STATE OF NEW JERSEY v. YUSEF STEELE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3512-10T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YUSEF STEELE,

Defendant-Appellant.

_________________________________________________________

December 12, 2012

Submitted May 9, 2012 - Decided

Before Judges Fuentes, Graves, and Koblitz.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment No.

09-02-0326.

Joseph E. Krakora, Public Defender, attorney

for appellant (Michele C. Buckley, Designated

Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney

for respondent (Natalie A. Schmid Drummond,

Deputy Attorney General, of counsel and on the

brief).

PER CURIAM

Following a jury trial, defendant Yusef Steele was found guilty of fourth-degree criminal contempt, N.J.S.A. 2C:29-9, for violating a restraining order issued pursuant to the Drug Offender Restraining Order Act of 1999, N.J.S.A. 2C:35-5.4 to -5.10. On January 14, 2011, the trial court sentenced defendant to eighteen-months imprisonment to be served consecutively to a sentence he was then serving. The court also imposed appropriate monetary penalties. For the reasons that follow, we affirm.

The relevant facts are not complicated. Officers Michael Yurkovic (Yurkovic) and Gregory Liszczak (Liszczak) of the New Brunswick Police Department were the only witnesses to testify for the State. The defense did not present any witnesses.

On August 15, 2008, Yurkovic was part of a back-up unit for fellow officers who were conducting a surveillance investigation for possible narcotics activity. Yurkovic testified he was wearing plain clothes with his badge hanging around his neck. As a result of the investigation, Yurkovic and another officer approached defendant at the intersection of George and Hassart Streets. When defendant saw the police officers, "he took off running down the street." Yurkovic testified that defendant "tossed" something during the foot chase, and the police subsequently discovered he had thrown twelve packets of heroin on the ground. Yurkovic eventually tackled defendant and placed him under arrest.

That same day, Yurkovic submitted an application to a municipal court judge for a drug offender restraining order. In a supporting certification, Yurkovic stated that defendant was charged with possession of a controlled dangerous substance with intent to distribute and that the offense occurred at George and Hassart Streets. Yurkovic explained that he sought the restraining order for that location because the drugs would have been discovered incident to defendant's arrest if he had not fled and discarded the drugs.

The restraining order issued by the municipal court judge on August 15, 2008, prohibited defendant from being within 500 feet of the intersection of George Street and Hassart Street in New Brunswick. According to Yurkovic, he did not immediately serve defendant with the restraining order because defendant was taken to the Middlesex County jail after he was processed. Therefore, there was "no urgency to get [the order] to him."

Yurkovic testified he personally served defendant with the restraining order on December 17, 2008. At that time, Yurkovic explained to defendant the order prohibited him from being within 500 feet of the corner of George and Hassart Streets. At Yurkovic's request, defendant signed and dated the order, and defendant was given a copy of the order. The order that defendant signed clearly states:

Notice to Defendant: Violation of the provisions of this order constitutes criminal contempt pursuant to N.J.S.A. 2C:29-9 and will result in your arrest and criminal prosecution and can also result in a revocation of bail. This may result in a jail sentence. ONLY A COURT CAN MODIFY ANY OF THE TERMS OR CONDITIONS OF THIS COURT ORDER.

Five days later, on December 22, 2008, Liszczak was on patrol when he observed defendant standing on the corner of George Street and Hassart Street. Liszczak was aware of defendant's restraining order and, after checking to confirm that the order was still active, he arrested defendant for violating the order.

During his summation, defendant's attorney told the jury that the issue was whether the State had proved beyond a reasonable doubt that defendant "was properly served with the order" and whether he "definitively [knew] the boundaries of where he [could] go and where he [couldn't] go." On the other hand, the prosecutor argued there was no question that defendant knew about the restraining order "because he signed for it," and the order "prohibited and restrained" defendant from being within 500 feet of the corner of George and Hassart Streets.

Defendant presents the following arguments on appeal:

POINT I

THE TRIAL COURT ERRED IN RULING THAT THE STATE WOULD BE PERMITTED TO CROSS-EXAMINE MR. STEELE WITH HIS PRIOR DRUG CONVICTIONS IF HE CHOSE TO TESTIFY, WHERE THE PRIOR CONVICTIONS WERE SIMILAR TO THE CHARGE MR. STEELE FACED AT TRIAL.

POINT II

THE PROSECUTOR'S DISPARAGING STATEMENTS DURING HIS SUMMATION AND THE TRIAL COURT'S INAPPROPRIATE COMMENTS DURING THE TRIAL PREJUDICED MR. STEELE AND CAUSED AN UNJUST RESULT.

A. THE PROSECUTOR'S COMMENTS DURING HIS SUMMATION WERE INAPPROPRIATE AND DENIED MR. STEELE A FAIR TRIAL.

B. THE TRIAL COURT'S DISPARAGING COMMENTS MADE IN FRONT OF THE JURY WERE INAPPROPRIATE AND DENIED MR. STEELE A FAIR TRIAL.

POINT III

THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT THAT MR. STEELE VIOLATED THE RESTRAINING ORDER AND THE GUILTY VERDICT ON THE CHARGE WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.

POINT IV

THE DRUG OFFENDER RESTRAINING ORDER DID NOT COMPLY WITH THE STATUTORY REQUIREMENTS AND WAS THEREFORE INVALID. (Not Raised Below).

