STATE OF NEW JERSEY v. JASON M. MILLER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1257-06T41257-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JASON M. MILLER,

Defendant-Appellant.

___________________________

 

Submitted December 16, 2008 - Decided

Before Judges Parker and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-04-0439.

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

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Jason M. Miller appeals from the judgment of conviction entered on April 13, 2006, after a jury found him guilty of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-2; second-degree robbery, N.J.S.A. 2C:15-1; and fourth-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a). Defendant was sentenced to an aggregate term of six years subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2(a) (NERA). For the reasons that follow, we affirm.

I.

Middlesex County Indictment No. 05-04-0439 charged defendant with second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and 5-2; first-degree armed robbery, N.J.S.A. 2C:15-1; third-degree unlawful possession of a weapon, N.J.S.A. 2C:58-4 and 39-5(b); and second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a). The indictment also charged co-defendants Joshua Lowels and Wilbert Thomas on the first two counts; Thomas and co-defendant Maurice Lowels were also charged with hindering apprehension or prosecution, N.J.S.A. 2C:29-3(a). Joshua and Maurice Lowels and Wilbert Thomas entered negotiated plea agreements; all three testified against defendant at trial.

The trial evidence may be summarized as follows. On January 7, 2005, Neydy Pichardo went to the office of Triple A Bail Bonds (Triple A) in North Brunswick, with $6000 to post as bail for her incarcerated boyfriend. She went there at the recommendation of an individual known to her as "Will," later identified as co-defendant Wilbert Thomas.

Pichardo encountered Thomas and another man, later identified as Maurice Lowels, in the office and completed paperwork for the bail bond, which took approximately three to four hours. She then counted out $6000 in cash, which Maurice picked up. At that point, a tall thin man, later identified as defendant, wearing a mask and holding a "pistol" came into the office and went "exactly to the place where the money was." Pichardo testified that defendant showed her the gun, took the money and then pointed the gun at her and asked if she "had any more money."

Thomas commented that the gun was a toy gun. At that point, defendant ran out of the store with Thomas and two other employees in pursuit. Pichardo testified that her money was never returned to her and she was not able to post bail for her boyfriend.

Joshua Lowels testified that he worked at Triple A with his brother Maurice, and had known defendant for about three or four years. On the date in question, Joshua arrived at Triple A to find Pichardo filling out the paperwork for a bail bond. Joshua concluded that Pichardo would not be able to post bail with the $6000 she had brought. Therefore, Joshua telephoned defendant and "told him to come rob the place," because defendant owed Joshua $5000. Joshua told defendant that "there was six thousand dollars laying out on the table and to come rob it . . . [and] [j]ust come stick the place up."

Joshua further testified that when defendant arrived at Triple A, "[h]e came in the door with a gun, waved it around[,] . . . [and] said where's the money?" Joshua observed defendant reach over to the desk and "grab[] the money off the desk right in front of [him] and [Maurice]," and heard defendant ask where the rest of the money was.

Joshua heard Thomas ask defendant if he was holding a paint ball gun. At that point defendant ran out of the building. Thomas pursued defendant and tackled him. Joshua testified that he followed Thomas and also tackled defendant so that he could tell Thomas to let defendant go. Thomas let defendant go, and defendant ran away.

Thomas then told Joshua that in order to ensure his silence about the incident, Joshua would have to pay him a portion of the money. That evening Joshua and Thomas arranged a deal at defendant's house regarding a payment to Thomas.

Maurice Lowels confirmed the other witnesses' descriptions of the events at the bail bond office. Maurice also testified that he called the police after the incident and later that day he went to police headquarters and gave a statement as to what occurred; Joshua and Thomas accompanied Maurice to the police station.

Maurice stated that he heard Joshua and defendant discuss Thomas' request for a share of the money. Maurice became "scared and . . . nervous" as he realized that he might be implicated in the incident. Defendant gave some money to Joshua who, in turn, gave the money to Maurice to hide.

Wilbert Thomas also corroborated the testimony of the other witnesses. Thomas testified that after he chased and tackled defendant, Joshua approached and pushed him away and defendant ran off. Joshua told Thomas that "he knew what was going on the whole time . . . ." Thomas stated that Joshua offered him money to remain quiet and to change his story. Thomas agreed and received $1000 from Joshua two days later.

