STATE OF NEW JERSEY v. RAYMOND LEDBETTER

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0107-07T40107-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RAYMOND LEDBETTER,

Defendant-Appellant.

___________________________

 

Submitted July 29, 2008 - Decided

Before Judges S.L. Reisner and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-06-0791.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark P. Stalford Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Raymond Ledbetter was indicted for third-degree burglary, in violation of N.J.S.A. 2C:18-2; and third-degree theft, in violation of N.J.S.A. 2C:20-3. Tried to a jury, defendant was convicted of both charges. Prior to sentencing, defendant filed a motion for a new trial on the basis that the verdict was against the weight of the evidence. The State filed a motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a).

At sentencing on April 13, 2007, the trial judge denied defendant's motion for a new trial and granted the State's motion to impose an extended term sentence. On the burglary charge defendant was sentenced to a term of eight years with a four-year period of parole ineligibility. On the theft charge, defendant received a concurrent term of five years with a two-year period of parole ineligibility. The judge also ordered defendant to pay restitution to the victim in the amount of $1000.

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

POINT I

THE COURT'S ABBREVIATED JURY INSTRUCTION ON THE ISSUE OF IDENTIFICATION DEPRIVED THE DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT III

THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.

A. The Court erred in not finding mitigating factor b(1).

B. The Court should have imposed a sentence within the ordinary range for a third degree crime.

POINT IV

THE COURT ERRED WHEN IT ENTERED AN ORDER OF RESTITUTION WITHOUT CONSIDERING THE DEFENDANT'S ABILITY TO PAY. (NOT RAISED BELOW).

Having reviewed the record in light of these contentions, we affirm defendant's convictions and sentence.

I

Carlos Ruiz testified that he owned a three-story, multi-family residence at 524 14th Avenue in Paterson, New Jersey; Ruiz occupied the third floor and had tenants on the other two floors. Ruiz stated that he stored numerous tools in the basement.

Ruiz had installed video monitoring cameras with motion sensors to view the hallways, basement, side and rear of the residence. When someone passed in front of one of the cameras, the motion sensors would emit a beeping sound through a video monitor located in Ruiz's living room.

In the early morning hours of April 17, 2006, Ruiz testified that he awoke to hear the monitor beeping. On the video monitor Ruiz saw a man in the basement of his building and a woman on the sidewalk just outside the basement window. Ruiz stated that he observed the man passing tool boxes out of the basement window to the woman. Ruiz observed another male located outside the building who was "casually" walking back and forth.

At approximately 5:30 a.m., Shawn Sturdivant, who was Ruiz's first-floor tenant, was about to get ready to go to work when he heard whispering coming from the basement below his bedroom. Sturdivant heard a woman's voice saying, "Hurry up. I hear someone coming." Sturdivant looked out his window and saw a woman by the basement window who ran when Sturdivant opened his curtain.

Sturdivant immediately went out onto the front porch of the building and observed defendant running around the corner. Sturdivant gave chase and overtook defendant a short distance away.

When Ruiz exited the building he observed defendant running away from his property and Sturdivant giving chase. Ruiz took up the chase and followed Sturdivant as he pursued defendant approximately 150 to 200 feet from Ruiz's building into the backyard of another residence.

Ruiz and Sturdivant restrained defendant who, after a brief struggle, gave no resistance. Defendant had no burglary implements or any of Ruiz's possessions on his person at the time he was caught.

When the police arrived, an officer accompanied Ruiz back to his residence; they observed a trail of empty tool boxes along the way. Ruiz testified that numerous tools were missing from his basement, which he valued between $815 and $1100.

Sturdivant identified defendant in court as the individual he chased and detained. Ruiz identified defendant in court as the man he saw on his monitor and then pursued with Sturdivant.

The judge held a charge conference prior to summations. However, it was not until after hearing both sides' summations that the judge raised the question of whether he should give the jury an identification charge. The judge stated:

Now, we didn't talk about an identification charge and I don't know that it's an identification situation here. But there is that first part of the charge that tells the jury, in addition to proving all the elements of the crime, the State has to prove the identity of the perpetrator as well beyond a reasonable doubt.

