STATE OF NEW JERSEY v. ERIC HINES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-respondent,

v.

ERIC HINES, a/k/a GREGORY

MAYS, TOM JONES, THOMAS

JONES, TERRANCE KENNEDY,

TERRANCE KERNEY, and

TERRANCE KERNNEY,

Defendant-Appellant.

_____________________________

September 5, 2013

Submitted May 1, 2013 Decided

Before Judges Sapp-Peterson and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-10-3535.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Robin A. Hamett, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Eric Hines was convicted, after a jury trial, of second-degree robbery, N.J.S.A. 2C:15-1 (count one); second-degree burglary, N.J.S.A. 2C:18-2a (count two); third-degree theft, N.J.S.A. 2C:20-3 (count three); fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2) (count four); and third-degree burglary, N.J.S.A. 2C:18-2a (count five). The trial court merged counts two and three into count one, sentencing defendant to twenty years imprisonment with an 85% period of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On count four, the court imposed a consecutive eighteen-month custodial term with a nine-month parole disqualifier. In addition, the court imposed the requisite penalties and costs.

Defendant appeals, raising the following points:

POINT I

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT DEFENDANT'S CONVICTIONS, AND HIS CONVICTIONS WERE AGAINST THE WEIGHT OF THE EVIDENCE.

POINT II

THE TRIAL COURT ERRONEOUSLY PRECLUDED THE DEFENSE FROM ESTABLISHING THAT DEBORAH CAREY WAS ROBBED BY A THIRD PARTY, THEREBY DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE.

POINT III

THE PROSECUTOR ENGAGED IN MISCONDUCT WHICH SINGULARLY AND CUMULATIVELY DEPRIVED DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

After analyzing the record, the applicable law and the arguments raised, we affirm defendant's conviction and sentence. We reject defendant's arguments addressed to the sufficiency of the evidence as being "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Our examination of the record discloses the proofs amply support the jury's verdict on each of the crimes charged. See State v. Macilwraith, 344 N.J. Super. 544, 547 (App. Div. 2001). Although the victim's description of her intruder did not match defendant's height and weight, his DNA was found on a knit cap he discarded while attempting to flee from police and on a beer can police took from the victim's home.

We find no abuse of the trial court's discretion in precluding defendant from offering a prior arrest photograph as evidence of third-party guilt. The photograph, taken approximately sixteen days before defendant's arrest on the underlying charges, depicts facial hair, height and weight information differing from the facial hair, height and weight the victim purportedly provided to police. While a defendant has a right to introduce evidence of third-party guilt, such evidence must have a "rational tendency to engender a reasonable doubt with respect to an essential feature of the State's case." State v. Cotto, 182 N.J. 316, 332-33 (2005) (citing State v. Fortin, 178 N.J. 540, 591 (2004)), State v. Koedatich, 112 N.J. 225, 301-02 (1988), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989); State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960). The photograph defendant proffered does not meet that requirement.

We agree, as the trial court concluded after conducting a hearing pursuant to N.J.R.E. 104, that a photograph depicting defendant's facial hair sixteen days prior to his arrest was not probative of how defendant looked sixteen days later. Moreover, the court permitted defendant to introduce a redacted record indicating that the height and weight information were incorrect when measured against the victim's description. The parties also stipulated that the investigating officer's report containing the description the officer recorded as that given by the victim was admitted into evidence for the jury's consideration. Thus, even if the court abused its discretion in excluding the photograph, the error was harmless because the jury had before it evidence from which it could consider whether someone other than defendant committed the crimes.

Likewise, the prosecutor's remarks during summation that the DNA evidence had not been contaminated, was a response to the defense theory and argument that the proffered DNA evidence had been commingled and contaminated. Those remarks, which defendant now challenges for the first time on appeal, were well within the bounds of proper commentary.

Finally, we are satisfied the trial court's finding of three aggravating factors, N.J.S.A. 2C:44-1a(3),(6) and (9), and its finding of no mitigating factors, is supported by substantial credible evidence in the record. See State v. Kromphold, 162 N.J. 345, 355-358 (2000), see also State v. Dalziel, 182 N.J. 494, 501 (2005). The sentence imposed reflects the trial court's adherence to the sentencing principles underlying the Criminal Code and attendant case law. Thus, we discern no basis to second-guess these findings. See State v. Bieniek, 200 N.J. 601, 612 (2010).