STATE OF NEW JERSEY v. FREDERICK BRITTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3970-06T43970-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK BRITTON,

Defendant-Appellant.

___________________________________

 

Submitted September 29, 2009 - Decided

Before Judges Rodr guez and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Atlantic County, Indictment No. 02-05-1036.

Yvonne Smith Segars, Public Defender, attorney for appellant (Charles H. Landesman, Designated Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor, attorney for respondent (Peter J. Gallagher, Assistant County Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a jury trial, defendant Frederick Britton was convicted of first degree aggravated sexual assault of K.M., a then seven-year-old boy, N.J.S.A. 2C:14-2a; third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; fourth degree abuse of a child, N.J.S.A. 9:6-3; and third degree attempt to lure or entice a minor with purpose to commit a criminal offense against the child, N.J.S.A. 2C:13-6. The judge merged the convictions and imposed: a seventeen-year term with a NERA parole disqualifier; five year parole supervision upon release; and community supervision for life. We affirm the convictions, but remand for resentencing.

These are the salient facts. K.M. is the son of M.M., who grew up in the same neighborhood as defendant. She enjoyed a good relationship with defendant and considered him a good friend. Her children considered defendant as an "uncle" and called him "Pooh-Bear." K.M. and his brother frequently played with defendant's nephew.

On the day of the incident, K.M. and his brother visited defendant's house to play with defendant's nephew. Defendant instructed the brother to leave and took K.M. upstairs into his bedroom. Defendant instructed K.M. to be "brave." Defendant removed his and K.M.s' pants and began touching K.M.'s buttocks. Defendant placed his penis inside K.M.'s buttocks. Following the assault, defendant gave K.M. money in exchange for not talking about the assault.

K.M. and his brother went on a trip to Ocean City for Easter with T.K., a family friend. During the return trip on the bus, K.M.'s brother told T.K. that defendant had touched K.M. K.M. declined to speak about the sexual assault. Upon their return to the friend's house, T.K. called M.M. and informed her that K.M's brother had something to tell her.

Upon returning to their home, K.M.'s brother forced K.M. to tell their mother about defendant's actions. K.M. was reluctant to talk, but eventually said that defendant took him upstairs into his bedroom and put a videotape into the VCR displaying images of naked women. K.M. then disclosed that defendant made him lie on the bed and inserted his penis into K.M's buttocks. Defendant left money on the bed. M.M. had noticed that K.M. had over two dollars on him on three prior occasions.

M.M. decided to confront defendant at his house. According to M.M., defendant answered the door. Defendant's nephew was standing next to him. Defendant instructed his nephew to "grab" M.M.'s "behind." The nephew would not do it. Defendant began kicking his nephew. M.M. left. Shortly after, defendant showed up at M.M.'s house. She told K.M. to tell defendant what he had told her. K.M. did so. According to M.M., defendant smiled and denied the allegation. She punched defendant and told him not to come to her house again.

M.M. took K.M. to the police station. Atlantic City Detective George Cohen spoke to K.M. alone. Following the interview, Cohen recommended that K.M. be seen by a physician.

M.M. made arrangements for Marita Elizabeth Lind, M.D., a pediatrician, to examine K.M. Dr. Lind spoke to K.M. outside the presence of his mother. K.M. indicated that defendant stuck his "hotdog" in his buttocks. Later, defendant had to wipe "lotion" off of the floor. According to Dr. Lind, it was significant that K.M. revealed that it hurt when he "pooped" because children heal rapidly and only exhibit symptoms immediately afterwards.

Pursuant to a search warrant, the police searched defendant's house. Detective Cohen confiscated four videotapes located in the front room on the entertainment center. Two videotapes containing children's movies, titled "Darrel" and "Page Master," had pornographic segments.

At trial, the State moved to admit the videotapes confiscated from defendant's home. Defense counsel objected on the grounds that it would be highly prejudicial. The judge ruled that the State could present evidence as to when and where the videotapes were found and a description of them. However, the judge found that admitting the tapes at that point in the trial would be prejudicial pursuant to N.J.R.E. 403. Detective Cohen testified as to the contents of the videotapes.

Tracy Britton, defendant's mother, testified that the four confiscated videotapes belonged to her ex-husband who no longer lived in the house. The judge allowed the State to play the videotape "Darrell" to show that it contained a pornographic segment. The judge then ruled that the videotape was relevant on the issue of the credibility of defendant's mother. Moreover, the judge ruled that the tape was independently relevant as circumstantial evidence.

Defendant did not testify. He presented the testimony of his mother and Valincia Terrell and rested. Terrell testified that she knew M.M. and frequently visited her. M.M. never told her that something had happened between defendant and K.M. during the period when the events allegedly happened.

