STATE OF NEW JERSEY v. REGINALD L. LEACH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4766-03T44766-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD L. LEACH,

Defendant-Appellant.

____________________________________________________________

 

Submitted April 25, 2006 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 01-04-0403-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Reginald L. Leach, and co-defendant, Gloria Walton, were charged under Passaic County Indictment No. 01-04-0403, on April 24, 2001, with first degree robbery, N.J.S.A. 2C:15-1a(1) and/or 2C:15-1a(2) and N.J.S.A. 2C:2-6 (counts one and four); third degree criminal restraint, N.J.S.A. 2C:13-2a and N.J.S.A. 2C:2-6 (counts two and five); and fourth degree possession of an imitation firearm for an unlawful purpose, N.J.S.A. 2C:39-4e and N.J.S.A. 2C:2-6 (counts three and six). Because these charges arose from two separate armed robberies, the court granted defendant's pre-trial motion to sever counts one, two, and three from counts four, five and six.

The first three counts of the indictment were tried in December 2003 before the judge and a jury, and on December 9, 2003, the jury returned its verdict, finding defendant guilty of first degree robbery and third degree criminal restraint, but not guilty of possession of an imitation firearm for an unlawful purpose.

Thereafter, the court sentenced defendant, as a persistent offender, to an extended term of forty years in prison with a twenty-year period of parole ineligibility for the first degree armed robbery, and to a concurrent term of five years for the criminal restraint conviction. Defendant appealed and we entered an order listing this appeal for consideration with defendant's appeal from his convictions under counts four, five, and six of the indictment. In this opinion, we confine our attention to defendant's appeal from his conviction and sentence for counts one and two of the indictment. On this appeal, defendant makes the following assertions of error:

POINT I: THE IMPROPER INTRODUCTION OF EVIDENCE THAT OFFICER BLAKELY INCLUDED DEFENDANT'S PICTURE IN THE PHOTOGRAPHIC ARRAY "BASED ON INFORMATION RECEIVED" VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).

POINT II: THE JURY'S VERDICT CONVICTING DEFENDANT OF FIRST-DEGREE ROBBERY WITH AN IMITATION FIREARM AND ACQUITTING HIM OF POSSESSION OF AN IMITATION FIREARM IS INCONSISTENT AND REQUIRES THAT DEFENDANT'S CONVICTION FOR FIRST-DEGREE ROBBERY BE VACATED.

POINT III: THE TRIAL COURT SHOULD HAVE GRANTED A JUDGMENT OF ACQUITTAL ON COUNT TWO BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT COMMITTED THE CRIME OF CRIMINAL RESTRAINT.

POINT IV: THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A FORTY-YEAR EXTENDED TERM WITH TWENTY YEARS OF PAROLE INELIGIBILITY.

POINT V: THE IMPOSITION OF A PERSISTENT OFFENDER EXTENDED TERM VIOLATES THE DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW (NOT RAISED BELOW).

We find no merit in the arguments raised in Points I, II, and III and, therefore, affirm the convictions. We also are not persuaded that the court erred in the imposition of the sentence, but we nevertheless remand count one for further consideration in light of the Supreme Court's recent opinion in State v. Pierce, 188 N.J. 155 (2006).

On the evening of September 20, 2000, at approximately 8:45 p.m., defendant and co-defendant entered the Fashion Bug store on Riverview Drive in Totowa. Tanisha Wilson, a store clerk, was standing near the door preparing to close up for the night. Although Wilson informed defendant and co-defendant that the store was closing, co-defendant protested that she only needed to pick up a pair of overalls and that she would be done quickly. After Wilson granted them access, co-defendant gathered some clothes and went into the fitting rooms. Defendant stood by the registers. Also in the store during this time were another clerk, Fredes Velez, and the manager, Julie Alberti.

Wilson again informed defendant that the store was closing, which defendant relayed to co-defendant in the fitting rooms. Upon hearing this, co-defendant brought the clothes from the fitting room and placed them on the checkout counter and then went to retrieve another item in a different size. While Wilson began to ring up the items, defendant grabbed Alberti by the neck and placed a gun with a red speck to her head. Defendant then ordered Alberti and Wilson to call Velez over from her position at the front of the store. When Velez walked over to the register area, defendant ordered the store personnel to get on their knees.

Defendant then ordered Wilson to open the register and Alberti to open the safe, which they did. According to store employees, defendant removed $2,895 in cash from the safe and $778 in cash and checks from the register. During this time defendant told Wilson to stop looking at him. He held the gun to Velez's head, and told her not to look up.