Defendant testified. He acknowledged that he owed Joshua $5000. Defendant stated that on January 7, 2005, Joshua called to inform him that there was a woman at Triple A with cash and that defendant should "come in and . . . make it look good and take the money off the table and leave." Defendant stated that Joshua assured him not to worry and that it would be "taken care of."

Defendant testified that he got into his car with a paint ball gun, spoke to Joshua by cell phone about the timing of his arrival, and then entered Triple A waving the gun around and looked for the money on the desk. Upon seeing the cash, defendant asked where the rest of the money was because Joshua had told him there would be $10,000 in cash and defendant believed the amount of bills on the table did not add up to that sum.

Defendant asked Pichardo if she had any more money; she replied that she did not. Joshua then said, "You got what you came for, now leave," which defendant took as his "cue to leave," and ran out the door. Defendant stated that he did not actually run from Triple A because he believed that everyone at the office was in on the plan. Therefore, when Thomas tackled defendant, he yelled at Thomas, "it's me."

Defendant later met Joshua and Maurice at his home. Defendant gave Joshua $1000 at that time; about a week later he gave Joshua another $2000 and kept the rest of the money for himself.

Defendant testified that he never threatened Pichardo with death or harm, and that it was never his intent to put her in fear of bodily harm. Rather, he stated that his intent was "to steal the money and make it look good[.]" Defendant acknowledged, however, that he intended that Pichardo believe the paint ball gun was real. Defendant further acknowledged that the testimony of all the State's witnesses was true.

Immediately prior to sentencing on April 13, 2006, defendant moved for a new trial, contending that the verdict was against the weight of the evidence. The trial court denied the motion and proceeded to impose sentence.

II.

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

POINT I

THE FAILURE OF THE COURT BELOW TO CONDUCT A VOIR DIRE OF THE REMAINING JURORS FOLLOWING THE DISMISSAL OF ONE JUROR ON THE THIRD DAY OF TRIAL, EVEN ABSENT A REQUEST TO DO SO, CONSTITUTES REVERSIBLE ERROR (Not raised below)

POINT II

THE COURT BELOW ERRED IN CHARGING THE JURY ON POSSESSION OF AN IMITATION FIREARM

POINT III

THE COURT BELOW ERRED IN FAILING TO GRANT DEFENDANT'S REQUEST FOR A MISTRIAL AND, ACCORDINGLY, DEFENDANT'S CONVICTION MUST BE REVERSED

POINT IV

THE COURT BELOW ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL

POINT V

NO OTHER CONCLUSION CAN BE REACHED BUT THAT THE EFFECT OF CUMULATIVE TRIAL ERRORS IN THE CONTEXT OF THE PROCEEDINGS BELOW DEPRIVED DEFENDANT OF A FAIR TRIAL AND WARRANT[S] REVERSAL

POINT VI

THE COURT BELOW ERRED IN IMPOSING UPON DEFENDANT A PAROLE DISQUALIFIER PURSUANT TO N.J.S.A. 2C:43-7.2(a)

POINT VII

THE TRIAL COURT ERRED IN FAILING TO CREDIT DEFENDANT WITH ALL APPLICABLE MITIGATING FACTORS AND IN FAILING TO SENTENCE DEFENDANT CONSISTENT WITH A CONVICTION FOR A CRIME ONE DEGREE LOWER THAN THAT FOR WHICH HE WAS CONVICTED

Having reviewed these contentions in light of the record and the controlling law, we find them to be without merit. We add the following comments.

The failure to voir dire the entire jury after one juror belatedly recognized the name of a State's witness is raised as plain error. We conclude this claimed error was not "of such a nature as to have been clearly capable of producing an unjust result . . . ." R. 2:10-2.

At the conclusion of Joshua Lowels' testimony, a juror realized that she had gone to high school with him; Joshua was a freshman when the juror was a senior. The juror described their relationship as "saying hello in the hallways[,]" and that he may have been in her gym class. The trial judge excused this juror from the panel and instructed her not to discuss the matter with the other jurors. The judge then asked counsel what, if anything, they wished to pursue with the remaining jurors. Defense counsel stated that the juror "appear[ed] honest . . . and fairly . . . forthright." The judge instructed the jury to draw no inference from the removal of the one juror.

It is "well-established that a defendant's failure to raise a claim of juror misconduct until after trial, when the issue was known to defendant during trial, amounts to a waiver." State v. Bianco, 391 N.J. Super. 509, 519 (App. Div.), certif. denied, 192 N.J. 74 (2007). On this record, we conclude no further discussion of this issue is warranted. R. 2:11-3(e)(2).

