STATE OF NEW JERSEY v. JOSEPH V. VOLPE, 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NOT FOR PUBLICATION WITHOUT THE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.

JOSEPH V. VOLPE, JR., a/k/a JOSEPH

VINCENT VOLPE, a/k/a JOSEPH VINCENT

VOLPE, JR., a/k/a JOE VOLPE, a/k/a

JOSEPH VOLPE,

Defendant-Appellant.

________________________________________________

May 6, 2014

 

Submitted March 24, 2014 - Decided

 

Before Judges Parrillo and Guadagno.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-851.

 

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

 

Andrew C. Carey, Acting Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant Joseph V. Volpe, Jr., was convicted of attempted burglary. On appeal, he claims the identification by the homeowner was unreliable and the product of an impermissibly suggestive showup; the prosecutor elicited inaccurate, irrelevant, and extremely prejudicial evidence regarding defendant's residence in Newark and his unemployment status; and the sentence imposed is excessive and unduly punitive. For the reasons that follow, we affirm defendant's conviction but remand for re-sentencing.

I.

On the afternoon of April 19, 2010, Marwa Mohamad was working in the basement office of her Avenel home. It was a bright and sunny day and she had left the windows open upstairs and turned off the lights. At some point that afternoon, Mohamad heard a knock at the front door, then a cracking sound coming from her upstairs kitchen. Mohamad did not answer the door but went to the kitchen to investigate the noise. She pulled back the curtain to her kitchen window and saw a man who was trying to pry open the screen with a screwdriver. Mohamad confronted the man, who ran away.

Mohamad ran to her living room to call the police and observed the man from her living room window, running away in the direction of some garages in her housing complex. Mohamad told the 9-1-1 operator that a heavyset man, with light skin, possibly Hispanic, and black hair had tried to break in. She also reported that he was wearing a black sweatshirt.

Officer Jorge Quesada of the Woodbridge Police Department responded to Mohamad's home. She provided him with a description of the suspect, and reported that he had run away in the direction of a nearby school. Quesada broadcasted the information on his police radio. Another officer, Scott Horvath, was working as a security officer at the school that afternoon. Horvath heard the transmission, and proceeded to investigate a wooded area behind the school, to see if the suspect was nearby. Two other officers also responded to the scene. They discovered defendant on the ground behind a log in the wooded area. Defendant was wearing a black t-shirt and a black sweatshirt was found on the ground nearby.

Quesada was informed that a person matching the description of the suspect had been found. He requested that Mohamad accompany him to the area to make an identification, but Mohamad was frightened and refused to leave her house. Accordingly, the officers transported defendant, handcuffed and in the back of a marked police car, to Mohamad's house.

Once the police car pulled up, and before defendant was removed from the vehicle, Mohamad identified defendant as the man who had tried to break into her home. Defendant was sitting in the back of the patrol car with the window lowered; Mohamad was still inside her house, about thirty feet away, looking at him through her living room window. She could only see his head and chest.

Defendant was indicted on attempted residential burglary charges. Before trial began, he sought to have Mohamad's identification excluded, on the basis that it was impermissibly suggestive. After a Wade1 hearing, the court found that the identification was not unduly suggestive. At trial, Mohamad was able to testify to her prior identification of defendant as the man she saw at her window.

The State also elicited testimony from Officer Matthew Herbert, who drove defendant to the police station after the identification, that defendant had given a Newark address and stated that he was unemployed. Although defendant objected to both these statements as prejudicial, the court allowed the State to comment on these facts in closing argument, limiting the testimony only by prohibiting any reference to defendant's address, which was a halfway house in Newark.

Defendant was convicted of third-degree attempted residential burglary. The State moved for an extended term, which was granted. The court then imposed an eight-year term with a four-year parole disqualifier.

On appeal, defendant raises the following points:

point i

 

because the eye-witness identifications of volpe, both out of court and in court, were unreliable and the product of an impermissibly suggestive show-up procedure, they should have been excluded.

 

point ii

 

the trial court's failure to make a decisive ruling restraining the prosecutor from eliciting inaccurate, irrelevant, yet extremely prejudicial evidence regarding volpe's residence in Newark and his unemployment status, deprived volpe of a fair trial.

 

point iii

 

the sentence imposed is excessive and unduly punitive as a result of the court's applying an inappropriate aggravating factor and failure to find mitigating factors that were amply supported in the record.

 

II.

A.

