STATE OF NEW JERSEY v. MICHAEL A. PERO, III

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4563-04T44563-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL A. PERO, III,

Defendant-Appellant.

______________________________

 

Argued January 20, 2009 - Decided

Argued before Judges Carchman, Sabatino and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 00-12-2617.

Lon Taylor, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Taylor, of counsel and on the briefs).

Annmarie Cozzi, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Cozzi, of counsel and on the brief).

PER CURIAM

On December 28, 2000, a grand jury indicted defendant for first-degree kidnapping, N.J.S.A. 2C:13-1(b) (count one); first-degree armed robbery, N.J.S.A. 2C:15-1 (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree theft of movable property (automobile), N.J.S.A. 2C:20-3 (count four); third-degree unlawful possession of a weapon (knife), N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a weapon (knife) for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six). The charges stemmed from defendant assaulting his mother and forcing her to drive him to her bank to cash a check from her checking account for his use without her permission.

A jury acquitted defendant of kidnapping, first-degree armed robbery, and second-degree aggravated assault, and third-degree theft of movable property but convicted him of the lesser-included offenses of third-degree criminal restraint, N.J.S.A. 2C:13-2a, on count one; second-degree robbery, N.J.S.A. 2C:15-1, on count two; third-degree aggravated assault, N.J.S.A. 2C:12-1b(7), on count three; and fourth-degree joyriding, N.J.S.A. 2C:20-10b, on count four. The jury also convicted defendant of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d, on count five; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d, on count six.

The trial judge sentenced defendant to a ten-year term of imprisonment with a five-year period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the second-degree robbery charge; to a consecutive five-year term of imprisonment on the third-degree criminal restraint charge; to a concurrent five-year term of imprisonment on the third-degree aggravated assault charge; and to a concurrent eighteen-month term of imprisonment on the fourth-degree joyriding charge. The judge also merged the fourth-degree unlawful possession of a weapon charge with the third-degree possession of a weapon for an unlawful purpose charge and sentenced defendant to a concurrent five-year term of imprisonment. The judge also imposed the appropriate fines, assessments and penalties and suspended defendant's driver's license for twelve months.

On appeal, defendant raises the following contentions:

POINT I

THE 180-DAY PERIOD PURSUANT TO THE INTERSTATE AGREEMENT ON DETAINERS IN WHICH TO BRING DEFENDANT TO TRIAL FROM CONNECTICUT WAS TRIGGERED WHEN THE PROSECUTOR RECEIVED THE DEFENDANT'S REQUEST FOR FINAL DISPOSITION AND WAS NOT TOLLED FOR TECHNICAL DEFECTS IN THE APPLICATION THAT WERE NOT THE FAULT OF DEFENDANT, CONTRARY TO THE INTERLOCUTORY DECISION IN STATE V. PERO, 370 N.J. Super. 230 (2004).

POINT II

SINCE THE UNCOUNSELED DEFENDANT DID NOT WAIVE HIS RIGHT TO COUNSEL, DEFENDANT'S CONVICTIONS SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT III

SINCE THE ROLE OF STANDBY COUNSEL WAS WRONGLY CURTAILED AND DEFENDANT WAS TOLD THAT HE COULD NEVER RELINQUISH SELF REPRESENTATION, DEFENDANT'S CONVICTIONS MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT IV

THE OMISSION OF A JURY INSTRUCTION ON THE LESSER-INCLUDED OFFENSE OF FALSE IMPRISONMENT REQUIRES THE REVERSAL OF THE CRIMINAL RESTRAINT CHARGE. (Not Raised Below).

POINT V

THE PROSECUTOR'S REPEATED ARGUMENT IN SUMMATION THAT THE VICTIM WAS TELLING THE "TRUTH" ABOUT THE INCIDENT IN HER PRIOR STATEMENTS WAS IMPROPER VOUCHING FOR THE WITNESS AND INFRINGED UPON THE JURY'S SOLE FUNCTION TO DETERMINE CREDIBILITY, THEREFORE REQUIRING THE REVERSAL OF DEFENDANT'S CONVICTIONS. (Not Raised Below).

POINT VI

THE IMPOSITION OF TWO CONSECUTIVE AND MAXIMUM TERMS OF IMPRISONMENT FOR ROBBERY AND CRIMINAL RESTRAINT WAS EXCESSIVE.

In a supplemental brief, defendant raises the following contention:

POINT I

SINCE LAW OF THE CASE IS A DISCRETIONARY DOCTRINE, THIS COURT SHOULD CONSIDER THE IAD ISSUE SET FORTH IN POINT I OF DEFENDANT'S SUBSTANTIVE BRIEF TO THIS COURT REGARDING THE PRIOR DECISION IN STATE V. PERO, 370 N.J. SUPER. 370 (APP. DIV. 2004).

