STATE OF NEW JERSEY v. OMAR WRIGHT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6014-03T36014-03T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR WRIGHT,

Defendant-Appellant.

______________________________________________________________

 

Submitted June 5, 2006 - Decided July 14, 2006

Before Judges Lintner and Holston, Jr.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-01-0155-I.

Thomas R. Ashley, attorney for appellant.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Kenneth P. Ply, Assistant Prosecutor, on the letter brief).

PER CURIAM

On January 13, 2003, defendant, Omar Wright, was charged in Essex County Indictment Number 03-01-0155-I with second-degree aggravated assault, proscribed by N.J.S.A. 2C:12-1b(1) (Count One); fourth-degree unlawful possession of a weapon, proscribed by N.J.S.A. 2C:39-5d (Count Two); and third-degree possession of a weapon for an unlawful purpose, proscribed by N.J.S.A. 2C:39-4d (Count Three).

Defendant was tried before a jury on October 24, November 12, and November 14, 2003. On November 14, 2003, the jury found defendant not guilty of second-degree aggravated assault but found him guilty of the lesser included offense of third-degree aggravated assault. The jury returned a guilty verdict on the remaining two counts of the indictment.

On May 21, 2004, the trial judge denied defendant's motions for a judgment of acquittal notwithstanding the jury's verdict (J.N.O.V.) and for a new trial. The judge granted the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender, pursuant to N.J.S.A. 2C:44-3a. The judge merged Count Two and Count Three with Count One (third-degree aggravated assault) and sentenced defendant to an extended term of imprisonment of eight years with four years of parole ineligibility. Defendant appeals his conviction and sentence. We affirm defendant's conviction but remand for re-sentencing.

The victim, Carmen Nieves, at approximately 9:45 p.m. on November 5, 2002, was returning home from shopping at a grocery store located at 46 Evergreen Street in Newark. Nieves was followed by defendant, first on foot and later in his car. As Nieves exited the grounds of a school on her route home, defendant pulled up and parked his car, exited the car, and proceeded to strike Nieves several times on the head and in the back of her legs with a black "bat-like" object, while calling her a "son of a bitch, mother fucker, fucking bitch and whore." Defendant warned Nieves that if she called the police, he would have something done to her or her family. After defendant finished beating her, he got back into his car and drove off.

Nieves had previously known defendant, who was a frequent customer of "Angels' Deli and Liquor," a store where Angel Rosado, Nieves' paramour and father of her children, worked. Nieves saw defendant parked near the grocery store where she was shopping twice, at 12:00 p.m. and 4:00 p.m. on the day she was assaulted. She had spoken to him on occasion, most recently a week before he attacked her. Nieves knew defendant drove a "wine colored" car with the license plate number MYX-84A. When she spoke to defendant a week prior to the attack, he gave her ten dollars, which she had not repaid.

After the attack, despite being in pain, Nieves managed to walk to her home at 264 Dayton Street with the help of a neighborhood girl. When Rosado arrived home from work at approximately 10:20 p.m., he "saw a lot of blood" in the hallway outside the apartment door. When he entered their apartment, he found Nieves in the bedroom screaming and covered with blood. Nieves told Rosado that "Quan" had injured her. Rosado understood "Quan" to be defendant.

Rosado called the police from a public telephone a block away. Nieves was transported by ambulance to Beth Israel Hospital, where she received stitches to her head. After her release from the hospital, Nieves was unable to walk or move around for two weeks because of her injuries. When she was able to walk again, she needed a cane.

On November 12, 2002, Detective Matthew Rarich took a statement from Nieves at police headquarters. Nieves told Rarich that she was hit with a baseball bat and that she knew the man who hit her as both "Quan and "Omar." She provided the police with the license plate number of the car driven by her assailant, and informed police her attacker worked for the Newark Department of Sanitation. On November 13, 2002, Detective Rarich and Sergeant Adloph Vasquez observed a maroon Chrysler New Yorker, bearing the New Jersey license plate number provided by Nieves, parked next to the Department of Sanitation's main garage at 62 Frelinhuysen Avenue in Newark. The supervisor of the garage led the officers to defendant, an employee of the Department of Sanitation and the owner of the maroon automobile.

