STATE OF NEW JERSEY v. MICHAEL DERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2229-07T42229-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL DERRY,

Defendant-Appellant.

___________________________________________________________

 

Submitted April 28, 2009 - Decided

Before Judges Collester and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

03-07-01275.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael Confusione, Designated

Counsel, on the brief).

Anne Milgram, Attorney General, attorney

for respondent (Frank J. Ducoat, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Following a jury trial, defendant Michael Derry was convicted of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); two counts of first-degree robbery, N.J.S.A. 2C:15-1 (counts two and three); second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count four); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2) (count five); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count six); third-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count seven); and second-degree unlawful possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count eight). In a second trial before the same jury, defendant was convicted of second-degree possession of a handgun by a convicted person, N.J.S.A. 2C:39-7(b)(1).

Prior to sentencing, defendant filed a motion for a new trial based upon the State's failure to disclose that Ruben Marrero, the victim, who had been robbed, beaten, and then shot, had a fourth-degree hindering apprehension charge pending against him when he testified. The trial court found, however, that the State's "proofs against Mr. Derry were extremely strong," and the court correctly concluded that the State's inadvertent failure to disclose the pending charge against Marrero was harmless beyond a reasonable doubt.

At defendant's sentencing hearing on August 30, 2007, the court imposed two concurrent eighteen-year prison terms subject to an eighty-five percent period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on the serious-bodily-injury robbery conviction (count two), and the armed robbery conviction (count three). On count one, conspiracy to commit robbery, defendant was sentenced to a nine-year prison term concurrent with counts two and three. On the second-degree aggravated assault conviction (count four), the court imposed a consecutive nine-year term under NERA because the shooting was "a separate and distinct evil that was totally unnecessary." On the two other aggravated assault convictions (counts five and six), defendant received concurrent sentences. However, the State concedes that the third-degree and fourth-degree aggravated assault convictions (counts five and six), merge into count four "because those three charges stemmed from one physical act: the shooting of Marrero." The court imposed a concurrent five-year term on count seven, and count eight was merged into count three.

On defendant's conviction for second-degree possession of a handgun by a previously convicted person, the court imposed a consecutive nine-year prison term with a mandatory five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-7(b). Thus, defendant received an aggregate sentence of thirty-six years in prison, with twenty-seven years subject to NERA, and an additional five-year period of parole ineligibility for second-degree possession of a handgun by a previously convicted person.

On appeal, defendant argues:

POINT I

A NEW TRIAL IS WARRANTED BECAUSE THE STATE FAILED TO DISCLOSE THAT THE COMPLAINANT, THE PRIMARY STATE WITNESS AGAINST DEFENDANT, HAD A PENDING CRIMINAL CHARGE THAT WAS DISMISSED SHORTLY AFTER HE TESTIFIED AGAINST DEFENDANT IN THIS CASE.

POINT II

THE TRIAL COURT ERRED IN CHARGING ACCOMPLICE LIABILITY OVER DEFENDANT'S OBJECTION.

POINT III

THE TRIAL COURT SHOULD HAVE GIVEN A SPECIFIC UNANIMITY CHARGE (PLAIN ERROR).

POINT IV

DEFENDANT'S RIGHT TO A FAIR JURY TRIAL WAS NOT PRESERVED BECAUSE ONE JUROR WAS SLEEPING DURING DEFENDANT'S CROSS-EXAMINATION OF THE STATE'S PRIMARY WITNESS, AND THE TRIAL COURT CONDUCTED NO INQUIRY INTO HOW MUCH TESTIMONY THE JUROR HAD MISSED (PLAIN ERROR).

POINT V

THE PROSECUTOR'S COMMENTS DURING TRIAL DENIED DEFENDANT A FAIR TRIAL.

POINT VI

DEFENDANT'S SENTENCE IS EXCESSIVE.

After considering these arguments in light of the record, we are satisfied the trial court correctly rejected defendant's motion for a new trial, and we affirm that determination substantially for the reasons stated by the court in its oral decision on August 30, 2007. We also conclude that defendant's sentence is not excessive, and defendant's arguments in Points II, III, and V are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Further proceedings are necessary, however, to address defendant's claim in Point IV that one of the jurors was sleeping during the trial, and there is also the need for the entry of an amended judgment of conviction merging counts one and two into count three and merging counts five and six into count four.