We affirm in all respects, except we vacate defendant's sentence and remand for re-sentencing.

We summarize the facts from the record. 9-1-1 operator Diane Goralski testified that on February 5, 2000, she received a call from the Ramsey post office that a woman had come in and said to call the police. The woman, later identified as defendant's mother, Eleanor Pero (Eleanor), told Goralski that she had "just jumped out of her car" because defendant, "made" her go to the bank to take money; that defendant beat her up; that defendant had a knife and threatened to kill her; and that defendant was "very dangerous."

Officer Angelo Lamanna of the Ramsey Police Department testified that he responded to the post office and found Eleanor crying and shaking, glasses were broken, she complained of double vision, she was "wincing in pain[,]" and she complained of pain in her back, side, ribs, and left elbow. The officer noticed redness on Eleanor's hands, neck and jaw. He called an ambulance, but Eleanor refused treatment. Instead, she went with Lamanna to police headquarters, where she gave a statement to Sergeant Robert Rapp.

In her statement, Eleanor said that she was fifty-eight years old; that she was sitting at her dining room table having breakfast when defendant "walked up to [her] and put his face directly in front of [her] face," then grabbed her robe; that defendant picked her up and threw her onto the floor; that while she was on the floor, defendant grabbed her three to four times, pulling her up and throwing her down again, and kicked her all over her body; that defendant "poked" her with a four- to five-inch kitchen knife, putting the knife on her ribs, in the center of her chest, and in one of her nostrils; that defendant "choked" her with his hands; that she was "dizzy" during the attack; that the assault lasted fifteen to twenty minutes; and that during the attack, defendant was "making delusional remarks," saying that he did not come back to live in the house with video bugs so that "they could watch him." Eleanor also explained that her son believed that the FBI wanted to "clone him for his DNA because he has super powers."

Eleanor also stated that defendant asked her how much cash she had on her. She told him how much she had and gave it to him. He then asked how much money she had in her checking account, and told her to get dressed because he wanted her to drive to the bank and cash a check. After Eleanor told defendant she had $2500 in the bank, he told her to write a check for $2000 and said, "I'm trying to think of a reason to let you live."

Eleanor continued in her statement that defendant escorted her to her bedroom, where he ripped the phone cord out of the wall; he left her alone to change; and he went downstairs to disable the kitchen phone as well. After Eleanor finished dressing, she made out a check for $2000. Defendant told her to get into her car and drive. She indicated that she was "taken under duress[.]" Eleanor further stated that she drove to her bank's drive-through, cashed the check and handed defendant the $2000. A bank employee later verified this transaction. Eleanor said that she then left the bank, drove on Main Street, and pulled over and jumped from the car because "it was my best chance to free myself because there were a lot of people around and I wasn't going back to the house with him." She then ran into the post office. Defendant drove away in Eleanor's car without her permission. The car was subsequently recovered in Connecticut.

At the time of her statement, Eleanor complained of body aches, pain in her back, left elbow pain, and blurry vision. Rapp called an ambulance and, this time, Eleanor accepted medical treatment and went to the hospital. She declined to sign her statement because she was having a hard time concentrating and seeing.

Eleanor returned to the police station two days later and signed her statement. At that time, she also advised Rapp that the knife defendant used had penetrated her night gown and t-shirt, and that she had sustained two cuts to her lower left rib cage. Rapp noted that Eleanor had bruising on her left ear, chin, jaw, ring finger, left rear shoulder blade, and chest. She also had two scratches along the left side of her abdomen, which Rapp believed were consistent with a knife wound.

After the incident, defendant was arrested in Connecticut and incarcerated on unrelated charges. He filed a motion to dismiss the indictment in this case based on a violation of the Interstate Agreement on Detainers (IAD), which was implicated in transporting him from custody in Connecticut to New Jersey. The motion was denied. After granting leave to appeal, we affirmed. State v. Pero, 370 N.J. Super. 203 (App. Div. 2004).

Eleanor testified at a domestic violence trial before a Family Part judge on January 30, 2004, that defendant had put the knife blade in her nostril and poked her in the ribs and wrist, and that he made her made her write the check and go to the bank.

At trial, on direct examination by the State, Eleanor admitted that she wrote numerous letters to defendant, in which she asked him whether she should testify. She also wrote that she would do whatever defendant said, she would formulate a plan to deal with his case, and she would not testify and would do whatever was necessary to help him. She told defendant that she wanted "all of this to end" and wanted to "start over" with him. She offered to pay for a lawyer to represent him, but he declined. She also sent him money to pay for his trial exhibits. Defendant refused all of his mother's attempts to communicate with him.

