STATE OF NEW JERSEY v. MALIK SHAKUR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

A-5225-11T1

A-5377-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK SHAKUR, a/k/a JAMES WALKER,

Defendant-Appellant.

__________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES L. WALDREN, a/k/a JAMES

JOHNSON, JAMES L. PARKER,

Defendant-Appellant.

__________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BENJAMIN FULTON,

Defendant-Appellant.

__________________________________

May 21, 2014

Submitted April 8, 2014 Decided

 

Before Judges Fisher, Koblitz and O'Connor.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-12-03254.

 

Joseph E. Krakora, Public Defender, attorney for appellant in A-4672-11T3 (James K. Smith, Jr., Assistant Deputy Public Defender, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant in A-5225-11T1 (Michele A. Adubato, Designated Counsel, on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant in A-5377-11T1 (Michael C. Kazer, Designated Counsel, on the brief).

 

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In these back-to-back appeals, consolidated for the purposes of this opinion, defendants Malik Shakur, James Waldren and Benjamin Fulton challenge their convictions and sentences following a joint jury trial on charges involving a robbery of a pharmacy on July 22, 2009, in West Orange. Before trial, co-defendant Orlando Arnold pled guilty. We affirm in all respects.

 

The jury found Shakur guilty of first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; five counts of second-degree possession of prescription legend drugs with intent to distribute, N.J.S.A. 2C:35-10.5(a); seven counts of third-degree possession of prescription legend drugs with intent to distribute, N.J.S.A. 2C:35-10.5(a); third-degree theft of movable property, N.J.S.A. 2C:20-3(a); and fourth-degree resisting arrest by engaging in flight, N.J.S.A. 2C:29-2(a).

Shakur was sentenced to a term of life without parole on the conviction for first-degree armed robbery pursuant to the Persistent Offender Accountability Act1, N.J.S.A. 2C:43-7.1(a); the convictions for conspiracy to commit robbery and theft were merged into the armed robbery conviction. He received a concurrent ten-year term for the second-degree convictions of possession of prescription legend drugs with intent to distribute, a concurrent five-year term for the convictions of third-degree possession of prescription legend drugs with intent to distribute, and a concurrent eighteen-month term for resisting arrest.

Waldren was found guilty of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2, and fourth-degree resisting arrest by engaging in flight, N.J.S.A. 2C:29-2(a). He was sentenced to a fifteen-year extended term for the conspiracy to commit robbery, with an eighty-five percent period of parole ineligibility, and a concurrent eighteen-month sentence for the conviction on resisting arrest.

Fulton was found guilty of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b), for which he was sentenced to a twelve-year extended term with no period of parole ineligibility.

Co-defendant Orlando Arnold pled guilty to first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:5-2; and two counts of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b). As part of the plea agreement, Arnold consented to testify for the State.

The arguments on appeal are that the trial court erroneously: (1) admitted out-of-court identifications of Shakur and Waldren; (2) admitted a communication of Waldren in violation of his Fifth Amendment2 right to remain silent; (3) admitted a police officer's opinion that Waldren "orchestrated" the robbery; (4) admitted evidence of a conviction Fulton incurred in 1989; (5) failed to give the cross-racial identification charge, pursuant to State v. Cromedy, 158 N.J. 112 (1999); (6) coerced the jury into rendering a verdict; (7) sentenced defendants Waldren and Fulton to excessive terms; and (8) denied Fulton's motion for a new trial on the grounds the jury failed to properly apply the reasonable doubt standard.

Shakur also argues the State grossly abused its discretion by withdrawing a plea offer because co-defendant Fulton refused to plead guilty, and by seeking a sentence of life without the possibility of parole.

I.

The evidence included the testimony of five pharmacy employees, the police officers who pursued defendants immediately after they fled the pharmacy, the testimony of defendants Arnold and Fulton, and physical evidence found in defendants' possession upon their apprehension. We summarize the pertinent evidence.

A

The five pharmacy employees' testimony reveals that, during the afternoon of July 22, 2009, two African-American males entered the pharmacy and, within seconds, donned "ninja" masks, leaving exposed only their eyes and mouth. A third African-American male, already masked, then entered the store. Two of the men went to the rear of the pharmacy, where prescription drugs were prepared and dispensed. They brandished handguns, yelling, "this is a hold-up!" and demanding to know where the cash, safe, Percocet, OxyContin, and other drugs were located. One went to the cash register and removed a check and all currency, and then took $180 in cash from an employee's pocket. Another threw drugs into black plastic bags.

