STATE OF NEW JERSEY v. CLARENCE YORK, JR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4680-05T44680-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CLARENCE YORK, JR.,

Defendant-Appellant.

________________________________

 

Argued: March 25, 2009 - Decided:

Before Judges Fisher, C.L. Miniman and King.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-12-1379.

Brian D. Driscoll, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Driscoll, of counsel and on the brief).

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Lisa M. Dudzinski, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction for first-degree murder, N.J.S.A. 2C:11-3 (count one); third-degree pos session of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d (count two); and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count three), imposing an aggregate sen tence of sixty years subject to the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). We affirm in all respects.

I.

On July 19, 2003, at 10:48 p.m., Rah way Police Officers Fer rer and Seiden were dispatched to inves tigate a report of a dispute at Capobianco Plaza, a public hous ing development. Fer rer and Seiden proceeded to an apartment in Capobianco Plaza, where they met with Stacey York, who was nineteen years old at the time, and her fifteen-year-old sister, A.T., who had called in the dispute. The young women lived with their mother, Carla T., sis ters L.T. and M.T., and brother E.T. Stacey and A.T. told Fer rer that K.W. and some other "kids" were banging on their door and challenging them to a fight. K.W. was thirteen years old and lived with her mother, Traniece, in Capobianco Plaza directly across the street from Carla and her family.

Ferrer then met with K.W., who claimed Carla's daugh ters had started the argument and the girls in the two families had been fighting since November 2002. Ferrer and Seiden advised both parties of their rights and left without filing charges.

Meanwhile, Stacey called Carla, who was attending a family reunion in Newark, and told her about the incident with K.W. Carla and her husband, Stacy T., who lived in East Orange, drove Carla's white Ford Explorer to a housing project in New ark, where they picked up defendant, Anthony Jordan, and Jamal Peoples. Defendant was Carla's brother and Jordan's uncle; Peo ples was Jordan's cousin. Defendant was wearing a white shirt and gray or white pants.

Defendant, Jordan, and Peoples sat in the backseat of the Explorer. Jordan heard defendant say, "Somebody gonna get it"; he was "tired of this shit." He also heard defendant say he had "his shank and he's ready to shank somebody." Carla and Stacy also heard defendant mention his knife during the ride to Rah way. Carla saw "what looked like a pocketknife." Stacy heard defendant say "[n]o one better f**k with my nieces and nephews, and if someone does I'm going to f**k them up. If I got to shank someone I will. I don't give a f**k."

At approximately 11:16 p.m., the Explorer pulled into the Capobianco Plaza parking lot just as Ferrer was leaving. Carla and Stacy exited the vehicle and walked to Carla's apart ment. A few minutes later, the other three men, who had left the car for a bathroom stop, walked into Capobianco Plaza.

K.W., who was outside by a fence near Carla's apartment, heard Carla and Stacy call their daughters A.T., L.T., and Stacey, downstairs and tell them to "kill that bitch," while point ing at her. Monique, who was Traniece's sister, also heard Stacy tell A.T. to "come outside and kick [K.W.'s] ass." Carla, however, said neighbors attacked her as soon as she left the Explorer, and Stacy went to tell the girls to help "mommy." Stacy testified "[a]ll hell broke loose" after they left the car and he yelled for the girls to come downstairs because people were jumping on their mother.

At that point, A.T. jumped on K.W., knocked her down, and choked her. Other girls then joined in the fight. Monique and Carla began fight ing, and later Monique saw Carla fighting Traniece. According to Stacy, the fighting involved only the women and girls. Jameel Swint, who lived across the street from Capobianco Plaza and was "like a brother" to K.W., went to help her. After Swint pulled A.T. off her, K.W. said a man placed his right foot on her chest. She testified in court the man resembled defendant, except defendant looked older and had changed during the inter vening three years, "[l]ike his facial hair and stuff, or like his weight." Defendant told Swint to mind his business. Swint replied, "that is my business. That's my little sister." K.W. saw defendant "pull his hands from behind" and saw "a glare, like that, a metal piece, and [it] went right into [Swint's] stomach."

Manuel Johnson, who was at Capobianco Plaza that night vis iting his girlfriend, testified he saw an individual wear ing a white shirt and white pants, with his hair in "dreads," come out of a building and stab Swint. Johnson identified defendant in court as the per son he saw stab Swint. Jordan heard Swint say, "You stabbed me" and "saw blood on his shirt, around his chest, and my Uncle [Clarence] by him with a knife in his hand." Stacey, on the other hand, saw defendant with a knife, but did not see him stab anyone.

