STATE OF NEW JERSEY v. LAMEEK PERRY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3768-07T43768-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAMEEK PERRY,

Defendant-Appellant.

_______________________________

 

Submitted September 30, 2009 - Decided

Before Judges Carchman and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

06-06-1195.

Yvonne Smith Segars, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, of

counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai, Senior

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant Lameek Perry was acquitted of first-degree attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3, and convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1). He was sentenced to an eight-year term of imprisonment subject to the eighty-five percent parole disqualifier, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He appeals, contending that the trial court erred in finding him competent to stand trial, charging flight to the jury, precluding use of the victim-witness' prior convictions, and imposing an excessive sentence. We disagree with all these contentions and affirm.

The victim of the stabbing, Scott Held, was the boyfriend and currently the fiancé of Stacy Trihey, whom defendant befriended in 2005 because of a mutual interest in fashion. According to the State's proofs, on April 6, 2006, at around 8:30 p.m., while Held was at Trihey's Bergenfield home, defendant called Trihey from a pay phone and in a rambling conversation, told her he wanted to come over. Trihey repeatedly told him not to visit and that Held was at her home. She then hung up the telephone, but within a few minutes, defendant called again. When the caller identification system displayed the same telephone number, Trihey just let the call go to her voicemail.

About one hour later, defendant appeared on the upstairs deck of Trihey's house and rang the kitchen doorbell. Held followed Trihey, who through the screen door, told defendant to go home. Defendant ignored the request and repeated that he wanted to talk to her. She again asked that he leave, at which point Held intervened and told defendant to get off the property. Defendant persisted, however, in talking to Trihey. When a final request by Trihey to leave did not succeed, Held stepped out onto the deck, and grabbed defendant by the shoulders to guide him down the stairs to the side yard. Defendant then punched Held with his right hand in the upper chest. The two men then wrestled across the deck, knocking around the garbage cans. Held picked up one of them and threw it at defendant, who then left the property, yelling at Held.

It was at this time when Held first realized he had been stabbed in the same area where defendant had punched him. He felt liquid dripping onto his stomach and when he looked down, he saw a wound on his chest. His shirt ripped and drenched with blood, Held ran into the kitchen and told Trihey to call 9-1-1. Police Officer Owen Rynn responded at around 10:20 p.m. and saw Held, shirtless, bleeding on the kitchen floor holding a blood-stained towel to his chest. Held reported he had been stabbed. Officer Rynn removed the bloodied towel and placed a trauma dressing on the wound to stop the bleeding.

An ambulance arrived within ten minutes and transported Held to Hackensack University Medical Center where a Trauma Code 55, signifying life-threatening injuries with extremely severe trauma, had been called in. En route, paramedics placed a needle in Held's chest to decompress his pneumothorax and keep his lung from collapsing. Upon arrival, Dr. John LoCurto observed that Held had a stab wound in the anterior chest wall, caused by a blade or knife that penetrated about one-and-one- half inches into his chest cavity. According to Dr. LoCurto, the wound created a substantial risk of death, that was averted by the paramedic's needle placed in Held's lung. Although Held eventually fully recovered, he was left with a permanent scar.

Defendant offered a different version of the incident. When Held was leading him toward the stairs, defendant lost his balance, turned around and hit Held in the chest with his forearm. Trying to avoid being pushed down the stairs, defendant engaged Held in a "little tussling match." Held was holding onto defendant's coat with one arm and had the other on defendant's left hand, which was holding a Pathmark bag. Defendant, who worked at Pathmark, had a box cutter in his right front pocket. When he pulled it out, he and Held were in the corner of the deck. Defendant fell over trash cans in that area and Held, who was holding onto him, fell onto the box cutter. Defendant crawled out from under Held, expecting Held to follow him, but he did not. Defendant ran for the stairs and fled. According to defendant, he did not know that Held was hurt until he was arrested the following day. He also denied ever intending to hurt Held, and denied swinging at him or hitting him in the chest.

Evidently crediting the State's proofs, the jury convicted defendant of aggravated assault. This appeal follows.

