STATE OF NEW JERSEY v. REGINALD FELTON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3529-11T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

REGINALD FELTON, a/k/a

REGGIE MOORE,

Defendant-Appellant.

_____________________________________

September 23, 2013

Argued September 9, 2013 Decided

Before Judges Yannotti, Ashrafi and St. John.

On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-10-0966.

Susan Remis Silver, Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Silver, of counsel and on the brief).

Melissa A. Tirone, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Grace H. Park, Acting Union County Prosecutor, attorney; Ms. Tirone, of counsel and on the brief).

PER CURIAM

Defendant Reginald Felton was tried before a jury and found guilty of second-degree aggravated assault, serious bodily injury, and other offenses. The court sentenced defendant to eight years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals from the judgment of conviction entered on December 12, 2011. For the reasons that follow, we affirm.

I.

Defendant and Eric James (James) were charged with first-degree robbery, N.J.S.A. 2C:15-1 (count one); first-degree carjacking, N.J.S.A. 2C:15-2 (count two); second-degree aggravated assault, serious bodily injury, N.J.S.A. 2C:12-1(b)(1) (count three); third-degree aggravated assault, bodily injury with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (count four); fourth-degree unlawful possession of a weapon, a wooden table leg, under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5(d) (count five); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six). Defendant also was charged with fourth-degree obstructing the administration of law or other governmental function, contrary to N.J.S.A. 2C:29-1 (count seven).

Defendant and James were tried together. At the trial, the State presented evidence which established that in the early morning hours on June 19, 2009, police officers Paul Tillotson (Tillotson) and Orlando Barros (Barros) responded to a report of a fight in the City of Elizabeth. Tillotson observed two black males and a white man, who was later identified as Steven Quigley (Quigley).

Tillotson saw one of the black males pulling Quigley out of his car by his wrists. Tillotson saw the other male striking Quigley over the head with a wooden table leg. According to Tillotson, Quigley was bleeding "heavily from the head." The officers sounded their air horn to stop the attack. The two black males looked in the officers' direction and took off running.

Tillotson chased the suspects on foot. Barros stayed in the police car and drove around the block to try to intercept the suspects. Quigley was told to remain on the scene because police headquarters had been informed about the incident and other officers would be responding. Quigley waited awhile but then drove himself to the hospital, where he was examined by a doctor and received thirteen stitches to his head.

The suspects ran toward an empty lot and then into the area behind some homes. Tillotson lost sight of the suspects because there were a number of trees and bushes in the area. When other officers arrived, Tillotson asked them to search the empty lot. He did not know whether the suspects were hiding in the tall grass or whether they had entered one of the houses in the immediate vicinity.

The officers observed an abandoned house in the search area. All of the first-floor and basement windows were boarded up; however, the board on one basement window was pulled away. Tillotson and other officers entered the house through that window and began to search the premises. They found defendant in a second-floor bedroom. James was found in the attic.

Tillotson and Barros testified that they recognized defendant as the man they saw pulling Quigley out of his car. Both officers said they were "100 percent" sure of their identifications. Tillotson and Barros further testified that they recognized James as the person they observed striking Quigley on the head with a wooden table leg.

After defendant and James were secured, they were placed in patrol vehicles and transported to police headquarters. Tillotson and another officer continued to search the surrounding area for evidence. They found a wooden table leg in a nearby empty lot. Samples of the blood found on the table leg were tested. The DNA profile generated from those samples matched Quigley's DNA profile.

Defendants were found not guilty on count one, robbery; and count two, carjacking, as well as certain lesser-included offenses on these counts. Defendants were, however, found guilty on count three, aggravated assault, serious bodily injury; count four, aggravated assault, bodily injury with a deadly weapon; count five, unlawful possession of a weapon; and count six, possession of a weapon for an unlawful purpose. In addition, defendant was found guilty on count seven, obstructing the administration of law or other governmental function.