Eleanor also attempted at trial to downplay the incident. However, she testified that on the morning of the incident, she was reading the paper when defendant ran up the stairs, threw her to the floor three or four times, kicked and choked her, and stood over her with a knife. She admitted that she may have told Rapp that defendant poked her in the cheat with the knife and inserted it in her nostril. Eleanor did not remember if defendant told her that he was trying to think of a reason to let her live. She admitted, however, that defendant cut the phone lines before they left the house.

On cross-examination, Eleanor testified that she agreed to write the check, that defendant did not force her out of the house or into her car, that he did not force her to give him the money, that she was not held against her will, that she agreed to let him take the car, and that she did not see a knife in the car. Eleanor also testified that her statement to the police contained some inaccuracies.

Defendant did not testify at trial. He re-called his mother and presented three other witnesses, including Kalisch.

After the trial, defendant filed a motion for judgment of acquittal and a motion for a new trial, which the judge denied. This appeal followed.

I.

We need not elaborate upon defendant's first contention relating to the detainer issue. Defendant's contention that our published decision in Pero, supra, is erroneous lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We remain confident that our determination of this issue is correct. That said, we address the remaining issues.

II.

Defendant contends that notwithstanding his "apparent intelligence, occasional legal prowess, and understanding of most of the Reddish warnings," he did not "unequivocally" waive his right to counsel. We disagree.

At defendant's arraignment on June 24, 2003, Public Defender Robert Kalisch advised the judge that defendant wanted to represent himself. Kalisch also said that:

I'm here not as co-counsel. I'm here to give [defendant] advice procedurally on anything [defendant] has to do. We already spoke about things this morning about motions, et cetera. He already has a motion before the Court.

I'm here to give him advice as to all procedural aspects of his case, Judge, not for any strategic stuff. He's going to do that himself.

Counsel further advised the judge that defendant was "very much aware of" the charges against him.

In response to the judge's inquiry, defendant stated that he graduated college with a degree in economics, marketing, financing, accounting and personnel management, and that he started two companies and had other prior employment. When asked about his legal education and experience in criminal law, defendant said that he took business law and criminal law in college, that he was very involved in the judicial process in his criminal case in Connecticut, where he appeared pro se, that he filed several motions in that case, which were granted, that he filed several grievances against his attorney in that case, and that he selected a jury three times. Defendant also said that he was "fully aware" that there may be dangers and disadvantages to representing himself in this case.

Defendant also said he understood the IAD, the charges against him, and the possible terms of imprisonment and periods of parole ineligibility he faced. After explaining the possible sentences and periods of parole ineligibility, the judge said to defendant, "So you're looking at many years in custody with a period of parole ineligibility. You think you're able to handle a trial of that magnitude?" Defendant replied, "Yes."

Defendant also said that he was "fully aware" that he had to conduct himself in accordance with relevant rules of criminal procedure and evidence, that he understood that a lack of knowledge of the law may impair his ability to defend himself, and that he understood that he was going to be held to the same standards as an attorney. Defendant appeared pro se thereafter.

Defendant appeared before the judge two weeks later and argued in opposition to the State's request for a competency examination. However, when he sought to have Kalisch argue the motion regarding the IAD issue, Kalisch advised defendant that he "can't switch back and forth. We're not co-counsel. I'm just here as the legal advisor." When defendant asked why he and Kalisch were not co-counsel, the judge replied,

Because you didn't want him as an attorney. You wanted to represent yourself . . . and I insisted you have an attorney there alongside just to advise you if any questions arise, any legal questions or some words or theories you might not . . . be familiar with and that you could turn to Mr. Kalisch and he could tell you if you have a question. But you're representing yourself. He's only there to give you back-up information if you need it.

The judge then advised defendant that he could not appoint Kalisch as defendant's co-counsel to argue the motion because defendant said that he wanted to represent himself.

In his pro se capacity defendant, among other things, appeared at several status conferences, filed defenses to the charges, including a notice indicating that he would be claiming self-defense, sought records from the State about the impoundment of his car, requested several adjournments so as to have additional time to prepare for trial, asked that bail be set once his Connecticut sentence expired, filed a motion to recuse the first judge, filed a motion to exclude medical records due to lack of relevance and to an alleged violation of a provision of Title 45 concerning physicians, and prepared a trial exhibit list. Defendant also filed two motions for leave to appeal, one of which resulted in a Reddish hearing.

The case was then transferred to another judge. At a status conference on July 6, 2004, defendant said that he was confused as to Kalisch's role. The judge then advised defendant that:

Mr. Kalisch will sit behind you, either here or on the other side of the bar. He is only there for advice. He's not going to ask a single question to anybody. He's not going to speak to anybody except to you privately, quietly, and that's it. He's not going to be a participant. The jury will never hear a word from him.

. . . .

I know the cases in New Jersey that standby counsel sits behind you. If you want to ask him a question -- probably have him sit behind the bar. But he will never open. He will never ever make an opening statement, closing statement, objection or ask a question. The jury will never hear his voice[.]

