STATE OF NEW JERSEY v. JAMES D. BUNTING

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6501-03T46501-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES D. BUNTING,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 15, 2005 - Decided

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Indictment No. 01-12-2274.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Abby P. Schwartz,

Assistant Deputy Public Defender, of

counsel and on the brief).

Appellant, James D. Bunting, submitted

two pro se supplemental briefs.

Luis A. Valentin, Monmouth County

Prosecutor, attorney for respondent

(Mark P. Stalford, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

In this appeal, defendant James Bunting argues that errors in the charge, admission of evidence, and sentence, require that we reverse a first-degree armed-robbery conviction and an extended-term fifty-year prison sentence. This we decline to do.

Several persons saw defendant put a mask over his head, draw a silver pistol, and enter a house through an open screen door. Defendant stole cash, heroin, and a gold chain from the occupant. As defendant ran from the house, he dropped the mask, which was later found to contain defendant's DNA. One of the witnesses and the victim had seen defendant in the neighborhood and independently selected his photo from books of photographs. Two of the witnesses identified defendant at trial, although the victim changed his story before trial and declined to identify him.

Defendant was arrested and brought to trial before Judge DeStefano and a Monmouth County jury. The jury convicted defendant of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree burglary, N.J.S.A. 2C:18-2; second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4a; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. Judge DeStefano merged defendant's burglary and unlawful possession convictions into the first-degree robbery conviction and sentenced defendant to a mandatory extended term of fifty-years, with application of the No Early Release Act, N.J.S.A. 2C:43-7.2. For the certain-persons-not-to-have-weapons conviction, the judge sentenced defendant to a concurrent ten years imprisonment with five years of parole ineligibility. All statutorily required fees and penalties were imposed, and defendant appealed.

On appeal, defendant's lawyer raised the following three arguments: (1) "by only molding the jury charge to the State's version of events, the trial court became an advocate for the State and directed the verdict"; (2) "the testimony of officer Blake wherein he testified as to information given to him by dispatch regarding the robbery constituted inadmissible hearsay pursuant to State v. Bankston"; and (3) defendant's sentence was excessive. Defendant in a pro se supplemental letter brief argued that "the trial court erred in imposing a mandatory extended term based only upon the judgment of convictions." We have reviewed all of these arguments in light of the record and pertinent law and find them to be without merit. R. 2:11-3(e)(2). We add the following explanations.

An appropriate and proper jury instruction is, of course, essential to a fair trial. See State v. Green, 86 N.J. 281, 287 (1981). However, no party is entitled to have the jury charged in his or her own words. All that is necessary is that "the subject matter [be] adequately covered in the text and purport of the whole charge." State v. Thompson, 59 N.J. 396, 411 (1971). That is what defendant received.

Defendant claims a violation of State v. Bankston, 63 N.J. 263, 271 (1973), occurred when Officer Blake testified that dispatch told him "a subject suspicious, all black with a mask had went into [a particular apartment]." Bankston was not violated, however, because defendant had an opportunity to cross-examine the source of the information and testimony at trial provided no implication that a non-testifying witness had given the police evidence of defendant's guilt. Ibid.

Finally, defendant's counsel claims the extended sentence was excessive, and by pro se brief, defendant himself argues that the extended sentence was improperly imposed under N.J.S.A. 2C:43-7.1b(2).

First, if defendant was subject to a mandatory extended term, the sentence imposed was fully within the judge's discretion. State v. Roth, 95 N.J. 334, 364-65 (1984).

Second, N.J.S.A. 2C:43-7.1b(2) mandates an extended term for persons who are "convicted of a crime enumerated in subsection a. of this section, does not have two or more prior convictions that require sentencing under subsection a. and has two or more prior convictions that would require sentencing under paragraph (1) of this subsection if the person had been convicted of a crime enumerated in paragraph (1)."

We agree with Judge DeStefano that this statute is not easily understood. However, it is clear that, though defendant was convicted of a subsection a. offense, first-degree armed robbery, defendant was not subject to subsection a., the so-called "three strikes and you're in" provision.

Defendant's pre-sentence report reflects a 1991 second-degree aggravated assault, which constitutes one prior conviction "under paragraph (1) of this subsection." The question presented is whether defendant has the other prior conviction "under paragraph (1) of this subsection," which would require the mandatory term pursuant to N.J.S.A. 2C:43-7.1b(2).

Although defendant's pre-sentence report does not reflect any conviction in 1984, the transcript indicates that the court reviewed a judgment of conviction for a first-degree armed robbery on that date. Defendant does not contest the fact of this conviction, but instead claims that he entered a guilty plea and was sentenced as a second-degree offender. Thus, he argues the prosecutor's proof was inadequate because on its face the judgment reflected "First Degree Offense, Second Degree Sentence." (emphasis in original).

The problem with defendant's argument is that under N.J.S.A. 2C:43-7.1b, "paragraph (1) of this subsection" includes a "second degree" armed robbery. Therefore, even if we considered defendant's 1984 conviction for extended term purposes` as only a second-degree armed robbery, a proposition we heartily reject, defendant would still qualify for an extended term under N.J.S.A. 2C:43-7.1b(2). In any event, we agree with the court that while the statute references a "second degree" armed robbery under "paragraph (1) of this subsection," a first-degree armed robbery would certainly also qualify defendant for an extended term.

 
Accordingly, we reject all of defendant's arguments and affirm his conviction and sentence.

Affirmed.

In an untimely second supplemental pro se brief, defendant contends that his sentence violated Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), because Judge DeStefano and not the jury found aggravating factors three, six, and nine. No Blakely violation occurred here. Defendant received a statutorily authorized fifty-year term, see N.J.S.A. 2C:44-1f, and the three aggravating factors found in this case are offender-based factors that come within the recidivism exception identified in Blakely. State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

Referred to as a "JAC" in the transcript.

(continued)

(continued)

6

A-6501-03T4

December 6, 2005

 


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