STATE OF NEW JERSEY v. SHAMAR HARRIS-LEE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4406-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAMAR HARRIS-LEE, a/k/a SHAMAR

LEE, AL S. HARRIS, ALNEIL HARRIS, AMIN SLATEN, AL-NEIL SHAMAR HARRIS,

Defendant-Appellant.

________________________________

March 8, 2011

Submitted: October 18, 2010 Decided:

Before Judges C.L. Miniman and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-03-00470.

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

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Lucille M. Rosano, Special Deputy Attorney General/ Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Shamar Harris-Lee appeals from his convictions for first-degree armed robbery, contrary to N.J.S.A. 2C:15-1; third-degree unlawful possession of a sawed-off shotgun,con trary to N.J.S.A. 2C:39-3b; and second-degree possession of a weapon for an unlawful purpose, contrary to N.J.S.A. 2C:39-4a. The unlawful-purpose conviction was merged into the robbery con viction, and defendant was sentenced to a term of fifteen years on the first-degree robbery subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a concurrent term of five years for the unlawful possession of a weapon. We affirm.

On December 11, 2004, Hany Elgendy was selling hot dogs from a cart on Broad Street in Newark. Around 2:30 p.m., defen dant approached Elgendy, put his arm around Elgendy's neck, and demanded his money. At first, Elgendy refused to surrender his money. Defendant tightened his grip and opened a bag he was carrying to reveal an operable sawed-off shotgun. Defendant continued to fumble with the shotgun, trying to remove it from the bag. Elgendy ran from the scene. As he did so, he heard a loud noise, like a bomb, when defendant discharged the gun into the pavement beside Elgendy's cart. Elgendy hid under a car.

Newark Detective Miguel Arroyo was traveling north on Broad Street with two other officers when he heard the shotgun blast. They made a U-turn, exited the vehicle, and approached Elgendy's cart. Elgendy and bystanders identified defendant as the shooter. Defendant then ran into a stereo store on Broad Street, where he was arrested. Elgendy followed the police to the store, where he identified defendant as the man with the shotgun who tried to take his money. He also identified his money belt and cell phone, which were on the floor near defendant.

The store clerk, Felix Sanchez, observed defendant enter the store carrying a duffle bag followed by police officers, including Detective Arroyo. He saw defendant throw the duffle bag over the counter. Arroyo also said defendant threw a money pouch onto the floor. The police retrieved the shotgun and noted that "187 slob" was etched on it. Police officers later brought Elgendy to the police station, where he made a statement and identified a photograph of defendant as the man who robbed him.

During the trial of the matter, defense counsel cross-exam ined Arroyo about the etching on the gun, eliciting testimony that the designation was gang related. The judge intervened and called counsel to side bar to inquire why defense counsel was pursuing this line of questioning. Defense counsel explained that, when the prosecutor asked Arroyo whether S-1 in evidence was the firearm, he replied, "Yes." The prosecutor then asked him to "[t]ake it closer, make sure." Arroyo said, "That's it, I remember it, 1 8 7 slob on the shotgun." Defense counsel told the judge that he believed he had to make the inquiry about the etching because he did not want the jury to think he was "hiding anything because [defendant's] not in a gang." The judge commented that he was "opening something," and defense counsel replied:

I understand that, but she could have at least given him some kind of said some thing to him in advance of it, that's a ref erence I don't know if anybody on that jury has any knowledge, but I don't want them tying him to it, that's why I'm making that reference[.]

After some further colloquy, defense counsel stated that he wanted to ask Arroyo "whether or not he sought out whether or not my client was a member of a gang." Counsel recognized that the prosecutor had made no reference to gang membership, but he "want[ed] to make sure the jury knows that he's not a member of the gang. He's already referred to the number." Defense coun sel then proceeded to ask Arroyo whether he investigated defen dant's membership in a gang, and Arroyo replied, "No." The officer then testified that the number is a reference to a gang, but he never checked to ascertain whether defendant was a gang member.

After the remaining witnesses testified, the case was sub mitted to the jury, which returned its verdict of guilty on all three counts. This appeal followed.

Defendantraises thefollowing issuesfor ourconsideration:

POINT ONE: THE TRIAL COURT ERRED IN FAILING TO DECLARE A MISTRIAL SUA SPONTE (NOT RAISED BELOW).

POINT TWO: THE SENTENCE IMPOSED ON . . . DEFENDANT WAS MANIFESTLY EXCESSIVE.

In his first point, defendant contends that the judge failed to exercise his discretion to sua sponte declare a mis trial, as he is permitted to do when a trial event causes sub stantial prejudice to a party. State v. Loyal, 164 N.J. 418, 435-36 (2000). He urges that the failure to declare a mistrial sua sponte was clearly capable of producing an unjust result and constitutes plain error. R. 2:10-2. He argues that "this error is of such magnitude that it raises a doubt as to whether it lead [sic] the jury to a result it would otherwise not have reached."

There can be no doubt that a judge had the discretion to declare a mistrial sua sponte, even over the objection of defen dant, Loyal, supra, 164 N.J. at 435-36, based on the gang-affiliation testimony. However, we are satisfied that this is not a case where the failure to exercise that discretion consti tutes plain error because it was not of such a magnitude as to raise a doubt regarding whether it led the jury to a result it would otherwise not have reached. State v. Taffaro, 195 N.J. 442, 454 (2008); State v. Burns, 192 N.J. 312, 341 (2007); State v. Brown, 190 N.J. 144, 160 (2007).

Declaring a mistrial is an extraordinary remedy that should be avoided except where necessary to prevent "an obvious failure of justice." State v. Ribalta, 277 N.J. Super. 277, 291 (App. Div. 1994) (citation omitted), certif. denied, 139 N.J. 442 (1995). A trial judge has the discretion to grant a mistrial only to prevent a "manifest injustice." State v. Harvey, 151 N.J. 117, 205 (1997) (citation omitted). Furthermore, we should defer to the trial judge's decision because he is in the best position to gauge the effect of an alleged impropriety. Ibid. A failure to declare a mistrial sua sponte only rises to the level of reversal error if the error was clearly capable of producing an unjust result. Ibid.

Here, there was strong evidence of defendant's guilt. The victim identified defendant at the scene immediately after he was apprehended. At that time, he had in his possession the sawed-off shotgun and the victim's money belt and cell phone. The police arrived at the scene of the crime before the defen dant had fled and chased him into a stereo store. The passing reference to gang affiliation and the inscription on the gun were not likely to have any effect on the trial. Thus, the alleged error was not capable of producing an unjust result. State v. LaPorte, 62 N.J. 312, 318-19 (1973). Defendant suf fered no prejudice from the judge's alleged failure to declare a mistrial or from any strategic miscalculation by his trial counsel.

With respect to defendant's second point on appeal, we find no manifest injustice in defendant's sentence. It was not at the top of the sentencing range and was entirely appropriate in light of his prior criminal record. The judge acted well within his discretion in sentencing defendant to a term of fifteen years. State v. Cassady, 198 N.J. 165, 180-81 (2009).