Defendant replied, "Okay."

The judge then asked defendant, "Maybe you want to revisit you role. You want Mr. Kalisch to stay in the case, but that's up to you Mr. Pero." In response to defendant's request to "explain his options[,]" the judge said, "[y]our option is to request the Court to have [Kalisch] assigned as your full-time attorney where he does all of the talking, you sit there and be quiet, or you leave it the way it is now." When defendant then asked if he could decide in the midst of trial, the judge said, "No. Once trial starts, I won't do that to an attorney. Once

. . . the trial starts that's the way it is. We're going to decide before the trial starts. You make up your mind. Whichever way it goes it goes." Defendant then replied, "Absolutely."

At a status conference two weeks later, defendant again addressed his right to standby counsel. Noting that defendant had "fired" his standby counsel, the judge stated, "you have a right to represent yourself. You chose to represent yourself." Defendant replied, "Absolutely." Later in the proceeding, after Kalisch made some comments to the judge, defendant objected, stating, "I would also like to put on the record that my counsel, despite my objection, was making statements on the record and directing the flow of my case without my permission."

At a status conference on October 7, 2004, the judge sought to set a trial date. Defendant filed a motion to have Kalisch removed as standby counsel because he wanted to call him as a trial witness, and because he had filed a grievance against Kalisch. Viewing this as a delay tactic, the judge nevertheless granted the motion as to Kalisch's removal, and denied defendant's request that he appoint new standby counsel. The judge advised defendant that he had to apply to the Public Defender's Office for appointment of replacement standby counsel and that the Public Defender's Office, not the court, had to decide whether to do so. Defendant filed a motion for leave to appeal from this decision. We denied the motion but instructed the judge to revisit the waiver-of-counsel issue prior to trial in light of Reddish.

The judge revisited the waiver-of-counsel issue on January 26, 2005. It was clear that defendant had read and fully understood Reddish. He again requested standby counsel, to which the judge replied that he had to first determine if defendant knowingly and voluntarily waived his right to counsel. Defendant stated, "[y]es, I do wish to represent myself in this case[,]" "I have chosen to proceed pro se[,]" and "I am requesting to go pro se." Also, defendant again said that he understood the charges against him, their penalties and NERA implications, that he had a right not to testify, and that he had to talk in the third person. Defendant also waived an ineffective assistance of counsel claim, and expressed his understanding of the difficulties posed by cross-examining witnesses and of the State's right to cross-examine him on any statements he made while examining witnesses.

The Public Defender's Office subsequently appointed Daniel Palazzo as defendant's standby counsel. Before trial began, the judge advised defendant that Palazzo was "not there to fill in for [defendant's] role as counsel[,]" and that Palazzo was standby counsel and would not tell defendant what to do. Defendant replied, "I understand that." Palazzo then said that, "I've explained it to [defendant]. I'm here to assist him in procedural matters, anything substantive, trial strategy. He's his own attorney. He's representing himself on this." Palazzo also stated:

If I may, [defendant] has identified me twice as defense attorney. I want to correct it, I am not defense attorney, I am his standby counsel. He had a defense attorney, he discharged him, and there is really nothing for me to go over with him as far as strategy and I'm not strategical, I'm procedural, regarding subpoenas.

In his summation, defendant stated to the jury, "I'm standing here alone by choice."

The Sixth Amendment to the United States Constitution, and Article I, Paragraph 10 of the New Jersey Constitution, guarantee criminal defendants the right to counsel at trial. However, the Sixth Amendment, which applies to the states through the Fourteenth Amendment, also gives criminal defendants the right to proceed without counsel when they voluntarily and intelligently choose to do so. Faretta v. California, 422 U.S. 806, 818, 95 S. Ct. 2525, 2532, 45 L. Ed. 2d 562, 572 (1975). In Faretta, the Supreme Court stated that because a pro se defendant will not have "many of the traditional benefits associated with the right to counsel," it is necessary that the accused "knowingly and intelligently" waive those rights. Id. at 835, 95 S. Ct. at 2541, 45 L. Ed. 2d at 581.

Following Faretta, our Supreme Court has required the trial court to determine whether an accused has knowingly and intelligently waived the right to counsel, and to establish the waiver on the record. State v. Crisafi, 128 N.J. 499, 509 (1992). The Court held that when determining whether a waiver of counsel is knowing and intelligent, the trial court must inform a defendant of: (1) the nature of the charges, statutory defenses, and possible range of punishment; (2) the technical problems associated with self-representation and the risks if the defense is unsuccessful; (3) the necessity that defendant comply with the rules of criminal procedure and the rules of evidence; (4) the fact that the lack of knowledge of the law may impair defendant's ability to defend himself; (5) the impact that the dual role of counsel and defendant may have; and (6) the reality that it would be unwise not to accept the assistance of counsel. Id. at 511-12.

