STATE OF NEW JERSEY v. MARTINE J. TAYLOR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4745-12T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARTINE J. TAYLOR,

Defendant-Appellant.

______________________________

November 19, 2014

Submitted November 12, 2014 Decided

Before Judges Yannotti, Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-01-0047.

Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).

Joseph Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Senior Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from his conviction for third-degree arson, N.J.S.A. 2C:17-1b. We affirm.

We discern the following facts from the evidence adduced at the jury trial. Defendant went to a home where his brother, sister, and niece lived, and a dispute ensued between defendant and his niece. Defendant retrieved a gas can from the backyard, walked into the house, and poured gasoline on the living room floor. The niece witnessed the residence catch fire after defendant exited the home. Defendant's employer testified that on the day of the fire, defendant told him that he thought he burnt the house down. Investigating detectives verified the presence of an accelerant and a melted two-gallon gasoline container inside the home.

The jury found defendant not guilty of second-degree aggravated arson, N.J.S.A. 2C:17-1a, but guilty of a lesser-included offense of third-degree arson, N.J.S.A. 2C:17-1b. The judge treated defendant as a persistent offender, sentenced defendant to an eight-year prison term with four years of parole ineligibility, and ordered restitution in the amount of $15,000.

Defendant raises the following arguments on appeal

POINT I

THE TRIAL COURT ERRED IN GRANTING THE STATE'S REQUEST TO INSTRUCT THE JURY ON THIRD[-]DEGREE ARSON AS A "LESSER[-]INCLUDED OFFENSE" BECAUSE THE STATE'S THEORY OF THE CASE, AND THE TESTIMONY ELICITED FROM THE STATE'S WITNESSES, DID NOT PROVIDE A RATIONAL BASIS TO SUPPORT THE CHARGE.

POINT II

THE PROSECUTOR COMMITTED PLAIN ERROR IN SUMMATION BY COMMENTING ON DEFENDANT'S FAILURE TO TESTIFY (NOT RAISED BELOW).

POINT III

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN RULING DEFENDANT'S PRIOR CONVICTIONS ADMISSIBLE TO IMPEACH CREDIBILITY BECAUSE THEY WERE REMOTE IN TIME AND BECAUSE THE JURY'S ABILITY TO REACH A JUST VERDICT WAS ADVERSELY IMPACTED.

POINT IV

DEFENDANT'S CONVICTION SHOULD BE REVERSED BECAUSE THE CUMULATIVE EFFECT OF THE TRIAL IRREGULARITIES INVOLVING UNRECORDED SIDE-BAR CONFERENCES, THE MALFUNCTIONING OF THE AUDIO RECORDING SYSTEM, AND THE DELAY IN BRINGING THIS CASE TO TRIAL, UNDERMINED THE INTEGRITY OF [DEFENDANT'S] CONVICTION (RAISED IN PART BELOW).

POINT V

THE [EIGHT-YEAR] SENTENCE WITH [FOUR] YEARS OF PAROLE INELIGIBILITY IMPOSED ON DEFENDANT'S CONVICTION FOR THIRD[-]DEGREE ARSON WAS MANIFESTLY EXCESSIVE AND REPRESENTS A MISAPPLICATION OF JUDICIAL SENTENCING DISCRETION.

(A) THE TRIAL COURT MISAPPLIED ITS DISCRETION IN IMPOSING AN EXTENDED TERM.

(B) THE [EIGHT-YEAR] BASE EXTENDED TERM SENTENCE WITH [FOUR] YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE.

(C) THE MATTER SHOULD BE REMANDED FOR A RESTITUTION HEARING.

I.

We reject defendant's contention that the trial court improperly granted the State's motion to charge the jury on the lesser-included offense of arson.

A trial court may charge a lesser-included offense upon request of the State, defendant, or on its own initiative. State v. Thomas, 187 N.J. 119, 131-32 (2006). An offense is included when

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

[N.J.S.A. 2C:1-8d.]

"The court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." N.J.S.A. 2C:1-8e.

In this case, the court had a rational basis to charge the lesser-included offense of third-degree arson. Defendant was indicted for aggravated arson which is defined, in pertinent part, as a

crime of the second[-]degree, if [a person] starts a fire or causes an explosion, whether on his [or her] own property or another's . . . [t]hereby purposely or knowingly placing another person in danger of death or bodily injury; or . . . [w]ith the purpose of destroying a building or structure of another . . . .

[N.J.S.A. 2C:17-1a.]

Arson is a third-degree crime where a person

purposely starts a fire or causes an explosion, whether on his [or her] own property or another's . . . [t]hereby recklessly placing another person in danger of death or bodily injury; or . . . [t]hereby recklessly placing a building or structure of another in danger of damage or destruction . . . .

