STATE OF NEW JERSEY v. JOHN P. YOUNG, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4272-03T44272-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN P. YOUNG, JR.,

Defendant-Appellant.

___________________________

STATE OF NEW JERSEY, A-2590-04T4

Plaintiff-Respondent,

v.

JARRELL V. PEREIRA,

Defendant-Appellant.

____________________________

 

Submitted October 23, 2006 - Decided November 29, 2006

Before Judges Lintner, S.L. Reisner and

C.L. Miniman.

On appeal from the Superior Court of

New Jersey, Law Division, Bergen County,

Indictment No. 02-12-3016.

Yvonne Smith Segars, Public Defender, attorney for appellants (William Welaj, Designated Counsel, of counsel and on the brief for appellant Young; Elizabeth H. Smith, Designated Counsel, of counsel and on the brief for appellant Pereira).

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

PER CURIAM

Following a jury trial, defendants, John P. Young, Jr., and Jarrell Pereira, were each convicted of first-degree robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). Young was sentenced to ten years imprisonment with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the robbery charge and a concurrent five-year sentence on the merged weapons charges. Pereira received the same five-year sentence on the merged weapons charges, concurrent to a twelve-year sentence subject to the NERA parole bar on the robbery conviction. Both defendants appeal from their convictions and sentences. Because defendants were tried jointly, we have consolidated their separate appeals for purposes of this opinion. We affirm Young's conviction and his ten-year sentence but remand for amendment of the judgment of conviction to reflect merger of the weapons offenses into the robbery conviction. We reverse Pereira's conviction and remand for retrial.

I

For purposes of these appeals, these are the most pertinent facts. Brian Strotbeck was robbed at gunpoint in the early morning of October 8, 2002. Strotbeck, the manager of a Blockbuster video store in Dumont, had left work on October 7 in the early evening and gone to the home of a co-worker, where he stayed until about 1:30 or l:45 a.m. While driving home to his house in Teaneck, he noticed a silver Neon automobile behind him, but did not see the occupants.

However, after Strotbeck parked his car, and as he was crossing the street toward his house, the silver Neon pulled to a stop in front of him. An armed man got out of the back seat, pointed a gun at him and demanded his money. A second man got out of the car and patted down the victim's pockets. After the armed man demanded Strotbeck's wallet, the second man tore a gold chain from the victim's neck. Both men got back in the car, which drove away. According to Strotbeck, the entire incident took thirty seconds. During the incident, a third man, the driver, remained in the car, which was five feet away from Strotbeck. He immediately reported the incident to the police, who did not take a formal statement at that time.

According to his first formal statement to the police, on October 18, 2002, Strotbeck was able to describe the two assailants in some detail, but could only describe the driver as "a black male." He was never able to identify any of the assailants from police photo arrays.

On October 24, 2002, as he was again driving home late at night from his co-worker's house, Strotbeck saw what he believed was the same silver Neon. When the Neon passed him going in the opposite direction, he thought that the driver was the same person who was driving the car on October 8, and he called the police. He later admitted, however, that on both October 8 and October 24, he could not identify the driver and only saw a "silhouette and a shadow" of the man in the car.

After receiving Strotbeck's call, the police cruised the neighborhood and found a silver Neon parked in a driveway on a nearby street. The arresting officer testified that the occupant appeared to be reclining in the driver's seat. The police removed the occupant, defendant Jarrell Pereira, from the car and brought Strotbeck to the location to see if he could identify him. Upon seeing Pereira outside the silver Neon, under police spotlights and surrounded by police, Strotbeck averred that he was certain Pereira was the driver of the car during the October 8 robbery.

Pereira later explained to the police that he was driving through the area to return a video to the Dumont Blockbuster store before it became overdue. However, on examining the receipt discovered in his car, police found that the video was from a different store and was not due until October 30.

According to Strotbeck's trial testimony, Pereira actually worked at the Dumont Blockbuster store where Strotbeck was manager. Strotbeck had interviewed him before the robbery, had hired him a day or two after the robbery, and had worked with him at least once prior to October 24.