Defendant contends that the identification by Mohamad was both impermissibly suggestive and unreliable. Specifically, defendant argues that Mohamad's opportunity to observe the man at her window was "fleeting." He also claims that the different descriptions Mohamad gave of his clothing were indicators of unreliability. Defendant also claims that the short time period between the incident and the identification indicates that Mohamad's identification took place "at a time of stress or excitement." Because the identification should not have been admitted at trial, defendant claims a new trial is warranted. We disagree.

We note initially that the new rules governing out-of-court identification procedures announced in State v. Henderson, 208 N.J. 208 (2011), do not apply here because defendant was tried before Henderson was decided and the decision is not retroactive. See id. at 302.

We review pretrial identification procedure under the Manson/Madison standard, derived from the principles the United States Supreme Court set out in Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977), which were adopted by our Supreme Court in State v. Madison, 109 N.J. 223, 232-33 (1988), abrogated in part byHenderson, supra, 208 N.J. 208. To decide whether an identification is admissible, the court must employ a two-prong test, deciding whether the procedure in question was in fact impermissibly suggestive and, if so, whether the objectionable procedure resulted in a "very substantial likelihood of irreparable misidentification." Madison, supra, 109 N.J. at 232 (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).

As to the first prong, "one-on-one showups are inherently suggestive . . . because the victim can only choose from one person, and, generally, that person is in police custody." State v. Herrera, 187 N.J. 493, 504 (2006). However, "standing alone a showup is not so impermissibly suggestive to warrant proceeding to the second step." Ibid. The courts allow on or near-the-scene identifications because "[t]hey are likely to be accurate, taking place, as they do, before memory has faded[] [and because] [t]hey facilitate and enhance fast and effective police action and they tend to avoid or minimize inconvenience and embarrassment to the innocent." State v. Wilkerson, 60 N.J. 452, 461 (1972). However, because of their suggestive nature, "only a little more is required in a showup to tip the scale toward impermissibly suggestive." Herrera, supra, 187 N.J. at 504.

In Herrera, the Court found that a showup, in combination with comments by police that they would take the victim "to identify the person" and that they had found the suspect inside the victim's car, rendered the process "impermissibly suggestive." Id. at 506. The Court concluded that the comments were "inappropriate because they may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Ibid. By contrast, an identification made while a defendant sat in the back of a police car, with handcuffs on, was not by itself impermissibly suggestive, State v. Wilson, 362 N.J. Super. 319, 327 (App. Div.), certif. denied, 178 N.J. 250 (2003), nor was an identification in which the victim was merely told that a suspect had been apprehended, Herrera, 187 N.J. at 505 (discussing United States v. McGrath, 89 F. Supp. 2d 569, 581 (E.D. Pa. 2000), aff d, 80 Fed Appx. 207 (3d Cir. 2003)).

However, suggestive circumstances do not necessarily render the identification procedure improper and unconstitutional. See Madison, supra, 109 N.J. at 232; see also United States v. King, 148 F.3d 968, 970 (8th Cir. 1998) ("Necessary incidents of on-the-scene identifications, such as the suspects being handcuffed and in police custody, do not render the identification procedure impermissibly suggestive."). The suggestive identification may still be admitted if it satisfies the reliability prong. Wilson, supra, 362 N.J. Super. at 327.

In analyzing the second prong, the court must focus on the reliability of the identification. Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154 ("[R]eliability is the linchpin in determining the admissibility of identification testimony[.]"). If the court finds that the identification is reliable, the identification may be admitted into evidence. To assess reliability, courts consider five factors: (1) the "opportunity of the witness to view the criminal at the time of the crime"; (2) "the witness's degree of attention"; (3) "the accuracy of his prior description of the criminal"; (4) "the level of certainty demonstrated at the time of the confrontation"; and (5) "the time between the crime and the confrontation." Madison, supra, 109 N.J. at 239-40 (quoting Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154) (internal quotation marks omitted); see also State v. Adams, 194 N.J. 186, 204 (2008). These factors are balanced against "the corrupting effect of the suggestive identification itself." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154. Overall, the reliability determination is to be based on the totality of the circumstances. Madison, supra, 109 N.J. at 233 (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)).

The findings of the trial judge as to reliability of the witnesses are entitled to considerable weight. State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973); State v. Scott, 236 N.J. Super. 264, 267 (App. Div. 1989).