Shantae Hill, who testified for the defense, saw a man with a knife that night and described him as "180, 195 pounds," wear ing a white T-shirt with his hair in "short dreads" and a head band. Although she told police his face would "always stick in my mind," she was unable to identify him in two police photo graphic arrays or in court. On cross-examination, however, Hill acknowledged she was probably "10, 12, 15 feet" away from him at the scene and did not get a look at his full face during the confusion.

Stacy saw defendant "fist fighting" with another man and two minutes later he heard Jordan yell, "Hey pop, we gotta go. Okay?" Defendant then said, "I shanked the mother f**ker. We got to hurry up and get the f**k out of here." Jordan asked Stacy for the keys to the Explorer, drove defendant and Peoples to Newark, and dropped the car at a commercial garage owned by Clarence York, Sr., who was defendant's father and Jor dan's grandfather. Jordan told his grandfather about the fight and gave him the car keys.

After the stabbing, K.W. got up, saw "a lot of people around," and noticed a man whom she later identified in a photo array as Jordan standing nearby. She saw Jordan strike her mother Traniece with a metal baseball bat, after which someone else picked up the bat and hit her in the head. K.W. suffered a fractured skull and a laceration, which required stitches. While Monique was waiting for the ambulance to arrive, she saw a body lying on the ground, and recognized Swint with blood on his white T-shirt. She noticed the Explorer was gone.

At approximately 11:20 p.m., Ferrer received a second dis patch to return to Capobianco Plaza to investigate a distur bance. Upon arrival, he saw a crowd of approximately twenty-five people dispersing over the parking lot and into all areas of the apartment complex. Seiden was there, along with three or four other patrol cars. As Ferrer got out of his car, people ran towards him saying someone was hurt. He saw K.W. near her apartment, crying and bleeding from a gash on her forehead. Seiden stayed with K.W., and Ferrer went to investigate a report of a stabbing. Ferrer found a black male in his early twenties lying motionless on the ground with "a lot of blood on his shirt, and also on the grass underneath him." An ambulance transported Swint to the hospital, where he died. An autopsy determined that his death resulted from a stab wound to the chest and abdomen.

After receiving information about a vehicle of interest, Fer rer sent a radio dispatch to headquarters regarding a white Explorer with New Jersey license plate NWN-39B registered to Carla. Ferrer searched the area but did not find any weapon. The police also reviewed a video surveillance of the area, which showed the Explorer entering and leaving the Capobianco Plaza parking lot at the relevant time.

That evening, Sergeant Marcantonio was the on-call detec tive in the homicide unit of the Union County Prosecutor's Office when it received notification from the Rahway Police Department about the homicide. Marcantonio arrived at Capobi anco Plaza at approximately 12:30 a.m. on the morning of July 20, 2003, where he met Rahway Detective Stefanick. Marcantonio proceeded to interview witnesses at the scene.

The police arrested Stacy at the scene and later charged him with obstruction of justice. After his release the next morning, Stacy and Carla met defendant in Newark. Carla thought defendant was "shocked" and "looked like he was going to faint and throw up" after Stacy told him someone had died. Stacy related defendant said, "Oh shit, I didn't mean to do that, but they came at us." All three talked about what they would say to the police and agreed to tell them defendant, Jordan, and Peoples were never at Capobianco Plaza that night.

At about 3:00 a.m. on July 20, 2003, Bernard Sasser and Anguel Knight asked Michael York for a ride home. York, who was defendant's nephew, got the Explorer from his grandfather's garage. At approximately 4:30 a.m., Officer Cock inos of the Elizabeth Police Department was operating a marked patrol unit when he received a radio transmission to look for a white Explorer heading south into Elizabeth from New ark. Cockinos observed the vehicle, with no occupants, parked in front of Hol lywood Chicken, a fast-food restaurant. A black male, later identified as Knight, walked out of the restaurant towards the Explorer where Cockinos and his partner, Officer Leonard, detained him. A few seconds later, Sasser and York left the restaurant and were detained. The men were taken to Rahway police headquarters where Mar cantonio and Stefanick took their statements. Knight said he heard defendant and Jordan talking about the fight when he and York picked up the Explorer, and heard defendant say he stabbed a "guy" and hoped he did not die.

