STATE OF NEW JERSEY v. JASON R. FARLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5694-03T45694-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON R. FARLEY,

Defendant-Appellant.

______________________________

 

Submitted January 18, 2006 - Decided February 2, 2006

Before Judges Collester and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 03-06-1245.

Yvonne Smith Segars, Public Defender, attorney for appellant (Damen J. Thiel, Designated Counsel and on the brief).

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mark P. Stalford, Special Deputy Attorney General, Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Jason R. Farley, appeals from his conviction on two counts of fourth degree peering into windows, N.J.S.A. 2C:18-3(c), and a violation of probation. He received three concurrent eighteen month sentences. He appeals from the sentences, contending he should have received the presumptive nine month sentences for these fourth degree crimes. We affirm the convictions but remand for reconsideration of the sentences.

These are the facts. Defendant was arrested for peering into two different windows of the same house on two consecutive days. According to the testimony of the victim, on April 28, 2003, at about 6:00 a.m., she had just stepped out of the shower and was in her bedroom, when she saw someone peering in the bedroom window. She did not see the person's face; she only saw his eyes peering from under the blinds, which did not extend all the way to the bottom of the window. The bedroom window faced the back yard. The police were called, and they found a footprint under the window.

A police tracking dog was able to pick up a scent and follow it to defendant's house. Defendant and his brother were home. Defendant was dressed and appeared to be nervous. But after questioning him, the police did not arrest him, because they did not have enough evidence linking him to the crime.

The victim's mother testified that on the next day, she was coming home at about 11:30 in the evening. As she was about to turn her car into the driveway of her home, she saw movement near the side of the house. She testified that she turned into the driveway, which caused motion-sensors to activate the garage light, and she then saw a man emerge from behind the garbage cans near the side of the house. She observed him walk behind a flower bed that was in front of the living room window, so that he was standing between the flower bed and the window. She saw him bend down to look into the window. He then walked up the driveway. When he reached the sidewalk, he turned right. She called the police on her cell phone and they advised her to follow the man in her car, which she did. She followed defendant until he entered a house, and then called the police again and waited for them to arrive. The victim's mother identified defendant as the man she saw peering into the living room window.

On this appeal, defendant raises the following issues:

POINT I: THE COURT COMMITTED PLAIN ERROR IN FAILING TO ORDER A JUDGMENT OF ACQUITTAL BECAUSE THERE WAS INSUFFICIENT EVIDENCE TO CONVICT DEFENDANT OF EITHER COUNT OF PEERING WITHOUT IMPROPERLY INTERMIXING THE CIRCUMSTANTIAL EVIDENCE OF EACH SEPARATE CRIME WITH THE OTHER IN ORDER TO CONVICT DEFENDANT OF BOTH COUNTS OF PEERING.

A. The Court Committed Plain Error In Failing To Order An Acquittal Of The Defendant.

B. Defendant Should Have Been Acquitted of Peering Because There Was Insufficient Evidence To Prove That Defendant Committed The Crime of Peering On April 28 Or April 29, 2003.

POINT II: THE COURT COMMITTED PLAIN ERROR IN FAILING TO SEVER THE INDICTMENT AGAINST DEFENDANT INTO SEPARATE TRIALS FOR EACH PEERING COUNT AND THEN ERRED IN ADMITTING EVIDENCE OF EACH OTHER CRIME BECAUSE IT PERMITTED THE JURORS TO CONCLUDE WITHOUT EVIDENCE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS GUILTY OF BOTH COUNTS DUE TO A DISPOSITION TO PEER AND WAS ACTING OUT OF THIS PROPENSITY WHEN PEERING.

POINI III: THE COURT COMMITTED HARMFUL ERROR IN ADMITTING THE DOG'S SEARCH INTO EVIDENCE BECAUSE THE DOG'S RELIABILITY COULD NOT BE DETERMINED, ITS [HANDLER] WAS NOT QUALIFIED AS AN EXPERT, AND NO IDENTIFICATION OF, OR ASSOCIATION WITH, DEFENDANT WAS BE [SIC] MADE.

POINT IV: THE TRIAL COURT ERRED IN SENTENCING DEFENDANT BECAUSE IT UNCONSTITUTIONALLY FOUND AGGRAVATING FACTORS NOT CONSIDERED BY THE JURY AND IGNORED RELEVANT MITIGATING FACTORS THAT REQUIRED IMPOSITION OF A SHORTER SENTENCE.