[N.J.S.A. 2C:17-1b.]

The trial court correctly found that the facts required to prove arson are

the same facts that would be required to prove . . . aggravated arson and that there's sufficient facts . . . for the jury to determine whether . . . [defendant] had the purpose to destroy the house, or to partially damage it, or to scare the family, or for whatever other reason, to just recklessly place the house in danger of damage or destruction.

The State did not present evidence that defendant actually started the fire. Rather, the testimony at trial showed defendant poured gasoline in the home and admitted to his employer that he thought he might have burned the house down. There was also no prejudice to defendant by charging third-degree arson because he was already defending against the second-degree aggravated arson charge. See Thomas, supra, 187 N.J. at 129-30 (distinguishing between lesser-included offenses and related offenses where a defendant may not have proper notice to defend against the charge).

II.

Defendant's second argument that the prosecution improperly commented on defendant's decision not to testify is "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We add the following brief remarks.

We apply the plain error standard here because defendant did not object at trial. R. 2:10-2. "Under that standard, '[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.'" State v. Bunch, 180 N.J. 534, 541 (2004) (alteration in original) (quoting State v. Afanador, 151 N.J. 41, 54 (1997)).

The assistant prosecutor stated in her summation

This case is really about witness testimony. And you heard the testimony. And you're [going to] have an opportunity to go in and deliberate about what you heard . . . what these people's demeanors were like. . . .

I told you I intended to [prove defendant guilty] through the witness testimony and all the physical evidence that you saw . . . .

This defendant poured gasoline throughout the house and set it on fire. And his purpose was to destroy it. He told you, his words, to burn down the house.

These comments did not cast any aspersions on defendant's choice to refrain from testifying, and they were reasonably related to the scope of the evidence presented. State v. Frost, 158 N.J. 76, 82 (1999). Defense counsel's failure to object also indicates that the comments were not prejudicial. Id. at 83-84.

III.

We reject defendant's argument that the court abused its discretion by ruling that his prior convictions could be admitted for impeachment purposes if he chose to testify.

Trial judges are "entrusted with broad discretion in making evidence rulings" because "[o]ur Evidence Rules generally promote admissibility of all relevant evidence . . . ." State v. Harris, 209 N.J. 431, 439 (2012) (citations and internal quotation marks omitted). Thus, "'[t]rial court evidentiary determinations are subject to limited appellate scrutiny, as they are reviewed under the abuse of discretion standard.'" Ibid. (alteration in original) (quoting State v. Buda, 195 N.J. 278, 294 (2008)).

N.J.R.E. 6091 governs the admissibility of prior convictions and states

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

When the judge considered the admission of defendant's prior convictions evidence under N.J.R.E. 609, she was required to

determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. . . . When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence.

[Harris, supra, 209 N.J. at 441 (quoting State v. Sands, 76 N.J. 127, 144-45 (1978)).]

Here, the judge balanced the factors required by N.J.R.E. 609 and Sands to find that

[d]efendant . . . was convicted in 1997 of unlawful possession of a weapon and was sentenced to four years incarceration. The conviction is fifteen years old, but it has only been eleven years since [d]efendant would have completed his sentence. Because of the serious nature of the offense . . . that conviction is not so remote as to cause undue prejudice. . . .

[Defendant] was also convicted in 2003 with resisting arrest and sentenced to twelve months probation. That conviction is nine years old, though it has only been eight years since [defendant] completed his probationary term. Again, this conviction is not so remote as to cause undue prejudice. . . . My conclusion is that evidence of [defendant's] two prior convictions will be admissible to impeach his credibility if he testifies at trial.

As noted previously, the ruling was not an abuse of discretion and defendant knowingly waived his right to testify in light of that ruling such that the jury never learned of the prior convictions.

IV.

Defendant asserts that the court's failure to record side-bar conversations, the inaudible recording of attorney-defendant discussions during trial, and the delay in trial resulted in cumulative error which undermined his right to a fair trial.

A.

The failure to record the side-bar discussions and inaudible conversation between defendant and his counsel did not deprive defendant of a fair trial. "A defendant is entitled to a fair trial but not a perfect one." State v. Loftin, 146 N.J. 295, 397 (1996) (quoting Lutwak v. United States, 344 U.S. 604, 619, 73 S. Ct. 481, 490, 97 L. Ed. 593, 605 (1953)). This court has long recognized that reversal due to the cumulative effect of combined trial errors is warranted only when the errors are "substantial and vital[,] . . . possesse[s] a clear capacity to bring about an unjust result, and that fundamental fairness requires a reversal of the conviction." State v. Mack, 86 N.J. Super. 594, 598 (App. Div. 1965). "[E]ven a large number of errors, if inconsequential, may not operate to create an injustice." Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 55 (2009).

