STATE OF NEW JERSEY v. TROY LONE, JR.

NOT FOR PUBLICATION WITHOUT THE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.

TROY LONE, JR., a/k/a

DYMIERE DEMBY, TERRY LONE,

Defendant-Appellant.

_______________________________________

September 8, 2014

Submitted May 27, 2014 Decided

Before Judges Kennedy and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 10-12-03446.

Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).

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

PER CURIAM

After a three day jury trial defendant was found guilty of first-degree armed robbery, N.J.S.A. 2C:15-1a(1) (count one); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); second-degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b (count four); and fourth-degree aggravated assault with a firearm, in violation of N.J.S.A. 2C:12-1b(4) (count six). Defendant was sentenced to a discretionary extended term sentence as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a), and given an aggregate term of thirty years' imprisonment with eighty-five percent parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(c).

Defendant appeals contending his trial counsel was ineffective for not requesting a Wade1 hearing to challenge the reliability of the victim's out-of-court identification; the prosecutor's summation comments denied him a right to a fair trial; and his sentence was excessive. We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

We briefly summarize the relevant procedural history and the facts from the record before us.

On September 28, 2010, Mr. Ruiz was employed as a taxicab driver for Five Star Cab Service in Camden. At 2:00 a.m., Ruiz drove to a gas station at the corner of Kaighns Avenue and Mt. Ephraim Avenue in Camden. Ruiz was accompanied by a friend, Mr. Caban. Ruiz pulled up to a gas pump, exited the cab, and went inside the gas station office to prepay for his purchase of gas. Meanwhile, Caban exited the cab and stood near its trunk waiting for Ruiz to return.

After Ruiz paid for gas, he came back outside and began pumping gas into the cab when a white Ford Taurus pulled up to another gas pump. A man exited the car and went into the gas station office while a woman remained in the car. The man returned from the office and began arguing with Caban. As the argument escalated, the man and Caban "got face to face," and Ruiz started to walk over to break up the argument. As Ruiz walked over, the man pulled out a gun. When Caban saw the gun, he put his hands up and began to back away. The man then put the gun against Ruiz's stomach, walked Ruiz towards the rear of the cab and went through his pockets. The man took Ruiz's cell phone and wallet, which contained eighty dollars cash, and then told him to remove his earrings. As Ruiz was unscrewing his earrings, Caban "took off and ran."

Ruiz then heard Caban screaming "hey, over there, over there." Caban was seeking to get the attention of a Camden police cruiser he noticed going pass the gas station. He flagged down the vehicle, driven by Officer Gregory Young, and told him someone in the white Taurus had a gun. Young looked about fifty yards away under the bright lights of the gas station, seeing a man, later identified as defendant, talking to Ruiz. After defendant noticed Young, he got in the passenger seat of the Taurus. The Taurus then drove out of the gas station with Young's cruiser in pursuit with its lights and sirens activated. Young never lost sight of the Taurus as he pursued it and called for back-up. The Taurus stopped two blocks down the street. Young drove his vehicle to the Taurus. He got out the vehicle, pulled his gun out and pointed it at the driver's side door of the Taurus. The driver and defendant remained in the car until police assistance arrived.

After eight additional police units arrived at the scene, "felony car stop" procedures were implemented. The driver, a woman, and defendant were removed from the vehicle and handcuffed. Defendant was the same man Young saw enter the Taurus at the gas station. Young searched the Taurus and found two cell phones, one on the front seat and another on the back seat, as well as a jacket and a mask on the back seat. Eighty dollars in cash was found in a storage compartment beneath the radio. Young did not find a gun inside the car. However, the police conducted a search of the two block route from the gas station to where the Taurus pulled over, and found a gun lying in a grassy area about three feet away from a sidewalk on the north side of Kaighns Avenue.

Subsequently, the police brought Ruiz to where the Taurus was stopped and defendant was being held under arrest. The police removed defendant from the police car and asked Ruiz if he was the person who robbed him. Ruiz answered affirmatively.

On December 20, 2010, a Camden County Grand Jury indicted defendant on two charges of first-degree armed robbery, N.J.S.A. 2C:15-1a(1) (counts one and two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b (count four); two charges of fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4) (counts five and six); and second-degree certain persons not to have a weapon, N.J.S.A. 2C:39-7b (count seven).

Prior to trial, on April 30, 2012, the trial judge dismissed counts two and five (relating to Caban) upon the State's motion.