In Reddish, supra, the Court "amplified" Crisafi and imposed three additional requirements for determining whether a waiver of counsel is knowing and intelligent: (1) the discussions should be open-ended to allow defendants to express their understanding in their own words; (2) defendants should be informed that if they proceed pro se, they will be unable to claim they provided ineffective assistance of counsel; and (3) defendants should be advised of the effect that self-representation may have on the right to remain silent and the privilege against self-incrimination. Reddish, supra, 181 N.J. at 593-95.

"[O]ur courts will indulge every reasonable presumption against waiver of so fundamental a right as the right to counsel." State v. Kordower, 229 N.J. Super. 566, 577 (App. Div. 1989) (citations omitted). However, the trial court is in the best position to evaluate a defendant's understanding of what it means to represent himself or herself and whether the defendant's decision to proceed pro se is knowing and intelligent. State v. DuBois, 189 N.J. 454, 475 (2007). We will reverse only if the trial court abuses its discretion. Ibid.

Here, the record reveals that from defendant's first appearance in this case, he had an "unshakable determination" to represent himself, DuBois, supra, 189 N.J. at 473, and made that determination abundantly clear many times to two judges. His attempt to now downplay his ability to represent himself merely stems from his dissatisfaction with the outcome.

Based upon our careful review of the record, we are satisfied that throughout these proceedings, the trial court amply addressed each of the Crisafi and Reddish requirements. We have no doubt that defendant "unequivocally," knowingly, and intelligently waived the right to counsel and chose to exercise his constitutional right to proceed pro se throughout this entire matter.

III.

Defendant next contends that the limitation of standby counsel's role to "procedural advisor" and "silent gofer" was contrary to the role of standby counsel and denied him due process. Defendant argues that he repeatedly voiced his expectation that standby counsel aid and assist him but he was left to his own devices with no hope of relinquishing self-representation during the trial. As he did below, defendant mistakenly equates standby counsel with "hybrid representation."

"Although a defendant's voluntary waiver of the right to an attorney must be respected, the court may constitutionally appoint standby counsel." State v. Gallagher, 274 N.J. Super. 285, 296 (App. Div. 1994) (citing McKaskle v. Wiggins, 465 U.S. 168, 176-77, 104 S. Ct. 944, 950, 79 L. Ed. 2d 122, 132 (1984)). Standby counsel is appointed to provide the defendant with "advice and assistance and to facilitate communications with the court." Ibid. The pro se defendant is constitutionally entitled to preserve "actual control over the case he chooses to present." Id. at 297. Also, participation by standby counsel "should not be allowed to destroy the jury's perception that the accused is representing himself." Ibid. A pro se defendant must be allowed "to control the organization and content of his own defense, to make motions, to argue points of law, to participate in voir dire, to question witnesses, and to address the court and the jury at appropriate points in the trial." McKaskle, supra, 465 U.S. at 174, 104 S. Ct. at 949, 79 L. Ed. 2d at 131.

On the other hand, hybrid representation occurs when a defendant wishes to represent himself or herself "only in respect of a part of the trial and not the trial as a whole." State v. Figueroa, 186 N.J. 589, 594 (2006). Hybrid representation allows a defendant to "participate as 'co-counsel' . . . a hybrid arrangement which enabled him to avoid the pitfalls of sole pro se representation." State v. Cook, 330 N.J. Super. 395, 414 (App. Div. 2000), certif. denied, 165 N.J. 486 (2000). The role of standby counsel is typically much more limited to assisting the defendant with legal and procedural matters. State v. Slattery, 239 N.J. Super. 534, 554 (App. Div. 1990), (Shebell, J.A.D., concurring). Also, unlike standby counsel, a defendant has no constitutional right to hybrid representation. Figueroa, supra, 186 N.J. at 594. Further, hybrid representation is an option that should be avoided wherever possible. State v. Roth, 289 N.J. Super. 152, 165-66 (App. Div.), certif. denied, 146 N.J. 68 (1996).

We first emphasize that defendant never requested hybrid representation, and defendant was well aware they would not act in this capacity. Defendant wanted to represent himself and only sought standby counsel. Throughout the case, two judges and two appointed public defenders repeatedly explained to defendant the role of standby counsel. Accordingly, there is no merit to defendant's argument that as standby counsel, Kalisch and Palazzo should have done more to assist him.