Here, the trial court first addressed the issue of whether the identification was impermissibly suggestive. Noting that the police officers did not make any suggestive statements to Mohamad, the court found that the identification was not impermissibly suggestive, even though it took place while defendant sat in a patrol car. In addition, the court examined the reliability prong, finding that Mohamad saw the man clearly, from only a short distance away and that the identification took place very soon after the initial encounter. Using these factors, the court determined that the identification was reliable and therefore admissible.

Unlike the facts in Herrera, the police here made no comments to Mohamad suggesting that the intruder had been caught or that defendant was the intruder. They also made no comments tying defendant to the specific crime, such as making references to the sweatshirt he was found near. In his testimony, Quesada maintained that he had only told Mohamad that the police "had somebody that matched the description" of the man. Mohamad noted that she could not hear what was being said over the radio and thus did not hear transmissions about the search for the suspect. The mere statement that a suspect had been caught is not enough to establish impermissible suggestiveness. Herrera, supra, 187 N.J. at 505.

Even if the first prong was satisfied, the trial court correctly concluded that the identification was nonetheless reliable, finding that Mohamad had "opportunity . . . to view the criminal at the time of the crime." See Madison, supra, 109 N.J. at 239. The attempted break-in occurred during the afternoon of a bright and sunny day in April and, through her kitchen window, Mohamad saw the face of the man she later identified as defendant less than two feet away. She had another chance to see his face when she confronted him through her living room window, when he turned back to look at her.

Mohamad focused a high "degree of attention," and testified that she paid close attention to defendant's face. Mohamad's description of the suspect as big, in his 40's, and light-skinned with dark hair, was fairly accurate. She also described him as wearing a black sweatshirt.

Although her description about the type of pants varied between blue jeans and later white jeans, she admitted that her focus was on his face and not his clothing. Generally, defendant fit the description provided by Mohamad in terms of both physical appearance and black clothing.

Moreover, Mohamad demonstrated a high "level of certainty . . . at the time of the confrontation[.]" See id. at 240. Her identification took place immediately after she saw defendant in the police car. According to Quesada, Mohamad immediately identified defendant as the intruder, saying, "that's him, that's him." Even though she admitted that she was scared and nervous, Mohamad testified that she would remember the face of someone who tried to break-in to her home. The identification was made unequivocally and without delay.

Finally, the time between the crime and the confrontation was brief. Immediately after seeing the man's face at her window, Mohamad ran into the living room to call 9-1-1. She testified that Quesada arrived at her house within minutes of this call. Quesada testified that only about fifteen minutes had elapsed between his arrival at Mohamad's house and the identification. At the most, twenty-five to thirty minutes elapsed between the attempted break-in and Mohamad's identification. We are satisfied that the trial court properly ruled that the police identification procedure was not impermissibly suggestive.

B.

Defendant contends that the trial court erred in admitting evidence about his Newark residence and his unemployment. Defendant maintains that neither fact was relevant to the case and even if relevant, these facts were "overwhelmingly prejudicial" and as such should have been excluded under N.J.R.E. 403. Defendant claims the court ignored established legal principles establishing that the State may not elicit evidence of unemployment in order to show motive to commit a crime. Finally, defendant complains that no curative instruction was given, even though the State was advised to make no further mention of defendant's employment status.

The Newark Evidence

The standard of review for an error raised at the trial level is whether that error is "clearly capable of producing an unjust result[.]" R. 2:10-2. Thus, a "harmless error" is not grounds for reversal. State v. Macon, 57 N.J. 325, 337-38 (1971). An error will be found harmless unless there is reasonable doubt that it contributed to the verdict. Id. at

338. "A reviewing court generally will defer to the trial court's admissibility rulings." State v. Burr, 195 N.J. 119, 127 (2008).

N.J.R.E. 401 defines relevant evidence as "evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." In determining relevance, courts examine "'the logical connection between the proffered evidence and a fact in issue.'" Burr, supra, 195 N.J. at 127 (quoting State v. Jenewicz, 193 N.J. 440, 457-58 (2008)). Evidence is probative when it has a tendency "to establish the proposition that it is offered to prove." Id. at 127 (quoting State v. Allison, 208 N.J. Super. 9, 17 (App. Div.), certif. denied, 102 N.J. 370 (1985)). "The standard for the requisite connection is generous: if the evidence makes a desired inference more probable than it would be if the evidence were not admitted, then the required logical connection has been satisfied." State v. Williams, 190 N.J. 114, 123 (2007).

However, relevant evidence is not necessarily admissible. N.J.R.E. 403 provides in pertinent part that "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of . . . undue prejudice, confusion of issues, or misleading the jury[.]"