The jury trial was conducted May 2 to 4, 2012. The State presented seven witnesses, including Ruiz. Ruiz acknowledged he was subpoenaed to testify and was conveyed to court by the prosecutor's investigative officers. Ruiz did not provide an in-court identification of defendant as the person who robbed him. Instead, the State relied upon the identification Ruiz made of defendant at the scene when defendant was arrested. Defendant did not testify or present any witnesses.

In his summation, defense counsel attacked Ruiz's credibility, arguing the only truthful testimony he provided was that he did not identify defendant in court as the person involved in the robbery. In turn, the prosecutor argued Ruiz's refusal to identify defendant in court was attributed to fear. Defense counsel objected to the comment. Judge Gwendolyn Blue overruled, stating:

Well he can certainly draw an inference based on testimony that was elicited such as the witness did not come here freely. . . . [The jury] can draw that inference. They don't have to accept the argument that the prosecutor's making but he certainly can comment on the inference that can be drawn.

Defendant did not request that a curative instruction be given to the jury, and the court did not provide one sua sponte. Following the State's summation and the jury charges, the jury retired for the day.

The next day, while the jury was deliberating, defendant made a motion for a mistrial based upon the prosecutor's comments concerning Ruiz's fear to provide an in-court identification of defendant as the man who robbed him. The judge denied the motion for the same reasons she expressed when she overruled defendant's objection during the prosecutor's summation. She found there was no manifest injustice as a result of the prosecutor's comments, but decided to give the jury a curative instruction.2

Judge Blue brought the jury into the courtroom and instructed them as follows:

Yesterday I indicated to all of you, I instructed you that arguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence. For example, during the closing argument, the state made a representation that the victim did not appear in Court on his own free will because he was fearful. I instruct you that you should not consider that statement if it is not supported by evidence on the record. I note that the attorneys may point out what they think is important in this case, however, you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial.

Whether or not the defendant has been proven guilty beyond a reasonable doubt is for you to determine based on all the evidence presented at the trial. Any comments by counsel are not controlling. With that, I will have you return back to the jury room to continue with your deliberations.

The jury returned to its deliberations and found the defendant guilty on all four remaining counts.3

At sentencing, the judge granted the State's motion to impose a discretionary extended term sentence, pursuant to N.J.S.A. 2C:44-3(a), and imposed an aggregate term of thirty years' imprisonment subject to eighty-five percent parole ineligibility under NERA.

Defendant appealed raising the following points:

POINT I

DEFENSE COUNSEL'S FAILURE TO REQUEST A WADE HEARING ON THE ISSUE OF THE SUGGESTIVENESS AND RELIABILITY OF THE OUT-OF-COURT IDENTIFICATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE THE "SHOW-UP" PROCEDURE USED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND CREATED A VERY SUBSTANTIAL LIKELIHOOD OF IRREPARABLE MISIDENTIFICATION. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I PARAGRAPHS 1, 10. (NOT RAISED BELOW)

POINT II

THE PROSECUTOR'S MISCONDUCT IN SUMMATION DENIED THE DEFENDANT HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. ART. I, PARAGRAPHS 1, 10.

POINT III

THE DEFENDANT WAS SENTENCED TO A MANIFESTLY EXCESSIVE EXTENDED TERM OF [THIRTY] YEARS AS A PERSISTENT OFFENDER.

II.

Although not in the order set forth in defendant's brief, we first consider defendant's contention that his constitutional rights were violated due to prosecutorial misconduct during summation.

Our review of a claim of prosecutorial misconduct based upon summation remarks is one of law, thus is plenary and de novo.State v. Smith, 212 N.J. 365, 387 (2012) (citing Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,140 N.J. 366, 378, (1995)).

Defendant contends that his right to a fair trial guaranteed by the Sixth Amendment of the United States Constitution and Article 1, Paragraph 10 of the New Jersey Constitution was violated when the prosecutor stated in summation that the victim did not voluntarily testify because the victim was scared. We disagree.

We affirm for the reasons expressed by the trial judge, that the prosecutor fairly commented on the evidence presented. We only add the following.

In summation, a prosecutor is generally limited to commentingon the evidence and to "drawing any reasonable inferences supported by the proofs." State v. Zola, 112 N.J.384, 426 (1988), cert. denied,489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989). This does not prevent a prosecutor from making "'a vigorous and forceful presentation of the State's case.'" Ibid.(quoting State v. Bucanis, 26 N.J.45, 57, cert.denied,357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). The prosecutor is given "considerable leeway in closing arguments as long as the commentsare reasonably related to the scope of the evidence presented." State v. R.B.,183 N.J.308, 332 (2005). In order to warrant a reversal of a conviction, it must be evident that theprosecutor's conduct was "clearly and unmistakably improper," and "so egregious as to deprive defendant of a fair trial." State v. Wakefield,190 N.J.397, 437-38 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008).

