STATE OF NEW JERSEY v. JAMES L. BANKS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1605-07T41605-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES L. BANKS,

Defendant-Appellant.

___________________________________

 

Submitted November 5, 2009 - Decided

Before Judges Cuff and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-05-1660.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant James L. Banks appeals his conviction for third-degree receiving stolen property contrary to N.J.S.A. 2C:20-7, as well as the resulting extended-term sentence of imprisonment for eight years with a three-year period of parole ineligibility. We affirm.

I.

We discern the following facts from the record. On March 12, 2006, Newark Police Officer Angelo Romero, who was working undercover, observed a white 1998 Dodge Ram van disregard a stop sign at the intersection of South Street and Orchard Street in Newark. Romero ascertained that the van had been reported stolen two days earlier.

Romero followed the van for approximately four blocks until it came to a complete stop at 46 Tichenor Street in Newark. Romero identified Banks as the van's driver and sole occupant. Banks "double parked" the van, left the engine running, and walked towards 46 Tichenor Street. Romero and two other officers approached Banks, instructed him "to get down," and placed him under arrest. In response to a question about what he was doing in the area, Banks responded he was there to pick up a friend. Romero described the van's ignition as "defeated" or damaged, and testified that there were no keys in the ignition.

At trial, Romero testified that Banks admitted that he knew the car was stolen when questioned at the police station. However, that admission was not mentioned in Romero's contemporaneous police report. Banks testified that he had borrowed the van on March 12 from someone known to him solely as "Jason." He denied knowing the van was stolen, but admitted that he knew the vehicle's ignition was missing at the time he took the van from Jason. He also testified he had been unable to turn the van off while using it. Banks conceded that he did not have the van's insurance card or vehicle registration card at the time of his arrest.

The jury found Banks guilty. At Banks's sentencing on November 17, 2006, the State moved for an extended term of incarceration pursuant to N.J.S.A. 2C:44-3(a), based upon Banks's extensive criminal record. The motion was granted. Banks was sentenced to an eight-year term of incarceration, with a three-year period of parole ineligibility. This appeal followed.

II.

On appeal, Banks raises the following issues:

POINT I: THE JUDGE'S EXAMPLE OF HOW THE JURY SHOULD TREAT A PRIOR INCONSISTENT STATEMENT FOCUSED ENTIRELY ON THE TESTIMONY OF OFFICER ROMERO AND DID NOT ADDRESS AT ALL THE FACT THAT MR. BANKS WAS ALLEGED TO HAVE MADE A STATEMENT TO POLICE INCONSISTENT WITH HIS TRIAL TESTIMONY. (Not raised Below)

POINT II: DEFENDANT'S EXTENDED TERM SENTENCE IS MANIFESTLY EXCESSIVE AND MUST BE REMANDED.

A.

We first address the issue raised with respect to the jury charge. Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287-88 (1981). In assessing the nature of the jury charge, an appellate court is to examine the entire charge and the totality of the circumstances to see whether it was ambiguous, misleading, or misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).

In this case, the trial judge specifically asked defense counsel whether he wanted a charge with respect to the inconsistency between Romero's report, which made no mention of a statement by Banks that he knew the van was stolen, and his trial testimony, in which he asserted that Banks had made such a statement.

THE COURT: [T]here's an omission in the police report, as opposed to what the witness has said on the stand, the police witness.

DEFENSE COUNSEL: That's correct.

THE COURT: Is that something that the defense would want me [to charge?]

DEFENSE COUNSEL: Yes.

Banks now argues that the trial judge erred in dwelling on Romero's statement during his jury instruction, but not mentioning that Banks had given two versions of the state of his knowledge that the van had been stolen, i.e., the alleged inculpatory statement to Romero and his own exculpatory trial testimony. However, counsel did not object to the jury instructions when specifically asked by the judge whether there were any objections.

"The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion." Bradford v. Kupper Assocs., 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1996). Therefore, a showing of plain error must occur when a defendant claims error on appeal, but did not object to the charge when given. R. 1:7-2. Plain error is an error that is "clearly capable of producing an unjust result." R. 2:10-2. In order to reverse, we must find that this capability is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

In fact, a review of the charge reveals that the trial judge covered the two statements given by Romero and Banks during the charge. Also, the charge appropriately instructed the jury on the credibility issues related to each.