. . . .

Okay. . . . [S]o, I'm going to give them that first page of the charge because there's no in-court, out-of-court, that kind of thing. But tell them that the State has the burden of proof of the identity of the Defendant beyond a reasonable doubt in addition to proving all the elements of the crime . . . .

The trial judge charged the jury on identification as follows:

The Defendant, as part of his general denial of guilt contends that the State has not presented sufficient reliable evidence to establish beyond a reasonable doubt that he is the person who committed the alleged offense. The burden of proving . . . the identity of the person who committed the crime is upon the State. For you to find this Defendant guilty, the State must prove beyond a reasonable doubt that this Defendant is the person who committed the crime. The Defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else or to prove the identity of that other person.

You must determine, therefore, not only whether the State has proved each and every element of the offense charged beyond a reasonable doubt but also whether the State has proved beyond a reasonable doubt that this Defendant is the person who committed it.

If, after a consideration of all the evidence, you determine that the State has not proven beyond a reasonable doubt that the Defendant was the person who committed the offense, then you must find the Defendant not guilty. If, on the other hand, after a consideration of all the evidence you are convinced beyond a reasonable doubt that the Defendant was correctly identified, you will then consider whether the State has proven each and every element of the offense charged beyond a reasonable doubt.

Defendant raised no objection to this charge.

II.

We first address defendant's argument that the trial judge erred in failing to instruct the jury regarding the witnesses' in-court identifications of him. He raises this claim as plain error and, therefore, must convince us that it "is of such a nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2; State v. Macon, 57 N.J. 325, 335 (1971).

Defendant claims this failure prejudiced him in that the jury was not instructed that it had to find the witnesses' in-court identifications "reliable." Defendant appends the Model Jury Charge on in-court identification to illustrate the language omitted by the trial court.

Review of that model charge reveals that the omitted language instructs the jury to determine whether the witnesses' in-court identifications are based upon "sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged." Model Jury Charge (Criminal), "Identification: In-Court Identification Only" (1999). The charge directs jurors to consider the following factors in making that determination: (1) the witnesses' opportunity to view the person who committed the offense at the time it was committed; (2) the witnesses' degree of attention on the perpetrator; (3) the accuracy of any prior description of the perpetrator by the witnesses; (4) the witnesses' degree of certainty in making the identification; (5) the length of time between the witnesses' observation of the offense and the identification of the perpetrator; and (6) any other factor based on the evidence or lack of evidence which the jury might consider relevant.

We recognize the well-settled principle that "[a]ppropriate and proper charges to a jury are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). Where identification is a "key issue" in the case, the jury must be properly instructed on identification. Id. at 291-92.

In Green, defendant was charged with raping a woman at 12:30 a.m. in a dark alley behind the victim's house. Immediately after the rape the victim managed to escape, and the police were called. The victim viewed "many photographs at police headquarters but she was unable to identify her assailant among them." Id. at 286. The victim did not identify the defendant as her assailant until one month after the rape. The defendant, who had no prior record, vehemently denied the charges. Moreover, he did not meet the physical description that the victim had given to the police at the time of the rape. Id. at 286-87.

The Supreme Court noted that the "absence of any eyewitness other than [the victim] directly connecting defendant to the crime, the discrepancies in the description, and defendant's denial combined to make identification a fundamental and essential trial issue." Id. at 291. In that context the Supreme Court held that the failure to adequately charge the jury on identification was reversible error. Id. at 292.

By contrast, defendant was continuously in the view of either Ruiz or Sturdivant from the time defendant was in the basement of Ruiz's building to the point where Sturdivant caught up with him and restrained him until the police arrived. Under these circumstances we consider the identification charge as given sufficient to protect defendant's right to a fair jury trial. When we weigh the trial evidence against the omitted language from the model jury charge, we deem any error to be harmless.