In determining whether the prosecutor exceeded these bounds, we must consider "whether the trial court struck the remarks and provided appropriate [curative] instructions to the jury." Smith, supra, 212 N.J.at 403 (citation omitted). When we evaluate the appropriateness of curative instructions, deference is given to the trial judge to ensure that the curative instruction focuses on the capacity of the offending comment to lead to a unjust verdict. See State v. Winter, 96 N.J.640, 647 (1984) (finding medical expert's unresponsive comment that the deceased stated someone was out to murder her was promptly struck from the record by the trial court before an objection could be raised and a complete curative instruction was given). In addition, we must consider "whether the offending remarks were prompted by comments in the summation of defense counsel." Smith, supra, 212 N.J.at 403-04 (citations omitted); seealso, State v. C.H., 264 N.J. Super. 112, 135 (App. Div.) certif. denied, 134 N.J.479, 634 (1993) (holding prosecutor's response to defense counsel's summation attacking the credibility of State's witnesses is not improper).If, after consideration of these issues we conclude the prosecutor's comments " [64] """""were sufficiently egregious, a new trial is appropriate, even in the face of overwhelming evidence that a defendant may, in fact, be guilty." Smith, supra, 212 N.J. at 404 (citations omitted).

Here, the prosecutor's comments were not egregious, as they were a fair inference based on the evidence presented. During summation, defense counsel attacked Ruiz's credibility and argued that his only credible testimony was not identifying defendant in court as his assailant. In response, the prosecutor argued that Ruiz's refusal to identify defendant was because he was scared of defendant. Ruiz testified that he was scared when a gun was stuck in his stomach and his possessions were taken. He revealed that he was subpoenaed and conveyed to court by the prosecutor's investigative officers to tesify. The prosecutor argued that Ruiz appeared nervous on the witness stand, and looked everywhere but at defendant when he was asked whether his assailant was in the courtroom. Thus, we conclude it was certainly fair to argue to the jury that the fear that overcame Ruiz when he was robbed at gunpoint resulted in his failure to identify defendant as his assailant.

Given our conclusion that the comments were not egregious, there was no need for the trial judge to give curative instructions. Nevertheless, the instruction that was given removed any potential taint of prejudice that could have permeated the jury's deliberations. The jury was instructed that counsel's summations are simply arguments, and should not be considered unless supported by evidence. The record does not indicate that the jury did not follow the judge's instruction. Winter, supra, 96 N.J.at 649.

We next consider defendant's claim that his sentence of thirty years as a persistent offender was manifestly excessive.

Defendant concedes that he qualified for a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a), as a result of six prior felony convictions4 as an adult. He argues that the sentence of thirty years subject to NERA was excessive given the extended term sentencing range between ten and forty years' imprisonment.

On appeal, a sentence should be affirmed if the sentencing court identified and balanced the aggravating and mitigating factors, and their existence is grounded in sufficient credible evidence in the record. State v. Cassady, 198 N.J. 165, 180 (2009). A sentence should only be modified if the application of the facts to the law "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-65 (1984). The reviewing court is not permitted to substitute its own judgment for that of the sentencing court but rather must determine whether, on the basis of the evidence, "no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989).

Here, the trial judge's decision to impose an extended term of imprisonment between ten and forty years pursuant to N.J.S.A. 2C:44-3(a) is not being challenged. The trial judge's decision to sentence defendant to thirty years given his prior convictions is not shocking to our conscience nor an abuse of discretion. Accordingly, the sentence should not be modified.

Lastly, we address defendant's contention that he was denied the effective assistance of counsel as a result of his attorney's failure to request a Wade identification hearing to challenge the reliability of Ruiz's out-of-court identification of defendant. As the present record is insufficient to determine this contention, we leave it to be addressed in post-conviction relief proceedings, if any. State v. Preciose, 129 N.J. 451, 460 (1992).

Affirmed.

1 United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).

2 The jury had been deliberating less than an hour.

3 Count seven (certain persons) was dismissed by the State following the verdict.

4 Convictions were for: third-degree unlawful possession of a weapon; third-degree possession of controlled dangerous substances; fourth-degree ride in a vehicle knowing it's taken without consent of its owner; third-degree absconding from parole; third-degree manufacturing/distribution of heroin/ cocaine; and fourth-degree unlawful possession of a weapon.