STATE OF NEW JERSEY v. JAMES WILLIAMS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6096-04T46096-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES WILLIAMS,

Defendant-Appellant.

_____________________________________

 

Submitted May 22, 2006 - Decided June 12, 2006

Before Judges Miniman and Newman.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-02-327.

Yvonne Smith Segars, Public Defender, attorney for appellant (Steven M. Gilson, Designated Counsel, on the brief).

Thomas F. Kelaher, Ocean County Prosecutor, attorney for respondent (William Kyle Meighan, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant James Williams was found guilty of first degree armed robbery, N.J.S.A. 2C:15-1, on count one, and pled guilty to second degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, on count four, of Ocean County Indictment No. 04-02-327. Larry Gibbs, the co-defendant, was charged in the other three counts of the five count indictment. The trial judge granted the State's motion for an extended term and sentenced defendant to 25 years imprisonment on the armed robbery count, with defendant required to serve 85% of the term before consideration of parole eligibility under the No Early Release Act. N.J.S.A. 2C:43-7.2. This sentence was to run consecutive to a sentence defendant was then serving. The trial judge sentenced defendant to a concurrent ten-year term of imprisonment, on the weapons possession by a convicted felon charge, with five years of parole ineligibility. Defendant appeals. We affirm.

The relevant facts may be summarized as follows. Defendant entered Sam's Day and Night store in Lakewood on October 6, 2003, shortly before closing time of 8:00 P.M. Defendant wore a hat and sunglasses and was viewed on a surveillance camera. Defendant questioned the store manager, Saurabh Shah, about some cigars and purchased a packet of Slim Jims. Defendant then left the store.

Defendant returned to the store with two armed, masked men after the last customer left. Defendant left fingerprints on the cigar box he touched before he bought the Slim Jims.

Defendant came behind the counter and asked Shah, "Where's the money?" and "Where's the phone cards?" Shah pointed to the phone cards. Defendant took them along with Shah's cell phone and wallet. The robbers also took a bank bag from a Staten Island bank, cash register receipts, and an envelope with Shah's handwriting on it which was used to keep extra change when needed.

The police arrived at the store after the robbery. Fingerprints were lifted from a cigar box handled by the man with the hat and sunglasses when he had inquired about its cost. The fingerprints matched those of defendant.

On October 8, Detective Sergeant Paul Daly of the Lakewood Police Department went to 418 Warren Street and saw defendant sitting on the front steps of the residence. Daly told him that he had a warrant for his arrest and took him into custody. A van was parked in front of the residence, which was leased to defendant's girlfriend, Carrie Cutler. Based upon Daly's conversation with her, he learned that defendant used the van. Daly asked Cutler for permission to search the van which she granted. Daley found a small pack of cigars on the passenger side's visor which were the same brand as those bought by the man with the hat and sunglasses at Sam's. A ski mask was found underneath the back seat.

At the basement bedroom where defendant resided, the police searched, pursuant to a warrant, and found a loaded 45 caliber handgun, chrome colored BB gun, a hat, a pair of sun glasses, phone cards, cell phone, and a wallet case with defendant's driver's license and other identification. A shredded bank bag, receipts and other papers were found in the basement trash can which were later identified by Shah. Shah also identified a piece of a card with his insurance agent's name as having been in his wallet and an envelope with his handwriting that was taken during the robbery.

At the Lakewood Police Station, police furnished defendant his Miranda rights and confronted him with some of the evidence assembled. Defendant indicated that he wanted to speak to an attorney and the questioning was terminated. Defendant, however, later changed his mind and signed a Miranda Waiver form. Defendant related to police that he had picked up the two men and went to the area of the convenience store. After first going in the store, defendant re-entered with the two men and committed the robbery. He implicated Larry Gibbs as one of the men involved but he did not know the name of the other individual, allegedly a friend of Gibb's. He received a few hundred dollars from the robbery proceeds. Defendant never said that he was coerced into committing the robbery.

At trial, he claimed that he was forced into the store by a man wearing a ski mask who pointed a gun at him. They were joined by a second man with a ski mask and a gun. He was then instructed to go behind the counter and ordered to take the money and phone cards as well as Shah's cell phone and wallet. Defendant denied confessing he was a willful participant.

On appeal, defendant raises the following issues for our consideration:

POINT I: DEFENDANT'S ROBBERY CONVICTION MUST BE REVERSED BECAUSE THE PROSECUTORIAL GENERIC COMMENTS DURING SUMMATION, THAT DEFENDANT "HAS AN ADVANTAGE BY SITTING HERE THROUGH THE WHOLE TRIAL AND LISTENING TO WHAT'S PRESENTED," DEPRIVED HIM A FAIR TRIAL.

POINT II: DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST BE MODIFIED.

A. THE SENTENCE EXCEEDED THE PRESUMPTIVE STATUTORY TERMS AND WAS BASED ON THE COURT'S FINDING OF AN AGGRAVATING FACTOR OTHER THAN THE FACT OF A PRIOR CONVICTION.

B. THE SENTENCING COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM.

Relying on State v. Daniels, 182 N.J. 80 (2004), defendant contends in Point I he was denied a fair trial because the prosecutor unconstitutionally charged that he was in a position to tailor his testimony. In Daniels, supra, the Supreme Court exercised its supervisory responsibility over criminal trials "to curb government actions that are repugnant to the fairness and impartiality of trials." Id. at 96. The Court drew a distinction between generic accusations of tailoring and specific accusations of tailoring testimony. Id. at 98. The Court explained that the generic accusations occur when the prosecutor, without specific evidentiary basis, argues that defendant had an opportunity to tailor his testimony because of his presence at trial. Ibid. Specific allegations of tailoring occur "when there is evidence in the record, which the prosecutor can identify, that supports an inference of tailoring." Ibid. The Court prohibited generic accusations of tailoring during closing arguments. Ibid.