On appeal, defendant contends that:

PREJUDICIAL ERROR WAS COMMITTED WHEN THE TRIAL COURT PERMITTED TESTIMONY RELATING TO PORNOGRAPHIC MOVIES THAT WERE FOUND IN DEFENDANT'S HOME.

We disagree.

The New Jersey Rules of Evidence admit all relevant evidence, unless it is otherwise excluded. N.J.R.E. 402. Relevant evidence is that which has a tendency to prove or disprove any fact of consequence to the determination of the action. N.J.R.E. 401. In determining relevance, the focus is on the "logical connection between the proffered evidence and a fact in issue." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 15 (2004) (quoting State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990)).

A party seeking to exclude relevant evidence on the grounds of undue prejudice must demonstrate that the "probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case." State v. Koskovich, 168 N.J. 448, 486 (2001) (alteration in original) (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Furthermore, the mere possibility that evidence could be prejudicial does not validate its exclusion. State v. Wakefield, 190 N.J. 397, 434-35 (2007).

Evidentiary rulings by trial judges are granted substantial deference by appellate courts on review. Benevenga v. Digregorio, 325 N.J. Super 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). Evidentiary rulings are reviewed under the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131, (1991). Our Supreme Court has established that "[o]n appellate review, the decision of the trial court must stand unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

Applying this standard here, we find no abuse of discretion in allowing the State to establish the contents and location of the videotapes through the testimony of Cohen. The contents of the videotapes were relevant to corroborate M.S.'s testimony.

Defendant also contends that:

THE TESTIMONY OF [T.K.] PERTAINING TO A CONVERSATION WITH THE BROTHER OF THE VICTIM SHOULD HAVE BEEN EXCLUDED BECAUSE IT WAS HEARSAY (NOT RAISED BELOW).

Defendant contends that the testimony of a family friend T.K., pertaining to a conversation he had with K.M.'s brother constituted hearsay and should have been excluded from evidence. Defendant argues that although he did not object to the testimony at trial, it constituted plain error because it denied him his constitutional right of confrontation of a witness against him. We disagree that it was plain error.

Hearsay constitutes "a statement, other than one made by the declarant while testifying at a trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c); State v. Buda, 195 N.J. 278, 292 (2008). Hearsay statements are not admissible where they are offered for the purposes of proving the truth of the matter asserted. N.J.R.E. 802. When a hearsay statement is not offered for its truth, but to establish that a verbal act, i.e., the statement was made, the statement is admissible. State v. Long, 173 N.J. 138, 152 (2002).

Here, the statement of a conversation between the friend, T.K., and K.M.'s brother was not offered to prove that K.M. was actually sexually assaulted. Instead, the testimony was offered to prove that the allegations did not originate with M.M.

During cross-examination of M.M., defense counsel suggested that she had fabricated the charges against defendant. Defense counsel informed the prosecution and the judge of this strategy. The State therefore warned that such tactics would open the door for the court to admit the testimony regarding the conversation between K.M.'s brother and the family friend.

Moreover, pursuant to the plain error standard, we will not reverse on the ground of an error not brought to the trial court's attention unless there is a showing that the error was clearly capable of producing an unjust result. R. 2:10-2. The admission of the statement did not constitute plain error.

Defendant also contends:

SINCE THE RECORD FAILS TO DISCLOSE WHETHER DEFENDANT WAS ADVISED BY COUNSEL OF HIS CONSTITUTIONALLY PROTECTED RIGHT TO TESTIFY IN THIS CASE, THE MATTER SHOULD BE REMANDED TO TRIAL COURT TO DETERMINE WHETHER THE DEFENDANT WAS ADVISED BY COUNSEL OF HIS RIGHT TO TESTIFY IN THIS CASE (NOT RAISED BELOW).

In a supplemental brief, defendant contended:

(a) DEFENSE COUNSEL WAS INEFFECTIVE FOR HER FAILURE TO CALL DEFENDANT AS A WITNESS FOR THE DEFENSE; (b) DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILURE TO EXPLAIN TO DEFENDANT THAT HE HAD A RIGHT TO TESTIFY IN HIS TRIAL, REQUIRING REVERSAL OF DEFENDANT'S CONVICTION AND A NEW TRIAL, PROMULGATED ON THE 5TH, 6TH AND 14TH AMENDMENTS TO THE NEW JERSEY AND FEDERAL CONSTITUTION[S] OF THE UNITED STATES.

Nevertheless, the record does not disclose whether defendant was advised of his right to testify.

