STATE OF NEW JERSEY v. LEROY BETHEA, a/k/a LARRY BETHEA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6210-04T36210-04T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LEROY BETHEA, a/k/a LARRY BETHEA,

Defendant-Appellant.

_________________________________________________

 

Submitted May 16, 2006 - Decided July 19, 2006

Before Judges Payne and Sabatino.

On appeal from Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 03-06-2131.

Thomas R. Ashley, attorney for

appellant.

Paula T. Dow, Essex County Prosecutor

attorney for respondent (Sara A.

Friedman, Assistant Prosecutor, of

counsel and on the brief).

PER CURIAM

Defendant LeRoy Bethea was charged in an eleven-count indictment with third-degree burglary (count one), second- and third-degree drug offenses (counts two to seven), fourth-degree aggravated assault on a police officer (count eight), second-degree attempt to disarm a police officer (count nine), fourth-degree obstruction of the administration of law (count ten), and third-degree resisting arrest (count eleven). Following a jury trial, he was convicted of third-degree burglary, N.J.S.A. 2C:18-2, fourth-degree assault, N.J.S.A. 2C:12-1b(5)(b), fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1, and third-degree resisting arrest, N.J.S.A. 2C:29-2. He was acquitted of attempt to disarm, and the jury was unable to reach a verdict on the drug charges. The trial judge imposed a sentence of five years for burglary, a concurrent sentence of eighteen months for obstruction of justice, and a consecutive sentence of five years for resisting arrest. Aggravating factors 6 (the extent of defendant's prior criminal record) and 9 (need for deterrence) were cited in support of the sentence imposed. N.J.S.A. 2C:44-1(a)(6) and (9).

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT'S FAILURE TO REMOVE A JUROR WHO WAS SUSPECTED OF HAVING CONTACT WITH THE PROSECUTOR'S INVESTIGATOR REQUIRES THE REVERSAL OF THE DEFENDANT'S CONVICTIONS.

POINT II

THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR ACQUITTAL OF COUNT I, BURGLARY, BECAUSE THE STATE FAILED TO PROVE EACH ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT IN VIOLATION OF THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1).

POINT III

THE SENTENCE IMPOSED UPON THE 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).

We affirm defendant's conviction, but vacate his sentence and remand the matter for resentencing.

The charges arise out of the alleged sale of drugs, observed by the police, and defendant's flight from the sale location, followed by officers in plain clothes, during which defendant entered the back porch of a residence without authorization to do so, hid, and when found, assaulted an officer and resisted arrest.

I.

Defendant first claims that his convictions must be reversed because a juror was allegedly observed by a spectator laughing with one of the prosecutor's investigators in a courthouse elevator and giving a thumbs up during the prosecutor's closing argument, but following inquiry, was not excused from the jury panel.

After the allegations were brought to the attention of the trial judge, he conducted a voir dire of the spectator, a court officer, the two investigators, and the juror and found no corroboration for the spectator's observations. He therefore denied defense counsel's motion to excuse the juror, stating "I can only excuse the juror for misconduct. To do otherwise would allow people to make allegations and manipulate who the jury is."

We find that the judge's investigation accorded with those procedures set forth in State v. Bey, 122 N.J. 45, 84-87 (1988) and State v. Scherzer, 301 N.J. Super. 363, 487-88 (App. Div.), certif. denied, 151 N.J. 466 (1997) as appropriate when taint to the jury has been alleged. Our review of the record demonstrates that, as a matter of procedure, the judge performed a thorough voir dire of all those persons who reasonably could have witnessed or participated in the alleged misconduct and properly afforded a right of cross-examination to counsel. The judge's conclusion that no taint existed was borne out by the evidence adduced. In these circumstances, it was not necessary to inquire whether the allegedly tainted juror could remain impartial, since no foundation for such an inquiry existed. There was no error.

II.

Defendant next claims that there was no factual support for his robbery conviction, since there was no proof that he entered the dwelling for the purpose of committing an offense therein, and that the court committed reversible error in denying his motion for acquittal on that count. However, the jury was charged that obstruction of the administration of law could constitute the offense. That obstruction was defendant's purpose can readily be inferred from evidence that, following pursuit by plain clothed police, defendant entered the porch of Irma Cueva through a door and without permission, hid under a weight bench, and failed to obey the commands of the police when discovered, instead flailing his arms and trying to push his way past the police. Thus there was, again, no error. State v. Josephs, 174 N.J. 44, 80 (2002); State v. Reyes, 50 N.J. 454, 459 (1967); State v. Williams, 229 N.J. Super. 179, 183 (App. Div 1988).

III.

Defendant's final argument is that his sentence was unconstitutionally imposed in violation of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale, 184 N.J. 458 (2005).

Because each of those sentences exceeded the presumptive terms that were then established for his crimes, we vacate those sentences and remand for resentencing. Id. at 489-90. We trust that any imposition of a consecutive sentence at that time will comply with the substantive and procedural requirements of State v. Yarbough, 100 N.J. 627 (1985), including an analysis of the relationship of the overall length of sentence to the severity of the crimes committed and their relationship to defendant's criminal purpose. Id. at 646-47.

Defendant's conviction is affirmed; his sentence is vacated, and the matter is remanded for resentencing.

 

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A-6210-04T3

July 19, 2006