On the night of May 11, 2003, Ruben Marrero drove his red Honda to Tracee Taylor's house on Rhode Island Avenue in Atlantic City. It was Mother's Day, and Taylor, with whom Marrero had been romantically involved, was having a small party. After Marrero parked his car, he walked up to Taylor's front door and defendant Michael Derry answered the door. Marrero did not know defendant by name, but recognized him from seeing "him around the city." Once inside, Marrero saw Ivan Hall, an old friend that he had not seen for several years, and the two spoke for about fifteen minutes.

Kamal Sears, who Marrero knew through school, was also at the party. Marrero thought that Sears and defendant were somehow related because they were often together and there was a "little resemblance."

After a short while, Marrero left the party. Marrero testified that Taylor told him to leave, and she also told him she would call him "as soon as her company had left." While walking to Marrero's car, Taylor made some comments about Ivan Hall and defendant, who were also outside.

When Marrero got into his car, Ivan Hall and defendant walked over and asked him for a ride. Marrero agreed because he "felt Ivan was family." Both men got into the backseat of Marrero's car. Marrero testified that Ivan Hall sat on "the rear passenger side," and defendant sat in the rear seat behind him. During the trial, Marrero was asked if he was sure that defendant was the person who sat behind him and he answered: "Hundred percent sure."

As Marrero started to drive, he noticed there was a red light at the first intersection and he was coasting to a stop when a black male with "a little beard and hoody" ran up to Marrero's car, opened the front passenger door, and jumped into the front passenger seat. The unidentified man grabbed Marrero by the shoulder, pulled out a black .38 revolver with a wooden handle, and told Marrero to "give it up," which Marrero took to mean that he was being robbed.

Marrero immediately reached for the gun, and the two men started struggling. During the struggle, a shot was fired through the roof of the car and Marrero wound up with the gun in his hand. At that point, the unidentified assailant yelled: "He got the gun. He got the gun." When Marrero was asked what happened next, he testified as follows:

Q. Did [Ivan Hall and defendant] respond back to him?

A. Yes. [They] . . . grab the seat, reach over, look towards the front seat and asked him how you let him get the gun? How you let him get the gun? How you let him get the gun?

Q. One guy said that or both?

A. Both. As soon as that happens, immediately they just start swinging, trying to get the gun away from me.

Q. . . . Can you tell me what Ivan Hall did at this point?

A. Just basically punch me in my face, trying to get me -- get the gun away from me, trying to get the gun away from me.

Q. What did the Defendant do?

A. He is doing the same thing also.

. . . .

Q. The fight for the gun lasted a long time?

A. Yes. I didn't want to let it go, wouldn't let it go.

Q. So everybody is getting out of breath. What seem[s] to happen at that point?

A. Seems like a few minutes go by, seems like everybody starts getting tired in the car, a lot of heavy breathing and all of a sudden I feel the guy behind me reach over and grab me by my neck and pull back as much as he could, try to choke me or was choking me.

Q. You said he pulled back. Do you know how he pulled back? Can you tell what he was doing?

A. Just reach over, grab me by my neck and pulled back like he was trying to push me towards the back seat.

Q. Both hands?

A. Both arms, like in a lock.

Q. How did that affect your breathing?

A. Couldn't really breathe at all. Felt like I was starting to pass out.

Q. Did you try to fight it?

A. Yes.

Q. And while this guy -- are you sure this wasn't Ivan Hall that was grabbing you?

A. Ivan was in the passenger, behind the passenger side.

Q. Was the Defendant . . . choking you?

A. Yes.

. . . .

Q. Why did you let go of the gun?

A. Felt like myself passing out and my hand just open up. It wasn't that I wanted to let go. [I] just didn't have any more strength in me.

Q. And what happened once you let go of the gun?

A. I let go of the gun. I reach in my pocket, notice I had a couple of dollars there and I pull it out, try to hand it to the guy in the front seat that had the gun at the time and he grabs the money, opens the door, jumps out and after they, the Defendant lets me go, grabs my necklace, he jumps out.

Q. How do you know it was him?

A. Seen his face.

. . . .

Q. After the Defendant grabbed the necklace, can you tell the jury what happened next?

A. It was all over with because I seen them jump out the car. So I'm thinking it's all over with and I look to the side and I notice Ivan was still in the car for some reason.