Defendant then ordered the employees to the fitting rooms, forced them to crawl under the door of the handicapped dressing room, and barricaded the door with benches. The employees heard an alarm sound at the front of the store indicating that someone had left and taken garments from the store. The employees then managed to extricate themselves from the dressing room, by pushing aside the benches and crawling out, and immediately called the police.

Totowa police officers arrived at about 9:00 p.m. and Detective Blakely interviewed the employees. The employees described the man as a black male with a light beard and a limp, wearing a dark-colored baseball cap. Detective Blakely met with defendant on October 12, 2000, and observed that defendant had a limp. Then, based on information received during the investigation, Blakely put together a photo array that included a picture of defendant and a second photo array that included a picture of co-defendant. All three employees of the store identified defendant and the co-defendant from the photo arrays.

At trial, the State elicited the following testimony from Detective Blakely during direct examination:

Q. Detective, upon information received, were you able to conduct a photo array in this case?

A. Yes, I received information.

Q. Without saying what information you received.

A. Yes, I did.

Q. And how was this information given to you?

A. Over the phone.

Then, again on redirect, the prosecutor emphasized that Detective Blakely received information from some undisclosed source:

Q. Between the time you took Fredes Velez to the Wayne Police Department and the time you showed the photo array to Fredes Velez, on October 16, 2000, you were conducting an investigation between that time, were you not?

A. Yes.

Q. Upon information received, you were able to put together a photo array; is that right?

A. Yes.

Defendant now argues that this evidence was unnecessary to the State's proofs at trial and was unduly prejudicial to defendant.

Our Supreme Court recently held that evidence of a police officer's reason for including a picture of a defendant in a photographic array is irrelevant, prejudicial, and generally inadmissible. State v. Branch, 182 N.J. 338, 352 (2005). However, in this instance, the officer's testimony is distinguishable from that at issue in Branch. Here, the officer merely testified he was able to compile a photographic array "based on information received." The officer did not testify that the information received caused him to identify defendant as a suspect or to include his photo specifically in the photo array. State v. Bankston, 63 N.J. 263, 268 (1973). Indeed, we do not perceive any unfair insinuation "that the police officer ha[d] information suggestive of the defendant's guilt from some unknown source." Branch, supra, 182 N.J. at 352. This type of questioning needlessly -- though slightly -- implicates the line of questions and impermissible inferences the Branch court sought to exclude from the courtroom. Assuming however, that the allowance of such testimony was error, it does not rise to the level of plain error.

Because this argument was not raised at trial, defendant must show error "clearly capable of producing an unjust result" before an appellate court will reverse on those grounds. R. 2:10-2. Here, the witnesses' opportunity to observe defendant and co-defendant while they were within the store and the positive identification of the defendants in the photo array, coupled with the other evidence adduced at trial, was sufficient to support the jury's result.

Defendant next asserts that the jury's failure to find defendant guilty of the crime of possession of an imitation firearm is wholly inconsistent with its verdict finding defendant guilty of first degree robbery with an imitation firearm and that because of such inconsistency, the court should have granted defendant's post verdict motion for acquittal.

When a motion to acquit is filed, the court must deny the motion if, "viewing the State's evidence in its entirety" and giving the State the benefit of all reasonable inferences, "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). The court applies the same standard when a motion to acquit notwithstanding the verdict is filed after the jury verdict, State v. Sugar, 240 N.J. Super. 148, 153 (App. Div. 1990), as well as on appeal. State v. Moffa, 42 N.J. 258, 263 (1964).

"Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment." State v. Banko, 182 N.J. 44, 53 (2004) (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 358-59 (1932)). A reviewing court's job is not to reconcile a jury's verdict, but rather to determine whether there is sufficient credible evidence to support a conviction. State v. Muhammad, 182 N.J. 551, 578 (2005). Consequently, an apparent facial inconsistency in a jury's verdict, as here, standing alone, will not be sufficient to support a grant of a motion for acquittal.

Using the standard outlined above, we conclude the judge properly denied the motion of acquittal notwithstanding the verdict because the State produced ample evidence to support the conviction of first degree robbery. The record shows that defendant produced an imitation gun that his victims thought was real and he pointed that gun at two of the employees in order to obtain the store's proceeds. Therefore, the State adduced testimony regarding the robbery charge such that a reasonable jury could convict the defendant beyond a reasonable doubt. Our analysis stops there.

Defendant next alleges that the State failed to prove, beyond a reasonable doubt, that defendant committed the crime of criminal restraint. We disagree.

In order to prove criminal restraint the State was required to show, beyond a reasonable doubt, that defendant knowingly restrained another unlawfully in circumstances exposing the other to serious bodily injury. N.J.S.A. 2C:13-2a. Serious bodily injury is defined as bodily injury that creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. N.J.S.A. 2C:11-1b. The court found that there existed sufficient evidence to support conviction on this count and we agree.