Defendant was taken to police headquarters where a pat-down search revealed his possession of a black asp baton, which was booked into evidence. When shown the baton later that day and at trial, Nieves identified the baton as the "bat-like" object defendant used to hit her. At trial, Nieves testified that she had known defendant for six months prior to the incident and her interaction at the grocery store they both frequented was "Just hi, how are you; that's all."

Defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT'S DENIAL OF THE DEFENSE REQUEST TO INSTRUCT THE JURY ON CROSS-RACIAL IDENTIFICATION DEPRIVED THE DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR JURY TRIAL.

POINT II

DEFENSE COUNSEL'S FAILURE TO REQUEST A WITNESS SEQUESTRATION ORDER PRIOR TO THE COMMENCEMENT OF TRIAL DENIED THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT III

THE SENTENCE IMPOSED UPON DEFENDANT VIOLATED HIS SIXTH AMENDMENT RIGHT TO A JURY TRIAL PURSUANT TO BLAKELY V. WASHINGTON, 124 S. Ct. 2531 (2004) AND STATE V. NATALE, 184 N.J. 458 (2005).

I

Following summations, defense counsel requested the trial judge to instruct the jury on cross-racial identification, pursuant to State v. Cromedy, 158 N.J. 112 (1999), because defendant was African American, and the victim, Nieves, was Hispanic. The court declined to give the cross-racial identification charge, explaining:

I'm satisfied in this case that there is no need for a cross racial identification charge. Indeed, there is no cross-racial identification in this charge - in this case. The fact that Miss Nieves is Hispanic does not change the fact that she's also a person of obvious African-American background and is American in the sense that she may be Latina, but she still is - has African or black racial make up. And in these circumstances, she is a person of noticeably remarkably dark skin, darker if not as dark as many people who are not Hispanic by cultural background, but are American and African-American.

. . . .

I'm satisfied in this case that the fact of the matter is that racially, Miss Nieves is a black person, though she may also be Latina. And to that extent, it's not necessary here and it won't be given.

Defendant contends the court's denial of his request for a cross-racial identification charge deprived him of his federal and state constitutional rights to due process and a fair trial.

In Cromedy, supra, 158 N.J. at 132, our Supreme Court held that a cross-racial identification charge must be given when "identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." The purpose of such a charge "is to alert the jury through a cautionary instruction that it should pay close attention to a possible influence of race. Because of the 'widely held commonsense view that members of one race have greater difficulty in accurately identifying members of a different race,' expert testimony on this issue would not assist a jury, and for that reason would be inadmissible." Id. at 133 (citations omitted). Cromedy was decided in the context of a sexual assault committed upon a white female college student by an African-American male. Id. at 115-16. After the assault, the victim was shown "slides and photographs, including a photograph of defendant, in an unsuccessful attempt to identify her assailant." Id. at 116. Eight months after the attack, the victim observed the defendant walking across the street from her and identified him for the first time as her attacker. Id. at 117. "No forensic [or other] evidence linking defendant to the offenses was presented during the trial[,]" other than the victim's identification. Ibid.

This court explored the difference between cross-racial and cross-ethnic identifications in State v. Valentine, 345 N.J. Super. 490 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). In Valentine, the African-American defendant requested a cross-racial identification jury instruction because the victim was Hispanic. Id. at 496. The denial of the defendant's request was premised on the trial court's conclusion that the identification testimony was corroborated by other evidence and that the victim was of "'Spanish and African background.'" Id. at 496-97. Holding that Cromedy does not require a "cross-ethnic" identification jury instruction, we found that "Hispanic is not a race," but rather is an "ethnic identification." Id. at 496-97.

Recently, this court revisited the issue of cross-racial and cross-ethnic identifications in State v. Walton, 368 N.J. Super. 298 (App. Div. 2004). In Walton, we held that under Cromedy, the cross-racial identification jury instruction "cannot be withheld when the witness and the defendant are of different races merely because of the relative skin tone of the witness and defendant." Id. at 305. As in Valentine, defense counsel in Walton, requested the cross-racial identification instruction because the defendant was African-American and the victim was Hispanic. Id. at 303. This court noted, "Although in Valentine, we found that the Cromedy instruction was not required, considering all the circumstances, we did not decide that such instruction is never warranted as between Hispanics and African-Americans." Id. at 305.