I

Defendant first contends that the trial court erred in failing to conduct a competency hearing and that his behavior during trial demonstrated his inability to participate in his defense. We find no merit to these arguments.

Some background is in order. Prior to the commencement of trial, the judge ordered defendant to undergo a competency evaluation at the Ann Klein Forensic Center (AKFC). Pursuant to court order, defendant was evaluated by psychiatrist, Dr. Jung-Hi Lee, who concluded on March 1, 2007, more than nine months before the trial began, that defendant was indeed competent to stand trial. Specifically, Dr. Lee found defendant was "oriented to time, place, and person[,]" had "sophisticated legal knowledge[,]" and understood the charges against him. Furthermore, defendant understood the role of the parties in the case, namely that of the prosecutor to prosecute defendant with evidence garnered from discovery and that of his lawyer to defend him. Defendant was also aware of his right not to testify as well as the mechanics and purpose of plea bargaining. Thus, Dr. Lee opined, to "a reasonable degree of medical certainty that [defendant] ha[d] the mental capacity to participate in an adequate presentation of his defense."

On December 12, 2007, after defense counsel unsuccessfully opposed the State's motion to exclude Held's prior convictions from evidence, and immediately after opening statements, defendant sought permission to have his attorney relieved as counsel. The trial court denied this request, finding the alternative of self-representation not to be an acceptable option, because it "would be a serious injustice."

At about the same time, defense counsel expressed some concern over defendant's competency to stand trial, stating "it's entirely possible that his condition has deteriorated," citing defendant's refusal to undergo additional evaluation and the fact that he "is particularly difficult in that he doesn't seem to want to listen to me." Finding no evidence to raise a "bona fide dispute" as to defendant's competency, or to question Dr. Lee's conclusion, the judge allowed the trial to commence. We discern no error in this determination.

Clearly, no person shall be tried, convicted or sentenced for the commission of an offense so long as he "lacks capacity to understand the proceedings against him or to assist in his own defense . . . ." N.J.S.A. 2C:4-4a. The test for competency requires a finding that:

(1) [T]he defendant has the mental capacity to appreciate his presence in relation to time, place and things; and

(2) That his elementary mental processes are such that he comprehends:

(a) That he is in a court of justice charged with a criminal offense;

(b) That there is a judge on the bench;

(c) That there is a prosecutor present who will try to convict him of a criminal charge;

(d) That he has a lawyer who will undertake to defend him against that charge;

(e) That he will be expected to tell to the best of his mental ability

the facts surrounding him at the time and place where the alleged violation was committed if he chooses to testify and understands the right not to testify;

(f) That there is or may be a jury present to pass upon evidence adduced as to guilt or innocence of such charge or, that if he should choose to enter into plea negotiations or to plead guilty, that he comprehend the consequences of a guilty plea and that he be able to knowingly, intelligently, and voluntarily waive those rights which are waived upon such entry of a guilty plea; and

(g) That he has the ability to participate in an adequate presentation of his defense.

[N.J.S.A. 2C:4-4b.]

The competency issue is determined by the court. N.J.S.A. 2C:4-6a. If a competency evaluation report is filed with the court, and its findings are not contested by any party, the court may then determine the competency issue based on such a report. Id. If, however, there is a "bona fide doubt" as to a defendant's competency, the court shall conduct a competency hearing, id.; State v. Purnell, 394 N.J. Super. 28, 47 (App. Div. 2007), at which the State bears the burden of establishing competency by a preponderance of the evidence. State v. Lambert, 275 N.J. Super. 125, 129 (App. Div. 1994). A "bona fide doubt" requires evidence of incompetency. State v. Spivey, 65 N.J. 21, 36 (1974). We, of course, accord substantial deference to the trial court's finding of competency. State v. M.J.K., 369 N.J. Super 532, 548 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005).