Q. What did you do?

A. I was pissed at him. I felt like he set me up. I turn[ed] around and . . . I cussed at him or something like that, told him I can't believe you try and set me up and boom the gunshot goes off.

Q. Were you able to see who shot you?

A. No.

The bullet lodged in Marrero's spinal column, paralyzing him from the waist down. Marrero noticed somebody on a bicycle and he told him "to call for an ambulance."

Patrick Perez, Marrero's half-brother, happened to be out walking with his wife and daughter when the incident occurred. He testified he saw a man jump into a car, and he could tell "there was an argument inside the car" because the car was swaying from side to side, there were noises coming from the car, and he heard a gunshot from inside the car. Perez saw someone get out of the car from the driver's side, go to the front of the driver's side, and then he heard a second gunshot. Because it was dark, Perez did not recognize Marrero's car and he could not identify the three individuals who got out of the car, but he testified they were "African-American."

Atlantic City Police Officer Heidi Clayton was first to arrive at the scene. Officer Clayton observed Marrero lying across the front seat covered in blood, a bullet hole in his back, and his face severely beaten. Marrero told Officer Clayton that he had been robbed by three males of his watch, chain, and money and could not feel his legs.

Detective Jerry String also responded to the scene. No shell casings were recovered, which suggested to Detective String that the gun used was a revolver. Fingerprints matching Ivan Hall were discovered in the backseat.

The night of the incident, defendant was supposed to meet his girlfriend, Brandi Rodriguez, at a nightclub for her college graduation party, but he never arrived. Early the next morning on May 12, 2009, defendant met Rodriguez at a Super 8 Motel in Absecon, and, a short while later, Ivan Hall and Kamal Sears met Rodriguez and defendant at the motel.

Marrero was hospitalized for over two months. When the police took a taped statement from him on May 18, 2003, he was heavily medicated, but the police took the statement anyway because they were afraid he might take "a turn for the worse." On May 21, 2003, Detective Steve Rando returned to the hospital with a photo array, and Marrero immediately identified a photograph of defendant. When Detective Rando was asked to describe Marrero's condition, Rando testified: "Better. . . . He's up and able to speak to us clearly." Marrero also identified defendant in court.

As noted in defense counsel's opening statement to the jury, the central issue was identification:

Okay. May 11, 2003, at Rhode Island and Pacific Avenues Mr. Ruben Marrero was shot. He was assaulted. He was the victim of an aggravated assault. Not only aggravated assault but a serious, heinous, ferocious, egregious aggravated assault. He was severely beaten. He was shot in the back. And he was left paralyzed. The short but trying incident must have been very painful for Mr. Marrero. The short but trying incident must have been terrifying for Mr. Marrero. The short but trying incident must have changed Mr. Marrero's life and had to have changed Mr. Marrero's life forever and we have sympathy for Ruben Marrero. He was the victim of a shooting. He was shot. He was paralyzed.

We should all have sympathy for Ruben Marrero, but, ladies and gentlemen, the sympathy we have for Mr. Marrero should not misguide us in this case. Because the issue isn't whether he was shot. The issue isn't whether he was the victim of an aggravated assault. The issue isn't whether he suffered serious bodily injury. I can pretty much tell you being paralyzed is serious bodily injury. The issue is whether . . . Michael Derry is one of the perpetrators. The issue is whether Ruben Marrero's . . . identification of Mr. Derry is accurate or whether it's a misidentification. The issue in this case is one of identification.

The State's identification evidence, however, was "extremely strong." In addition to the pretrial and in court identifications and testimony by Marrero, there was a substantial amount of circumstantial evidence linking defendant to the crimes charged. For example, testimony by Tracee Taylor and Brandi Rodriguez placed defendant with Ivan Hall and Kamal Sears both immediately before and after Marrero was robbed and shot. The testimony by Patrick Perez corroborated the fighting within the car, the two shots, and the three men fleeing the scene. In addition, Ivan Hall's fingerprints were found in the car; Kamal Sears was arrested with a gun that Marrero was "pretty sure" was the gun that was used when he was robbed and shot; and Sears had an injury to his left hand consistent with a bite mark that Marrero said he inflicted on one of his assailants.