Defendant thereafter filed a motion for a new trial, which the trial judge denied. Defendants were sentenced on December 12, 2011. The court merged counts three and four and sentenced defendant to eight years of imprisonment, with a NERA period of parole ineligibility. The court merged counts five and six, and imposed a concurrent four-year term on count six. In addition, defendant was sentenced to a concurrent, eighteen-month term on count seven. Appropriate penalties and fines were also imposed. This appeal followed. James has also appealed. In an opinion filed this date, we affirmed James' conviction and sentence. State v. James, Docket No. A-4049-11.

Defendant raises the following arguments for our consideration:

Point I

This court should reverse the defendant's conviction because the lack of an identification procedure rendered the eyewitness identifications so suggestive and unreliable as to constitute a miscarriage of justice. (Not raised below)

Point II

Defendant Reginald Felton's conviction must be overturned because he was convicted of a crime not included in his indictment and the jury verdict could have been based on an improper state of mind finding. (Not Raised Below)

Point III

The trial court improperly charged the jury with aggravated assault causing serious bodily injury when the evidence did not support this charge. (Not raised below)

Point IV

The trial court erred when it sentenced defendant without considering the mitigating factors supported by the evidence and when it failed to downgrade defendant's second degree aggravated assault conviction to third degree aggravated assault causing bodily injury.

II.

Defendant argues that the trial judge erred by admitting Tillotson's and Barros' testimony, in which they identified defendant as one of the perpetrators of the assault upon Quigley. Defendant contends the officers offered eyewitness identifications that were "suggestive" and made "without any identification process," which rendered them unreliable. He argues that the admission of this testimony was a miscarriage of justice and he should be granted a new trial. We cannot agree.

At trial, Tillotson and Barros testified that they came upon the scene and observed two black males assaulting Quigley. They testified that the area was well lit with several streetlights and illuminated by the headlights on the police car. Tillotson and Barros testified that they were "100 percent" sure that defendant was the person they saw pulling Quigley out of his car.

The officers' identifications were based on their own observations and not the product of any identification procedure. The officers were not required to engage in any post-arrest identification process in order to establish that their identifications were reliable. The trial judge also was not required to assess the reliability of the officers' identifications before permitting their admission.

Defendant argues, however, that State v. Herrera, 187 N.J. 493 (2006), requires reversal of his convictions and a remand for a new trial. We disagree. In Herrera, the victim was a security guard at a housing complex in Hoboken. Id. at 496. He testified that, at the conclusion of his shift, an individual approached him and punched him in the face, knocking him unconscious. Ibid. When the victim regained consciousness, he noticed that his car was missing. Ibid.

The police in another municipality later came upon a car, which had been damaged and was missing a front tire. Id. at 496-97. The defendant was found with the vehicle. Id. at 497. The police arrested the defendant because he appeared to be intoxicated, and thereafter learned the vehicle had been stolen in Hoboken. Ibid.

The Hoboken police were informed. Ibid. They contacted the victim and asked him to accompany them to identify the man who attacked him. Ibid. The police transported the victim to a hospital, where the defendant had been taken. Ibid. There, the victim identified the defendant as the person who attacked him. Ibid.

The Supreme Court determined that "the suggestiveness inherent in a showup, [and] the added comments by the police rendered the showup procedures in the out-of-court identification of defendant impermissibly suggestive." Id. at 506. The Court then considered whether the procedure was sufficiently reliable to warrant admission of the victim's identification, using the factors identified in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977). Herrera, supra, 187 N.J. at 506-07.

Those factors are "'the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.'" Id. at 507 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).

The Court concluded that the "procedure was reliable and did not result in a substantial likelihood of misidentification." Id. at 509. The Court noted that, prior to the incident, the victim had seen the defendant on a daily basis, although he did not know his name, and the victim had a sufficient opportunity to observe the defendant during the attack. Id. at 507.

The Court said it was not clear from the record whether the victim's description of the defendant was accurate. Id. at 507-08. The Court also noted that the showup occurred within a reasonable time after the attack, and the victim identified the defendant quickly after observing him in the hospital. Id. at 508-09.

Defendant's reliance upon Herrera is misplaced. The facts in Herrera are distinguishable from those in this case. In Herrera, the victim identified the defendant in a showup procedure, which the Court indicated was "inherently suggestive." Id. at 504. As we have explained, in this case, the officers' identifications were not the result of any identification procedure.

