STATE OF NEW JERSEY v. KERMON A. WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5330-03T45330-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

KERMON A. WILLIAMS,

Defendant-Appellant.

__________________________________

 

Submitted: January 17, 2006 - Decided February 9, 2006

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 03-12-2413.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of second degree robbery, contrary to N.J.S.A. 2C:15-1. The victim was a woman leaving a casino with her winnings. The trial judge imposed a nine-year term of imprisonment with a No Early Release Act (NERA) 85% parole ineligibility term. He also imposed a consecutive three-year term pursuant to a plea agreement on an unrelated charge of theft by unlawful taking. The appropriate penalties, assessments and fines were also imposed.

At approximately 6 a.m. on May 23, 2003, Twe Nguyen (Nguyen) left the blackjack table at Bally's Park Place Casino (Bally's) in Atlantic City and went to the cage to cash out her chips, which totaled $9,250. The cashier gave her $9,000 in one hundred dollar bills and the rest of her winnings in smaller denominations. Nguyen placed the $9,000 in her shoulder bag and the remaining $250 in her wallet, which she also placed in her shoulder bag.

After cashing out, Nguyen and her friend, Kebong Kim (Kim) took an escalator downstairs, exited the building and walked across the street to hail a cab. Sam Grecco, a surveillance officer for the casino, passed Nguyen and Kim as they crossed the street. Grecco was on his way to work and remembers them because Nguyen was wearing all yellow. As he passed Nguyen and Kim, Grecco also noticed a heavy-set black male, later identified as defendant, walking a few feet behind them. Defendant was accompanied by a black female. Defendant followed Nguyen and Kim across the street, leaving his female companion on the sidewalk adjacent to Bally's.

After crossing the street, Nguyen and Kim walked over to a waiting taxi cab. The cab driver was asleep and his seat was reclined, which crowded the passenger's seat behind him. When Nguyen and Kim approached the cab, the driver roused and pulled his seat up so Nguyen could get into the passenger seat behind him. Kim entered the cab on the other side. As Nguyen lifted her foot to enter the taxi, defendant grabbed her shoulder bag. Nguyen screamed for help. Grecco heard her screams just as he reached the employee entrance at Bally's. He turned and saw Nguyen struggling with defendant. Nguyen tried to hold on to her shoulder bag, and in the process defendant dragged her approximately nine or ten feet down the street, causing her to hit her head on the pavement and scrape her knees and arm. Defendant also punched and kicked Nguyen while she was on the ground.

Defendant eventually gained control of Nguyen's bag. Then Kim tried unsuccessfully to hold defendant in his grasp. Defendant broke free and ran towards the boardwalk with both Grecco and Kim in pursuit. Just before reaching the boardwalk, defendant dropped Nguyen's bag and Kim and Grecco ended their pursuit. Kim retrieved Nguyen's bag and returned it to her. Nguyen looked in the bag and found that her wallet was still there, but the $9,000 was gone.

After dropping Nguyen's bag, defendant continued running toward the boardwalk. Defendant ran past Reed Putnam, a construction worker sitting in his truck and reading the newspaper. At that point, several Bally's security guards were chasing defendant, and one of them informed Putnam that defendant had robbed a woman shortly before. Putnam drove his truck onto the boardwalk and followed defendant until defendant left the boardwalk at St. James Place. Putnam followed defendant onto St. James Place until he reached a sandlot, where a cyclone fence prevented his truck from going any further.

Putnam continued the chase on foot and enlisted the help of nearby ironworkers. During the pursuit, Putnam saw defendant throw something silver over the fence as he ran, which later turned out to be defendant's sweatshirt. The chase eventually led to the lobby of Resorts Casino, where the ironworkers surrounded defendant. Harry Jones, a security guard for the casino, detained defendant until the police arrived. At that time, defendant was wearing only a short-sleeve white t-shirt. The police officer who arrived on the scene searched defendant and found ninety 100 dollar bills in the cuff of his pants. Shortly thereafter, Nguyen and Kim were transported to Resorts Casino by Patrolman Shawn Steuber, where Nguyen identified defendant as the individual who robbed her.