The unrecorded side-bar discussions were not an error capable of bringing about an unjust result. Not every failure to properly maintain a record at trial "constitutes a per se basis for reversal." State v. Paduani, 307 N.J. Super. 134, 141 (App. Div.) (holding that twenty-nine unrecorded side-bar discussions did not result in plain error requiring a new trial), certif. denied, 153 N.J. 216 (1998). The Supreme Court has concluded that reversible error does not exist when there are gaps in the record that are able to be read "in the context of the entire transcript and of those discussions immediately preceding each gap . . . ." State v. Perry, 124 N.J. 128, 170 (1991). In this case, defendant does not allege any specific prejudice, and the issues being discussed at side-bar are easily discernable from the existing record.

There was also no intrusion into the attorney-client relationship implicating the defendant's Sixth Amendment rights. A defendant's Sixth Amendment rights are infringed upon only when an intrusion results in a disclosure of a defense strategy or an inhibition of free exchange between an attorney and his client. State v. Sugar, 84 N.J. 1, 18-19 (1980). Here, "muffled conversation" between defendant and his attorney could be heard in the background during a read back of a witness's testimony. Therefore, defendant could not have suffered any prejudice since the conversation was unintelligible.

B.

The judge correctly rejected defendant's contention that he was denied a speedy trial, and properly denied defendant's motion to dismiss.

When analyzing a defendant's speedy trial claim, a court must consider the length of the delay, the reason for the delay, when the defendant asserted his right to a speedy trial, and the prejudice to the defendant because of the delay. Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 2192, 33 L. Ed. 2d 101, 117 (1972); State v. Cahill, 213 N.J. 253, 272 (2013).

Defendant made his speedy trial motion two months before his trial date. The delays in bringing the case to trial were caused by defendant's own motions to adjourn and his subsequent arrest on other charges. Defendant also does not assert he suffered any prejudice regarding the ability to have defended against the charges in this case.

V.

We reject defendant's contentions that the judge erred by granting the State's motion to treat him as a persistent offender, sentencing him to an excessive prison term, and ordering restitution.

A.

Trial judges are permitted to impose an extended term of imprisonment at sentencing when the defendant qualifies as a persistent offender, defined as

a person who at the time of the commission of the crime is [twenty-one] years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least [eighteen] years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within [ten] years of the date of the crime for which the defendant is being sentenced.

[N.J.S.A. 2C:44-3a.]

The decision to sentence a defendant within the extended term range "remains in the sound judgment of the [sentencing] court" subject to review under "an abuse of discretion standard." State v. Pierce, 188 N.J. 155, 169 (2006).

The judge properly found defendant to be a persistent offender. Defendant was thirty-nine at the time of the offense for which he was being sentenced, he was over the age of eighteen when he was convicted of prior crimes on two separate occasions, and the last of those offenses was within ten years of the current arson conviction.

B.

The sentence is not excessive. The judge found aggravating factors N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), (6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he was convicted), and (9) (need for deterrence). The judge also considered defendant's military service, although such service is not listed as a mitigating factor. Defendant had a series of violations or probation and parole, an extensive criminal record since 1984, and was a persistent offender.

There is no reason to second-guess the trial court's application of the sentencing factors, nor any reason to conclude that the sentence "shocks the judicial conscience." Roth, supra, 95 N.J. at 364; see also State v. Bieniek, 200 N.J. 601, 612 (2010) (reiterating that appellate courts must accord deference to trial judges in sentencing decisions).

C.

The judge also properly ordered restitution. To impose restitution, a court must establish a factual basis and there "must be an explicit consideration of defendant's ability to pay." State v. Scribner, 298 N.J. Super. 366, 372 (App. Div.), certif. denied, 150 N.J. 27 (1997).

Here, the court considered the factual basis for restitution and defendant's ability to pay. The judge denied the State's motion to order restitution of $203,540.90, stating

I am sympathetic to the fact that the insurance company has . . . incurred this large cost. However, this [d]efendant wasn't able to pay the rent of $500 a month for about six or seven months, and he will be incarcerated. So what I will . . . order is $15,000 . . . restitution, and the rest [$188,540.93] will have to go to civil court.

[Defendant is] capable of working and having a good job. When [he] get[s] out, [he] should do so.

Affirmed.

1 N.J.R.E. 609 was amended after defendant's trial, effective July 1, 2014, to allow conviction evidence after more than ten years have passed "only if the court determines that its probative value outweighs its prejudicial effect, with the proponent of that evidence having the burden of proof." N.J.R.E. 609(b). We apply the rule in effect at the time of the trial.