STATE OF NEW JERSEY v. DONALD R. JONES

NOT FOR PUBLICATION WITHOUT THE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.

DONALD R. JONES, a/k/a

JONES OMER,

Defendant-Appellant.

__________________________________

December 16, 2014

Argued December 9, 2014 Decided

Before Judges Yannotti and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-04-00603.

John Douard, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Douard, of counsel and on the brief).

Brian D. Gillet, Assistant Prosecutor, argued the cause for respondent (Andrew C. Carey, Middlesex County Prosecutor, attorney; Mr. Gillet, Assistant Prosecutor, of counsel; Susan Berkow, on the brief).

PER CURIAM

After pleading guilty, defendant appeals from his convictions for two counts of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2. The primary issue pertains to the judge's ruling that he would admit N.J.R.E. 404(b) evidence in the event of a trial. We affirm.

The convictions stem from offenses that defendant committed in the town of Metuchen. He pled guilty after the judge granted the State's N.J.R.E. 404(b) motion to admit evidence that defendant also committed offenses of theft and receiving stolen property in the town of Edison, but reserved the right to appeal the judge's decision on the 404(b) evidence. The judge ruled that defendant's offenses in Edison, occurring around the time of his Metuchen attempted burglary charges, were admissible to show motive, intent and absence of mistake or accident.

During the plea colloquy in this case, defendant admitted that he attempted to enter two different houses in Metuchen without the permission of the owners, intending to commit an offense therein. The judge followed the plea agreement and sentenced defendant to a ten-year extended prison term with five years of parole ineligibility for the first count, and a consecutive five-year term with two-and-a-half years of parole ineligibility for the second count, but concurrent to his sentence in Edison.1

On appeal, defendant argues the following points

POINT I

THE N.J.R.E. 404(B) EVIDENCE, OFFERED TO PROVE INTENT, SHOULD NOT HAVE BEEN FOUND ADMISSIBLE, BECAUSE IT FAILED TO MEET ANY OF THE FOUR PRONGS OF STATE V. COFIELD.

POINT II

THE EXTENDED-TERM SENTENCE OF TEN YEARS, FIVE YEARS WITHOUT PAROLE, FOR A THIRD-DEGREE ATTEMPTED BURGLARY, AND A CONSECUTIVE SENTENCE OF FIVE YEARS, TWO-AND-ONE-HALF YEARS WITHOUT PAROLE, WAS MANIFESTLY EXCESSIVE.

I.

The judge did not abuse his discretion by ruling that, in the trial of this matter, the State could admit evidence of defendant's prior convictions pursuant to N.J.R.E. 404(b). N.J.R.E. 404(b) provides that

evidence of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

The abuse-of-discretion standard applies to our review of a judge's ruling on the admissibility of evidence. State v. Rose, 206 N.J. 141, 157 (2011). "Trial court decisions concerning the admission of other-crimes evidence should be afforded 'great deference,' and will be reversed only in light of a 'clear error of judgment.'" State v. Gillispie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)).

Our Supreme Court has set forth the following criteria for admitting other-crimes evidence under N.J.R.E. 404(b)

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Cofield, 127 N.J. 328, 338 (1992) (citations and internal quotation marks omitted).]

Under the first prong, the trial court found the Edison convictions to be relevant to a material issue in this case "defendant's mental state when he was outside [the door in Metuchen], apparently, trying to open it" because it went to defendant's "purpose to commit an offense." The Edison offenses of theft and receipt of stolen property create an inference that defendant intended to commit theft once inside the home.

Prong two is only required when the facts of the case involve similar circumstances to those in Cofield, where the evidence of a drug-related offense was relevant to prove constructive possession. Barden, supra, 195 N.J. at 389. It is not required where the other-crimes evidence is "relevant only to the defendant's state of mind." Ibid. Here, prong two is not required because the other-crimes evidence was only relevant to defendant's state of mind.

As to the third prong, the trial court found that

Here, the defendant [was] convicted of prior thefts. However, the jury . . . did not find the defendant guilty of the burglary. Nevertheless, the [Edison] verdict supports the inference, that the defendant broke into other residences . . . to commit thefts.