On appeal, defendant raises the following issues:

POINT I: THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY REGARDING THE LESSER INCLUDED OFFENSE OF THEFT FROM THE PERSON.

POINT II: THE TRIAL COURT'S CHARGE TO THE JURY REGARDING THE ISSUE OF IDENTIFICATION WAS PREJUDICIAL BY EMPHASIZING THE VICTIM'S IDENTIFICATION OF THE DEFENDANT IN SUCH A MANNER AS TO LEND CREDENCE TO ITS RELIABILITY. (NOT RAISED BELOW).

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

POINT IV: THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST TO ISSUE A CLAWANS CHARGE TO THE JURY AS A RESULT OF THE STATE'S FAILURE TO CALL SHARON FLOWERS AS A WITNESS.

POINT V: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

POINT VI: ASSUMING THE COURT DOES NOT CONCLUDE THAT THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE BASED UPON A REVIEW OF THE APPLICABLE AGGRAVATING AND MITIGATING FACTORS SUPPORTED BY THE RECORD, THE DEFENDANT IS ENTITLED TO A REMAND PURSUANT TO STATE V. NATALE.

We affirm the conviction, but remand for reconsideration of the sentence.

At the charge conference, defendant requested that the trial judge instruct the jury on theft and receiving stolen property as lesser included offenses of second degree robbery. The judge declined to do so because the evidence provided no factual support for the notion that defendant simply stole the shoulder bag. On appeal, defendant argues that the trial judge erred in not charging theft as a lesser included offense to robbery. The evidence, however, provided no rational basis for such an instruction.

Under N.J.S.A. 2C:1-8e, a court "shall not charge the jury with respect to an included offense unless there is a rational basis" to convict a defendant of a lesser included offense. In order to justify a lesser included offense instruction, a rational basis must exist in the evidence for a jury to acquit the defendant of the greater offense and convict the defendant of the lesser, unindicted offense. State v. Brent, 137 N.J. 107, 113-14 (1994).

A defendant "is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). As defined by N.J.S.A. 2C:1-8d, an offense is "included" if:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8d(1)-(3).]

When defendant requests a lesser included offense charge, strict adherence to the definition of "included" under N.J.S.A. 2C:1-8d "is less important . . . than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser." Brent, supra, 137 N.J. at 117. Thus, "[w]hen a lesser-included offense charge is requested by a defendant, . . . the trial court is obligated, in view of defendant's interest, to examine the record thoroughly to determine if the rational-basis standard has been satisfied." State v. Crisantos, 102 N.J. 265, 278 (1986) (citing State v. Powell, 84 N.J. 305, 318-19 (1980)). The question is not whether the jury is likely to accept the defendant's theory, but whether it would have a rational basis for accepting that theory. State v. Mejia, 141 N.J. 475, 489 (1995). A court's failure to instruct the jury on a lesser included offense requested by defendant, and for which the evidence provides a rational basis, warrants reversal of a defendant's conviction. Brent, supra, 137 N.J. at 118.

Theft is a lesser included offense of robbery, and it is appropriate to charge theft if "there is a question whether the defendant's act of 'inflict[ing] bodily injury,' 'us[ing] force upon another' or 'threat[ening] another with [or] purposefully put[ting] him in fear of bodily injury' occurred 'in the course of committing a theft.'" State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003) (quoting State v. Jordan, 240 N.J. Super. 115, 120-21 (App. Div.), certif. denied, 122 N.J. 328 (1990)).

Here, defendant asserts two arguments in support of his contention that the trial court erred in failing to instruct the jury on the lesser included offense of theft. First, defendant argues that each of the State's witnesses offered contrasting and conflicting testimony. While defendant asserts such testimony was inconsistent, he fails to point out any specific discrepancies in his brief. Although there are some inconsistencies about the number of punches and the distance the victim was dragged, the four State's witnesses testified that defendant dragged, punched and kicked Nguyen in the course of stealing her purse. Thus, there was little question as to whether defendant inflicted bodily injury on Nguyen in the course of stealing her purse.