Also on July 20, 2003, Stacy gave his first statement at the Rahway Police Department. Two days later, Carla gave her first statement to the police. They both told the police and the prosecutor's detectives that defendant, Jordan, and Peoples were not in Rahway on the night of the fight.

On July 22, 2003, Jordan and York, Sr., went to the Roselle Police Department where Jordan offered to speak with officers. Rahway police officers drove Jordan from Roselle to the Prosecu tor's Office where he met with Marcantonio and Stefanick. Before taking his statement, the detectives talked with him for a "little over an hour." Although Marcantonio and Stefanick did not consider Jordan a suspect, they advised him of his Miranda rights prior to the interview because of his potential involve ment. After giving his statement, Jordan reviewed and signed it. Also on July 22, 2003, Peoples gave a statement at the prosecutor's office.

On July 24, 2003, Marcantonio and Stefanick reinterviewed Carla and Stacy after telling them they had new information about the case, taking second statements from each of them. A secretary employed by the prosecutor's office was present to type their statements.

After admitting she had lied in her first statement, Carla described the car ride from Newark to Rahway with defen dant, Jordan, and Peoples. She also described the fighting at Capobi anco Plaza and her subsequent meeting with defendant. Stacy also admitted he did not initially tell the com plete truth because he was trying to protect family members, including defendant, Jordan, and Peoples. In his second statement, Stacy essentially corroborated his wife's revised version of events. Defendant was arrested on August 8, 2003.

On January 4, 2006, the judge entered a material witness order under the Material Witness Statute, N.J.S.A. 2C:104-3, and Rule 3:26-3(c) directing Carla to appear at a hearing. At the hearing on January 9, 2006, the judge found probable cause to believe she was a material witness and ordered her to appear for trial. Between January 11 and 20, 2006, the case was tried before a judge and jury.

At trial, several witnesses gave testimony that was incon sistent with their prior written statements. For example, Jor dan denied hearing defendant say anything in the backseat of the Explorer during the trip to Rahway. He also did not remember seeing defendant standing near the victim during the fight. Instead, he testified he only saw his aunt and cousins fighting.

Carla also recanted portions of her second statement, claim ing she did not hear defendant talking in the Explorer about a knife and did not see one in his hand. She denied see ing defen dant during the fight, or getting a call from him later that night asking if someone had died.

While Stacy recalled conversations in the car, he similarly testified at trial he never heard defendant mention a knife or say he was going to "shank someone." He also denied seeing any fighting by defendant or hearing any admission of guilt. During cross-examination, Stacy admitted he did not want to testify.

Unlike Jordan, Carla, and Stacy, Knight did not deny his prior statements but, instead, said he had been drinking and taking drugs and did not know if he was in the "right state of mind" when he gave his statement. Knight did not recall telling detectives he overheard defendant and Jordan talk about a fight or defendant say he stabbed "a guy" and hoped the individual did not die. Defendant did not testify.

On January 20, 2006, the jury returned a verdict convicting defendant on all three counts. At sentencing on March 17, 2006, the judge merged count three (unlawful possession) into count two (possession for an unlawful purpose). The judge then sen tenced defendant as follows: on count one, to sixty years in state prison with a thirty-year period of parole ineligibility, subject an eighty-five percent NERA disqualifier; and on count two, to five years in prison with a thirty-month period of parole ineli gibility. The judge ordered the sentences to run concurrently, and imposed various fines and penalties. This appeal followed.

Defendant raises the following issues on appeal:

POINT I - DURING JURY SELECTION, PREJUDICIAL INFORMATION ABOUT DEFENDANT WAS REVEALED TO THE JUROR PANEL, DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

POINT II - THE COURT ERRED IN DENYING DEFEN DANT'S MOTION TO CONDUCT A COMPETENCY HEAR ING ON THE STATE'S WITNESS, CARLA [T.], THUS DENYING DEFENDANT HIS RIGHT TO A FAIR TRIAL.

