STATE OF NEW JERSEY v. GROVER ALLEN PLUMMER

NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-0356-09T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,

v.

GROVER ALLEN PLUMMER,

     Defendant-Appellant.


         Submitted August 31, 2010 - Decided   September 8, 2010

         Before Judges LeWinn and J. N. Harris.

         On appeal from the Superior Court of New
         Jersey,   Law  Division,   Monmouth County,
         Indictment No. 08-10-2364.

         Yvonne   Smith   Segars,   Public  Defender,
         attorney for appellant (William J. Sweeney,
         Designated Counsel, on the brief).

         Luis A. Valentin, Monmouth County Prosecutor,
         attorney for respondent (Mary R. Juliano,
         Assistant Prosecutor, of counsel and on the
         brief).

PER CURIAM

     Defendant was charged in a one-count indictment with third-

degree burglary, in violation of N.J.S.A. 2C:18-2. After a two-

day jury trial, defendant was convicted as charged.   Upon

discharging the jury and with defendant's consent, the trial

judge conducted a bench trial on a related disorderly persons

offense of theft of movable property involving an amount less

than $200, in violation of N.J.S.A. 2C:20-2(b)(3); -3(a).

Defendant was also convicted of this disorderly persons offense.

Ultimately, the court sentenced defendant for both offenses to

an aggregate term of four years incarceration, plus the

appropriate fees and penalties.

     In this appeal, defendant seeks redress for what he

describes as due process violations, together with a broad

challenge to his sentence. We have carefully reviewed all of

defendant's claims and find that they are unpersuasive.

Accordingly, we affirm.

                                  I.

     On June 11, 2008, defendant was observed in Asbury Park

entering an unoccupied delivery truck and removing a compact

disc player belonging to the driver of the truck. The witnesses

present happened to be two police detectives from the nearby

Neptune Township Police Department. After taking defendant into

custody, the detectives turned him over to Asbury Park police

officers for formal charging, who in turn lodged a single

disorderly persons offense against defendant pursuant to

N.J.S.A. 2C:33-2 (disorderly conduct).1


1
  The charge was contained in a summons-complaint under Docket
No. 2008-14961303.


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     Several weeks later, one of the Neptune police detectives

became aware of the lone pending disorderly persons charge

against defendant. On July 16, 2008, that police detective

executed a complaint-warrant against defendant also charging him

with burglary and theft.
2 On October 16, 2008, a Monmouth County

Grand Jury returned the single-count burglary indictment against

defendant that resulted in his conviction. The disorderly

persons theft charge remained active.

     Prior to the commencement of the jury trial, the State

moved to dismiss the initial disorderly conduct charge (Docket

No. 2008-14961303) and to bar the defense from eliciting any

testimony relating to that charge during the trial. In granting

the in limine motion, the trial judge recognized that the Asbury

Park police officer who prepared the initial charging instrument

had not observed the incident in question and would therefore

have nothing of evidentiary significance to present to the jury.

Essentially, the court held that any evidence concerning an

alleged violation of N.J.S.A. 2C:33-2 was not relevant to the

burglary or theft charges that still remained pending against

defendant.




2
  The charge was contained in a warrant-complaint under Docket
No. 2008-18361303.


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    The defendant has presented the following arguments for our

consideration:

         POINT I: DEFENDANT WAS DENIED DUE PROCESS BY
         VIRTUE OF THE STATE'S VINDICTIVE DISMISSAL
         OF   THE  ASBURY   PARK  DISORDERLY  PERSONS
         COMPLAINT IN FAVOR OF AN INDICTMENT BASED ON
         DETECTIVE HUDSON'S VINDICTIVE INTERVENTION
         IN THE CHARGING PROCESS.

         POINT II: DEFENDANT WAS DENIED HIS RIGHTS
         UNDER THE FOURTEENTH AMENDMENT TO THE UNITED
         STATES CONSTITUTION BY THE GROSS FAILURE OF
         THE    STATE   TO    CONDUCT    A  COMPETENT
         INVESTIGATION, THE RESULTS OF WHICH COULD
         WELL HAVE VINDICATED APPELLANT.

         POINT   III:       DEFENDANT'S    SENTENCE    WAS
         EXCESSIVE.