When the three men left, the employees called the police. Meanwhile, a customer walked in and, upon learning what had happened, reported he saw three African-American men get into a "van" and drive off in a hurry. A more precise description of the vehicle a gray Jeep Cherokee was conveyed to the police.

Testimony from police officers indicated that, within minutes of getting a report of the robbery, they spotted a gray Jeep Cherokee within a block of the pharmacy, stuck in traffic. The police got out of their vehicles and, with guns drawn, approached the Jeep and ordered the four occupants to "show your hands in the air." The Jeep mounted a curb, got into a lane clear of traffic, and sped off.

With sirens blaring and lights flashing, police cars chased the Jeep for several miles. At one point, the Jeep slowed and one of the occupants jumped out and ran. Police Officer Richard Levens, who was in one of the police cars, "got a good look" at the occupant who "bailed out," and broadcasted his description to other police units in surrounding areas; a man was apprehended within an hour. At the police station, Officer Levens identified Waldren as the person he saw jump from the Jeep. Police Officer Palmieri, who was present when Waldren was arrested, identified him in court.

The police continued to chase the Jeep after the man jumpedout. After crashing into two vehicles, the Jeep finally came to rest. One suspect fled the scene but was apprehended a block away by Police Officer Joseph Spero, who identified Shakur in court. The two other occupants of the Jeep, Orlando Arnold and Benjamin Fulton, were arrested at the crash site. Fulton drove the Jeep during the chase.

A ninja mask was found in Shakur's pocket when he was arrested. In the Jeep the police found a black plastic bag containing prescription bottles, affixed to which were labels that bore the pharmacy's name. The various prescription bottles contained, among other things, Percocet and OxyContin. Also found in the Jeep was a check made payable to the pharmacy, cash, a ninja mask and two handguns located in the center console.

Fulton testified at trial. At the time of the robbery, he drove a gray Jeep Cherokee and was working as a gypsy cab driver. He claimed he had been hired by co-defendants to drive them round-trip to West Orange from Newark. When he drove defendants to West Orange, Waldren and Arnold were in the Jeep, but he was uncertain whether the third passenger was Shakur. After getting to the pharmacy, Fulton parked and waited for his three passengers to return. When they got back into the Jeep, Arnold pointed a gun to his head and ordered him to start driving. Fulton claimed he drove, under duress, until the Jeep was disabled by the second crash. He admitted that, in 1989, he was convicted of committing first, second and third-degree offenses, for which he was sentenced to a fifteen-year term.

Arnold was called by the State as a witness; his testimony was consistent with the other State's witnesses. He testified he, Shakur, Waldren and Fulton were in a Jeep on the day of the incident but he claimed to be unaware the others planned to commit a robbery. Arnold identified Shakur, Waldren and Fulton in court.3 When he, Waldren and Shakur got out of the Jeep, he was told they were going to rob the pharmacy of drugs and money. Arnold decided to participate and was given a mask. Both Shakur and Waldren had guns.

Arnold and Shakur went into the pharmacy and then put on their masks. Waldren then entered the store. Once inside, "guns were being pointed" and "directions were shouted." Arnold grabbed and threw drugs into a bag. When the three left, he put the bag in the Jeep and noticed two guns being placed into the center console. When they were only a block from the pharmacy, the police tried to obstruct them with their vehicles, but the driver managed to maneuver around them. Fulton kept driving, despite being followed by the police with their sirens blaring. At one point, Waldren jumped out of the Jeep. Eventually, the Jeep crashed and he was pulled out of the vehicle by the police and arrested.

B

Just before trial, a Wade4 hearing was conducted to determine the admissibility of the pharmacy employees' identifications of Shakur and Waldren.5 Evidence adduced at the hearing revealed the employees viewed both defendants in a "one-on-one show-up," which took place at a police station the same day as the robbery. Before the employees viewed defendants, they were told "an arrest has been made" and that those arrested "may or may not be the individual that committed the crime. We would like you to take a look at them and if it is please let us know."

The employees were kept separate from each other before and during the viewing. Each defendant was viewed, one at a time, through a "one-way" glass; the employee could see a defendant but he could not see the employee. None of the defendants was handcuffed and, although a detective was in the room with a defendant when he was being viewed, the detective was unarmed. After an employee viewed a defendant, he was removed and another brought in. Each employee gave a statement after viewing all three defendants.