POINT III - THE COURT ERRED IN ADMITTING SEVERAL OF THE STATE'S WITNESSES' PRIOR WRITTEN STATEMENTS INTO EVIDENCE. (RAISED IN PART BELOW)

A. CARLA [T.]

B. STACY [T.]

C. ANTHONY JORDAN

D. ANGUEL KNIGHT

POINT IV - THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (NOT RAISED BELOW)

POINT V - THE SENTENCE IMPOSED IS ILLEGAL AND IN VIOLATION OF BLAKELY v. WASHINGTON ET. AL. (NOT RAISED BELOW)

POINT VI - THE SENTENCE IMPOSED UPON DEFENDANT WAS EXCESSIVE. (NOT RAISED BELOW)

POINT VII - THE COURT ERRED IN REFUSING TO MERGE COUNT TWO WITH COUNT ONE.

POINT VIII - THE JURY CHARGE UNFAIRLY OMIT TED ANY REFERENCE TO THE DEFENDANT'S WITNESS AND DENIED HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

II.

Defendant contends the judge erred by denying his motion to conduct a competency hearing with respect to Carla. He ini tially claimed Carla did not receive a court-ordered medical evaluation at Trinitas Hospital to determine if she was a sui cide risk. Rather, he asserted Carla was only medicated over night at the hospital and discharged in the morning. Defendant argues Carla was inca pable of providing competent testimony because she was under the influence of three medications at the time of trial.

After all appellate briefs had been filed, defendant made a motion to supplement the record to include the January 12, 2006, report from Benjamin Chu, M.D., who was affiliated with Trinitas Hospital. The report was addressed to the Union County Prosecutors Office and stated that Carla was not "mentally capable of testifying in court without risking a total nervous breakdown." Defendant also sought to supplement the record with an affidavit from defendant's trial counsel averring she was never furnished with this report prior to Carla's testimony on January 17, 2006. After oral argument, we granted defendant's motion and considered this evidence.

At Carla's first appearance under the judge's material wit ness order on January 9, 2006, the judge found there was prob able cause to believe she was a material witness based on a cer tification by the State she was in an automobile when defendant made certain inculpatory statements and was also pre sent during the melee that occurred at Capobianco Plaza in July 2003. The judge further found that, without some restrictions, Carla would not appear to testify on behalf of the State against defendant, who was her brother. The judge was also concerned for Carla's health, after considering her husband's statements to the prose cutor about her prior suicide attempt and Carla's admission she previously was diag nosed with depression and had taken Risperdal and Zoloft . The judge, therefore, ordered Carla to remain in the custody of the prosecutor's office, which he directed to take her "with all deliberate speed to the nearest mental health institution, where she can be evaluated with respect to those mental health issues, and [determine] whether she might be suicidal at that point in time."

Carla was admitted that day to Trinitas Hospital, given three anti-depressant medications, and discharged the next morn ing to the prosecutor's office. At the follow-up hearing on January 10, 2006, the State advised the judge the hospital had issued a brief discharge summary, stating Carla was medi cated with Xanax , Risperdal , and Zoloft , and was referred to the Out patient Unit. The judge then found, by clear and convincing evidence, that Carla was a material witness in the case and some restrictions were necessary to ensure her appearance at trial. Specifically, he released Carla to the custody of her husband as long as she reported on a daily basis to Trinitas Out patient Clinic and took the prescribed medicines. Carla told the judge she understood the conditions of her release and acknowledged the judge would issue a bench warrant for her arrest if she did not appear in court. When asked if the judge needed to place any other restrictions on Carla, the assistant prosecutor and defense counsel said, "I don't believe so," and "I don't think so," respectively.

One week later, Carla appeared in court to testify at trial. She acknowledged undergoing medical treatment for depression and suicide and indicated she understood what it meant to tell the truth. Without having her recollection refreshed, Carla said her sister lived in Rahway and, in July 2003, she also lived there, but did not know where her father lived. She remembered the names of her husband and chil dren, the fact that her family owned a white Explorer with license plate NWN-39B, and the constant harassment of her chil dren by the Williams family. Carla also recalled attending a family reunion in Newark on the night of July 19, 2003, and receiving a telephone call after it ended. While answering questions, she said, "I'm tired."

When Carla could not recall the date she moved into Capobi anco Plaza, defense counsel objected and at sidebar questioned her competency to testify. Defense counsel observed Carla appeared confused and "under the influence of some type of nar cotics or some type of drug or medication." The judge overruled the objection, finding Carla had "been responsive to the extent that . . . she's able to remember." Defense counsel then asked the judge to voir dire Carla outside the jury's presence to determine her competency. The judge denied the request.

