STATE OF NEW JERSEY v. BENJAMINE HALL

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5697-04T45697-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMINE HALL,

Defendant-Appellant.

_______________________________________________________________

 

Submitted February 27, 2007 - Decided March 13, 2007

Before Judges Coburn and Axelrad.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, No. 04-04-1527-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A jury found defendant guilty of second degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third degree possession of a weapon, a handgun, N.J.S.A. 2C:39-5(b), and second degree possession of a weapon, a handgun, for an unlawful purpose, N.J.S.A. 2C:39-4(a). After denying defendant's new trial motion, the judge imposed a presumptive term of seven years imprisonment with an 85% period of parole ineligibility on the aggravated assault and concurrent terms of imprisonment on the other charges. As a result, the aggregate maximum term of imprisonment was seven years.

I

At about 11:00 p.m. on May 27, 2003, James Lucas, Michael Holley, and Jesse Stanley were in Newark, standing outside the Red Liners Motorcycle Club, which had just closed. Defendant and his accomplice approached the three men. Defendant stood in front of Holley and pointed a 9 millimeter automatic handgun at him while his accomplice pointed a .357 caliber handgun at Lucas. The victims did not know their attackers.

Defendant ordered Holley to raise his shirt, which he did. Lucas had an identifying scar on his stomach. He had been dating a married woman, and recently the tires of his car had been slashed and he had received threatening telephone calls. Those events and defendant's order to Holley convinced Lucas that he was defendant's target.

Holley and Stanley ran away, and Lucas offered his attackers money. When that did not work, he ran across the parking lot toward his truck. Defendant's accomplice shot Lucas in the back as he ran, and Lucas stumbled, dropped the money, and got into his truck. He looked back and saw defendant's accomplice pick up the money. The attackers then walked toward a green car, which Lucas thought was a Ford. As Lucas tried to drive his truck into the accomplice, both men fired their weapons, striking the truck three times. Lucas drove to Irving Turner Boulevard and stopped a police car. In the meantime, Holley called 911 on his cell phone. The police called for an ambulance, which transported Lucas and Holley to a hospital.

Within minutes of the incident, a Newark police officer stopped a green Ford Escort. Defendant, accompanied by two other men, was in the front passenger seat. All three men tried to run away. Although two made it, the police were able to catch and subdue defendant. The police found two handguns on the floor of the car, a .38 caliber revolver and a 9 millimeter.

The police arrested defendant and separately showed photographic arrays, which included defendant's photograph and the photographs of similar looking men, to Lucas and Holley. Both victims identified the photograph of defendant. Stanley, who was also shown the photographs, was unable to identify defendant as one of the attackers.

On appeal, defendant offers the following arguments:

POINT I

THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF THE OPPORTUNITY TO ESTABLISH THAT THE OUT-OF-COURT IDENTIFICATIONS WERE UNRELIABLE.

POINT II

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BECAUSE THE CONCEPT OF THE DEFENDANT'S "INNOCENCE" WAS REPEATEDLY INTRODUCED INTO THE TRIAL (NOT RAISED BELOW).

POINT III

THE TRIAL COURT COMMITTED PLAIN ERROR IN FAILING TO GIVE A CAUTIONARY INSTRUCTION TO THE JURY AS A RESULT OF DETECTIVE ARROYO'S TESTIMONY THAT HE KNEW THE AREA WHERE THE DEFENDANT FREQUENTS (NOT RAISED BELOW).

POINT IV

THE TRIAL COURT ABUSED ITS DISCRETION AND APPLIED AN ERRONEOUS STANDARD IN DENYING THE DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT V

THE AGGREGATE BASE CUSTODIAL SENTENCE OF SEVEN (7) YEARS WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

IMPOSITION OF BASE SENTENCES IN EXCESS OF THE STATUTORILY AUTHORIZED FIVE (5) YEAR SENTENCES FOR CRIMES OF THE SECOND DEGREE ON THE DEFENDANT'S CONVICTIONS FOR AGGRAVATED ASSAULT ON COUNT THREE AND POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ON COUNT TWELVE WERE MANIFESTLY EXCESSIVE.

(B)

IMPOSITION OF BASE SENTENCES IN EXCESS OF THE STATUTORILY AUTHORIZED SENTENCE OF FIVE (5) YEARS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(C)

THE SEVEN (7) YEAR SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE ON COUNT TWELVE SHOULD BE VACATED BECAUSE THE CONVICTION SHOULD HAVE BEEN MERGED INTO THE CONVICTION ON COUNT THREE FOR AGGRAVATED ASSAULT.

After carefully considering the record and briefs, we are satisfied that all of defendant's arguments are without sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). Nevertheless, we add the following comments.

As to POINT I, we note that a Wade hearing is not required unless defendant makes a showing indicating impermissible suggestiveness. State v. Ortiz, 203 N.J. Super. 518, 522 (App. Div.), certif. denied, 102 N.J. 335 (1985). Here, defendant claimed that in the arrays showed to the victims the photographs of others were not sufficiently similar to defendant's photograph. The trial judge found to the contrary, and the photographs have not been included in this record. Thus, there is no basis for reversal on this point. On appeal, defendant offers another argument; namely, that a police officer was present during one of the identifications and that his mere presence violated guidelines issued by the Attorney General. The record does not show that the police officer was present, and, in any case, violation of the guidelines issued by the Attorney General is not a basis for rejecting an otherwise valid identification. State v. Delgado, 188 N.J. 48, 61 n.7 (2006).

As to POINT II, defendant has failed to meet the requirements of the plain error rule, R. 2:10-2. Although we have criticized use of the phrase "determine the guilt or innocence of the defendant" because "finding a defendant not guilty of a criminal charge is not the same as finding the defendant innocent," State v. Vasquez, 374 N.J. Super. 252, 265 (App. Div. 2005), we are satisfied here, as we were in similar circumstances in Vasquez, that there is no probability that the judge's misstatement affected the jury's verdict.

As to POINT III, we note that defendant objected to the officer's comment, that the judge sustained the objection, and that the judge charged the jury to "[d]isregard that answer." Defense counsel was satisfied with the judge's ruling. Moreover, the comment had no capacity to prejudice defendant's case.

As to POINT IV, we note that the new trial motion was filed out of time. Consequently, the trial judge should not have ruled on it. R. 1:3-4(c). Nonetheless, the judge found that defendant's convictions were warranted by the evidence, and we agree, affirming substantially for the reasons expressed by the trial judge. Defendant also argues that the errors described in POINTS I, II, and III required the grant of a new trial. But we have rejected the points of alleged error, and so there is no basis for holding that defendant should have a new trial.

As to POINT V, we perceive no basis for disturbing the presumptive sentences imposed by the trial judge or for ordering the requested merger. See State v. Petties, 139 N.J. 310, 316 (1995).

Affirmed.

 

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

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A-5697-04T4

March 13, 2007