I want to talk to you about prior contradictory statements or omissions of witnesses. Evidence, including a witness's statement or testimony before the trial, showing that at a prior time a witness has said something which is inconsistent with the witness's testimony at the trial, may be considered by you for the purpose of judging the witness's credibility. It may also be considered by you as substantive evidence, that is, as proof of the truth of what is stated in the prior contradictory statement.

Evidence has been presented showing that a -- at a prior time a witness has said something or failed to say something, which is inconsistent with the witness's testimony at trial. This evidence may be considered by you as substantive evidence or proof of the truth of the prior contradictory statement or omitted statement.

Before deciding, however, whether the prior inconsistent or omitted statement reflects the truth, in all fairness, you want to consider all the circumstances under which the statement or failure to disclose occurred. You may consider the extent of the inconsistency or omission and the importance or lack of importance of the inconsistency or omission on the overall testimony of the witness as bearing on his credibility. You may consider such factors as where and when the prior statement or omission occurred and the reasons therefore.

For instance, in regard to the testimony of Police Officer Angel Romero, defense counsel argues that on cross-examination inconsistencies were shown or -- or admitted between an omission in his incident report and his testimony on the stand. For instance, as I recall, Police Officer Romero testified at trial that the defendant admitted he knew the van was stolen. However, he testified that he failed to report defendant's statement in the incident report.

Police Officer Romero gave reasons for this omission, testifying that defendant's statement was given after the incident report was written, not everything can be written into an incident report, and that other detectives were responsible for concluding the incident report and/or investigation.

The extent to which such inconsistencies or omissions reflect the truth is for you to determine. Consider the materiality and relationship to the entire testimony of the witness, all the evidence in the case, when, where, and the circumstances under which they were said or omitted, and whether the reasons given to you appear to be believable and logical.

You will, of course, consider other evidence and inferences from other evidence, including statements of other witnesses or acts of the witness and others disclosing other motives the witness may have had to testify as he did, that [he had] reasons other than which were given to us.

Let me give you a hypothetical example, which will help you to understand what constitutes a prior contradictory statement, and more importantly, how it may be used by you. Assume at trial a witness testifies the car was red. The cross-examination of that witness, or at some other point in the trial, it's shown that at an earlier time the same witness testified or said the car was blue.

You may consider the prior contradictory statement that the car was blue as a factor in deciding whether or not you believe the statement made at trial that the car was red. You may also consider the earlier statement that the car was blue as proof of the fact or as evidence that the car was, indeed, blue.

. . . .

Now, there is for your consideration in this case an oral statement allegedly made by the defendant, specifically, Police Officer Romero testified that at the police station, defendant admitted that he knew the vehicle was stolen. It's your function to determine whether or not the statement was actually made by the defendant and if made, whether the statement or any portion of it is credible.

Considering whether or not an oral statement was actually made by the defendant, and if made, whether it's credible, you should receive, weigh, and consider this evidence with caution, based on the generally recognized risk of misunderstanding by the hearer or the ability of the hearer to recall accurately the words used by the defendant.

The -- the specific words used and the ability to remember them are important to the correct understanding of any oral communication, because the presence or absence or change of a single word may substantially change the true meaning of even the shortest sentence. You should, therefore, receive, weigh, and consider such evidence with caution.

In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in the case relating to this issue.

If, after consideration of these factors, you determine the statement was not actually made, or that the statement is not credible, you must disregard the statement completely. If you find the statement was made and that part [or] all of the statement is credible, you may give what weight you think appropriate to the portion of the statement you find to be truthful and credible.

Having reviewed the charge as a whole, we see no error and no prejudice to Banks.

B.

Focusing on the imposition of the discretionary extended term, Banks argues that his sentence was manifestly excessive. We disagree.

Our role in reviewing sentences imposed by the trial courts is limited.

An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65 (1984). Only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" should a sentence be modified on appeal. Id. at 363-64.

[State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).]

We do not consider whether we would have reached a different sentence, but whether "'on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.'" State v. Munoz, 340 N.J. Super. 204, 222 (App. Div.), (quoting State v. Ghertler, 114 N.J. 383, 388 (1989)), certif. denied sub nom. State v. Pantoja, 169 N.J. 610 (2001).