After the State resumed its direct examination, Carla acknowledged she moved into Capobianco Plaza in November 2002. Shortly afterwards, Carla said the medicine made her "very sleepy." When asked if the medicine affected her ability to tell the truth, she replied, "It's hard to remember." After further questioning, the judge excused the jury for a lunch break and conducted a Gross hearing outside its presence.

At the Gross hearing, Carla could not remember several of the questions and answers in her two prior statements. When the judge asked if she understood "the process," Carla replied, "Not really. I everything is getting confusing to me. I hear what he's saying, but I can't register it up here like I want to. Oh, God. My head is so heavy from this medication. . . . And my eyes is [sic] heavy, and I feel very sleepy." Defense counsel renewed her objection, which the judge noted.

At the conclusion of the Gross hearing, the State resumed its direct examination during which Carla testified she did not remember her first sworn statement. On cross-examination, how ever, Carla explained she had lied in her first state ment and the detectives did not include everything she said in the second statement:

They didn't want to hear it. Basically they were telling me we know what's going on. We talked to [Jordan], and we talked to [Peoples]. And we we are going to haul your ass to jail. That stuck with me, they were going to haul my ass to jail and kids taken [sic] from me. Who's going to take care of our 5 kids?

New Jersey's Rules of Evidence set forth the standard for deter mining the competency of a witness:

Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concern ing the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.

[N.J.R.E. 601.]

Thus, testimonial competence is presumed. State v. Krivac ska, 341 N.J. Super. 1, 36 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).

"Disqualification 'is the exception to the general rule of witness com petency.'" Ibid. (quoting State v. Scherzer, 301 N.J. Super. 363, 463 (App. Div.), certif. denied, 151 N.J. 466 (1997)). The determi nation of whether a person is competent to testify lies within the trial judge's discretion, which is entitled to great deference. Ibid.; State v. Moya, 329 N.J. Super. 499, 506 (App. Div.), certif. denied, 165 N.J. 529 (2000). In reviewing the trial judge's determination, however, an appellate court "need not limit its view to the responses given by the witness during the voir dire examination; instead, it can consider the entire record including the testimony in fact given by the witness under oath in order to arrive at its decision." State in re R.R., 79 N.J. 97, 113 (1979).

A witness must be able to understand questions, frame and express intelligent answers, and understand the difference between right and wrong. State v. Davis, 229 N.J. Super. 66, 77-78 (App. Div. 1988). "The same rules apply in determining the com petency of individuals afflicted by mental retardation or mental illness." Krivacska, supra, 341 N.J. Super. at 36. A person, therefore, does not have to be "entirely sound mentally" to qualify as a witness, provided the person has "sufficient capac ity to observe, recollect and communicate with respect to the matters about which he is called to testify, and to understand the nature and obligations of an oath." State v. Butler, 27 N.J. 560, 602 (1958).

Defendant contends the evaluation by Trinitas Hospital was inadequate to demonstrate Carla's competency to testify and a hearing should have been conducted. In support of his argument, defendant relies solely on In re Subpoena Issued to L.Q., 227 N.J. Super. 41 (App. Div. 1988). That case, which involved a motion to quash a subpoena, has no application here. We were only con cerned there with the issue of whether a competent witness could be excused from testifying based on her "emotional and mental well-being" because her parents were concerned she might commit suicide if she was forced to testify against the teacher who sexually assaulted her. Id. at 49. Although L.Q. might have been relevant to an application brought by Carla to be excused from testifying, which might have been supported by the report from Dr. Chu, neither is relevant to the issue of whether Carla was competent to testify. The proposition that Carla was incompetent finds no support in the record here.

Although Carla said she was sleepy during her testimony, she continued to answer questions on the witness stand through recross-examination. For example, after stating on cross-exami nation she was heavily medicated, she proceeded to answer ques tions about what she saw and heard in the Explorer and at the scene of the fight. Carla also indicated early in her testimony she understood what it meant to tell the truth and, in fact, appeared to understand questions and formulate appropriate answers to many of them. Her refusal to testify truthfully at times can reasonably be attributed to her discomfiture with tes tifying as a State's witness against her brother. There is no basis upon which to disturb the trial judge's exercise of dis cretion in compelling Carla to testify and no competency hearing was required.

III.