Moreover, the only factual suggestion that defendant committed a theft rather than a robbery was provided by defense counsel in his opening statement. He insinuated that the jury was confronted with no more than a crime of opportunity because defendant observed the victim drop her wallet, he picked it up and fled. Defendant, however, did not testify and defense counsel's remarks are not evidence. Ponzo v. Pelle, 166 N.J. 481, 489 (2001). Therefore, there was no evidential basis for a lesser included offense charge.

As further support for his argument that the trial court erred in failing to instruct the jury regarding the lesser included offense of theft, defendant points out that Nguyen never told Patrolman Steuber that defendant assaulted her. Rather, she merely told him that defendant snatched her purse and ran away. However, Steuber's interaction with Nguyen consisted exclusively of transporting her to Resorts Casino to identify defendant as the man who robbed her moments before. The trial judge appropriately pointed out during the charge conference that Nguyen was with Steuber for a limited purpose, not to obtain medical treatment or a medical diagnosis, and Steuber was not the investigating officer.

Defendant's reliance on State v. Jordan, supra, 240 N.J. Super. at 121 is misplaced. In Jordan, the court concluded that a charge on the lesser included offense of theft was required because the evidence tended to demonstrate that the assault, which served as the basis for the robbery charge, actually took place after the theft was completed. Id. at 118-21. In contrast, here, the record clearly establishes that defendant's assault of Nguyen took place in the course of the theft. As such, the jury could not have found that the force exerted against Nguyen was not in the course of the theft.

Defendant also argues that the trial judge's identification instruction presented a misleading summary of the evidence and had the capacity to enhance the victim's credibility. We disagree.

Defendant did not object to this aspect of the charge. Therefore, we review this alleged error as plain error. R. 2:10-2; State v. Bunch, 180 N.J. 534, 541 (2004); State v. Macon, 57 N.J. 325, 333 (1971). Any error will be disregarded unless it is capable of producing an unjust result. Ibid.

The court instructed the jury on identification as follows:

The State presented testimony of witnesses including Ms. Nguyen and Mr. Grecco. You will recall that they testified and they identified the defendant in court as the person who committed the robbery. The State also presented testimony that on a prior occasion before trial that Ms. Nguyen identified the defendant as the person who committed this offense. You'll remember the testimony that she was in a police car and she was brought to Resorts and from ten feet away she identified the defendant was her testimony. According to the witness her identification of the defendant was based upon observations and perceptions that she made of the perpetrator at the time the offense was being committed. It's your function to determine whether the witness's identification of the defendant is reliable and believable or whether it's based on a mistake or for any reason is not worthy of belief. You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the robbery.

The court then explained the relevant factors to be considered in determining whether the identification testimony was credible and reliable. In an effort to illustrate the application of such factors to the identification testimony, the court reiterated the circumstances surrounding Nguyen's identification of defendant prior to trial:

you may also consider some or all of the following: the witness's opportunity to view the person who committed the offense at the time the offense was committed, especially Ms. Nguyen; the witness's degree of attention on the perpetrator when they observed the crime being committed; the accuracy of any description the witness gave prior to identifying the perpetrator; the degree of certainty expressed by the witness in making the identification; the length of time that elapsed between the observation of the offense and the identification; any discrepancies or inconsistencies between identifications; the circumstances also under which any out-of-court identification was made. Again, you'll remember the testimony that Ms. Nguyen was brought to Resorts in a police car and identified the defendant from approximately ten feet away within a short period of time after the alleged commission of the offense. That, and any and all other testimony, is the type of thing we're talking about when we say the circumstances under which the out-of-court identification was made. (emphasis added)

Defendant argues that the trial judge presented a misleading summary of the evidence that was prejudicial to defendant because it emphasized the victim's identification of him. He contends that inclusion of a summary of the victim's identification of him enhanced her credibility.

Proper jury charges are "essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must guarantee that jurors receive accurate instructions on the law as it pertains to the facts and issues of each case. State v. Thompson, 59 N.J. 396, 411 (1971). Because of the importance of accurate jury instructions, "erroneous instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002) (Marshall IV).