We are satisfied that defendant's arguments pertaining to his

convictions are without sufficient merit to warrant extended

discussion in this opinion.     R. 2:11-3(e)(2).   However, we add

the following brief comments and remand for the entry of a

corrected judgment of conviction.

                                 II.

    We first address defendant's argument concerning

prosecutorial vindictiveness.     Essentially, prosecutorial

vindictiveness involves a violation of one's due process rights,

a situation where the State retaliates against a defendant for

exercising a legal right.     State v. Gomez, 
341 N.J. Super. 560,

571 (App. Div.), certif. denied, 
170 N.J. 86 (2001).




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    We have recognized that "no presumption of vindictiveness

arises in the pretrial stage."   Id. at 573.   Moreover, the

"'mere opportunity for vindictiveness is insufficient to

justify' a presumption of vindictiveness." State v. Froland, 
378 N.J. Super. 20, 39 (App. Div. 2005) (quoting State v. Long, 
119 N.J. 439, 466-67 (1990)); Gomez, supra, 
341 N.J. Super. at 574.

Therefore, a prosecutor should not be prohibited, after

conducting investigation or research, from exercising principled

discretion in deciding how to proceed on the charges against a

defendant.

    Even though the presumption of vindictiveness is

inapplicable in pretrial situations, the Supreme Court did not

foreclose the possibility that the defendant could prove actual

vindictiveness before a trial began.   Wasman v. United States,


468 U.S. 559, 569, 
104 S. Ct. 3217, 3223, 
82 L. Ed. 2d 424, 433

(1984); United States v. Goodwin, 
457 U.S. 368, 384, 
102 S. Ct. 2485, 2494, 
73 L. Ed. 2d 74, 87 (1982); see also State v.

Bauman, 
298 N.J. Super. 176, 205 (App. Div.), certif. denied,


150 N.J. 25 (1997). In this case, no such evidence was presented

other than the entirely speculative argument that the Neptune

police were "out to get the defendant, apparently because of his

past run-ins" with them.




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    As for prohibiting the testimony from the Asbury Park

police officer who initially charged defendant with a disorderly

persons offense, we review a trial judge's discretionary

decision to admit or exclude evidence under an abuse of

                       State v. Ramseur, 
106 N.J. 123, 266
discretion standard.

(1987).   "To demonstrate abuse of such discretion, the danger of

undue prejudice must outweigh probative value so as to divert

jurors 'from a reasonable and fair evaluation of the basic issue

of guilt or innocence.'"   State v. Moore, 
122 N.J. 420, 467

(1991) (quoting State v. Sanchez, 
224 N.J. Super. 231, 249-50

(App. Div.), certif. denied, 
111 N.J. 653 (1988)). Given the

clear lack of connection between that police officer's charging

decision and the elements of the crime proven at trial, there

was not a scintilla of discretionary abuse by the court in this

case.

    Lastly, we note that the trial court sentenced defendant to

an aggregate four-year term of imprisonment. The judgment of

conviction indicates that a concurrent ninety-day term was

imposed for violating "S2008-001496-1302," which is described as

"Violent Behavior." We cannot be certain, but we firmly believe

that the judgment of conviction erroneously reflects a

conviction for the initial disorderly persons charge that had

actually been dismissed prior to trial, instead of the theft


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charge, upon which defendant was found guilty by the judge

following the jury's determination on the burglary charge. We

remand to the trial court solely to review and correct the

judgment of conviction if such is determined to be necessary and

appropriate.

    Here, the trial judge found three aggravating sentencing

factors, N.J.S.A. 2C:44-1(a)(3), (6), and (9), and no appliable

mitigating sentencing factors, N.J.S.A. 2C:44-1(b). We conclude

that the trial court properly "adhered to the sentencing

principles set forth in the Code [of Criminal Justice] and

defined in our case law." State v. Bieniek, 
200 N.J. 601, 612

(2010). Accordingly, we find no reason to interfere with the

sentence imposed.

    In view of the foregoing, the matter is remanded for the

entry of a corrected judgment of conviction upon examination of

the procedural history. In all other respects, the judgment

under review is affirmed.




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