Here, Dr. Lee evaluated defendant on March 1, 2007, during which he questioned defendant on all of the competency factors listed in N.J.S.A. 2C:4-4b and rendered conclusions as to each one. In addition to the interview session, Dr. Lee had weekly contact with defendant as his treating clinical psychiatrist, was also able to observe him during scheduled treatment team meetings, to review his ward chart, and to further discuss his case with treatment team members and rehabilitation staff. Moreover, Dr. Lee evaluated defendant according to a standard competency skills assessment test that aims to determine "whether mental illness or retardation has affected [defendant's] mental status such that it would in some way interfere with [his] comprehension of the legal issues or roles of the parties in [defendant's] criminal trial or with [defendant's] ability to assist in [his] defense." Based thereon, Dr. Lee concluded not only that defendant had "the mental capacity to participate in an adequate presentation of his defense[,]" but that he also had "sophisticated legal knowledge."

In contrast to the certainty with which Dr. Lee rendered his expert opinion, defense counsel offered only a vague concern over the possibility that defendant's mental condition deteriorated since his last evaluation nine months ago. In support of his concern, counsel simply cited to his opinion that defendant was a difficult client who was not cooperating with a second evaluation, was obstreperous, and threatening. Yet the "'[m]ere suggestion' of incapacity is not sufficient." Spivey, supra, 65 N.J. at 36. Indeed, rambling while responding to counsel's questions, alone, is not sufficient grounds for instituting a competency proceeding. Id. at 36. In our view, the trial judge properly found counsel's stated concerns did not amount to a "bona fide dispute" with the conclusive findings of the expert here.

While defense attorneys may be well-positioned to assess whether their clients are competent to stand trial, a trial court is not bound by their claims of client incapacity. Purnell, supra, 394 N.J. Super. at 48-49. The reason being that, such claims, "even if made in good faith, might be unfounded or unpersuasive[,]" ibid., as we find them to be here. Also, while the time elapsed between the original competency evaluation and the commencement of trial is an important consideration, id. at 48, 50, there is no competent proof in the record that defendant's mental state deteriorated or had changed in the nine month interregnum. And although we noted in Purnell that a "lack of cooperation may well be a product of mental incompetence," id. at 50, we said so in the context of a defendant's refusal to answer questions in his original and only evaluation conduct. Here, defendant had fully cooperated with Dr. Lee in the March 2007 evaluation. In any event, any lack of cooperation, while probative, is not definitive proof of incompetency. Consequently, we are satisfied that when counsel voiced his concern over defendant's competency at the outset of trial, there was no bona fide doubt much less contrary competent proof calling into question the expert findings of Dr. Lee.

Of course, the duty to ensure defendant is competent to stand trial is an ongoing one. Spivey, supra, 65 N.J. at 40, 41. On this score, defendant, for the first time on appeal, argues that his behavior during trial should have provoked a further court inquiry into his competency. Our review of the record compels a different conclusion. Unlike Purnell, where the court made no inquiry of the defendant as to his understanding of the proceedings against him, supra, 394 N.J. Super. at 50-51, here the trial judge directly addressed defendant, questioning him extensively concerning the specifically enumerated factors of N.J.S.A. 2C:4-4b. Defendant, in turn, was coherent, oriented, and responsive in answering the questions put to him. Moreover, after being informed of the insanity defense and his right not to testify, defendant testified in his defense, explaining in detail his version of the incident and how Held "accidentally" fell on the box cutter. Equally significant, after initially raising the issue at the outset of trial, defense counsel never again questioned defendant's competency despite defendant's so-called erratic behavior during the rest of the trial. Consequently, we discern no basis to disturb the trial judge's competency determination.

II

Defendant next contends that the trial court erred by charging the jury on flight because the evidence simply demonstrated defendant's departure from the scene. We disagree.

Overruling defendant's objection, the judge charged the jury on flight. The instruction, however, made clear that defendant denied flight; that whether defendant fled was a factual determination for the jury; that mere departure from the scene of a crime was not flight; that flight could be considered as evidence of consciousness of guilt only if the jury determined that defendant's purpose in leaving was to evade accusation or arrest for the charges in the indictment; and that if the jury found defendant's explanation for leaving credible, then the jury should not draw any inferences about defendant's leaving the scene.