On October 24, after identifying Pereira at the scene, Strotbeck went to headquarters and gave police a second formal statement. In this statement, he insisted that he was "one hundred percent sure" that Pereira was the driver of the car on the night of the robbery.

Shortly after Pereira's arrest was reported in the newspapers, Young spontaneously appeared at police headquarters and confessed to committing a robbery of a young man whose description closely matched that of Strotbeck and which, in many other details, matched the robbery of Strotbeck. Young admitted that he was acquainted with Pereira because he knew Pereira's sister. However, Young insisted that he had acted alone in committing the robbery, that he had arrived and left on foot, and that he had not used a gun. Strotbeck was never able to identify Young, either from a photo array or at trial, as being one of the robbers. However, in his confession Young included details about the crime that were never made public, such as the fact that the robbery only yielded one dollar.

II

On this appeal, defendant Young raises the following contentions:

POINT I: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE DEFENDANT'S PHOTOGRAPH UTILIZED IN THE PHOTOGRAPHIC ARRAY SHOWN TO THE VICTIM. (NOT RAISED BELOW).

POINT II: THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW).

POINT III: THE JURY'S VERDICTS FINDING THE DEFENDANT GUILTY OF ARMED ROBBERY, POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE AND POSSESSION OF A WEAPON WITHOUT A PERMIT WERE AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV: THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT II CHARGING POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE INTO COUNT I CHARGING ARMED ROBBERY. (NOT RAISED BELOW).

POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Having reviewed the entire record we conclude that, except to the extent addressed below, Young's contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We find no merit in Young's contention that his conviction was against the weight of the evidence. He waived this claim by failing to file a motion for a new trial, and even considering the claim, we find no miscarriage of justice in the verdict. See R. 2:10-1. Young confessed to the robbery, including details that were not made public in newspaper reports of the crime. While he denied using a gun and claimed to have acted alone, the jury was not required to believe those aspects of his confession. Moreover, Young's fingerprints were found on the silver Neon automobile that the victim identified as being the car used by his assailants. Even though the victim could not identify Young, if the jury believed the victim's account of the crime, including the fact that a gun was used, there was ample basis to convict Young on all counts.

Young's contention concerning the lack of instructions as to the photographic array was not raised at trial, and we find no error with respect to that issue. Defendant neither requested a charge with respect to the photo array nor objected to the charge as given. See R. 1:8-7; R. 1:7-2. Hence it fairly may be presumed that trial counsel considered the instruction adequate and perceived no prejudice in the absence of the charge defendant now claims was required. See State v. Macon, 57 N.J. 325, 333 (1971); State v. Wilbely, 63 N.J. 420, 422 (1973). Further, since Young voluntarily appeared at the police station to confess and could have been photographed at that time, and the photos were not referred to as "mug shots," there is no reason to conclude on this record that the jury would likely have presumed that Young's photo was the result of a prior arrest.

Finally, we find no abuse of discretion in the ten-year sentence for Young's robbery conviction, which was the minimum sentence for a first-degree crime. See State v. Roth, 95 N.J. 334, 363-64 (1984). Defendant cites no compelling reasons justifying sentencing him as a second-degree offender. See State v. Megargel, 143 N.J. 484, 505 (1996). The State, however, concedes that the two weapons offenses should merge into the robbery conviction. Therefore, the concurrent five-year sentence must be vacated.

Accordingly, we affirm Young's conviction and his ten-year NERA sentence, but we remand this matter for the limited purposes of amending the judgment of conviction to reflect the merger of the weapons offenses into the robbery conviction.

III

We turn next to defendant Pereira's appellate contentions. He raises the following arguments:

POINT I: DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN TRIAL COUNSEL FAILED TO REQUEST A WADE HEARING.

POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S RULING DENYING THE ADMISSIBILITY OF BOTH OF THE VICTIM'S STATEMENTS.