Defendant next argues that the trial judge erred in charging the jury on possession of an imitation firearm. At the conclusion of the State's case, the trial judge granted defendant's motion to dismiss count four of the indictment charging possession of a weapon for an unlawful purpose. The judge amended the charge in count three to fourth-degree possession of an imitation firearm for an unlawful purpose, in violation N.J.S.A. 2C:39-4(e).

Defendant objected to this amendment, contending that it diluted the State's burden of proof. Specifically, defendant argued that the charge of possession of a weapon for an unlawful purpose required the State to prove that defendant had "a purpose to use it unlawfully against the person or property of another . . . ." N.J.S.A. 2C:39-4(a). By contrast, defendant argued, possession of an imitation weapon only required the State to prove that "an observer [would] reasonably believe that it is possessed for an unlawful purpose . . . ." N.J.S.A. 2C:39-4(e).

The undisputed evidence of record is that defendant entered Triple A brandishing a paint ball gun while he took the victim's cash from the desk and then pointed the gun at her and demanded to know whether she had more money. Under these circumstances, we conclude that no prejudicial error resulted from the judge's instructions to the jury on this charge, which were as follows:

Possession of an imitation firearm for an unlawful purpose . . . reads as follows: Any person who has in his possession an imitation firearm under circumstances that would lead an observer to reasonably believe that it is possessed for an unlawful purpose is guilty of a crime.

In order for you to find the defendant guilty of this charge[,] the State has the burden of proving beyond a reasonable doubt each of the following elements: First, that the item described . . . as being, by the defendant is, in fact, an imitation firearm. Second, defendant possessed the alleged imitation firearm. Third, that he possessed the imitation firearm under circumstances that would lead an observer to reasonably believe that it is possessed for an unlawful purpose. And, four, defendant knew that an observer would reasonably believe that the imitation firearm was possessed for an unlawful purpose.

. . . .

Now you must determine whether under all the circumstances[,] an objective observer would reasonably believe that the imitation firearm was possessed for an unlawful purpose because[,] as I have indicated[,] that third element is that the defendant possessed the imitation firearm under circumstances that would lead an objective observer to believe that it is possessed for an unlawful purpose. I instruct you that a reasonable person is different than actual knowledge. Belief is actually different. What is reasonable is not measured by what the defendant or victim thought was reasonable but rather by what an objective observer would find is reasonable. Thus, the reasonableness of the belief for which the imitation firearm was possessed is based upon an objective standard that is by how an ordinary reasonable person with a detached viewpoint would view it. I instruct you that the belief must be that the imitation firearm was possessed for an unlawful purpose.

In light of the evidence, we reject defendant's argument that he was somehow prejudiced by this charge. Clearly, defendant intended to brandish the paint ball gun as a show of force which, in turn, elevated the theft of the victim's $6000 to robbery. Under the circumstances, we are satisfied that the trial judge properly instructed the jury with respect to the fourth-degree charge of possession of a weapon for unlawful purpose, on which the jury convicted him.

Defendant next argues that the trial judge erred in denying his motion for a mistrial, which was based upon Joshua's references to drugs at four points in his testimony. First, in response to the prosecutor's question as to why Joshua called defendant to come to Triple A Bail Bonds, Joshua stated that "[p]reviously there had been a drug deal." Defense counsel immediately objected and, following a sidebar, the judge gave the jury a curative instruction, telling them to disregard that statement. A short while later, Joshua testified that he could not completely remember a particular conversation he had with defendant because they "were smoking a blunt." Joshua also stated twice that the agreement with Thomas was to receive $1000 plus some "pot."

The trial judge again instructed the jury to "disregard anything that has to do with drugs, pot or anything else. This is a trial involving an indictment that I read to you, it is the only thing you're to consider. . . . No discussion. It shouldn't even come up in your deliberations or in your mind." The judge reiterated this admonition in his jury charge at the conclusion of the evidence.

The trial judge denied defendant's motion, asserting his belief that the jury could "separate out anything that deals with those items not related to this trial and . . . not consider them for any purpose." The judge found that his instructions to the jury during Joshua's testimony were "sufficiently curative."

The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice. An appellate court should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence. Thus, an appellate court will not disturb a trial court's ruling on a motion for a mistrial, absent abuse of discretion that results in a manifest injustice.