With respect to specific accusations of tailoring, the prosecutor may comment in a limited fashion. Id. at 98-99. Those comments have to be based on the evidence in the record and the reasonable inferences drawn from that evidence. Id. at 99.

Here, the prosecutor made the following comments in his summation:

Now, Mr. Williams in listening to the testimony - - because he has an advantage by sitting here through the whole trial and listening to what's presented - - he must have missed the fact that Mr. Shah testified that there was a card, a cut up piece of card from his wallet found in [defendant's] waste basket. He didn't have an excuse for that. He didn't have an explanation for that. When I asked him about that, he couldn't explain it.

What he also couldn't explain is how guns, one chrome, and one not chrome, were found in his room which matched the description of the guns used in the robbery. He tried to play it off; it was a revolver. Now, I submit to you that that's quite a coincidence, that one of the guns used was a chrome-colored gun, and this defendant has a chrome-colored gun in his room.

I submit to you it's not a coincidence, that they are the guns that were used in the robbery, just like the ski mask is the ski mask that was used in the robbery. He couldn't explain how that got in his van, also, a ski mask in the back seat of his van.

Defendant contends that it was plain error for the trial court to permit the statement made in the first sentence of the above paragraphs, and to fail to correct those statements with a charge.

We disagree. Even if we apply the holding in Daniels, supra, we discern no violation. The prosecutor did not suggest that defendant tailored his testimony. Rather, the statement was made in the context of defendant's failure to explain certain incriminating evidence, which he must have heard because he was in court. This was especially true regarding personal items belonging to the manager of the store. Retaining these items was wholly inconsistent with defendant's defense that he was coerced into committing the robbery. Clearly, this is not a question of tailored testimony, but rather that defendant was unable to explain away items taken during the robbery and found among his personal effects. We discern no error, much less plain error.

Defendant contends in Point II that his sentence was excessive. Not so. The excess was defendant's prior record of six convictions which overqualified him for extended term sentencing as a persistent offender. N.J.S.A. 2C:43-7(a)(3). Nonetheless, defendant argues that his prior criminal record did not involve a history of violent crimes and, therefore, did not warrant extended term treatment on the first-degree conviction. The trial judge disagreed, noting that defendant's prior criminal record spanned 25, 29 years "escalating in seriousness as it has progressed." He determined defendant to be "a definite threat to society and there is no doubt in my mind that you will reoffend if given the opportunity." State v. Dunbar, 108 N.J. 80, 89 (1987) was satisfied by the trial judge's findings.

Extended terms are lawful because they fall within the "prior conviction exception" enunciated in Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), in which the United States Supreme Court held that the Sixth Amendment is not violated when a court imposes an extended sentence because of a defendant's prior record.

In State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005), this court affirmed a ruling, which it had rendered in a number of cases following Apprendi, supra, and Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, (2004), that "the 'prior conviction' exception permits imposition of an extended term under the persistent offender statute, N.J.S.A. 2C:44-3a." Besides relying on precedent to so hold, we drew support from one of the three recent Supreme Court cases that interpreted Blakely, namely, State v. Franklin, 184 N.J. 516 (2005). In Franklin, the Court vacated an extended-term sentence imposed under the Graves Act, N.J.S.A. 2C:43-6(c) and (d), reasoning that the Act "removed from the jury's consideration a critical fact -- whether defendant was armed" and allowed the court to impose an extended sentence based on its finding that the defendant used a weapon in the commission of the crime for which he was convicted. 184 N.J. at 534. As we observed in Young:

However, the [Franklin] Court added "had the jury found that defendant used or possessed the gun while committing manslaughter, there is no question that the extended term imposed by the sentencing court would have complied with the Sixth Amendment." [Franklin, supra, 184 N.J.] at 535 (citing Apprendi, supra, 530 U.S. at 490, 120 S. Ct. at 2362-63, 147 L. Ed. 2d at 455). See also Id. at 538, n.8; [State v.] Abdullah, 184 N.J. [497,] 506-507 [(2005)], both citing Almendarez-Torres v. United States, . . . , 523 U.S. [224] 243, 118 S. Ct. [1219,] 1230, 140 L. Ed 2d [350,] 368 [(1998)]. This is because of the "prior conviction" exception on which the recidivism statute is premised and because "the factual prerequisites" fall "squarely within the range of facts traditionally found by judges at sentencing" and are "sufficiently interwoven with the facts" related to the prior convictions. [State v.] Dixon, . . ., 346 N.J. Super. [126] at 140-41 [App. Div. 2001, certif. denied, 172 N.J. 181 (2002)].

[Young, supra, 379 N.J. Super. at 510-11.]

This language makes clear that imposing an extended sentence in light of a defendant's prior convictions is lawful.

Lastly, defendant argues that he was sentenced in excess of the presumptive term. This is simply incorrect. The presumptive extended term on a first-degree crime was fifty years imprisonment. N.J.S.A. 2C:44-1f. Defendant was sentenced to twenty-five years below the then presumptive term. Thus, State v. Natale, 184 N.J. 458 (2005) and Abdullah, supra, 497 are inapplicable.

Affirmed.

 

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A-6096-04T4

June 12, 2006