A flight instruction is appropriate where there are "'circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt.'" State v. Ingram, 196 N.J. 23, 46 (2008) (quoting State v. Mann, 132 N.J. 410, 418-19 (1993)). Here, there is evidence from which a reasonable juror could infer defendant departed a crime scene conscious of his guilt and to avoid apprehension. According to the State's proofs, defendant, after refusing to leave despite repeated requests, left Trihey's house only after deliberately attacking Held with a box cutter. To be sure, there was other evidence suggesting defendant crawled out from under Held and left not realizing Held had accidentally fallen onto the box cutter and injured himself. However, the court properly left the choice of versions to the jury, who was specifically and correctly instructed that it could find consciousness of guilt from defendant's flight only if it determined that defendant's departure was to avoid being implicated in the crime. We perceive no error in the flight charge.

III

Defendant next argues that the court erred in excluding the victim-witness's prior convictions for impeachment purposes. This argument lacks merit.

Prior to opening arguments, the State moved to exclude Held's 1996 conviction in New York State for attempted possession of burglary tools, a Class B misdemeanor, and disorderly conduct by creating a hazardous condition, for which he was sentenced on the former to probation and fined $200, and on the latter, to a conditional discharge. In excluding this evidence, the judge reasoned that the offenses for which Held was arrested were too remote, occurring on the same day twelve years ago when he was nineteen years old.

Witnesses can be impeached with prior convictions for crimes. N.J.S.A. 2A:81-12; N.J.R.E. 609. Such evidence, however, "may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence." N.J.R.E. 403. The decision is a discretionary one, id., which we do not disturb absent a clear abuse of discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). We perceive none here.

There is yet another reason, not advanced below, supporting exclusion. As noted, a witness may be impeached with prior convictions for crimes. N.J.S.A. 2A:81-12; N.J.R.E. 609. A prior conviction in another jurisdiction constitutes a prior conviction of a crime "if a sentence of imprisonment in excess of 6 months [is] authorized under the law of the other jurisdiction." N.J.S.A. 2C:44-4c. Here, Held's prior convictions were for offenses that do not satisfy the statutory definition of a "crime". Specifically, under New York law, the authorized sentence for a Class B misdemeanor (i.e. attempted possession of burglary tools) is no more than three months. N.Y. Penal Law 70.15.4. New York law also classifies disorderly conduct, N.Y. Penal Law 240.20, as a violation, with a maximum potential sentence of 15 days. Consequently, since neither of Held's prior convictions were for crimes, evidence of such was properly excluded.

IV

Lastly, defendant contends his sentence is excessive. We disagree.

In sentencing defendant, the judge discerned no mitigating circumstances and, in contrast, found as aggravating factors the nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1); the seriousness of harm to the victim, N.J.S.A. 2C:44-1a(2); the risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3); defendant's prior record, N.J.S.A. 2C:44-1a(6); and the need to deter, N.J.S.A. 2C:44-1a(9). Defendant contends there was no basis for finding the "seriousness of harm" because the crime was not committed in an "'especially heinous, cruel or depraved'" manner. State v. Jarbath, 114 N.J. 394, 404 (1989) (quoting N.J.S.A. 2C:44-1a(1)). But even if we disregard this particular aggravating circumstance, the sheer weight of the remaining ones all well-founded in the record support the sentence imposed. In contrast, we find that the mitigating factors urged by defendant that he did not contemplate that his conduct would cause or threaten serious harm, N.J.S.A. 2C:44-1b(1), that he acted under a strong provocation, N.J.S.A. 2C:44-1b(3), that there were substantial grounds tending to excuse his conduct, N.J.S.A. 2C:44-1b(4), and that the victim induced or facilitated its commission, N.J.S.A. 2C:44-1b(5) lack any basis in the record. Consequently, there is no warrant for interference with the sentence imposed.

Affirmed.

Appeals are taken from decisions and not the reasons given for those decisions. Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001); Gazzillo v. Grieb, 398 N.J. Super. 259, 265 (App. Div.), certif. denied, 195 N.J. 524 (2008).

(continued)

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A-3768-07T4

October 26, 2009