The trial judge ruled that both Nieves and defendant were African-American racially, although Nieves was also Hispanic ethnically, a finding which defendant did not challenge either before the trial judge or on appeal. We are satisfied, based on the facts present here, that the Cromedy charge need not have been given because identification was not a crucial issue in the trial. Nieves personally knew defendant for six months before the crime, saw him on occasion outside the store where Rosado worked, and spoke to him as recently as one week before the crime. She knew him by both Omar and his nickname "Quan." She had memorized the license plate number of the "wine-colored" car he drove, and was aware that he worked for the Newark Department of Sanitation. Defendant's argument that Nieves' familiarity with defendant made the cross-racial identification jury instruction even more necessary is totally illogical. Additionally, Nieves observed defendant following her in his vehicle. She observed him exit that vehicle, and was close enough to him during the attack when he struck her multiple times while yelling obscenities at her. Importantly, she identified the asp baton taken from defendant at the time of his arrest as the black steel bat-like object defendant used to strike her. The trial judge properly exercised his discretion in denying defendant's request to have the jury instructed on cross-racial identification.

II

Defendant claims that his trial counsel was ineffective for failing to request a witness sequestration order prior to trial and that the failure to do so deprived him of his state and federal constitutional rights to the effective assistance of counsel. We disagree.

Defense counsel did not request a witness sequestration order at the outset of trial on October 24, 2003. Nieves began her testimony on the morning of November 12, 2003, and testified until the trial court broke for lunch, which was during defense counsel's cross-examination of Nieves. During the lunch break, Nieves had a conversation with Rosado, who was scheduled to testify later in the day. During the State's re-direct examination of Nieves, which occurred late in the afternoon, defense counsel requested a witness sequestration order. The trial court noted the late nature of the request but issued the order. Both defense counsel and the State agreed that they had been proceeding as if a witness sequestration order had already been ordered even though no pretrial sequestration order was requested by either side or issued by the trial judge until after the luncheon recess. On cross-examination of Rosado, Rosado testified that he had a conversation with Nieves during the lunch break, but that it was "about personal things" and that Nieves "didn't say anything about what was happening here."

"The Sixth Amendment recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results." Strickland v. Washington, 466 U.S. 668, 685, 104 S. Ct. 2052, 2065, 80 L. Ed. 2d 674, 692 (1984). Substantively, the benchmark for judging ineffective assistance of counsel claims is whether defense counsel's conduct affected the outcome of the trial. Id. at 684, 104 S. Ct. at 2062-63, 80 L. Ed. 2d at 691; United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); State v. Fritz, 105 N.J. 42 (1987) (adopting the Strickland and Cronic standards).

To establish ineffectiveness of counsel, a defendant must satisfy a two prong test. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. First, a defendant must demonstrate that defense counsel's conduct was deficient and falls below an objective standard of reasonableness under prevailing professional norms in the context of the individual case. Id. at 687-88, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. The presumption is rebutted by demonstrating that defense counsel made errors so serious that the defendant was denied the "counsel" guaranteed by the Sixth Amendment. Id. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, a defendant must demonstrate that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The Strickland court defined "[a] reasonable probability [a]s a probability sufficient to undermine confidence in the outcome." Ibid.

There is no contention that Rosado was sitting in the courtroom during Nieves' testimony and was thus able to tailor his testimony to hers. See State v. Horton, 199 N.J. Super. 368, 372-74 (App. Div. 1985); State v. Tillman, 122 N.J. Super. 137, 143 (App. Div.), certif. denied, 62 N.J. 428 (1973). Rather, defendant speculates that the two witnesses spoke about the trial during the lunch break, despite Rosado's testimony that they spoke only about "personal things," not about the trial. Clearly, if the two witnesses had wanted to discuss the incident prior to trial, they had ample opportunity to do so, since they lived together and presumably traveled together to the courthouse prior to the beginning of trial.