A "trial judge has the right, and oftentimes the duty, to review the testimony and comment upon it, so long as he clearly leaves to the jury . . . the ultimate determination of the facts and the rendering of a just and true verdict on the facts as it finds them." State v. Mayberry, 52 N.J. 413, 439 (1968). The need to comment on evidence arises when an instruction modeled solely on the language of an applicable statute or rule of law will not adequately guide the jury's deliberations. State v. Olivio, 123 N.J. 550, 567-68 (1991). In those circumstances, "the better practice is to mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case . . . ." State v. Concepcion, 111 N.J. 373, 379 (1988). Moreover, trial judge's have broad discretion when commenting on evidence in an instruction. State v. Robinson, 165 N.J. 32, 41-42 (2000).

However, when a court probes into the facts, "any comment must be designed to avoid unduly influencing or otherwise invading the province of the jury." State v. Biegenwald, 106 N.J. 13, 44 (1987) (Biegenwald II). Thus, any comments or arguments regarding the relative strengths and weaknesses of the evidence should come from counsel. Robinson, supra, 165 N.J. at 45. If a court finds it necessary to comment on the strengths of one party's case, it must refer to the opponent's counterarguments; conversely, if weaknesses are discussed, the countervailing explanations must be mentioned. Ibid.

A trial court must instruct on identification when a defendant's identification is a fundamental or an essential issue in the case. Green, supra, 86 N.J. at 291-93. When a court determines that identification is a fundamental or an essential issue at trial, "the defendant has a right to expect that the appropriate guidelines will be given, focusing the jury's attention on how to analyze and consider the factual issues with regard to the trustworthiness" of in-court identifications. Id. at 292. Accordingly, in Green, the Court approved the use of the model charge on identification.

The latest version of the model jury charge on identification was promulgated in 1999. Robinson, supra, 165 N.J. at 41-42. The current charge denotes numerous factors that a jury may consider when evaluating identification testimony. Id. at 42. Such factors include:

[T]he opportunity of the witness to view the offender, the witness's degree of attention on the perpetrator, the accuracy of any prior descriptions by the witness, the degree of certainty expressed by the witness in making the identification, the length of time between the witness's observation of the offense and the identification, and factors relating to cross-racial identification.

[Ibid.]

The jury may further consider "'[a]ny other factor based on the evidence or lack of evidence in the case[.]'" Ibid.

In Robinson, the Court endorsed the approach taken in the model charge and held that a trial court may advise jurors of certain factors to aid them in assessing the specific testimony of eyewitnesses. Ibid. The Court further pointed out that the charge authorizes a trial judge, "'if necessary or appropriate for purposes of clarity,'" to "'comment on any evidence relevant to any of the . . . factors[.]'" Ibid. Thus, according to the model charge, a trial court has discretion to add specific factual references to the identification instruction. Ibid.

We discern nothing misleading or prejudicial in the identification charge. The charge was molded to the facts of the case. The trial judge provided a fair summary of the evidence. As delivered, the charge was designed to provide the jury with a concrete basis to apply the general factors to the facts of the specific case. There was no error, much less plain error.

Defendant also contends that the prosecutor inferentially commented on defendant's right not to testify. Raised as plain error, we must determine whether any error had the capacity to produce an unjust result. Based on our review of the prosecutor's summation, we discern no incursion into the prohibited area of defendant's right not to testify at trial.

Defense counsel offered an alternative version of the offense. He told the jury that defendant simply saw Kim drop a wallet, that defendant picked it up and fled. In his summation, the prosecutor simply stated that the evidence did not substantiate defense counsel's version of events. These carefully confined remarks neither directly nor indirectly commented on defendant's failure to testify at trial.

We also reject defendant's argument that the trial judge should have delivered a Clawans charge due to the failure of a witness to appear. A Clawans charge allows the jury to draw an inference that the missing witness would have had evidence unfavorable to the party who would reasonably have been expected to produce the witness. Clawans, supra, 38 N.J. at 170-71. Here, the missing witness, Sharon Flowers, was equally available to both parties but she could not be located despite diligent efforts by both parties. Under these circumstances, a Clawans charge was not appropriate.

Finally, defendant argues that the sentence imposed was excessive and unconstitutional. The judge sentenced defendant to a nine-year term with an 85% period of parole ineligibility for the second degree robbery conviction. Pursuant to a plea agreement, he also imposed a consecutive three-year term for an unrelated theft by unlawful taking charge. We discern no basis to disturb the consecutive term but remand for reconsideration of the term imposed for the robbery pursuant to State v. Natale, 184 N.J. 458 (2005) (Natale II).