[State v. Harvey, 151 N.J. 117, 205 (1997).]

We are satisfied that the trial judge's denial of defendant's mistrial motion did not amount to "an abuse of discretion that result[ed] in a manifest injustice." Ibid. Considering the trial evidence, including defendant's own testimony, we conclude that this issue is without merit.

Defendant's remaining claims of trial error are "without sufficient merit to warrant discussion in a written opinion . . . ." R. 2:11-3(e)(2). Suffice it to say, defendant is hard-pressed to argue that the verdict was against the weight of the evidence, and that only a "charade" took place "to look like a robbery . . . ." Such a claim completely ignores the evidence that Pichardo was the victim of a robbery, having been put in fear by defendant's brandishing of a weapon, taking the $6000 she had placed on the desk and demanding more money of her with that weapon in his hand. We concur with the trial judge's finding, in denying defendant's motion for a new trial, that "this verdict was about as far . . . from a manifest denial of justice as a verdict could be."

We reject defendant's "cumulative trial errors" argument, as we have found no error in any of his claims. We turn next to defendant's sentencing arguments.

We first address defendant's claim that the judge erred in imposing a parole disqualifier. Defendant was convicted of second-degree robbery, in violation of N.J.S.A. 2C:15-1. Pursuant to NERA, "[a] court imposing a sentence of incarceration for a crime of the first or second degree enumerated in subsection d. of this section shall fix a minimum term of 85% of the sentence imposed, during which the defendant shall not be eligible for parole." N.J.S.A. 2C:43-7.2(a). The offense of robbery under N.J.S.A. 2C:15-1 is expressly "enumerated in" N.J.S.A. 2C:43-7.2(d)(9).

Defendant acknowledges these statutory mandates. He argues, however, that "the verdict was against the weight of the evidence and . . . the most the evidence could support was a conviction for theft, an offense to which NERA does not apply." Since we have rejected defendant's weight-of-the-evidence argument, we are constrained to reject this contention as well. Defendant's conviction under N.J.S.A. 2C:15-1 stands; therefore, the parole disqualifier pursuant to NERA also stands.

Finally, we address defendant's argument that the judge failed to credit him with certain mitigating factors and failed to sentence him to a term consistent with a crime one degree lower than that of which he was convicted.

The trial judge found the following aggravating factors applied: "[t]he risk that defendant will commit another offense[,]" N.J.S.A. 2C:44-1(a)(3); "a substantial likelihood that defendant is involved in organized criminal activity[,]" N.J.S.A. 2C:44-1(a)(5), based upon the involvement of several people in the crime, as well as the planning, action and purpose of the agreement between the participants; "[t]he need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1(a)(9), based upon the importance of sending "a clear message . . . that this type of planning [and] activity cannot be tolerated"; and "[t]he imposition of a fine, penalty or order of restitution without also imposing a term of imprisonment would be perceived by the defendant and others merely as part of the cost of doing business . . . [,]" N.J.S.A. 2C:44-1(a)(11), reasoning that "[i]f people can rob others and merely pay them back, it is just simply a cost of doing business."

The trial judge found the following mitigating factors to apply: "defendant did not contemplate that his conduct would cause or threaten serious harm," N.J.S.A. 2C: 44-1(b)(2), based upon his use of a fake gun; "defendant has compensated or will compensate the victim of his conduct for the damage or injury that [s]he sustained . . . [,]" N.J.S.A. 2C:44-1(b)(6), based upon defense counsel's representation to that effect; "[t]he "willingness of the defendant to cooperate with law enforcement authorities[,]" N.J.S.A. 2C:44-1(b)(12); and that "[t]he conduct of a youthful defendant was substantially influenced by another person more mature than the defendant[.]" N.J.S.A. 2C:44-1(b)(13).

Defendant claims first that the court erred in applying aggravating factor number five, that there is "a substantial likelihood that [he] is involved in organized criminal activity[.]" N.J.S.A. 2C:44-1(a)(5). Because defendant was convicted of conspiracy, he argues, using that conviction to support the application of this factor amounts to "punish[ing] him twice for the same offense."

We concur with defendant that the trial judge improperly applied this aggravating factor. We are satisfied that "organized crime is not synonymous with a well thought out criminal act." State v. Kern, 325 N.J. Super. 435, 441 (App. Div. 1999). We note, however, that when applying this factor, the trial judge stated: "To the extent that this factor exists, the [c]ourt will not put significant weight on it."

