ruled in State v. Natale, 184 N.J. 458 (2005), that presumptive terms no longer apply but that judges must continue "to balance the aggravating and mitigating factors" to impose a sentence within the range without being required to do so from the fixed point of a statutory presumption. Natale, supra, 184 N.J. at 487-88. The sentencing court may, of course, consider a defendant's prior criminal convictions as an aggravating factor without violating the Sixth Amendment, but other factual bases must be determined by the jury unless admitted by the defendant. Id. at 481. The judge must state the reasons for imposing the sentence on the record. Id. at 481-82.

In this case, the sentencing judge found aggravating factors N.J.S.A. 2C:44-1a(3) and (9), the risk that defendant will commit another offense and the need to deter him and others from committing crimes. It is not clear from the record that the sentence imposed, one year beyond the presumptive, was solely based on defendant's prior convictions or whether it was based on other considerations as well. Accordingly, we remand for reconsideration of the sentence, without consideration of any presumptive term, pursuant to Natale. Id. at 487.

 
Remanded for sentencing.

In Fiore, supra, 311 N.J. Super. at 363 n.1, this court suggested that the constitution may require that R. 2:10-1 not be enforced in criminal actions.

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A-0459-04T4

December 22, 2005