The trial court identified all the relevant aggravating and mitigating factors. The court found four aggravating factors: the gravity and seriousness of the harm inflicted on the victim (N.J.S.A. 2C:44-1a(2)); the risk defendant will commit another offense (N.J.S.A. 2C:44-1a(3)); defendant's prior record (N.J.S.A. 2C:44-1a(6)); and the need to deter defendant and others (N.J.S.A. 2C:44-1a(9)). The trial court also found two mitigating factors: defendant's compensation to the victim for the damage or injury she sustained (N.J.S.A. 2C:44-1b(6)); and the hardship defendant's incarceration will cause his dependent minor child (N.J.S.A. 2C:44-1b(11)).

Concerning the first aggravating factor, the harm to Nguyen and her particular vulnerability, the judge considered the fact that "the victim only weighed a hundred pounds" and "the defendant weighed approximately 220 pounds and was no match for the strong-arm type robbery." In addition, he pointed out that scars still remained on Nguyen's elbow and knee, which were remnants of her struggle with defendant. Thus, Nguyen's small size left her particularly vulnerable to defendant's strength, which he used to forcefully rob Nguyen of her bag, harming her in the process.

Concerning the second, third and fourth aggravating factors, N.J.S.A. 2C:44-1a(3), (6) and (9), the court related that defendant had amassed ten arrests and two criminal convictions in the seven years preceding Nguyen's robbery. In addition, defendant admittedly had a gambling problem, to which he attributed a great deal of his criminal conduct. Therefore, the court determined that defendant would continue to commit other offenses if not deterred.

With regards to the two mitigating factors identified by the court, the court found N.J.S.A. 2C:44-1b(6) appropriate only if defendant were to fulfill his promise of compensating Nguyen for her unpaid medical expenses and clothes, which were ruined during the robbery. In addition, the court found N.J.S.A. 2C:44-1b(11) appropriate because defendant's dependent minor child would entail hardship due to defendant's incarceration.

After balancing the relevant aggravating and mitigating factors, and finding that the aggravating factors clearly outweighed the mitigating factors, the judge sentenced defendant to nine years with 85% parole ineligibility on the robbery conviction.

Defendant contends the nine-year sentence imposed was manifestly excessive because there was a preponderance of mitigating factors which justified imposing a sentence "toward the lower end" of the applicable range for a second degree offense. First, defendant contends the trial court's reliance on N.J.S.A. 2C:44-1a(2), (3) and (6) as aggravating factors was erroneous. With regards to N.J.S.A. 2C:44-1a(2), defendant claims the disparity in weight between him and Nguyen did not make her particularly vulnerable or incapable of resistance. Furthermore, defendant claims N.J.S.A. 2C:44-1a(3) and N.J.S.A. 2C:44-1a(6) were inapplicable to the instant case because his only prior convictions occurred in September 1999 and July 2000 for conduct occurring in February 1999 and July 1999. All of the prior convictions involved third and fourth degree convictions, which were not sufficiently serious or numerous in nature to justify characterizing defendant's background as an aggravating factor. Additionally, roughly five years had passed since defendant's last conviction. Therefore, the trial court should not have relied on defendant's prior criminal record to conclude that he would commit another offense.

Defendant also contends that, besides the two mitigating factors considered by the trial court, the court failed to recognize two other applicable mitigating factors. As both defense counsel and defendant acknowledged, defendant's conduct was occasioned by his severe gambling addiction. This addiction tended to justify defendant's conduct, although failing to establish a lawful defense. Therefore, defendant asserts the court should have recognized N.J.S.A. 2C:44-1b(4) as an applicable mitigating factor. In addition, the fact that five years had passed since defendant's last conviction suggests that defendant had led a law-abiding life for a significant period of time. As such, the court should have considered N.J.S.A. 2C:44-1b(7) as another applicable mitigating factor.

