STATE OF NEW JERSEY v. EDDIE HOSENDOVE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5365-03T45365-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDDIE HOSENDOVE,

Defendant-Appellant.

___________________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Stern and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 03-02-0304.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Kevin G. Byrnes,

Designated Counsel, of counsel and on the

brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Christopher A. Alliegro,

Deputy Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant was found guilty of attempted theft by deception and conspiracy to commit theft by deception, and was sentenced to concurrent extended terms of nine years with four years to be served before parole eligibility on each count. He was convicted together with co-defendant Maurice Lambert of endeavoring with Lambert to cash a pension check payable to Gerald Williams. Both counts alleged that the acts occurred "on diverse dates between October 7, 2002 and October 18, 2002." Given the dates alleged in both counts and the facts as developed at trial, it appears that the attempt occurred as part of the alleged conspiracy, but there was no special verdict asking the jury to determine if the conspiracy involved an attempt or separate act beyond the attempt alleged in the first count. We affirm the conviction but merge the conviction for purposes of sentencing, and remand for resentencing.

On this appeal defendant argues:

POINT I THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION AND ART. 1

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS

VIOLATED BY THE TRIAL COURT'S FAILURE TO

DECLARE A MISTRIAL AFTER A BAIL BONDSMAN

TESTIFIED THAT HE HAD PREVIOUSLY POSTED BAIL

FOR THE DEFENDANT ON MULTIPLE OCCASIONS.

POINT II THE TRIAL COURT'S INSTRUCTION ALLOWED A

VERDICT OF GUILTY ON THE CHARGES OF ATTEMPTED

THEFT BY DECEPTION AND CONSPIRACY WITHOUT

JURORS REACHING A UNANIMOUS VERDICT ON THE FACTUAL BASIS OF THOSE CHARGES, IN VIOLATION

OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION AND ART. 1 PAR. 9

OF THE NEW JERSEY CONSTITUTION.

(Not Raised Below)

POINT III THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT

TO THE UNITED STAES CONSTITUTION AND ART. 1

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS

VIOLATED BY THE IMPROPER ADMISSION OF HIGHLY

PREJUDICAL CHARACTER EVIDENCE. (Not Raised

Below)

POINT IV THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ART. 1

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS

VIOLATED BY THE ERRONEOUS, CONFUSING, AND

PREJUDICIAL INSTRUCTION TO THE JURORS ON THE

LAW OF CRIMINAL ATTEMPT. (Not Raised Below)

POINT V THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ART. 1

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS

VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF ORAL STATEMENTS (A

KOCIOLEK CHARGE) NOTWITHSTANDING THE STATE'S

RELIANCE ON THE DEFENDANT'S ALLEGED ORAL

STATEMENT TO PROVE ITS CASE. (Not Raised Below)

POINT VI THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT

TO THE UNITED STATES CONSTITUTION AND ART. 1

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS

VIOLATED BY PROSECUTORIAL MISCONDUCT ON

SUMMATION. (Not Raised Below)

POINT VII THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ART. 1

PAR. 1 OF THE NEW JERSEY CONSTITUION WAS

VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS.

(Partially Raised Below)

POINT VIII THE DEFENDANT'S SENTENCE IS EXCESSIVE:

A. THE TRIAL COURT ERRONEOUSLY FAILED TO

MERGE THE CONVICTION FOR CONSPIRACY WITH

THE CONVICTION FOR ATTEMPTED THEFT BY

DECEPTION. (Not Raised Below)

B. THE TRIAL COURT ERRONEOUSLY IMPOSED

MULTIPLE EXTENDED TERMS. (Not Raised Below)

C. THE TRIAL COURT ERRED BY IMPOSING AN

EXTENDED TERM.

D. THE TRIAL COURT IMPROPERLY MADE FACTUAL

FINDINGS TO ENHANCE THE SENTENCE, IN

VIOLATION OF THE UNITED STATES CONSTITUTION.

(Not Raised Below)

E. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

Defendant and Lambert were tried together. The evidence on which the convictions were based reveals that on Friday, October 18, 2002, defendant and Lambert entered Alpha Liquors in Neptune, New Jersey and attempted to cash a $3,601.52 pension check payable to Gerald Williams. While Lambert handed the check to the store owner, Kusumaker Kuchaculla, defendant asked him to cash it. However, since defendant, Lambert, and Williams were all customers of the store, Kuchaculla knew defendant by name and Lambert "by his first name" and knew that neither Lambert nor defendant was Gerald Williams. Nevertheless, defendant "kept insisting" that the check belonged to Lambert. Defendant and Lambert left the store when Kuchaculla returned the check to Lambert and started to call the police.

Kuchaculla decided not to call the police, but told Williams what happened when he came to the store later that day. Williams left the store and encountered defendant a few blocks away, and confronted defendant about his attempt to cash Williams' check. Defendant denied the allegation, but returned to Alpha Liquors with Williams where Kuchaculla confirmed that defendant "brought someone else in there, stated that he was Gerald Williams" and attempted to cash the check. However, defendant continued to deny the allegation.

Williams reported the incident to the police, and Kuchaculla positively identified photographs of defendant and Lambert as the men who had attempted to cash Williams' check.