A. The Appellate Court Has The Authority To Review And Reverse Defendant's Sentence.

B. The Trial Court Unconstitutionally Found Aggravating Factors That Could Only Be Properly Considered By The Jury.

C. In Ordering The Maximum Term For Each Offense, The Trial Court Erroneously Found The Presence Of Aggravating Factors, Yet Failed To Consider Relevant Mitigating Factors That Required A Sentence Of No Longer Than The Nine (9) Month Presumptive Term.

Although his counsel did not move for a directed acquittal at trial, defendant now claims it was plain error for the court not to order acquittal sua sponte. He contends that there was no proof that he was the one whom the victim saw peering in her back window on April 28, and that when he was seen trespassing on the same victim's front lawn on April 29 he did not actually peer in the window but merely glanced toward the front window as he walked in front of her house. We find no merit in these contentions.

It is clear from the testimony of the victim's mother that defendant was not merely casting a casual glance at the living room window as he cut across her lawn, but rather that he was deliberately bending down and peering in the window. There was more than sufficient evidence to support defendant's conviction for the second incident.

With respect to the first charge, it is significant that the charges are interrelated, because they concern a course of conduct committed over a two-day period. We agree that the evidence collected on April 28 was insufficient to support a conviction on the first charge, because based solely on that evidence there was insufficient proof that defendant was the person who committed the crime. But proof of defendant's identity with respect to the first charge was bolstered by evidence of the second incident, in which an eyewitness identified defendant as the person she saw, not only trespassing on her front lawn but also bending down and looking under the shade in the front window. A reasonable trier of fact could conclude that both of these crimes were committed by the same person, since they occurred on successive days at the same house, and the method of committing the crime was similar. Hence, if there was clear proof that defendant committed the second act, it was reasonable to conclude that he also committed the first act.

We also conclude that the manner in which defendant peered in the window during the first incident supports his conviction on the second offense. In order to peer into the victim's bedroom window, the perpetrator had to climb a fence to get into the victim's back yard, place his face against the window and look under the blinds. This was clearly a deliberate act, done for the purpose of peeping or spying on the victim. The commission of a deliberate act of peering on the first day lends support to the conclusion that the second offense also was not a mistake or accident but was a deliberate peering.

Since the evidence as to each crime was also relevant to prove the other crime, we reject defendant's argument, raised for the first time on appeal, that the charges should have been severed for trial. See R. 3:7-6; State v. Moore, 113 N.J. 239, 273 (1988).

Finally we find no merit in defendant's contention that the trial court should have excluded evidence concerning the police tracking dog. See State v. Parton, 251 N.J. Super. 230, 233-35 (App. Div. 1991), certif. denied, 127 N.J. 560 (1992). While this evidence did not prove that defendant committed the crime, it tended to show that he was at least one of the people who could have committed the crime, because he lived in the house to which the dog tracked the perpetrator's scent. It was relevant and admissible. Id. at 235.

While we find no basis to disturb defendant's conviction, we are concerned that in imposing the sentence the trial judge did not even consider the mitigating factor of defendant's mental illness. A trial court need not give any particular weight to a mitigating factor, but the court must at least acknowledge and consider mitigating factors and explain how the court has weighed them against any aggravating factors. As the Supreme Court recently stated in State v. Dalziel, 182 N.J. 494 (2005), mitigating factors

may be accorded such weight as the judge determines is appropriate. That is a far cry, however, from suggesting that a judge may simply decline to take into account a mitigating factor that is fully supported by the evidence. Such a reading of the statute flies in the face of our sentencing scheme and of the well-established rule that aggravating and mitigating factors must be supported by credible evidence. A corollary of that rule is that where they are so supported, they must be part of the deliberative process.

[Id. at 504-05 (internal citations omitted).]

The type of crime defendant committed is one in which a mental illness might well be a contributing factor. While not excusing defendant's conduct, his mental illness should be considered as a mitigating factor in imposing a sentence. We therefore remand this case for reconsideration of the sentence, which shall be completed within thirty days of the date of this opinion.

 
Affirmed in part, remanded in part.

Defense counsel did not question the expertise of the dog's handler, who testified that he had 640 hours of State Police training in working with the dog, and had worked with the dog since 2001 on approximately eighty searches.

(continued)

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A-5694-03T4

February 2, 2006