A review of the record indicates that both standby counsel were much more than just "silent gofers." They provided defendant legal advice and assistance throughout pretrial proceedings and at trial. Kalisch advised the court of defendant's IAD motion and asked for an early hearing date; he reviewed the IAD motion and informed the court that defendant had a substantial argument to present; he met with defendant before a hearing to review issues to be brought to the court's attention; he clarified discovery issues for the court; he advised defendant that defendant did not have to reveal his defenses to the State; and he arranged for an investigator to search for relevant IAD documents. Palazzo acted as a liaison with the Public Defender's Office in obtaining enlarged trial exhibits for defendant; he made sure that defense witnesses were subpoenaed; and he sat at counsel table with defendant during trial so that he could communicate with defendant. We are satisfied that the two attorneys properly filled their appointed role as standby counsel.

Further, we reject defendant's complaint that not meeting with Palazzo until the day trial started prejudicially resulted in defendant not having exhibits and witnesses prepared. The defendant in State v. Ortisi, 308 N.J. Super. 573, 591 (App. Div.) (citation omitted), certif. denied, 156 N.J. 383 (1998), made a similar argument that the Court found unavailing, as we do:

[D]efendant argues that he was denied effective assistance of counsel when his standby counsel was not appointed until the week before trial, and defendant did not have the chance to confer with him until the day of the trial. Defendant offers no authority for his contention that counsel should have been appointed sooner. Standby counsel is appointed for two main purposes: to act as a "safety net" to insure that the litigant receives a fair hearing and to allow the trial to proceed without the undue delays likely to arise when a layperson represents his own case. Neither of these two reasons requires an early appointment. Had [standby counsel] been appointed two months earlier, he could not have done anything to aid defendant, as he was there only to guide defendant during the trial and not to represent him. We find no merit to defendant's argument.

We also reject defendant's argument that his strategic and tactical blunders during the trial underscores standby counsel's inability and/or outright refusal to come to his aid. Although defendant's representation of himself may have had some flaws, it was not "dismal." Among other things, defendant alone argued serious issues before the appellate and trial courts, he engaged in discovery, he undertook a vigorous defense at trial, and, in our view, he navigated the legal system quite well. We emphasize that defendant obtained leave to appeal the detainer issue pro se. Pero, supra, 370 N.J. Super. at 205-06.

Moreover, "the underlying theme of Faretta and McKaskle is that if a defendant chooses to defend himself, he must be content with the quality of his legal representation." Gallagher, supra, 274 N.J. Super. 285, 300 (App. Div. 1994). Stated another way, "[w]hen a defendant elects to represent himself, he cannot assert that his representation amounts to ineffective assistance of counsel." Ortisi, supra, 308 N.J. Super. at 592. That is exactly what defendant is contending here. The choices he made about his defenses and trial strategy were his own. Defendant, in hindsight, cannot not argue that the choices he freely made as his own counsel were unwise.

Finally, defendant's contention that the second judge's "dismissive" and "hostile" attitude underscored the fact that he was truly on his own is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2). However, we add the following comments.

The judge's role is not to hold a pro se defendant's hand and walk him through trial. The Constitution does not "require judges to take over chores for a pro se defendant that would normally be attended to by trained counsel as a matter of course." McKaskle, supra, 465 U.S. at 184, 104 S. Ct. at 954, 79 L. Ed. 2d at 137. Nor does a "defendant have a constitutional right to receive personal instruction from the trial judge on courtroom procedure." Id. at 183, 104 S. Ct. at 954, 79 L. Ed. 2d at 137. We are satisfied that the judge's comments did not affect the outcome of this case, nor do they show that defendant's standby counsel did not adequately aid him.

IV.

Defendant contends for the first time that in addition to instructing the jury on third-degree criminal restraint, a lesser-included offense to kidnapping, the judge should have also instructed the jury on the lesser-included offense of false imprisonment. Because defendant did not request a false imprisonment charge, "[o]ur review is . . . one of plain error; we will not reverse unless the error was 'clearly capable of producing an unjust result.'" State v. O'Carroll, 365 N.J. Super. 211, 224 (App. Div. 2006) (quoting R. 2:10-2; State v. Jenkins, 178 N.J. 347, 361 (2004), certif. denied, 188 N.J. 489 (2006). With these standards in mind, we continue our analysis.

"In assessing whether to charge the jury on a lesser-included offense, our courts employ a different standard based on whether or not a charge was requested by a defendant at trial." State v. Muhammed, 366 N.J. Super. 185, 206 (App. Div. 2004), aff'd in part, rev'd in part, 182 N.J. 551 (2005). Where, as here, a defendant does not request a lesser-included charge, the trial judge must give it sua sponte "only where the facts in evidence 'clearly indicate' the appropriateness of that charge." Ibid. (quoting State v. Choice, 98 N.J. 295, 298 (1985)); see also State v. Savage, 172 N.J. 364, 397 (2002); State v. Perry, 124 N.J. 128, 193 (1991). "What must be clearly indicated, however, is a rational basis in the evidence. A lesser included offense must be charged if there is a rational basis in the evidence to support such a charge. Perry, supra, 124 N.J. 193 (citing State v. Crisantos, 102 N.J. 265, 271-73(1986)).