POINT III: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF TESTIMONY REGARDING THE PAWNBROKERS RECEIPT. (NOT RAISED BELOW.)

POINT IV: THE SENTENCE IMPOSED WAS EXCESSIVE.

At trial, the State introduced evidence that Pereira had pawned a necklace and a bracelet on October 14, 2002. Pereira contends that introduction in evidence of the pawn ticket violated N.J.R.E. 404(b), by suggesting to the jury that Pereira was guilty of other "bad acts," i.e., pawning stolen jewelry on other occasions. Since he did not raise the issue at trial, we consider only whether introduction of the evidence was plain error. R. 1:7-5; R. 2:10-2. We conclude it was not. The State introduced the pawn ticket in an effort to show that Pereira pawned the very jewelry that was stolen from the victim in this case. Not only did defense counsel fail to object, but in summation, he made strategic use of the pawn ticket as an example of the weakness of the State's case, arguing to the jury that the pawn ticket was for different jewelry than that stolen from Strotbeck and that the prosecutor had wasted their time by presenting obviously irrelevant evidence. Further, since the jeweler testified that he reported all pawned jewelry to the police, and there had been no claim of theft with respect to this pawned jewelry, there was no basis on which the jury could have inferred that the pawned jewelry was stolen. On the other hand, the jeweler testified that the ticket was for a necklace with an "XO" pattern that most likely was women's jewelry, and there was no testimony from Strotbeck that it described his jewelry.

In light of our disposition of this appeal, we need not address defendant's alternate contention that his counsel was ineffective in failing to object to introduction of the pawn ticket. However, on retrial, the State may not introduce the pawn ticket unless Strotbeck testifies that it describes the necklace that was stolen from him. Absent such a connection, the ticket is irrelevant.

Defendant also contends his counsel was ineffective in failing to request a Wade hearing. We need not address this issue, other than to note that prior to the retrial which we conclude is required in this case, counsel may request a Wade hearing.

We next address Pereira's argument that the trial court committed prejudicial error in denying his counsel's request to admit Strotbeck's October 18 statement to the police in evidence, as a prior inconsistent statement. We consider this argument under the abuse of discretion standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).

N.J.R.E. 803(a) sets forth an exception to the bar against admission of hearsay evidence under the following circumstances:

A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:

(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613.

See State v. Caraballo, 330 N.J. Super. 545, 556 (App. Div. 2000) (witness' prior statement found inconsistent under N.J.R.E. 803(a), because it "deviated from his assertions on the witness stand").

Since neither party's appendix contained the October 18 statement, we required that they provide it to us. The trial court denied defense counsel's request to introduce the statement in evidence, because he concluded it was not inconsistent with Strotbeck's trial testimony. We have closely scrutinized Strotbeck's testimony to determine whether the pertinent portions of the October 18 statement were inconsistent with that testimony. We conclude that there were inconsistencies and that the statement was thus admissible under N.J.R.E. 803(a)(1).

Having reviewed the entire trial transcript, we also conclude that exclusion of the October 18 statement denied Pereira a fair trial and mandates reversal of his conviction. In light of the weaknesses and improbabilities in Strotbeck's identification testimony, the relative weakness of the remaining evidence against Pereira, and the court's admission into evidence of Strotbeck's October 24 statement in which he insisted he was "one hundred percent sure" of his identification, it was prejudicial error and an abuse of discretion to exclude the October 18 statement.

We begin by reviewing the inconsistencies. In his statement on October 18, Strotbeck said only two things about the person who drove the Neon on October 8. He stated that "[t]he driver of the car stayed in the car watching us." When asked if he could "describe the driver of the vehicle," he stated "[n]o, I saw that he was a black male, that was it." By contrast, he gave fairly specific descriptions of the two men who robbed him, including their complexions, age, height, physical build, weight and clothing, as well as the sound of their voices. When asked if he could "identify these guys if you saw them again" he responded that he could identify the man with the gun, "because he stayed in front of me the whole time." He did not indicate that he would be able to identify the second robber or the driver.