Defendant contends the judge erred by admitting into evi dence the prior inconsistent statements of Carla, Stacy, Jordan, and Knight as hearsay exceptions under Rule 803(a). A prior statement of a wit ness is not excluded by the hearsay rule if it would have been admissible if made by the declarant while testifying and the statement is inconsistent with the wit ness's testimony at trial. N.J.R.E. 803(a)(1). If offered by the party calling the witness, the statement is admissible only if it is contained in a sound-recording or in a writing made and signed by the witness. Ibid. A statement is deemed inconsistent if the witness feigns a lack of recollection or recants his or her testimony. State v. Sav age, 172 N.J. 374, 404-05 (2002); State v. Soto, 340 N.J. Super. 47, 66 (App. Div.), certif. denied, 170 N.J. 209 (2001), over ruled in part on other grounds by State v. Dalziel, 182 N.J. 494 (2005).

In cases where the parties dispute the admissibility of a prior inconsistent statement, a court should hold a hearing to establish its reliability by a preponderance of the evidence. Gross, supra, 121 N.J. at 7, 15-17 (affirming remand for a hear ing under what is now Rule 104 to determine reliability of wit ness's statement as a condition for its admission). The hearing should be conducted out side the jury's presence. Gross, supra, 216 N.J. Super. at 110.

In Gross, supra, 121 N.J. at 10, the Court quoted with approval the fif teen-factor test we formulated for determining the admissibility of a prior inconsistent statement. Ibid. (quoting Gross, supra, 216 N.J. Super. at 109-10). The Court explained that generally, "in-court cross-examination of a wit ness can be relied on to explore and to expose most, if not all, relevant circumstances surrounding the prior inconsistent state ment." Id. at 13.

A prior inconsistent statement that is gen erally corroborated by independent evidence may comprise the bulk of the substantive evidence of the crime. State v. Mancine, 124 N.J. 232, 252-53 (1991). When a witness disavows at trial his or her statement to the police, it is admissible under Rule 803(a)(1) to the extent it does not otherwise contain inadmissible evidence. Savage, supra, 172 N.J. at 405 n.1. When such evidence is admitted, "the jury could be instructed that the witness'[s] prior inconsistent state ment under police interrogation must be carefully scrutinized and assessed in light of all the surrounding circumstances, including his or her interest in giving the statement at that time." Gross, supra, 121 N.J. at 17.

Here, the prior statements of Carla, Stacy, Jordan, and Knight were inconsistent with their trial testimony. When Carla testified she could not recall the two statements she gave to the police, the State requested, and the judge conducted, a Gross hearing. After finding the State's witness, Marcantonio, was credible, the judge found the second statement was reliable and admitted it subject to redaction of inadmissible included hearsay and permitted Marcantonio to read the unredacted portions to the jury.

Defendant, without citing any supporting case law, contends the judge erred in this latter respect, urging that only the inconsistent portions should have been admitted into evidence. We are not persuaded by this argument. The judge specifically instructed the jury regarding the manner in which they might consider the unredacted portion of the statement. Moreover, the judge read to the jury the fifteen Gross factors, and issued a further cautionary instruction:

[A] witness's prior inconsistent statement, under police interrogation, must be care fully examined and assessed in light of all the surrounding circumstances, including his or her interest in giving the statement at the time. If you decide that the statement is reliable, then you may consider it for its truth and weigh it along with all of the other evidence in the case. However, if you decide that the statement is not reliable then you may not consider it for any purpose.

The judge correctly found Carla's second statement was admis sible as substantive evidence because the second statement was in direct opposition to her trial testimony regarding her brother's culpability. Moreover, the judge properly admitted the statement, after redacting the inadmissible hearsay, and gave appropriate instructions to the jury. N.J.R.E. 803(a)(1); Savage, supra, 172 N.J. at 405 n.1; Gross, supra, 121 N.J. at 17. We find no error or abuse of discretion in the admission of the entire redacted statement because it provided context to the inconsistent statements.

With respect to Stacy, defendant contends the judge erred by holding a Gross hear ing after the State had already ques tioned Stacy in front of the jury about the statement he gave to the police and makes the same argument he presented respecting Carla's prior inconsistent statements to police. The judge conditionally admitted Stacy's second statement before hold ing a Gross hearing based on the State's representation it was taken under the same circumstances as Carla's. The judge then allowed the State to cross-examine Stacy on any inconsis tencies, subject to holding the remaining portion of the Gross hearing outside the jury's presence. Citing Soto, the judge recognized it was preferable, but not necessary, to hold the hearing before a statement was admitted into evidence. The State then questioned Stacy on his statement in front of the jury.