In his fourth point, defendant claims that he did not receive a fair trial because one of the jurors was sleeping during the trial. We have been asked to review this issue under the plain-error standard, but we are unable to do so based on the trial record. The record reveals that the prosecutor requested a side-bar conference immediately following the cross-examination of Marrero, and the following colloquy occurred:

[DEFENSE COUNSEL]: She snapped out of it. Maybe -- on my cross examination, [a juror] apparently was sleeping. Maybe if the Court keeps --

[PROSECUTOR]: Keep an eye on her. She was sleeping for twenty minutes. I don't want to lose any jurors. I'm telling you the Defendant's friends mentioned something to Mr. Levin before and just keep an eye on her. I don't think she missed enough -- twenty minutes, for the record, may be too lengthy of a time I said. She fell asleep.

[DEFENSE COUNSEL]: During my cross examination, fifteen minutes, tying up lose ends. If I was worried about it --

THE COURT: I'll keep an active eye on it.

[PROSECUTOR]: Okay.

Based on this discussion, it appears that a juror may have fallen asleep for fifteen to twenty minutes while Marrero was being cross-examined. Nevertheless, defense counsel did not request any curative action by the court, and the court did not question the juror to determine whether she was sleeping or listening to the testimony with her eyes closed. Furthermore, if the juror was sleeping, it is not clear what she missed. Under these circumstances, we deem it appropriate to remand for a post-verdict hearing to resolve these factual issues. See State v. Reevey, 159 N.J. Super. 130, 134 (App. Div.) ("[T]he proper procedure requires questioning by the trial judge to determine if the juror had in fact been sleeping, or if her ability to render a fair decision had been impaired."), certif. denied, 79 N.J. 471 (1978); see also State v. Bisaccia, 319 N.J. Super. 1, 15 (App. Div. 1999) (noting the need to question jurors "about the possibility and impact of outside or non-evidentiary extraneous considerations or influences affecting the ability of a juror to be fair and impartial"). We emphasize that we do not reverse defendant's convictions and that a new trial is not warranted unless the remand proceedings result in a determination by the trial judge that the "sleeping juror" was unable "to render a fair decision." Reevey, supra, 159 N.J. at 134.

Defendant also contends that the trial court's decision to impose consecutive sentences on the robbery and assault convictions was an abuse of discretion because the crimes "were not predominately independent of each other." The record, however, fully supports the trial judge's determination that the shooting was a separate and distinct act of violence because the victim was shot after the armed robbery had already been accomplished. See State v. Yarbough, 100 N.J. 627, 643 (1985) ("[T]here can be no free crimes in a system for which the punishment shall fit the crime."), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

In addition, defendant argues that his sentence is excessive. We disagree. In our view, defendant's aggregate sentence is neither unfair nor unreasonable, and it certainly does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

Finally, defendant claims this matter should be remanded for redetermination of jail credits. However, defendant has failed to provide any documents to support his claim that his jail credits were improperly calculated, and he concedes that "the record is unclear as to the appropriate amount of credits" he is entitled to. Accordingly, we reject defendant's claim without prejudice to his right to seek additional jail credits in a petition for post-judgment relief under Rule 3:22-12(a).

 
In conclusion, we affirm defendant's convictions and his aggregate sentence, subject to the remand hearing to be conducted by the judge who presided over defendant's trial. We also remand for the entry of an amended judgment of conviction merging counts one and two into count three and merging counts five and six into count four. Jurisdiction is not retained.

When a defendant is charged with both unlawful possession of a handgun and possession of a handgun by a prohibited person, the "two charges must be tried separately since proof that defendant was a convicted felon (required in the trial of the latter charge) clearly tends to prejudice the jury in considering the former." State v. Ragland, 105 N.J. 189, 193 (1986).

The State acknowledges that count two should merge into count three because robbery with a deadly weapon implicates the Graves Act, N.J.S.A. 2C:43-6(c), -(d), in addition to NERA. Accordingly, count three should be the surviving robbery offense.

The State agrees the court should have merged the conspiracy conviction into the robbery convictions because the conspiracy did not have criminal objectives other than to commit robbery. See State v. Hardison, 99 N.J. 379, 380 (1985).

Ivan Hall died prior to trial.

(continued)

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A-2229-07T4

September 3, 2009