During his trial testimony, Strotbeck testified on direct examination that the driver "was watching from the car" and that "[a]s I looked over, I could see him -- his silhouette or his shadow through the window." He was then asked:

Q. Now what kind of description could you provide with respect to the guy who was in the driver's seat of the car?

A. I could see that he was a black male and that he had short hair -- shorter hair -- and that was it.

In context, the statement that the driver had short hair was inconsistent with his October 18 statement, in which he gave detailed descriptions of the other two men, but stated that he could only say that the driver was a black male. We infer that if he could have described the driver's hair on October 18, he would have done so.

On cross-examination, Strotbeck repeated his inconsistent statement and offered a second inconsistent statement. On cross-examination, Strotbeck admitted that he could see the "appearance" of the driver "but not who he was." He admitted that "the appearance was limited to it was a black male." But he then testified that he could also see "[t]hat he had short hair. I told the officer [that]." This was inconsistent with his October 18 statement, which does not reflect any statement about the driver's hair.

Strotbeck testified that the entire robbery took about thirty seconds and that during most of it, one of the robbers was pressing a gun to his collarbone. Hence, his attention was focused on that individual and not on the driver. He repeatedly admitted that all he saw of the driver on October 8 was "a silhouette and a shadow." He never identified Pereira until he saw him standing outside the silver Neon, surrounded by bright lights and police cars. One could conclude that Strotbeck was embroidering his trial testimony, concerning what he actually saw of the driver on October 8, to enhance the credibility of his later identification of Pereira.

There is a third inconsistency between his trial testimony and his October 18 statement. At trial, Strotbeck testified that both of the assailants came from the Neon's rear seats and that only the driver had been sitting in the front of the car. This was inconsistent with his October 18 statement, in which Strotbeck indicated that there was only one rear passenger:

At that point the passenger on the driver side gets out and points a gun at me. . . . The passenger who was sitting in the rear of the car also got out of their vehicle and approached me.

[emphasis added.]

While not critical, this inconsistency also raises a question as to how much of Strotbeck's trial testimony was based on what he actually saw on October 8, and how much was fabricated, albeit perhaps unintentionally.

The significance of the inconsistencies is magnified by the overall weakness of Strotbeck's identification testimony. According to his trial testimony, he had interviewed Pereira for a job at the Blockbuster store prior to October 8. Yet he did not recognize Pereira as the driver of the car when he saw the driver on October 8. Nor, despite having worked with him on one occasion between October 8 and October 24, did Strotbeck recognize Pereira as the driver when he allegedly got a head-on view of him driving the car on October 24. When asked to explain this, Strotbeck testified:

A. When I saw the driver on the first night, I did not see exactly who it was. I just saw an outline or a figure in the car. And then . . . I didn't even think that the person would be working with me, so it wasn't even on my mind at that point to see the person. I didn't have that much interaction or personal interaction with Jarrell ever.

Q. Well, you did indicate on direct that you did see him turn toward you during this robbery?

A. Yes.

Q. Now what made you so certain on October 24th of 2002 that the man that was outside of the same Dodge Neon was the same person who was the driver on October 8th of 2002?

A. On the morning of the 24th when I saw the car come around, it was the same exact corner, with the same exact lighting, with the same exact car, that I had noticed, and I was in my car -- and when I looked directly across into their car, I saw the same exact face or figure that I had seen from the first night. I had it matched in my mind perfectly because it was like a flashback -- I could see from the first night that it was exactly the same. It matched up.

On cross-examination, he admitted that he interviewed Pereira prior to October 8, 2002, and that he saw him again on October 10, when Pereira was actually hired and filled out necessary paperwork at the store. But he still never recognized him when he saw him inside the car.

Strotbeck was then confronted with his October 18 statement. He admitted telling the police at that time that "I saw that [the driver] was a black male, that was it." He further explained that when he saw the silver Neon coming toward him on October 24, he "saw the same outline and the same figure as the first night [October 8] . . . and that's when I knew it had to be the same car and the same people." He also explained that "I did not know the name of the person who was inside the car . . . I could not put . . . what I saw with a name" on either occasion that he saw the driver inside the Neon.