The jury heard uncontradicted testimony from Ruiz and Sturdivant about their opportunity to view defendant directly at the time of the offense. Both witnesses paid a high "degree of attention" to defendant from the time of the offense to the time of his capture. There was no break in time between the Ruiz's observation of the offense and his identification of defendant as a perpetrator. While Sturdivant did not observe defendant in the basement, he encountered him fleeing from the building and immediately pursued him.

III.

We next address defendant's argument that the jury verdict was against the weight of the evidence and, therefore, he was entitled to a new trial. We reject this argument as meritless, considering the evidence of record.

Ruiz's failure to have made a videotape recording of the events to which he testified in no way undermines the credibility of his testimony. Ruiz described what he personally observed, both on the monitor screen and on the street when he joined Sturdivant in chasing defendant.

Defendant's argument that "it is more credible that the defendant was the uninvolved third party" on the sidewalk is sheer speculation. Ruiz testified that the person he pursued with Sturdivant was the individual he observed in his basement by means of the monitor.

Nor is the fact that defendant had neither burglary tools nor any of the victim's possessions on his person of any significance. Ruiz testified that he observed defendant in the basement handing items out the window to the woman on the sidewalk. Furthermore, Sturdivant testified that the basement window had been broken on several prior occasions and was broken on the date of the burglary. Therefore, the absence of burglary tools is insignificant.

When evaluating motions to acquit based on insufficient evidence, courts must view the totality of evidence, be it direct or circumstantial, in a light most favorable to the State. . . . [T]he applicable standard is whether such evidence would enable a reasonable jury to find that the accused is guilty beyond a reasonable doubt of the . . . crimes charged.

[State v. Perez, 177 N.J. 540, 549 (2003).]

We have no doubt that a reasonable jury would be able to find defendant guilty based on the evidence presented. No further discussion of this issue is warranted. R. 2:11-3(e)(2).

IV.

Finally, we address defendant's sentencing arguments.

Defendant argues that his sentence is excessive and "should be reduced to concurrent terms both within the ordinary sentencing range for third degree crimes." Defendant clearly qualifies as a "persistent offender" subject to extended term sentencing:

A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age . . . within 10 years of date of the crime for which the defendant is being sentenced.

[N.J.S.A. 2C:44-3(a).]

Defendant has seven prior convictions for indictable offenses, five of which were for burglary.

Defendant contends his sentence should be reduced because punishment should "fit the crime, not the criminal." State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct., 1193, 89 L. Ed. 2d 308 (1986). However, N.J.S.A. 2C:44-3(a) provides a sentencing paradigm that focuses on the "criminal." Under that statute so long as an individual "has been convicted of a crime of the first, second or third degree and is a persistent offender[,]" ibid., that individual is eligible for extended term sentencing.

In sentencing defendant, the judge noted the controlling guidelines in State v. Dunbar, 108 N.J. 80 (1987), and State v. Pierce, 188 N.J. 155 (2006). Under the circumstances, we find no abuse of discretion in the judge's failure to consider mitigating factor (1), N.J.S.A. 2C:44-1(b)(1)("defendant's conduct neither caused nor threatened serious harm"). As a persistent offender, defendant was clearly eligible for the extended term he received.

We reject as patently without merit defendant's argument regarding a restitution hearing. At sentencing, the court and counsel engaged in a discussion about the value of the victim's stolen property. In the course of that discussion, defendant proffered the figure of $1000 as an appropriate restitution amount. Defendant never requested a hearing as to his ability to pay that amount. In fact, the State reserved the right to a hearing to set a different restitution amount in the event the victim did not accept the $1000 figure.

N.J.S.A. 2C:44-2(b)(2) authorizes a court to sentence a defendant to pay restitution if "[t]he defendant is able to pay or, given a fair opportunity, will be able to pay restitution." Considering that defendant volunteered what he considered to be an appropriate restitution amount, the court was justified in concluding that defendant, "given a fair opportunity," would be able to pay that amount. No further discussion of this issue is warranted. R. 2:11-3(e)(2).

Affirmed.

This model charge was revised on June 4, 2007; however, defendant has submitted the version of the charge that was in effect as of the date of his trial.

(continued)

(continued)

13

A-0107-07T4

August 19, 2008