Defendant was charged with kidnapping his mother by unlawfully removing her from her home with the purpose to facilitate the commission of a crime and/or to inflict bodily injury on or terrorize her. The judge charged criminal restraint as a lesser-included offense of kidnapping. A person commits the third-degree crime of criminal restraint if he knowingly "[r]estrains another unlawfully in circumstances exposing the other to risk of serious bodily injury." N.J.S.A. 2C:13-2(a).

False imprisonment, on the other hand, is a disorderly persons offense, which is committed when a person "knowingly restrains another unlawfully so as to interfere substantially with his liberty." N.J.S.A. 2C:13-3. "False imprisonment is complete upon an unlawful restraint that interferes with a victim's liberty. No further wrongful purpose is required." Savage, supra, 172 N.J. at 400. False imprisonment differs from criminal restraint in "that the latter requires that the restraint be 'in circumstances exposing the other to risk of serious bodily injury.'" Ibid.; N.J.S.A. 2C:13-2(a).

Here, Eleanor's 9-1-1 statement and her statement to the police indicated that defendant restrained her with a knife, that he forced her to drive to the bank, and that she jumped from her car to escape, thus exposing her to a risk of serious bodily injury. This evidence supports a criminal restraint charge, but not a false imprisonment charge. See Savage, supra, 172 N.J. at 401 (finding no duty to instruct sua sponte on false imprisonment where no rational basis existed for the jury to conclude that defendant's actions in kicking the victim did not expose the victim to the risk of serious bodily injury).

Conversely, Eleanor's cross-examination indicated that she willingly gave defendant money, she willingly went to the bank with him, and that defendant had no knife. Thus, if the jury believed that testimony, defendant committed no crime. Accordingly, we find that there was no rational basis for a false imprisonment charge as it was not clearly indicated by the evidence. Ibid.

V.

Defendant next contends for the first time that the prosecutor's statement in summation that Eleanor was telling the "truth" about the incident in her statement to the police amounted to improper vouching for the witness and infringed upon the jury's sole function to determine credibility. This contention lacks merit.

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). However, a prosecutor may not express a personal belief or opinion as to the truthfulness of a witness's testimony. State v. Marshall, 123 N.J. 1, 154, 156 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993). A prosecutor is free to "argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.), certif. denied, 182 N.J. 148 (2004).

Defendant points to the following comments during summation as evidence of the prosecutor's improper vouching for the victim:

Ladies and gentlemen, a mother's conditional [sic] love cannot change the truth. That's what you saw today or throughout this trial. That's what you heard. You heard about a mother's unconditional love, her support of a child; who is willing to support him at any length, sending him money, offering him cars, that's support that she's been offering and that's the testimony you heard which was in support or her son.

. . . .

She wanted to have communication with her son. She wanted to start that relationship, and she came to the stand trying to help him in order to redevelop that relationship. But, ladies and gentlemen, that's what a mother would do to help support her child, but it doesn't change the truth, and the truth, ladies and gentlemen, is the statements that were made by Mrs. Pero immediately after the incident happened.

The prosecutor then noted that Eleanor made different statements about what happened the day of the incident. He continued:

In your everyday lives, you're confronted with two different versions of events, and you can judge what is the truth and what is not based on the facts and circumstances surrounding them, and based on common human conduct and common human understanding and the actions the parties have together. When you look at those circumstances, all of the circumstances surrounding things is when you can tell what is the truth.

He then commented on the statements Eleanor made at the time of the incident, and her testimony at the domestic violence trial, which she explained away by saying she did not know she was going to give testimony, and said:

Against that backdrop, once again where she didn't have an opportunity to think, she didn't have an opportunity to concoct a story, she told the truth [.]

After recounting Eleanor's statement at the time of the incident, the prosecutor said:

Those statements from her she can't walk away from them when she gets on the stand because that's the truth, that's what happened.

Later, the prosecutor argued that "[w]hen you look at all of the evidence" and "when you look at the believable statements, you know what the truth is." Finally, he stated, "It's a truthful statement, the truthful statement that you have."

We conclude that the prosecutor's statements did not improperly vouch for a witness's truthfulness. The prosecutor was simply arguing that the circumstances surrounding Eleanor's pre-trial statements were more credible than her trial testimony. It was up to the jury to decide which version of the incident to believe. The prosecutor did not infer that he knew the answer because he knew something that the jury did not. Walden, supra, 370 N.J. Super. at 560. The prosecutor simply stated that based on common sense, Eleanor's statement to police was more credible than her trial testimony. That argument was entirely plausible and within the bounds of comment that a prosecutor may make on summation. Accordingly, no error, let alone plain error, occurred.