While admitting that the most he saw within the Neon on both occasions was "a silhouette, a shadow," he insisted that once he saw Pereira out of the car, surrounded by lights and police, he actually recognized him:

I had a close encounter and a flash of the second time of what I saw, and then the third time would have been when he was brought directly into my face. So, the more time, the more exposure that I had to that silhouette and shadow, the more I put the picture together in my mind that I saw [he] was the same person.

On re-direct examination, Strotbeck was permitted to read into the record the vast majority of his October 24 statement, in which he confirmed that he was "100 percent sure" that Pereira was the driver on the night he was robbed, and in which he explained why he could not identify Pereira earlier even though they both worked at the Blockbuster store. He also testified that there were a "couple of seconds" during which he had an unobstructed view of the driver on October 8 and that the driver "turned and was watching me." He again admitted, however, that all he saw of the driver was "a silhouette and a shadow."

The evidence in this case raises a very significant question as to whether Strotbeck's identification of Pereira was based on what he observed on October 8, or whether Strotbeck simply convinced himself that since he saw what he believed was the same silver Neon on October 24, with a black man driving it, the driver must be the same person who was the driver during the robbery on October 8.

We acknowledge that during his testimony, Strotbeck was exhaustively cross-examined on his prior statements to the police, including the October 18 statement. Further, defense counsel referred to the statement in summation. Hence the statement was before the jury even if it was not in evidence. But we are also convinced that the court's decision to allow the jury to have a copy of the October 24 statement in the jury room, but not to have the October 18 statement, was prejudicial, because it unfairly served to emphasize the strongest aspect of Strotbeck's identification. Our conclusion is supported by two questions the jury asked during deliberations.

First, the jury asked for a copy of Strotbeck's statement of October 18. Pursuant to his earlier ruling, the trial judge instructed them that it was not in evidence and they would have to rely on their recollections. He reminded them that they could consider the October 18 statement in their deliberations, but they could not have a copy of it. The next day, the jury asked for "the legal definition of reasonable doubt." From these requests, we may fairly infer that the jurors were concerned with the reliability of Strotbeck's identification of Pereira and were struggling with the issue of Pereira's guilt. Any error that might have pushed them toward a guilty verdict they would not otherwise have reached was prejudicial. In this case we believe the error was "clearly capable of producing an unjust result," R. 2:10-2, and was "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Bankston, 63 N.J. 263, 273 (1973). See also State v. Macon, 57 N.J. 325, 335-36 (1971).

Other than Strotbeck's identification, the case against Pereira consisted of the fact that he was found on October 24 driving a similar car in the same neighborhood where Strotbeck was robbed on October 8, that he gave an unconvincing explanation for his presence in the neighborhood, and that Young's fingerprints were found on the car. On the other hand, the car belonged to Pereira's mother and Young was friendly with Pereira's sister. Hence, Young could have been in the car with Pereira's sister on another occasion, rather than with Pereira on the night of the robbery. Moreover, it seems somewhat unlikely that Pereira, having been interviewed by Strotbeck only a day or two before, would have participated in robbing him and then shown up to work for him a few days later. We are not concluding that the evidence was insufficient to support a conviction, only that the case was sufficiently close that the erroneous exclusion of the October 18 statement was prejudicial. See Macon, supra, 57 N.J. at 335-36.

Accordingly, we reverse Pereira's conviction and remand for retrial.

 

We conclude that the October 24 statement was properly admitted as a prior consistent statement. It was properly used to rebut the inference, raised on the victim's cross-examination, that he recently fabricated his testimony that when the Neon drove toward him on the night of October 24, he recognized the driver as being the person who drove the Neon on October 8. N.J.R.E. 803(a)(2).

(continued)

(continued)

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A-4272-03T4

November 29, 2006