In imposing a sentence, a trial court should "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989) (citing State v. Kruse, 105 N.J. 354, 359-60 (1987)). Aggravating and mitigating factors are not simply to be balanced and accorded equivalent value, but rather the focus around which factors are to be weighed is always the severity of the crime. State v. Hodge, 95 N.J. 369, 377-79 (1984). New Jersey's "sentencing statute contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div.), certif. denied, 174 N.J. 41 (2002).

For the most part, defendant's arguments are misplaced. As to the overlooked mitigating factors, four or five years between convictions does not constitute a significant period of time as a law abiding person. Thus, the court properly disregarded N.J.S.A. 2C:44-1b(7) as a mitigating factor. Moreover, although a gambling addiction may justify a person's criminal conduct in certain instances, defendant has presented no evidence in support of his contention that he had a gambling problem. In fact, defendant told the pre-sentence investigator that he did not have a gambling problem and that he was gambling for the first time on May 23, 2003. Thus, the court properly disregarded N.J.S.A. 2C:44-1b(4).

Furthermore, defendant's contention that the court erroneously applied aggravating factors N.J.S.A. 2C:44-1a(2), (3) and (6) is also largely misguided. As to N.J.S.A. 2C:44-1a(2), when determining whether that aggravating factor is implicated, the court should "engage in a pragmatic assessment of the totality of harm inflicted by the offender on the victim, to the end that defendants who purposely or recklessly inflict substantial harm receive more severe sentences than other defendants." State v. Kromphold, 162 N.J. 345, 358 (2000). Moreover, N.J.S.A. 2C:44-1a(2) "permits the exercise of sound discretion by the sentencing court in determining whether the extent of the harm to the victim warrants application of that aggravating factor." Ibid.

Here, because of the wide disparity in size, the trial court concluded that Nguyen "was no match for the strong-arm type of robbery." Moreover, Nguyen still had scars on both her knees and elbows from the robbery. Utilizing this evidence, the trial court engaged in a pragmatic assessment and determined that the harm to Nguyen was an aggravating factor. Because the sentencing court has discretion in making such a determination, and the trial court's reasoning was neither arbitrary nor capricious, the court properly applied N.J.S.A. 2C:44-1a(2) as an aggravating factor.

As to aggravating factors (3) and (6), defendant has had a string of prior arrests and two convictions within a relatively short period of time. Moreover, five bench warrants have been issued against defendant for failing to appear in court, which illustrates his disregard for the law. Based on this evidence, it appears that defendant will continue to commit criminal offenses unless he is imprisoned. Thus, the sentence cannot be considered manifestly excessive. However, the sentence must also satisfy the dictates of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and Natale II, supra, 184 N.J. at 484.

In Natale II, the Court stated that, under our Code of Criminal Justice, "before any judicial fact finding, the maximum sentence that can be imposed on a jury verdict or guilty plea is the presumptive term," and therefore "the 'statutory maximum' for Blakely and Booker purposes is the presumptive sentence." Natale II, supra, 184 N.J. at 484. Accordingly, the Court "eliminated the presumptive terms" creating the "'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea [as] the top of the sentencing range for the crime charged." Id. at 487.

The holding in Natale II is entitled to "pipeline retroactivity," and thus applicable to defendants who had cases on direct appeal at the time of the decision. Id. at 495-96. Moreover, a new sentencing hearing is to be held in each affected case based on the record at the prior sentencing. Ibid. At the hearing, the trial court must:

determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Ibid.]

Here, the trial court imposed a nine-year term on defendant's robbery conviction. The sentence clearly exceeds the seven-year presumptive term for a second degree offense under N.J.S.A. 2C:44-1(f)(1)(c) and considers factors beyond defendant's criminal record. Accordingly, we remand for resentencing in accordance with Natale II.

Finally, there is no basis to disturb the imposition of a consecutive three-year term of imprisonment for theft by unlawful taking. The sentence comports with State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), and a judicially imposed consecutive term does not violate the Sixth Amendment. State v. Abdullah, 184 N.J. 497, 514 (2005).

Affirmed in part; remanded for reconsideration of sentence.

 

N.J.S.A. 2C:43-7.2.

State v. Clawans, 38 N.J. 162 (1962).

United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).

(continued)

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A-5330-03T4

February 9, 2006