Here, the trial court allowed testimony that defendant lived in Newark at the time of the break-in. The court, however, restricted the testimony to mentions of the city, without specific reference to defendant's address. The jury never learned that defendant resided in Kintock House, a halfway house in Newark. The court noted that because the Newark address was provided by defendant, during Herbert's gathering of pedigree information, it was admissible.

During opening arguments, defendant's counsel told the jury: "It's a beautiful day outside. [Defendant is] in his sweats. He's in his shoes. He's walking by the school. Lives in the area." Defense counsel thus presented a theory of the case based on the idea that defendant was simply in his home city, going about his business when he was arrested. The State elicited the testimony about defendant's address in order to rebut the assertion that defendant was in the neighborhood because he lived nearby.

Nor was there any evidence that the testimony was prejudicial to defendant. The trial court limited the testimony to a mention of the city, and prohibited any specific reference that would alert the jury that defendant lived in a halfway house.

Furthermore, the reference to defendant's residence was fleeting, and, in the case of the State's closing, indirect. During her closing, the prosecutor argued

When it comes to substantial steps toward the burglary, let's consider what [defendant] would have had to do to get to that back window . . . . He had to wake up, get dressed, find a screwdriver, conceal the screwdriver, leave home, go to the train station, decide to go to Woodbridge, buy a ticket, board a train, ride a train past several stops, exit at Woodbridge, find a residential neighborhood, [look] for an opportunity, spot an open window, knock on the door.

 

We are satisfied that the testimony, prompted by defendant's counsel's statements to the jury, was relevant and was not unduly prejudicial.

The Unemployment Evidence

Evidence of a defendant's unemployment is generally inadmissible to prove that he or she had a motive to commit a crime. State v. Martini, 131 N.J. 176, 265-66 (1993), overruled on other grounds byState v. Fortin, 178 N.J. 540, 646 (2004); Mathis, supra, 47 N.J. at 472 ("[T]here must be something more than poverty to tie a defendant into a criminal milieu."); State v. Sherman, 230 N.J. Super. 10, 17 (App. Div. 1988).

Evidence of unemployment may be admissible, however, if it is clearly relevant to a fact in issue. See State v. Rogers, 19 N.J. 218, 228-30 (1955) (allowing evidence of indebtedness to a particular victim to establish motive for the commission of an offense against that victim); State v. Jones, 364 N.J. Super. 376, 386 (App. Div. 2003) (holding evidence of unemployment at time of crime admissible because the defendant was wearing a security guard uniform during crime, and if he was not employed as a security guard at the time, he had no reason to wear it); State v. Farr, 183 N.J. Super. 463, 468-69 (App. Div. 1982) (finding no error when the State questioned the defendant as to his employment status and financial obligations because the defendant had already placed this evidence before the jury).

Here, the only reference to defendant's unemployment came during Herbert's testimony, in response to the State's question about defendant's occupation at the time of his arrest, in which he noted that defendant was unemployed. After objection by defendant, the trial court did not rule it inadmissible but did request that the parties refrain from mentioning defendant's unemployment further until the court could research its admissibility. During closing arguments, the trial court warned the prosecutor:

intuitively I felt [that unemployment evidence] had no place in this. I really didn't. [N]o case law was provided [to] me that's specifically on point by either you or the defendant. And I couldn't find any in the short time.

 

Intuitively I thought that it really didn't have any place here. So I caution you, if you trust my intuitive intelligence, that if you want a conviction to stand, you stay away from it. That's all I can tell you as guidance.

 

However, the trial court failed to provide a curative instruction after Herbert's testimony.

We can find no justification for the admission of testimony that defendant was unemployed and it was clearly improper for the State to present evidence of defendant's unemployment. See Mathis, supra, 47 N.J. at 472. Furthermore, once the evidence was placed before the jury, the court should have attempted to cure any prejudice and failed to do so.

However, we are satisfied that this error was ultimately harmless and does not warrant reversal. Both State v. Robinson, 139 N.J. Super. 58, 63 (App. Div. 1975), cert. denied, 75 N.J. 534 (1977) and State v. Copeland, 94 N.J. Super. 196, 202 (App. Div. 1967), suggest that the verdict should be affirmed, as the evidence did not influence the determination of guilt. The eyewitness identification by Mohamad along with defendant's apprehension in the area shortly after the incident, presented compelling evidence in support of the State's case.