It is well settled that in order to demonstrate remediable ineffectiveness of trial counsel, a defendant must meet a two-prong test. He must show first that counsel's performance was substandard and he must then show that the defective performance complained of was prejudicial to his right to a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693-94 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). It is also well settled that when issues of defective performance of trial counsel are raised involving disputed facts outside the record, the appropriate procedure for their resolution is not a direct appeal but rather an application for post-conviction relief (PCR) attended by a hearing if a prima facie showing of remediable ineffectiveness is made. State v. Preciose, 129 N.J. 451, 460-61 (1992). Therefore, the proper vehicle for exploring defendant's challenge is a PCR petition and an evidentiary hearing.

Defendant essentially contends that he was denied effective assistance of trial counsel because his attorney did not advise him that he had a constitutional right to testify. Defendant further argues that the judge should have adhered to the "best practice" and determined on the record whether defendant was aware of his right to testify.

It is settled that criminal defendants have a constitutional right to testify on their own behalf. State v. Bey, 161 N.J. 233, 269 (1999). A defendant's decision whether to testify in a criminal case is an important strategic or tactical decision to be made by the defendant. Id. at 269-70 (citing State v. Savage, 120 N.J. 594, 626-28 (1990)). Defense counsel must inform defendants of their right to testify and of the tactical advantages or disadvantages of doing so. Id. at 270. The judge is not required to obtain an acknowledgement of defendant on the record that he is aware of his right. Savage, supra, 120 N.J. at 631. However, it is the best practice to do so. Id. at 632. Furthermore, if a defendant establishes that he has not been informed of his right to testify, he still must prove that he was prejudiced by this lack of information. Bey, supra, 161 N.J. at 271-72; see also Savage, supra, 120 N.J. at 630.

Here, defendant has not alleged that he was unaware of his right to testify at trial. Regardless, this claim is more appropriate for PCR.

Defendant challenges his sentence contending:

DEFENDANT'S SENTENCE WAS ILLEGAL AND HE SHOULD BE [RESENTENCED] PURSUANT TO STATE V. NATALE, 184 N.J. 458 (2005) [NATALE II].

We agree that resentence pursuant to Natale II is necessary. An illegal sentence, one that falls outside statutory parameters, may be corrected at any time. State v. Haliski, 140 N.J. 1, 6 (1995).

The constitutional problem recognized by the United States Supreme Court in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and other recent cases was that sentencing judges in the exercise of their traditional role, were utilizing their own findings of statutory sentencing factors to increase terms of imprisonment beyond that which jury verdicts would allow. Natale II, supra, 184 N.J. at 482. Prior to Natale II, in order to stay within the boundaries of Blakely, a judge could only increase the sentence above the presumptive term by utilizing aggravating factors that were either based upon recidivism factors, Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000); State v. Abdullah, 184 N.J. 497, 506, n.2 (2005), or were otherwise admitted by defendant, Blakely, supra, 542 U.S. at 305, 124 S. Ct. at 2537, 159 L. Ed. 2d at 413. With Natale II's judicial removal of the presumptive terms from the New Jersey Criminal Code, the "'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." 184 N.J. at 487.

In Natale II, the Supreme Court held that its decision would apply retroactively in the pipeline. Id. at 494. The decision would apply to defendants with cases on direct appeal as of the date of the decision and to those defendants who raised Blakely claims at trial or on direct appeal. Ibid. Limited "pipeline" retroactivity permits a rule of law to be applicable on direct appeal but not for purposes of post-conviction relief. See State v. Yanovsky, 340 N.J. Super. 1, 11 (App. Div. 2001).

Here, we are satisfied that defendant's appeal, although not filed until after Natale II was decided, should be deemed "pending" at the time of the Natale II decision. Defendant was sentenced on March 19, 2004, more than one year prior to the Natale II decision. However, due to manpower shortage in the office of the Public Defender, the Notice of Appeal was not filed until February 15, 2007. We granted a motion to file the Notice of Appeal "as within time," No. M-4506-06 (App. Div. April 24, 2007). Therefore, the appeal was deemed filed within forty-five days from the sentence date, well before the Natale II decision.

Defendant also contends that:

DEFENDANT'S SENTENCE WAS EXCESSIVE.

We do not consider this issue because we vacate the sentence and remand for resentencing. This issue is moot.

 
The convictions are affirmed, but the sentences are vacated and remanded to the trial court for a new sentencing hearing. Defendant's right to seek a PCR petition and evidentiary hearing alleging ineffective assistance of trial counsel for failure to advise defendant of his right to testify is preserved.

No Early Release Act, N.J.S.A. 2C:43-7.2.

Although defendant was found to fall within the purview of N.J.S.A. 2C:47-3b, the judge declined to sentence defendant to sex offender treatment because defendant was unwilling to submit to treatment.

(continued)

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A-3970-06T4

RECORD IMPOUNDED

February 18, 2010