Defendant entered the store and grabbed Alberti by the neck and pointed an imitation gun, believed to be real at the time, at the heads of two of the employees. There was a high probability that his actions could easily have led to a panic such that serious bodily injury could occur. Further, after obtaining the cash, defendant herded these employees into the fitting room area and forced them to crawl under the door into a dressing room stall. Defendant then proceeded to barricade them inside by placing benches in front of the door. Because the store had closed, the employees were left in a position where no one was likely to discover them until the next morning. At any point, defendant's victims could have suffered serious bodily harm, thereby satisfying the requirements of the statute.

Moreover, we find that the defendant's restraint of his victims at gunpoint created the potential for psychological harm sufficient to satisfy the serious bodily injury component of the criminal restraint charge. The New Hampshire Supreme Court, in interpreting a statute similar to N.J.S.A. 2C:11-1b, adopted this approach. State v. Goodwin, 395 A.2d 1234, 1237-38 (1993). We believe such an approach to be sound and that support for such a course of action exists within New Jersey jurisprudence. See, e.g., Collins v. Union County Jail, 150 N.J. 407 (1997) (psychological harm suffered by inmate as a result of rape by a prison guard constituted "permanent loss of bodily function" sufficient to overcome tort immunity); In Re Commitment of A.A., 252 N.J. Super. 170 (App. Div. 1991) (court unwilling to rule out possibility that a proponent of involuntary commitment could prove that commitment was necessary to avoid the substantial likelihood of psychological harm to another so severe as to constitute "serious bodily harm" upon another person within meaning of N.J.S.A. 30:4-27.2i); State v. Diaz, 188 N.J. Super. 504 (App. Div. 1983) (mental or nervous shock, no matter how transitory, is sufficient to support imposition of additional fines under Criminal Injuries Compensation Act of 1971, N.J.S.A. 52:4B-1, et seq.). Therefore, there exists substantial evidence that would allow a reasonable jury to convict defendant of criminal restraint beyond a reasonable doubt.

Upon application by the State, the court found, based on defendant's criminal record, that defendant was statutorily eligible for the discretionary imposition of an extended term as a persistent offender under N.J.S.A. 2C:44-3a. The court then found applicable aggravating factors (3), risk of re-offense, (6), prior convictions and (9), need to deter and no mitigating factors under N.J.S.A. 2C:44-1. Concluding that the aggravating factors substantially outweighed the non-existing mitigating factors, the court imposed an extended term of forty years with twenty years of parole ineligibility.

Defendant contends that the court's failure to make a finding that an extended term was necessary for the protection of the public precludes the court from imposing an extended term. We disagree.

Recently, in State v. Pierce, supra, 188 N.J. at 170, the Court ruled "a finding of 'need to protect the public' is not a precondition to a defendant's eligibility for sentencing up to the top of the discretionary extended-term range." Therefore, the sentencing court's failure in this case to make such a finding did not preclude its classification of defendant as a persistent offender. Furthermore, an appellate court applies the abuse of discretion standard when reviewing a trial court's reasoning for imposing an extended sentence. Id. at 167. Here, we find no such abuse of discretion. As evidenced by the court's recitation of defendant's criminal background, which included four convictions since 1999, there was abundant evidence in the record to support the court's imposition of a sentence within the extended range. Nevertheless, we are compelled to remand the case for resentencing on count one. Once a court determines that a defendant is eligible for an extended term as a persistent offender, "the range of sentences, available for imposition, starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." Id. at 169. How a court chooses to sentence a defendant along that range of sentences "remains in the sound judgment of the court -- subject to reasonableness and the existence of credible evidence in the record" to support the court's determinations of aggravating and mitigating factors. Ibid. Because we are not satisfied that the sentencing court understood that the sentencing range included the lower end of the ordinary range of a first degree crime, the sentence imposed may have been higher than it might otherwise have been. Therefore, we believe defendant is entitled to resentencing on count one within the range established by Pierce.

Finally, defendant's attack on the continuing constitutional viability of a court's imposition of a persistent offender extended term is mooted by the Court's holding in Pierce, supra, 188 N.J. at 155. Therefore, we do not address it.

The conviction is affirmed, and the matter remanded for resentencing on count one consistent with the holding of Pierce. Review of the sentence on count one should be joined with the review of the sentence on count four.

 

Counts four, five and six relate to an incident occurring in the Township of Parsippany on September 29, 2002.

(continued)

(continued)

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A-4766-03T4

December 28, 2006