To sentence a defendant to a discretionary extended term as a persistent offender, the judge must find that the defendant is at least twenty-one years old, is being sentenced for a first-, second-, or third-degree crime, and has sustained at least two prior convictions, the most recent of which was within ten years of the crime for which the defendant is being sentenced. N.J.S.A. 2C:44-3(a). Once the judge finds that the defendant satisfies those statutory criteria, the judge is authorized to impose a sentence ranging from the bottom of the ordinary-term range to the top of the extended-term range. State v. Pierce, 188 N.J. 155, 169 (2006). To determine where within that range the appropriate sentence lies, the judge must weigh the aggravating and mitigating factors, and consider whether the defendant's prior record and his character create the need to protect the public by imposing an extended-term sentence. Ibid. On appeal, we will not disturb such a sentence absent an abuse of discretion. Id. at 169-70.

Banks does not dispute that he was eligible for sentencing as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). Instead, he argues that the trial judge abused his discretion by not sentencing him at the lower end of the ordinary-term range even though an extended term was available. Banks points to the judge's emphasis on his prior record, and argues that the judge overvalued the prior convictions, which were required for the extended term in the first place, and undervalued the fact that none of the offenses involved the risk of injury to others.

The judge found three aggravating factors: the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record and the seriousness of the offenses for which he had been convicted, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). He found two mitigating factors: the defendant's conduct neither caused nor threatened serious harm, N.J.S.A. 2C:44-1(b)(1); and the defendant did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1(b)(2).

Because Banks was convicted of a third-degree crime, the range for the extended term was from the bottom of the third-degree range, which is three years pursuant to N.J.S.A. 2C:43-6 (a)(3), to the top of the extended-term range, which is ten years pursuant to N.J.S.A. 2C:43-7(a)(4). State v. Pierce, supra, 188 N.J. at 169. The trial judge explained his reasons for sentencing Banks to imprisonment for eight years, as follows:

Giving some weight to the fact that the offenses here were non-violent, in nature. Really when you find a defendant with this strong aggravating factors, I mean, you're really talking at looking at the top of the second degree range, but because of the fact that the offenses are non-violent, I'm giving some weight in mitigation to that.

I find that the aggravating factors preponderate over the mitigating factors here. These are strong aggravating factors; three, six, and nine, and the preponderance of those aggravating factors weigh in favor of a custodial term which is above the mid-point and close to the top of the second degree range. However, again, since the crime was not one of violence here, and he does not have a history of violent crimes, I will not go to the top of the second degree range.

So, . . . third degree receiving stolen property, Mr. Banks, you're sentenced to eight years in state prison. The Court is imposing a period of parole ineligibility of three years, because it's clear here that the -- I'm clearly convinced the aggravating factors substantially outweigh the mitigating factors.

And I justified the period of parole ineligibility by, basically, doing some algebra. Eight years [were] imposed, he could have had a maximum of ten. The most that could be imposed on the eight would be fifty percent. I'm not going up to fifty percent of the eight, because I didn't go to the top of the second degree range. So the period of parole ineligibility here is three years.

I think this is warranted, because he's had parole violations in the past, because I'm clearly convinced that the aggravating factors substantially predominate here.

So under the analysis under State v. Thomas, [ 188 N.J. 137 (2006),] and State v. Pierce, [ 188 N.J. 155 (2006),] the Court imposes a sentence of eight years in state prison, three years of parole ineligibility. The Court's going to recommend that the defendant serve that sentence in Talbot Hall for treatment of his drug addiction.

Having reviewed the judge's reasons in light of the applicable law, including State v. Thomas, 188 N.J. 137, 152-54 (2006) and Pierce, supra, 188 N.J. at 169, we find no abuse of discretion with respect to the quantum of the sentence and the period of parole ineligibility. Although not crimes of violence, Banks had considerably more prior convictions than needed for application of N.J.S.A. 2C:44-3(a). The judge's concerns about recidivism were supported in the record.

For the reasons stated above, we affirm both the conviction and the sentence on appeal.

 
Affirmed.

(continued)

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A-1605-07T4

November 30, 2009