VI.

We now address defendant's sentence. Although not raised by defendant, we conclude that this matter must be remanded for resentencing pursuant to State v. Natale, 184 N.J. 458 (2005). Defendant was sentenced in March 2005, before the Natale decision. The Court held in that case that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates defendant's Sixth Amendment jury trial guarantee." Id. at 466. Defendant filed his appeal on May 10, 2005, bringing this case under Natale's "pipeline retroactivity." Id. at 494.

Here, all of defendant's sentences are above the presumptive statutory terms based solely on the judge's finding of aggravating factors, other than prior criminal conviction. In sentencing defendant, the judge found aggravating factors N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner); N.J.S.A. 2C:44-1a(3) (the risk that the defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law). The judge found no mitigating factors. State v. Thomas, 188 N.J. 137 (2006), addresses whether aggravating factors (3), (6), and (9), these "recidivism" factors, could be considered part of a defendant's prior record for sentencing purposes. The Court stated that "[f]or defendants sentenced prior to Natale, we have no confidence that any who were sentenced above the presumptive sentence on the basis of aggravating factors (3), or (6), or (9) were sentenced exclusively on the mere judicial fact-finding of the existence of a prior conviction." Id. at 153.

The judge did not find the risk of recidivism based on defendant's prior record. Rather, he found it based defendant's past involvement in cults, which he viewed as "not as a [sign] of stability and someone who's trying to straighten his life out." The judge also stated that defendant had "many problems in a mental order," and when combined with his intelligence and his manipulation, he "represents a great risk to the public." This assessment of defendant's risk of recidivism was clearly not based on his prior record. Accordingly, defendant's sentence must be reconsidered in light of Natale, supra.

Further, although it is within a judge's discretion whether to make a sentence consecutive or concurrent, N.J.S.A. 2C:44-5(a), "judges must exercise careful, common sense discretion in imposing punishment for . . . multiple offenses in order to assure that the pyramiding of sentences does not offend notions of fairness or cruel and unusual punishment." State v. Juliano, 52 N.J. 232, 236 (1968). In making the determination, "the focus of the court should be on the fairness of the overall sentence." State v. Sutton, 132 N.J. 471, 485 (1993). We may "review and modify a sentence when the trial court's determination was 'clearly mistaken.'" State v. Evers, 175 N.J. 355, 386 (2003).

In determining whether sentences should be concurrent or consecutive, trial courts must consider, among other things, the facts relating to the crimes, including whether or not:

1. the crimes and their objectives were predominately independent of each other;

2. the crimes involved separate acts of violence or threats of violence;

3. the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

4. any of the crimes involved multiple victims; and

5. the convictions for which the sentences are to be imposed are numerous[.]

[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, in assessing whether the sentences for robbery and criminal restraint should be consecutive or concurrent, the judge found that the original assault, the robbery and the criminal restraint crimes were separate and distinct from one another, that these crimes had different objectives, and that that the robbery and criminal restraint involved separate threats or acts of violence to the victim. We disagree.

Based on our careful review of the record, we conclude that the judge's Yarbough analysis was not based on a reasonable interpretation of the facts. The robbery and criminal restraint offenses were clearly intertwined. The criminal restraint was part of the robbery involving the cashing of the victim's check at the bank. The crimes had the same objectives and were predominately dependent on each other, they involved one act of violence, they were committed at the same time and place, and they involved the same victim.

 
Affirmed in part; reversed in part; and remanded for resentencing in accordance with this opinion. We do not retain jurisdiction.

On the date of the incident, the police obtained consent to search Eleanor's home. They found that two phone lines had been cut.

State v. Reddish, 181 N.J. 553 (2004).

U.S. Const. amend VI.

N.J. Const. art I, 10.

Defendant also filed a pro se habeas corpus petition in the federal district court, Pero v. Duffy, 2 006 U.S. Dist. LEXIS 43208 (D.N.J. June 26, 2006), and a pro se motion for extension of time to file an appeal, 2 006 U.S. Dist. LEXIS 82450 (D.N.J. Nov. 13, 2006). Although defendant was unsuccessful on the merits of those matters, they underscore his legal capabilities.

Defendant was sentenced to: (1) ten years on the second-degree robbery charge; however, the presumptive term at the time of sentencing was seven years, N.J.S.A. 2C:44-1(f)(1)(c); (2) five years each for the third-degree crimes of criminal restraint, possession of a weapon for an unlawful purpose, and aggravated assault; however, the presumptive term was four years, N.J.S.A. 2C:44-1(f)(1)(d); and (3) eighteen months for fourth-degree joyriding; however, the presumptive term was nine months, N.J.S.A. 2C:44-1(f)(1)(e).

(continued)

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A-4563-04T4

July 17, 2009