We note further that the trial judge improperly found aggravating factor number eleven to apply, since defendant faced sentencing on second-degree offenses to which the presumption of imprisonment applied. State v. Dalziel, 182 N.J. 494, 502-03 (2005). Defendant has not raised this issue and we are satisfied that it constitutes harmless error, as defendant was sentenced to a term of six years, which is at the lower end of the range for second-degree offenses. N.J.S.A. 2C:43-6(a)(2).

We reject as without merit defendant's argument that the trial judge "incorrectly considered [d]efendant's prior record." The judge expressly did not apply aggravating factor number six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[.]" N.J.S.A. 2C:44-1(a)(6).

Regarding the mitigating factors, notwithstanding defendant's argument to the contrary, the trial judge did apply mitigating factor number twelve, "[t]he willingness of defendant to cooperate with law enforcement authorities[.]" N.J.S.A. 2C:44-1(b)(12). During a sidebar conference with counsel, the judge found that defendant had attempted to cooperate with the police and stated, "Accordingly, I'm going to find that factor on the record here at sidebar."

Likewise, the judge did accord defendant the benefit of the doubt with respect to mitigating factor number six, that defendant will compensate the victim. The judge accepted defense counsel's representation to this effect, noting that "there's been no compensation to date [that] the [c]ourt's aware of . . . ." Nonetheless the judge accepted it, although "not [as] a significant factor."

Defendant argues that the trial judge erred in failing to accord him the benefit of mitigating factors eight, nine, ten and eleven, namely that: "defendant's conduct was the result of circumstances unlikely to recur"; "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense"; defendant is particularly likely to respond affirmatively to probationary treatment"; and defendant's imprisonment "would entail excessive hardship to himself or his dependents[.]" N.J.S.A. 2C:44-1(b)(8) to (11). We disagree.

We note that at the time defendant committed these offenses, he was on bail for third-degree criminal attempted arson, third-degree conspiracy to commit criminal mischief, third-degree threats of violence, third-degree criminal attempted escape and fourth-degree criminal attempt to risk injury. We are satisfied, therefore, that the trial judge properly disregarded mitigating factors relating to defendant's conduct being the result of circumstances unlikely to recur or that defendant's character and attitude indicate that he is unlikely to commit another offense. Defendant's own record demonstrates the impropriety of according him these factors.

Regarding the claim that defendant's imprisonment would entail hardship to himself or his dependents, the trial judge noted that it is "[p]retty difficult for a court to find that it's going to be a hardship to dependents when there's no proof that there's been any support previously at least financially." Therefore, the judge declined to "find that [factor] in an overwhelming way because it is not, simply put, excessive hardship to himself or his dependents. That's the word that the Legislature decided to put in as a mitigating factor, excessive."

Under the circumstances, even discounting aggravating factor number five, we are satisfied that the trial judge's qualitative weighing and analysis of the aggravating and mitigating factors support the sentence imposed. State v. Kruse, 105 N.J. 354, 363 (1987).

Finally, we reject as without merit defendant's argument that the trial judge should have sentenced him to a term appropriate to a crime of one degree lower than the second-degree offenses of which he was convicted. N.J.S.A. 2C:44-1(f)(2) provides:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

The Supreme Court has held:

The decision to downgrade a defendant's sentence "in the interest of justice" should be limited to those circumstances in which defendant can provide "compelling" reasons for the downgrade[,] . . . in addition to, and separate from, the "mitigating factors which substantially outweigh the aggravating factors," that the trial court finds applicable to a defendant under the first prong of section 44-1f(2).

[State v. Megargel, 143 N.J. 484, 501-02 (1996) (quoting State v. Jones, 197 N.J. Super. 604, 607 (App. Div. 1984)).]

Thus, defendant must meet a two-pronged test to come within that statute. We are satisfied that defendant failed to meet this test.

In sum, we conclude that the trial judge's exercise of his sentencing discretion was "based upon findings of fact that [we]re grounded in reasonably competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363 (1984). We further find that the judge "appl[ied] correct legal principles in exercising [his] discretion." Ibid. We are satisfied that defendant's sentence is not "such a clear error of judgment that it shocks the judicial conscience." Id. at 364.

Defendant's convictions and sentence are affirmed; we remand for entry of an amended judgment of conviction in conformance with this opinion.

 

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A-1257-06T4

August 19, 2009