The trial court in Soto held a Gross hearing after the jury heard the prior inconsistent statements but before it instructed the jury on how to use the testimony. 340 N.J. Super. at 68. After the hearing, the court found the statements were supported by corroborating evidence and were reliable by clear and con vincing evidence. Id. at 69. We were satisfied the trial judge's fact-findings were supported by sufficient credible evi dence in the record and deferred to his credibility determina tions. Ibid. While noting it would have been preferable for the Gross hearing to have taken place prior to the admission of the statements, we concluded the results were the same. Ibid.

Thus, we have previously sanctioned what occurred here, which was particularly appropriate in light of the similarity of claims made by Carla and Stacy about the conduct of police and the similarity of their prior inconsistent statements. We find no error in the judge's exercise of discretion here. In light of our ruling respecting the admission of Carla's prior inconsistent statements, we need not separately address defen dant's contention the judge erred by admitting Jordan's "whole statement" into evidence.

Finally, defendant contends the judge erred by admitting Knight's statement because: (1) the judge initially denied a Gross hearing and then held one in front of the jury; (2) the state ment was not inconsistent with his trial testimony; and (3) Knight was a suspect in the case. After Knight testified in court he could not recall some of the answers he had given in his statement, the State asked for a Gross hearing. Defense coun sel, however, objected, saying it was "a back door way [of] trying to get in hearsay information." The judge condi tionally admitted the inconsistent portions.

The State subsequently requested a Gross hearing to admit the "whole" statement. Ultimately, defense counsel waived the requirement for a Gross hearing when she stated:

At this point I don't see the purpose of doing it three times. I know what is going to happen. We already know [Marcantonio]'s going to get up there and say the same things, it's going to be linked and allowed, and he will read the whole thing all over again.

Even if defendant had not waived a Gross hearing at that point, we would find no error or abuse of discretion in the admission of Knight's statement. In sum, the judge properly admitted the prior inconsistent statements of Carla, Stacy, Jordan and Knight.

IV.

The issues raised by defendant in Point IV respecting the weight of the evidence, Point I respecting jury selection, and Point VIII respecting the jury charge were not raised below. After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that these issues "are without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We find no error "clearly capable of producing an unjust result." R. 2:10-2. We are quite satisfied a "'trier of fact could rationally have found beyond a rea sonable doubt that the essen tial elements of the crime were pre sent.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting State v. Carter, 91 N.J. 86, 96 (1982)), certif. denied, 134 N.J. 476 (1993).

V.

A.

Defendant contends the judge erred by relying on aggravat ing factors other than his prior convictions to impose a sentence of sixty years for murder, which he argues violated his constitutional rights as established in Blakely v. Washing ton, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and State v. Natale, 184 N.J. 458 (2005). Specifically, he argues his sentence should be vacated because the judge improperly relied on aggravating factors not reflected in the jury verdict or admitted by defendant, and sentenced him to a term above the "statutory maximum."

Blakely and Natale have no application to the sentence imposed for defendant's murder conviction. N.J.S.A. 2C:11-3b(1) provides that a person convicted of first-degree murder shall be sentenced to a term of thirty years without parole eli gibility, or to a term between thirty years and life of which the person must serve thirty years before being eligible for parole. "[T]he standard range for murder is a sentence between thirty years and life imprisonment." State v. Abdullah, 184 N.J. 497, 507 (2005). A trial court has discretion to impose a sentence within this statutory range based on its consideration of applicable sentencing factors. Id. at 508.

Moreover, murder has always been exempt from the presumptive-term provisions of our sentencing scheme. N.J.S.A. 2C:44-1f(1); Abdullah, supra, 184 N.J. at 507. Thus, the judge had discre tion to sentence defendant to a term from thirty years to life based upon the applicable sentencing factors. The con cerns addressed by Blakely and Natale respecting presumptive terms simply do not exist here. See Abdullah, supra, 184 N.J. at 507 ("Unlike almost every crime enumerated in the Code, murder has no presumptive term."). Defendant's sentence was not illegal.

B.

Defendant also contends his sentence was excessive on sev eral grounds. He argues the judge abused his discretion because: (1) the crime was committed in the "heat of passion"; (2) the aggravating factors were inappropriate because none of his prior convictions were graded above the third degree and three of them involved controlled dangerous substances; and (3) the sentence was significantly longer than the recommended sentence in the State's plea offer. We find no merit in any of these contentions.