A police officer testified to each employee's comments after viewing Shakur and Waldren. Every employee indicated Shakur appeared to be one of the perpetrators, although the degree of certainty expressed by each varied. While three witnesses did not recognize Waldren, one identified him from his height and build and realized he was a frequent customer of the pharmacy. The witness knew him as Mohammed, Waldren's alias. Another witness recognized Waldren's eyes and also noted he was a customer of the pharmacy; she knew him as Mohammed, as well.

At the conclusion of the Wade hearing, the trial judge commented that while one-on-one show-ups are inherently suggestive, citing State v. Herrera6, 187 N.J. 493, 504 (2006), he found the eyewitnesses' identifications sufficiently reliable to be admissible. At trial, a police officer disclosed each employee's comments after they viewed Shakur and Waldren at the show-up.

We address the points each defendant raises, separately.

II.

Defendant Shakur raises the following issues on appeal:

POINT I: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL WERE VIOLATED WHEN THE TRIAL COURT ALLOWED THE PRETRIAL IDENTIFICATIONS, WHICH WERE MADE UNDER EXTREMELY SUGGESTIVE CIRCUMSTANCES, TO BE ADMITTED INTO EVIDENCE WITHOUT FINDING THAT THEY WERE RELIABLE.

POINT II: THE TRIAL COURT ERRED IN DELETING THE CHARGE ON CROSS-RACIAL IDENTIFICATION FROM ITS JURY CHARGE ON IDENTIFICATION. COUNSEL WAS DEFICIENT IN FAILING TO REQUEST THAT CHARGE OR TO OBJECT TO ITS DELETION FROM THE MODEL CHARGE.

 

 

 

POINT III: DEFENDANT WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY BY THE TRIAL COURT'S ACTIONS WHICH SERVED TO COERCE A JURY VERDICT.

 

POINT IV: THE PROSECUTION GROSSLY ABUSED ITS DISCRETION IN THIS CASE BY INSISTING ON LIFE WITHOUT PAROLE FOR DEFENDANT SIMPLY BECAUSE A CO-DEFENDANT, BENJAMIN FULTON, ASSERTED HIS INNOCENCE AND WOULD NOT AGREE TO A GLOBAL PLEA RESOLUTION.

 

A

 

In Point I of his brief, Shakur argues the trial court erred when it found at the conclusion of the Wade hearing that the employees' identifications were reliable. Shakur points out that the trial court failed to weigh the five factors that, at the time, a court was required to consider when determining the reliability of an eyewitness' identification of a suspect. See Herrera, supra, 187 N.J. at 503; Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 2253, 53 L. Ed. 2d 140, 154 (1977) (citing Neil v. Biggers, 409 U.S. 188, 199, 93 S. Ct. 375, 382, 34 L. Ed. 2d 401, 411 (1972)). These five factors were: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Ibid. Shakur also argues the State should have called the pharmacy employees as witnesses at the hearing, so that the extent to which the suggestiveness of the one-on-one show-up procedure may have influenced them could have been explored, as well as any facts pertaining to the five factors.

After a witness to a crime views a suspect in a show-up, line-up, or photograph, there is the concern the witness may believe such person was involved in the crime merely as a result of the suggestive manner in which a defendant was presented by the police, or by what the police have said, as opposed to the witness' independent recollection. State v. Farrow, 61 N.J. 434, 451 (1972). If an identification procedure were found to be impermissibly suggestive, the court was required to determine whether the impermissibly suggestive procedure was nevertheless reliable, taking into consideration the above five factors and the totality of the circumstances. State v. Romero, 191 N.J. 59, 76 (2007). If after evaluating the factors the court was satisfied the witness' identification was reliable despite the suggestive nature of the procedure, the identification could be admitted into evidence. State v. Adams, 194 N.J. 186, 204 (2008). Here, the trial judge found the identification procedure employed by the police was inherently suggestive but concluded, on balance, the witnesses' identifications were sufficiently reliable to overcome the suggestive nature of the procedure. For example, the trial judge noted that the different levels of certainty the witnesses expressed about each defendant's involvement in the crime demonstrated they were not unduly or impermissibly influenced by the procedure; otherwise, all of the witnesses would have said, without equivocation, that both participated in the robbery.