Additionally, the reference here was fleeting, comprising a brief statement by Herbert. Pursuant to the court's directions, the State refrained from referring to the testimony again. And, although there was no curative instruction given to the jury, such an instruction might have been counterproductive, drawing more attention to the testimony. Given the strength of the evidence and the fleeting nature of the improper testimony, we are satisfied that Herbert's testimony was not "clearly capable of producing an unjust result[.]" See R. 2:10-2.

C.

Defendant contends that the trial court erred in sentencing him by improperly applying aggravating factor eleven, that the imposition of a fine or other penalty would be perceived as a cost of doing business, to this case. He claims that factor eleven should only be applied when a court is "balancing a non-custodial term against a prison sentence." Defendant also notes that the court may have double-counted some of his convictions, first when granting the motion for an extended term and second when finding factor six, his prior criminal record. Defendant also contends that a minimum term was not appropriate in this case, because the court did not find that the aggravating factors substantially outweighed the mitigating factors. Finally, defendant argues that the court mistakenly contemplated a range of five to ten years, when the proper range was really from three to ten years, when determining the sentence.

The standard of review for a sentencing appeal is a limited one. State v. Miller, 205 N.J. 109, 127 (2011). "[I]n reviewing a sentence, an appellate court should not substitute its judgment for that of the lower court, and that a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). Moreover, "an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record." State v. O'Donnell, 117 N.J. 210, 216 (1989). Thus, a sentence should not be disturbed unless there is "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

N.J.S.A. 2C:43-6(a) provides that "a person who has been convicted of a crime may be sentenced to imprisonment, . . . [i]n the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years[.]" With an extended term applied pursuant to N.J.S.A. 2C:44-3(a), the top of the range becomes ten years. N.J.S.A. 2C:43-7(a)(4). Thus, the range to be considered is between three and ten years.

Here, the court granted the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3(a). In doing so, the court noted that the range for the sentence with an extended term was "between five and ten years[.]" Then, in setting the term, the court found four aggravating factors: the risk that defendant will reoffend, the extent of his prior record, the need for deterrence, and that the imposition of a fine without imposing a term of imprisonment will be perceived as the cost of doing business. The court found no mitigating factors. The court imposed a sentence of eight years with a four-year parole disqualifier.

The court defined the range as "between five and ten years[.]" However, under State v. Pierce, 188 N.J. 155, 168 (2006), it is clear that an extended term merely raises the potential length of the sentence; the court can set the sentence anywhere in the range from the low-end of the initial term (N.J.S.A. 2C:43-6(a) to the maximum allowed by the extended term (N.J.S.A. 2C:43-7(a)(4)), depending on its analysis of aggravating and mitigating factors. Since N.J.S.A. 2C:43-6(a)(3) provides a three to five year range, the proper range in this case was thus between three and ten years.

The State argues that the trial court simply misspoke, but understood the proper range. Because it is not clear from the record that the trial court understood it, this error alone warrants reversal for a new sentencing hearing.

That error was further compounded by the court's errors in finding aggravating factors six, the extent of defendant's prior record, and eleven, that the imposition of a fine without imposing a term of imprisonment will be perceived as the cost of doing business. State v. Dunbar, 108 N.J. 80, 91-92 (1987) is clear that convictions should not be double counted for the purposes of imposing an extended term, and then finding the aggravating factor of defendant's prior criminal record. In making its ruling on the extended term, the court noted that this was defendant's fourth conviction within ten years. However, the court did not specify which convictions it was using to find "persistent offender" status. Then, when outlining the aggravating factors, the court did not provide factual explanations to support its finding of each factor. See R. 3:21-4(g); State v. L.V., 410 N.J. Super. 90, 108-09 (App. Div. 2009), cert. denied, 201 N.J. 156 (2010). The lack of explanation makes it impossible to determine whether impermissible double counting of those four convictions took place.

Additionally, the court improperly found that factor eleven applied to this case. "By its very terms, that provision is inapplicable unless the judge is balancing a non-custodial term against a prison sentence." State v. Dalziel, 182 N.J. 494, 502-03 (2005). Thus, because this was a case in which a custodial sentence was always contemplated, with only the length of the term to be decided, factor eleven cannot be applied. Because the court improperly included that factor in its analysis, the analysis is flawed.

Even though the sentence imposed falls within the guidelines, the possibility that the trial court was not aware that the low end of the range was three years, not five, is itself sufficient to justify a remand.

We affirm defendant's conviction and remand for re-sentencing. We do not retain jurisdiction.

 

 

 

 

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