The judge gave a jury charge on passion/provocation man slaughter, which the jury rejected. Thus, there is no merit to defendant's contention that the crime was committed in the "heat of pas sion." Defendant's claim that his sentence was disproportionate to the State's plea offer is also baseless for the simple reason that a rejected plea offer may not be considered as a factor in determining whether a sentence is excessive. State v. Pennington, 154 N.J. 344, 363 (1998). "To permit such an attack would unfairly undermine plea negotiations, an essential tool to the administration of criminal justice." Ibid.

C.

This leaves defendant's claims that the aggravating factors were inappropriate and the judge failed to consider the real-time consequences of NERA in fashioning his sentence. Specifi cally, defendant argues it was excessive to impose a sentence under which he will be eighty-four years old before the NERA portion is complete, and ninety years old before the sixty-year term has been served.

We may not substitute our judgment for that of the trial judge when reviewing a sentencing decision. State v. Evers, 175 N.J. 355, 386 (2003). We may, however, review and modify a sen tence if the trial judge's determination was "clearly mistaken." Ibid. We review a sentence to determine if: (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found below were based on competent credible evidence in the record; and (3) the application of the guidelines to the facts makes the sentence clearly unreasonable so as to shock the judicial conscience. Dalziel, supra, 182 N.J. at 501. Here, the sentenc ing guidelines were not vio lated, the aggravating factors were based on defendant's undisputed criminal record, and the sentence was not unreasonable. Accordingly, we see no reason to disturb the trial judge's sentencing determination.

VI.

Defendant contends the judge erred by refusing to merge his conviction for possession of a weapon for an unlawful purpose (count two) into the murder conviction (count one) because the sole unlawful purpose alleged for the possession of the knife was to use it against the murder victim. He also argues the jury verdict sheet on the charge of unlawful possession of a weapon (count three) was improper.

Prior to sentencing, the judge asked the State and defen dant to state their positions on the merger issue. The State argued against the merger of count two into count one, because defendant had the knife before he went to Rahway and indicated on the ride to Rahway he would use it. Defendant argued in favor of the merger, based on the lack of any testimony indicat ing defendant went to Rahway with the intent to commit murder. In sentencing defendant, the judge did not merge these two counts, but instead made the sentence on count two concurrent with the sentence on count one.

A merger is warranted if one offense is included in the other. N.J.S.A. 2C:1-8a(1). An offense is included in the other if, among other things, "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d(1). Thus, if an accused has committed only one offense, he or she cannot be punished for two. State v. Dillihay, 127 N.J. 42, 46 (1992). Our courts take a flexible approach to merger, focusing on the elements of the crime, the Legislature's intent in enact ing the statutes, and the specific facts of each case. Id. at 47. Lesser-included offenses, which are a necessary component of the commission of another offense, or offenses that punish the same criminal conduct will merge. State v. Brown, 138 N.J. 481, 561 (1994), overruled in part on other grounds by State v. Cooper, 151 N.J. 326 (1997).

The judge properly refused to merge count two into count one because proof of defendant's conviction for possession of a weapon for an unlawful purpose rested on facts not necessary to sustain his conviction for murder. That is, defendant possessed the knife in Newark and on the ride to Rahway expressed his intent to use it to "shank someone." See State v. Russo, 243 N.J. Super. 383, 411-12 (App. Div. 1990) (holding charge of pos session of weapon for unlawful pur pose did not merge with pur poseful and knowing murder where defendant testified he left Delaware with the weapon with the intent of confronting his father-in-law in New York), certif. denied, 126 N.J. 322 (1991).

Last, defendant contends the jury verdict sheet improperly stated the charge of unlawful possession of a weapon, but this issue was not raised below. We have reviewed the charge on this offense as well as the verdict sheet and are sat isfied defendant has not demonstrated plain error under Rule 2:10-2. Any error was not "clearly capable of producing an unjust result." Ibid.

 
Affirmed.

Jordan explained that a shank was a knife, and "to shank somebody" meant to stab him.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

State v. Gross, 216 N.J. Super. 98 (App. Div. 1987), aff'd, 121 N.J. 1 (1990).

Defendant does not dispute the sentence imposed for his weapons conviction.

(continued)

(continued)

32

A-4680-05T4

July 29, 2009