Furthermore, in Herrera, the Court considered the Manson factors in order to determine whether the identification procedure employed by the police was sufficiently reliable to allow admission of the victim's identification. Id. at 506-07. Because the officers' identifications in this case were not made using any identification procedure, the trial judge was not required to consider the Manson factors before admitting the officers' identifications.

We therefore conclude that the admission of Tillotson's and Barros' identifications was not erroneous and defendant's motion for a new trial was correctly denied.

III.

Next, defendant argues that his conviction on count three must be set aside because he was convicted of a crime not included in the indictment and the jury verdict could have been based on an improper state-of-mind finding related to that offense. We disagree.

In count three, defendant was charged with second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(1), specifically, purposely attempting to cause serious bodily injury to Quigley. The statute provides that a person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury[.]" Ibid.

In charging the jury on this count, the trial judge explained that defendants could be found guilty of aggravated assault if they caused serious bodily injury to another person. The judge discussed the elements of the offense and stated that defendants could not be found guilty if the State failed to prove any element beyond a reasonable doubt.

The judge added that "defendants can be found guilty if they either caused serious bodily injury to another, or attempted to cause serious bodily injury to another. If you find beyond a reasonable doubt that the defendants attempted to cause serious bodily injury it does not matter whether such injury actually resulted."

The judge further explained that a person is guilty of attempt if:

acting purposefully, he did anything that under the circumstances, as a reasonable person would believe them to be, was an act constituting a substantial step in the course of conduct planned to culminate in his commission of a crime. The step taken must be one that is strongly-corroborative of the defendant's criminal purpose. The accused must be shown to have had a firmness of criminal purpose in light of the steps he had already taken. These preparatory steps must be substantial and not just very-remote preparatory acts.

In addition, the judge defined the term "serious bodily injury" as a "bodily injury which creates a substantial risk of death, or which causes serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

The jury found defendants guilty on count three. The portion of the jury verdict sheet regarding this count stated:

COUNT 3: AS TO THE CHARGE OF AGGRAVATED ASSAULT SERIOUS BODILY INJURY ON JUNE 19, 2009, IN THE CITY OF ELIZABETH:

X

NOT GUILTY GUILTY

Defendant argues that the trial judge erred by charging the jury on aggravated assault, by causing serious bodily injury. We agree that the judge erred by failing to limit the charge to aggravated assault by attempting to cause serious bodily injury, which was the charge in the indictment. Defendant did not, however, object to the instruction. Therefore, we must determine whether the error was "clearly capable of producing an unjust result." R. 2:10-2. We conclude that it was not.

In his remarks to the prospective jurors during jury selection, the judge referenced count three of the indictment and noted that defendants were charged with aggravated assault by purposely attempting to cause serious bodily injury to Quigley. In his summation, the assistant prosecutor emphasized, among other things, that the alleged aggravated assaults involved attempts. When charging the jury, the judge again referenced count three of the indictment and stated that defendants had been charged with aggravated assault, serious bodily injury, by "purposely attempt[ing] to cause serious bodily injury to" Quigley.

Because the judge twice told the jurors that defendant was charged with aggravated assault by attempting to cause, rather than causing, serious bodily injury, and because the prosecutor made clear that the aggravated assault charge involved attempt, the judge's statement that defendant could be found guilty of causing serious bodily injury was not an error clearly capable of producing an unjust result.

The jury's verdict sheet also lends no support to defendant's contention that the jury actually convicted him of aggravated assault by causing serious bodily injury. The verdict sheet referred to aggravated assault, serious bodily injury. We are therefore satisfied that the jury's verdict on count three represented a finding that defendant was convicted of the offense with which he was charged, that is, aggravated assault by purposely attempting to cause serious bodily injury.

Defendant additionally argues that his conviction on count three must be reversed because the State failed to establish that Quigley suffered serious bodily injury as defined in N.J.S.A. 2C:11-1(b). However, because the State charged defendant with attempting to cause serious bodily injury, it was not required to prove Quigley actually suffered such injuries.