We observe there was ample if not overwhelming evidence to support the jury's verdict against Shakur and Waldren. Arnold provided testimony that these defendants planned and participated in the robbery, evidence the jury was free to accept. The testimony of the pharmacy employees, police officers and both co-defendants dovetailed on many key points, providing pivotal evidence that supported the jury's verdict against them. The physical evidence found in defendants' possession when apprehended strongly implicated their involvement in the crime, as well.

B

In Point II, Shakur argues that the court erred by failing to give a cross-racial identification charge, see State v. Cromedy, 158 N.J. 112 (1999), and that his counsel was deficient for not requesting such charge. Our Supreme Court has held that a cross-racial identification instruction should be given when "identification is a critical issue in a case, and an eyewitness' cross-racial identification is not corroborated by other evidence which gives it independent reliability." Id. at 132. None of the pharmacy employees are African-American.

Shakur's attorney did not object to the court's failure to include a cross-racial identification charge until sentencing. Subject to Rule 2:10-2, the failure to object to a jury charge constitutes a waiver. See R. 1:7-2. Accordingly, we may reverse only if the failure to give a cross-racial identification instruction was plain error; under the plain error rule, Rule 2:10-2, we may reverse only if the error were clearly capable of producing an unjust result. State v. McGuire, 419 N.J. Super 88, 142-43 (App. Div.), certif. denied, 208 N.J. 335 (2011).

Here, the eyewitnesses' cross-racial identifications were corroborated by other evidence, such as Arnold's, Fulton's, and the police officer's testimony, the property found in the Jeep that belonged to the pharmacy, and the ninja mask found in the Jeep and in Shakur's pocket when he was arrested. Under the circumstances, the judge did not err in failing to provide a cross-racial identification charge. Given our finding, the issue whether defense counsel rendered ineffective assistance in failing to request this charge is moot.

 

C

In Point III, Shakur argues the trial court coerced the jury's verdict, in violation of his rights to a fair trial under the Sixth7 and Fourteenth8 Amendments. Specifically, Shakur maintains that, collectively, the following incidents wrongfully influenced the jury to render a verdict against him.

The jury deliberated for ten days. On the fourth day of deliberations, a juror sent a note to the court saying she wanted to be excused from jury duty because her mother was "fighting for her life [in Ecuador]." In the presence of counsel and on the record, the court questioned the juror and ascertained her mother had been in a hospital for a week and was unconscious. The juror did not yet have a flight, but was trying to book one to Ecuador the following day. The court observed "it may well be that you could be done tomorrow," suggesting her concerns might resolve if the jury reached a verdict before she had to fly out.

The court then decided to "try and deal with this on a day-to-day basis. If we're not . . . done by . . . this time tomorrow, we'll address it again." Although the jury deliberated for another six days, neither the juror nor the court brought up the juror's request to be released again. Shakur argues the juror may have hastened her deliberations so she would have been readily available to fly out to see her mother. There is no evidence to support this supposition.

We note the juror was not averse to approaching the court with her dilemma, and she knew the judge never in fact made a final decision on her request. He merely indicated he wanted to see what developed. Presumably, had the need arisen, the juror would have again asserted a need to be excused, as she did on the fourth day of deliberation. The juror did not do so, but continued deliberating for almost another week. We cannot assume her concern about being relieved of jury duty persisted.

Under the circumstances, we find the trial judge did not abuse his discretion when he determined the proper course was to withhold taking any action, unless and until the discharge of the juror became inevitable. While under Rule 1:8-2(d)(1) a court may excuse a juror for good cause, a court must apply the rule "sparingly" and as a "last resort." State v. Valenzuela, 136 N.J. 458, 468 (1994) (internal quotation marks and citation omitted). By the time the juror broached the issue of being excused, the jury was already in its fourth day of deliberation. The trial judge understandably wished to proceed cautiously before discharging the juror and replacing her with an alternate juror. After all, "errors that could upset or alter the sensitive process of jury deliberations, such as improper juror substitution, 'trench directly upon the proper discharge of the judicial function'[.]" State v. Corsaro, 107 N.J. 339, 347 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 278 (App. Div. 1974)). There was also the very serious question whether deliberations had advanced too far to substitute the juror with an alternate, necessitating the judge declare a mistrial. State v. Jenkins, 182 N.J. 112, 131-33 (2004). The judge was properly circumspect about discharging the juror too precipitously.