Even if defense counsel, as a matter of course, should have requested a sequestration order prior to trial, we are satisfied that defendant was not prejudiced by his failure to do so. This is so because Nieves and Rosado testified to totally distinct aspects of the incident. Nieves testified to defendant's attack on her, her struggle to get home, and subsequent trips to the hospital and police station. Rosado testified to coming home that night, finding Nieves bloodied and going to a telephone booth and calling the police. Therefore, even if the two witnesses had discussed Nieves' testimony during the lunch break, their hypothetical discussion could not have prejudiced defendant.

III

The trial court sentenced defendant to an extended term of eight years with four years of parole ineligibility. At the sentencing hearing, the judge found three aggravating factors: "[t]he risk that the defendant will commit another offense," N.J.S.A. 2C:44-1a(3); "defendant's prior criminal record and the seriousness of the offenses. . . ," N.J.S.A. 2C:44-1a(6); and "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(9). However, four aggravating factors are listed on defendant's judgment of conviction. The additional aggravating factor on the judgment of conviction is "[t]he nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner. . . ." N.J.S.A. 2C:44-1a(1).

The trial judge found no statutory mitigating factors. However, the judge did take into consideration the comments made at the sentencing hearing by Ms. McPhearson, a friend of defendant's who stated that defendant had saved her life when he took her to the hospital, thus preventing her from suffering multiple strokes.

Defendant asserts that the principles enunciated in State v. Natale, 184 N.J. 458 (2005) (Natale II), and State v. Abdullah, 184 N.J. 497 (2005), require that his sentence be vacated and the matter remanded for a new sentencing hearing. The State agrees that Natale II and Abdullah require that defendant's extended-term sentence of eight years with four years of parole ineligibility must be remanded to the trial court for a new sentencing hearing.

Defendant does not assail the fact that he was sentenced to an extended-term sentence. Rather, he argues that the judge impermissibly imposed an eight-year term of imprisonment, one year above the former presumptive sentence of seven years for a second-degree crime, in part by relying upon facts not found by the jury and not implicated by defendant's criminal record.

As defendant points out on the judgment of conviction, aggravating factor (1), N.J.S.A. 2C:44-1a(1), is included. Although not specifically mentioned in the sentencing record, the judge, in his preliminary sentencing remarks, referred to testimony at trial that a "very large and powerful man, attacked a much smaller woman with a baton, then left her bleeding on the street to find her way home." These facts could have been used by the judge to support aggravating factor (1), but they were not found by the jury.

While defendant's appeal was pending, the Supreme Court decided Natale II, which held that New Jersey's "system of presumptive term sentencing violates the Sixth Amendment's right to trial by jury." Natale II, supra, 184 N.J. at 484. The court invalidated the presumptive terms under the criminal code, thereby making the top of the statutory range for the criminal charge the "'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea . . . ." Id. at 487. The court ordered new sentencing hearings in cases on direct appeal as of the date of the decision. Id. at 493-94. In those proceedings, the sentencing judge "must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

In State v. Young, 379 N.J. Super. 498, 514 (2005), we held that the Natale II decision also applied to presumptive extended terms of imprisonment embodied in N.J.S.A. 2C:43-7. In Young, we vacated the specific extended term of nine years imprisonment on third-degree aggravated assault and based on Natale II remanded to the trial court for imposition of an extended term sentence consistent with Natale II. See N.J.S.A. 2C:43-7a(4). See also State v. Nesbitt, 185 N.J. 504, 519 (2006).

We are satisfied that in sentencing defendant, the judge considered factors other than defendant's prior criminal record. In addition to the judge finding aggravating factor (1), the judge also considered in his sentencing analysis defendant's attitudinal and behavioral problems, as evidenced by the judge referencing that he was required to declare a mistrial and begin jury selection anew as a result of defendant's conduct in addressing and engaging jurors. Because the extended term sentence was not based solely upon defendant's prior criminal record and was above the presumptive term of seven years, re-sentencing is required under Natale II, Abdullah, Young and Nesbitt.

Affirmed as to conviction; remanded for re-sentencing.

 

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A-6014-03T3

July 14, 2006