And, notwithstanding, I don't think the proof, needed for the introduction of that evidence, in the current case, is the same that is required in the former cases. Therefore, [the] jury had to be convinced, unanimously, beyond a reasonable doubt. Here, I only have to find, by clear and convincing evidence, that, in fact, there was a similar type of crime. Namely, a burglary and theft.

I sat through the testimony [in the Edison trial], and I do find that there is clear and convincing evidence, that the defendant committed these prior acts.

The trial court properly described the standard of proof required for admitting 404(b) evidence and did not abuse its discretion, especially in light of defendant's guilty plea to the Edison charges on remand.

Under prong four, evidence should only be excluded when "'its probative value is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation of the issues in the case.'" Gillispie, supra, 208 N.J. at 90 (alteration in original) (quoting State v. Koskovich, 168 N.J. 448, 486 (2001)). Here, the trial court found that

in this case, there [was] no other probative evidence available regarding the defendant's state of mind, other than his past conduct.

. . . .

Here, it appears, that [defendant] is suggesting, that there is some innocuous purpose, associated with his appearance at the victim's door. That he was there looking for his dog.

[B]ecause this evidence is so probative, and because most, if not all of it, is 404(b) evidence, is, to some degree, prejudicial with that limiting instruction, an appropriate limiting instruction. It's my position, that the jury should consider this information in order to ascertain the defendant's intended purpose, when he was at the front door of the residence.

Other-crimes evidence is "inherently prejudicial," Gillispie, supra, 208 N.J. at 89, but the judge properly concluded that the probative value in this case is not outweighed by the apparent prejudicial effect.

II.

The sentence is not excessive and we disagree with defendant's contention that the trial court improperly weighed defendant's criminal record to find certain aggravating factors.

Review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). When sentencing a defendant, the trial court must consider the relevant aggravating and mitigating factors under N.J.S.A. 2A:4A-44a, "determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989). We are "bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

Here, the judge based his finding of aggravating factors (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) on defendant's extensive criminal history, and the judge did not find any mitigating factors. The judge specifically referenced his prior discussion of defendant's criminal history during sentencing for the Edison convictions where the judge thoroughly reviewed defendant's criminal history, which revealed that he had numerous parole violations and escapes, an extensive criminal record dating back to 1970, and committed a new offense every time he was out of jail. Thus, the judge sufficiently explained his findings of aggravating factors and his findings are supported by credible evidence in the record. See State v. Case, __ N.J. ___ (2014) (slip op. at 28).

Furthermore, the Metuchen sentence was imposed pursuant to a plea deal. See State v. Spinks, 66 N.J. 568, 573 (1975) (noting that "an appellate court should ordinarily defer to the presumed reasonableness of a bargained sentence and not hold it to be excessive except in compelling circumstances"). During the plea colloquy, defendant indicated that he understood his sentence and that "in exchange for [his] plea of guilty [he would be getting] ten years with a five [year] stip[,] consecutive to five years with a two and a half on both counts[,]" and defendant also signed a plea form agreeing to the exact sentence that the judge imposed.

We also reject defendant's contention that the judge improperly imposed a consecutive sentence without applying the Yarbough2 factors. A sentencing court has the discretion to impose consecutive terms. N.J.S.A. 2C:44-5a. When deciding whether to impose a consecutive rather than a concurrent sentence, courts are to "concentrate on such considerations as the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate [17] victims." State v. Carey, 168 N.J. 413, 423 (2001) (citation and internal quotation marks omitted). Here, the judge previously assessed the Yarbough factors when sentencing defendant for his Edison convictions. Given the factual connection between the two indictments, the judge's previous Yarbough analysis is equally applicable here.

Therefore, there is no reason to second-guess the judge'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).

Affirmed.

1 We subsequently reversed defendant's Edison convictions, State v. Jones, No. A-5758-10T3 (Mar. 11, 2013), but defendant later pled guilty to the same charges.

2 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).