POINT V

N.J.S.A. 2C:35-5.7 CONTAINS NO PROVISION FOR DEFENDANT TO RECEIVE NOTICE AND A HEARING PRIOR TO THE ISSUANCE OF A RESTRAINING ORDER, AND THEREFORE VIOLATES DUE PROCESS RIGHTS AND INFRINGES UPON DEFENDANT'S RIGHTS TO INTRASTATE TRAVEL AND FREEDOM OF ASSOCIATION. U.S. CONST. AMEND. XIV. (Not Raised Below).

POINT VI

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

POINT VII

THE COURT ERRONEOUSLY ORDERED MR. STEELE'S SENTENCE FOR THE SOLE CHARGE OF CONTEMPT [TO] RUN CONSECUTIVE TO THE SENTENCE HE WAS ALREADY SERVING. THE COURT ALSO OVER VALUED AGGRAVATING FACTORS RESULTING IN AN EXCESSIVE SENTENCE.

Based on our review of the record and the applicable law, we conclude that these arguments do not warrant extended discussion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

After the State rested, the court conducted a Sands/Brunson1 hearing to determine whether defendant's prior convictions could be used to impeach his credibility if he testified. Ordinarily, "[a] jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen." Sands, supra, 76 N.J. at 145. Therefore, "the burden of proof to justify exclusion rests on the defendant." Id. at 144. When the State seeks to introduce a prior conviction that is the same or similar to the offense charged, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." Brunson, supra, 132 N.J. at 391.

With regard to defendant's burglary conviction and his two drug convictions, the trial court ruled that the prosecutor could question him about "the date, the offense, and the sentence" imposed because the convictions were not remote and they were not the same or similar to the contempt charge that was being tried. A trial court has "broad" discretion to determine whether criminal convictions are admissible for impeachment purposes, Sands, supra, 76 N.J. at 144, and we find no valid basis for disturbing the trial court's exercise of discretion in this case.

In his next point, defendant contends that improper comments by the prosecutor during summation and inappropriate comments by the court during the trial warrant reversal of his conviction. We do not agree.

During his summation, the prosecutor stated:

I mentioned in my opening argument that sometimes the questions are just as important as the answers you receive from the witnesses and throughout this case I submit you heard long rambling, sometimes imperceptible questions being asked of the witnesses in this case. That was an effort to testify in front of you, ladies and gentlemen of the jury, and, if you'll remember, the judge instructed you at the very beginning what I say, what defense counsel says is not evidence in this case. It is not testimony in this case. It is to be disregarded by you.

Defense counsel objected, but the court told him to wait until the prosecutor was finished. When the prosecutor completed his summation, defense counsel moved for a mistrial on grounds of prosecutorial misconduct. The trial court denied defendant's motion.

Prosecutors "are afforded considerable leeway in making opening statements and summations." State v. Williams, 113 N.J. 393, 447 (1988). Nevertheless, it is improper for a prosecutor "to demean the role of defense counsel or cast aspersions upon a lawyer's motives." State v. Darrian, 255 N.J. Super. 435, 457 (App. Div.), certif. denied, 130 N.J. 13 (1992); see also State v. Pindale, 249 N.J. Super. 266, 286 (App. Div. 1991) (noting it was improper for the prosecutor to state "the defense's role in this case is to try to confuse you").

We agree that the prosecutor's comments would have been better left unsaid. However, that does not end the inquiry because we must consider the statements "within the context of the trial as a whole." State v. Feaster, 156 N.J. 1, 64 (1998). Here, the jurors were instructed on two separate occasions that they were to decide the case based on the evidence introduced during the trial. They were further instructed that the remarks by the attorneys in their opening and closing statements were not evidence. Moreover, the evidence of defendant's guilt was overwhelming. Under these circumstances, we conclude that the challenged remarks were not so egregious that they deprived defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999).

Similarly, we reject defendant's argument that he is entitled to a new trial due to "the trial court's repeated admonition of defense counsel during cross-examination." Based on our examination of the entire record, we are satisfied that the court maintained its neutrality throughout the proceedings, and the trial was conducted in a fair and impartial manner. Additionally, as part of the jury instructions, the court stated: "I'd like to commend counsel for the professional manner in which they presented their respective cases and for their courtesy to the court and during the course of the trial." Thus, the record does not support defendant's claim that he did not receive a fair and impartial trial.

Defendant also claims that the restraining order violated his due process rights because "he was unaware that he had the right to challenge a restraining order that curtailed his ability to freely move within his own neighborhood." Preliminarily, we note that this argument was not presented to the trial court. See Roselle v. Moonachie, 48 N.J. Super. 17, 25 (App. Div. 1957) ("If the person to whom a court order is directed wishes to test its validity before complying with it, the appellate courts are open to him. Otherwise he must obey it."). In any event, N.J.S.A. 2C:35-5.7(k) provides that "[a]ll applications to stay or modify an order issued pursuant to [the Drug Offender Restraining Order Act], including an order originally issued in municipal court, shall be made in the Superior Court." In addition, the order defendant received on December 17, 2008, stated in bold letters: "ONLY A COURT CAN MODIFY ANY OF THE TERMS OR CONDITIONS OF THIS COURT ORDER." Thus, defendant was notified of his right to challenge the restraining order, and he has failed to establish a due process violation.

In his final point, defendant argues his sentence is excessive and the trial court's decision to impose a "sentence consecutive to the sentence he was serving was an abuse of discretion." These arguments are clearly without merit. The trial court correctly applied the sentencing guidelines, the sentence imposed is not manifestly excessive or unduly punitive, and it does not constitute an abuse of discretion. See State v. Yarbough, 100 N.J. 627, 643 (1985), ("[T]here can be no free crimes in a system for which the punishment shall fit the crime."), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

1 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).