STATE OF NEW JERSEY v. DALE ANDREWS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3001-04T43001-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DALE ANDREWS,

Defendant-Appellant.

________________________________________________________________

 

Submitted November 1, 2006 - Decided November 28, 2006

Before Judges Lefelt, Parrillo and

Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Atlantic County,

Indictment No. 03-01-0070.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Mark Zavotsky,

Designated Counsel, on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (Peter J. Gallagher,

Assistant County Prosecutor, of counsel and

on the brief).

PER CURIAM

Defendant Dale Andrews is serving a five-year sentence, with an eighteen-month period of parole ineligibility, and a consecutive fourteen-month sentence for two counts of criminal mischief, one in the third-degree and the other in the fourth-degree. Defendant, on appeal, advances several points in an attempt to justify reversal of his conviction and sentence. These include prosecutorial misconduct during cross-examination of a defense witness, violation of defendant's confrontational rights by precluding inquiry regarding complainant's mental health evaluation, erroneous admission of other-crimes evidence, and erroneous imposition of consecutive and unconstitutional prison terms.

Because of the appeal points defendant has raised, we need not present the facts in any great depth. It is sufficient to note that defendant's convictions arose from an arson that destroyed a shed belonging to complainant, a former friend of defendant with whom defendant had a fairly lengthy history of harassment and altercations. In fact, at the time of this incident, a domestic violence restraining order precluded defendant from being in the presence of his former friend. According to the complainant, the fire began with an explosion shortly after defendant, who had been drinking, angrily left complainant's house, which he had entered without invitation, exclaiming, "I'm going to fuck something up." Besides destroying the shed, the fire also damaged a neighbor's fence and deck. Acting upon the complainant's identification of defendant, the police arrested defendant near the scene of the arson.

All of defendant's arguments on appeal, referenced summarily above, except for his State v. Natale, 184 N.J. 258, (2005), argument, lack sufficient merit to warrant further discussion. R. 2:11-3(e)(2). We nevertheless provide a brief explanation pertaining to each of the appeal points.

At defendant's trial, defense counsel called only one witness, an investigator and probation officer employed by the State, who had investigated the crime scene. On cross-examination, the State asked the investigator whether her "employer is the Office of the Public Defender." The trial judge upheld defense counsel's immediate objection, and informed the jury that the comment was to be "stricken from the record," and was "absolutely inappropriate." The State apologized for the comment, stating it was "not purposeful or deliberate." At that time, defendant made no request for a mistrial.

Defendant, nevertheless, before us claims the question constituted prosecutorial misconduct warranting a new trial. This is simply not so. See State v. Frost, 158 N.J. 76, 83 (1999) (requiring reversal only where prosecutorial misconduct is "so egregious that it deprived the defendant of a fair trial"); State v. Moore, 111 N.J. Super. 528, 533 (App. Div.) (concluding that a prosecutor's reference to the Public Defender's Office does not warrant a mistrial), certif. denied, 57 N.J. 210 (1970). To the extent that the cross-examination question attacked the credibility of the witness it was proper.

Defendant further claims that the trial judge improperly precluded inquiry into the complaining witness's mental health evaluation, finding the information contained therein to be privileged. However, defendant made an inadequate showing to pierce the privilege, as he failed to demonstrate "a legitimate need" to obtain the evidence, failed completely to show its "relevance and materiality," and also failed to demonstrate that the "information could not be secured from any less intrusive source." In re Kozlov, 79 N.J. 232, 243-44 (1979).

The defendant next complains that the trial court erred in admitting "other crimes" evidence. Here also, defendant is wrong. The evidence met the State v. Cofield, 127 N.J. 328, 338 (1992), standard, and the court correctly balanced the competing interests.

Although defendant further complains of the consecutive sentence, he is once again wrong. The sentencing judge imposed the sentence because there were two separate victims. Even though the judge articulated only one of the relevant factors to be considered in imposing consecutive sentences, we cannot say that the sentence violates State v. Yarbough, 100 N.J. 627, 644 (1985). See State v. Carey, 168 N.J. 413, 429 (2001).

Finally, we note that the judge imposed the maximum sentence for a third-degree crime and that he found aggravating factors (3), (6), and (9). Consequently, defendant is entitled to resentencing pursuant to State v. Natale, supra, 184 N.J. Super. at 495-96; and State v. Thomas, 188 N.J. 137, 152 (2006).

Remanded for resentencing, affirmed in all other respects.

 

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A-3001-04T4

November 28, 2006