Robert Beatty testified for defendant that in October 2002, Lambert had come into his store, the RSB Discount Store, and tried to persuade him to cash a check from Gerald Williams. Beatty did not actually see the check, but Lambert told Beatty that Williams had given him a check for $350.00 because he owed him money, but had mistakenly made the check out for $3,500.00. Lambert offered Beatty $500.00 to cash the check, but Beatty called a friend, "Mr. Stevens," for advice. Stevens told him "about putting a thumb print to cover [him]self...." Ultimately, Beatty declined to cash the check. Beatty did not recall seeing defendant with Lambert during the incident.

In response to this testimony, bail bondsman Jerry Stevens was called to testify on behalf of Lambert. Stevens was called by co-defendant Lambert to testify in response to the testimony by Beatty that it was Lambert who attempted to cash the check in Beatty's store. Lambert tried to show defendant made the prior attempt.

During his testimony, Stevens stated that he gave information to a detective about defendant, who he knew because "I bailed him out two or three times." Defendant immediately moved for a mistrial. The court denied the motion but instructed the jury to disregard Steven's testimony about bailing out defendant.

Stevens thereafter testified that on October 25 or 26, 2002, he had been looking for defendant because defendant owed him money. While he was sitting in his car near Alpha Liquors, a police detective came out of the store and asked Stevens if he had seen defendant or Lambert. According to Stevens:

I remember when he mentioned Hosendove's name to me, I remember saying this to him: I got a call from the [RSB Discount] store that Hosendove or someone was there to cash a check and my words was this: Don't cash none of those checks. Make sure you get a thumb print on the check if you cash a check.

According to Stevens, Beatty called him and said "I have a check to cash for Hosendove or from Hosendove," and he told Beatty to "make sure you get a thumb print."

We are satisfied that the judge's immediate instructions to the jury to disregard the Stevens' comments about having bailed out defendant, and subsequently about why he was looking for defendant, precluded an unfair trial. In her final instructions, the judge reminded the jurors that they "may not" consider evidence she "struck" and that "it may not be part of your deliberations." We must presume that the jury respected the instructions and find no basis for concluding otherwise. State v. Winter, 96 N.J. 640, 647-48 (1984).

The remaining points raised by defendant directed to the convictions are asserted as plain error, and we find no such error warranting reversal. See State v. Daniels, 182 N.J. 80, 95 (2004); State v. Macon, 57 N.J. 325, 336 (1971); R. 2:10-2. As to them, we find that only the following summary comments are necessary. R. 2:11-3(e)(2).

Defendant argues that the jurors were allowed to return guilty verdicts on both counts "without a unanimous decision on what the defendants had done to give rise to criminal liability." Defendant seems to suggest that the jurors could have found defendant guilty based on different acts on different dates because both counts of the indictment alleged that the acts occurred "on diverse dates between October 7, 2002 and October 18, 2002," and there was testimony about separate endeavors to cash the check. However, the State had to merely prove that the proscribed act occurred as charged. See State v. Frisby, 174 N.J. 583, 596 (2002) (requiring "jurors to be in substantial agreement as to just what defendant did...") (citations omitted); State v. Parker, 124 N.J. 628, 637, 641-42 (1991), cert. denied, 503 U.S. 838, 112 S. Ct. 1473, 117 L. Ed. 2d 625 (1992) (holding that a trial judge is not required to give a specific unanimity instruction sua sponte where there is no danger of a fragmented verdict). Moreover, to the extent there may have been some error, it will be remedied by the merger of the attempt and conspiracy we hereinafter order, because a conspiracy within the time period was clearly proven and found by the jury.

The defendant argues that the jury could have found him guilty merely because he knew Lambert was trying to cash a bad check and did nothing about it. We conclude that the jury charge as a whole was adequate and did not constitute plain error. State v. Wilbely, 63 N.J. 420, 422 (1973). The court instructed about the need for a "substantial step in the course of conduct planned" and a "criminal purpose" to constitute an attempt, and an agreement to aid or promote the commission of a crime in order to convict for conspiracy.

We do not believe the Kociolek rule applies to a lay witness's description of defendant's res gestae statement during the event. In any event, we find no plain error. See State v. Jordan, 147 N.J. 409, 428-30 (1997).

The State acknowledges that the two convictions merge. See, e.g., State v. Hardison, 99 N.J. 379, 390-91 (1985); N.J.S.A. 2C:1-8(d). There was no finding that the conspiracy transcended the single attempted theft. See also State v. Hill, 182 N.J. 532, 548-50 (2004); Hardison, supra, at 390-91. We conclude that an extended term could be imposed based on the findings related to defendant's criminal history. See N.J.S.A. 2C:44-3(a); State v. Young, 379 N.J. Super. 498 (App. Div. 2005). However, the sentence above the former presumptive seven-year term must be vacated, and the matter remanded for resentencing, see State v. Natale, 184 N.J. 498 (2005); State v. Young, supra, 379 N.J. Super. 498, at which time the judge must state sufficient reasons to warrant the sentence imposed. The judge did not make sufficient findings to impose an extended term when the sentence was originally imposed.

 
The judgment is affirmed, and the matter is remanded for resentencing.

As will be developed, Mr. Stevens was Jerry Stevens, a bail bondsman.

State v. Kociolek, 23 N.J. 400 (1957).

Our disposition moots defendant's complaint that two extended terms could not be imposed. See N.J.S.A. 2C:44-5(a)(2).

(continued)

(continued)

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A-5365-03T4

December 30, 2005