Moreover, as stated previously, the evidence established that Quigley was struck with a wooden table leg and, after the assault, he was bleeding profusely. Quigley required medical attention and thirteen stitches. Based on this evidence, the jury could reasonably find defendant guilty beyond a reasonable doubt of aggravated assault by purposely attempting to cause serious bodily injury.

In support of his argument that the erroneous charge to the jury on count three requires reversal of his conviction, defendant relies upon State v. Green, 318 N.J. Super. 361 (App. Div. 1999), aff'd, 163 N.J. 140 (2000). In that case, the police officers were conducting surveillance and observed the defendant. Id. at 367. They knew the defendant from past encounters and began to follow him in an unmarked vehicle. Ibid. The officers followed the defendant into a parking lot and parked their vehicle "nose-to-nose" with the defendant's car. Ibid. One of the officers identified himself as a police officer, and when he approached the defendant's vehicle, the defendant put his car into reverse and backed up quickly. Id. at 367-68. The defendant then drove forward and struck the officer in the leg. Id. at 368.

The officer ran alongside the defendant's car and punched his hand through the side window, shattering the window and cutting his hand. Ibid. The defendant's vehicle continued moving forward and the officer rolled off onto the ground. Ibid. The officer suffered lacerations to his hands and cuts to some fingers. Ibid. The officer's left leg also was bruised. Ibid. The officer was left with a scar on his palm. Ibid.

We held that, viewing the evidence in its entirety, and giving the State the benefit of all inferences that could reasonably be drawn from the evidence, a reasonable jury could find the defendant guilty of aggravated assault by attempting to cause serious bodily injury to the officer. Id. at 371. We determined, however, that the trial judge erred by failing to limit the jury's consideration on the charge to that theory of the case. Id. at 372.

We noted that the defendant's attorney did not object to the judge's instruction. Ibid. We concluded that the judge's failure to limit the jury's consideration to attempt to cause serious bodily injury was reversible error because it "had the clear capacity to confuse the jury" and was "clearly capable of producing an unjust result." Id. at 372-73 (citing Conklin v. Hannoch Weisman, 145 N.J. 395, 409 (1996)).

We are satisfied that Green does not compel reversal of defendant's conviction on count three. Although the trial judge in this case erroneously indicated that defendant could be found guilty on count three by either attempting to cause or causing serious bodily injury, the error did not have the "clear capacity to confuse the jury" because the judge twice told the jury that defendants had only been charged with aggravated assault by purposely attempting to cause serious bodily injury. The assistant prosecutor also told the jurors that the case involved attempting to cause serious bodily injury. Thus, the judge's errant remark was unlikely to confuse the jury and was not clearly capable of producing an unjust result.

IV.

Defendant additionally challenges his sentence. The trial judge found aggravating factors three (risk that defendant will commit another offense), six (extent of defendant's criminal record and the seriousness of the offenses of which he has been convicted), and nine (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge found no mitigating factors. After appropriate mergers, the judge sentenced defendant on count three to eight years of incarceration, with a period of parole ineligibility as prescribed by NERA. Concurrent sentences were imposed on counts six and seven.

Defendant contends that the judge should have considered certain mitigating factors, specifically mitigating factors one (defendant neither caused nor threatened serious harm), six (defendant has compensated or will compensate the victim), and seven (defendant led a law-abiding life for a substantial period of time). N.J.S.A. 2C:44-1(b)(1), (6) and (7). We are convinced, however, that the record did not support findings on these mitigating factors and defendant's arguments to the contrary are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Defendant also argues that the judge erred by failing to downgrade the aggravated assault conviction to a third-degree offense for sentencing purposes pursuant to N.J.S.A. 2C:44-1(f)(2), which states:

In cases of convictions for crimes of the first or second degree where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

In order to exercise the authority conferred by this statute, the sentencing judge must be "clearly convinced" that the mitigating factors substantially outweigh the aggravating factors and the "interest of justice" demands a downgrade. State v. Megargel, 143 N.J. 484, 504-05 (1996). Here, the record supports the judge's refusal to find any mitigating factors. Moreover, the "interest of justice" did not require a sentencing downgrade.

We are therefore satisfied that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

A