Shakur also contends the jury was coerced into rendering a verdict because the panel was denied breaks from jury deliberation. On one occasion, the jury requested that it be excused for the day at 3:37 p.m. The court denied jurors' request because they were going to be excused for the day shortly thereafter, at 4:30 p.m. On another occasion, the jury sent a note at 3:15 p.m. requesting a break. The court declined the request, as the jury was going to be excused for the day at 4:00 p.m. Although not on the record, defendant maintains the court acknowledged denying the jury other requests for breaks; defendant does not detail the circumstances under which these requests and denials were made.

Defendant does claim that on one of the occasions the jury was denied a break, it immediately sent a note to the judge saying it had found "consensus on our deliberations on two defendants. However, we are deadlocked on one count for one defendant." Defendant asserts the jury likely interpreted the court's refusal to give it breaks as an expression of the court's "displeasure with the pace of their deliberations" and, therefore, the jury rushed to make the latter decisions.

We find this argument without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We make only the observation that, in his brief, defendant commented that the jury was "particularly thorough . . ., asking numerous questions and requesting lots of read backs of testimony and charges[,]" and that "the court should have appreciated the jury's hard work and its detailed consideration of the evidence." Defendant's claim the jury felt coerced into rendering a verdict is inconsistent with his own observation the jury was thorough and searching, a characterization that varies sharply from his contention the jury rushed to judgment. We do not discern that the actions about which Shakur complains improperly hastened or influenced the jury's deliberations.

Defendant next complains that, on the seventh day of deliberations, the foreperson sent a note to the court asking to be relieved of her duties as foreperson. The note also said the other jurors "don't know what [they are] doing and I am tired of this. They don't understand what a Foreman does and [we are] hung on many things." Concluding the comment that the jury was "hung on many things" was merely the view of one person, the parties agreed the foreperson should not be permitted to be relieved of her duties as foreperson. The parties also agreed the jurors should be reinstructed on the duties of a foreperson. The court then did so and the jury resumed deliberations.

In his brief, defendant argues that when the foreperson advised the court the jury was "hung on many things," the court, "with the acquiescence of counsel, simply passed that off as the view of a single juror." Defendant did not elaborate further; we surmise defendant faults the court for not asking the jury whether further deliberation would likely result in a verdict. See State v. Figueroa, 190 N.J. 219, 240 (2007).

First, inquiring whether further deliberations may likely result in a verdict is not mandatory. Ibid. Second, we question whether the note sent by foreperson can fairly be characterized as announcing a deadlock. Third, thereafter the jury deliberated for three more days, an indication that the jury did not perceive itself to have been coerced in any manner.

Accordingly, we find the judge did not err in failing to question the jury about the status of its deliberations.

 

D

In Point IV of his brief, Shakur argues the State grossly abused its discretion when it withdrew a plea offer made to him because co-defendant Fulton refused to plead guilty, thus forcing Shakur to go to trial. Shakur did not raise this issue before the trial court.

The State had extended a plea offer to all three defendants, the terms of which were that they serve seventeen-year terms, subject to an eighty-five percent period of parole ineligibility. The offer, however, was contingent upon all three defendants accepting the offer. Shakur does not dispute the State had the power to impose such condition in its plea offer. See State v. Conway, 416 N.J. Super. 406, 411 (App. Div. 2010) (holding the state may make a plea offer conditional and withdraw such offer if the conditions are not met, including the making of a plea offer contingent upon all co-defendants accepting the plea offer). But Shakur does take issue with the fact the State revoked its plea offer when he and Waldren moved to sever their trials from Fulton's. He claims the revocation of the plea offer was retaliatory and thus a gross abuse of discretion.

The record reflects that after the severance motion was denied, the State extended a more favorable plea offer. Although the offer was again contingent upon all defendants accepting the offer, the offer was that defendants serve a sixteen-year term,with eighty-five percent parole ineligibility. Fulton refused to accept the offer, causing the State to revoke the offer as to all defendants. Nevertheless, given the State made a more favorable plea offer after the severance motion was denied, Shakur's contention is without any merit.

Finally, Shakur argues that, because the State was willing to recommend only a sixteen-year term of imprisonment if he pled guilty, it was an abuse of discretion to pursue a sentence of life imprisonment without parole merely because Fulton was unwilling to plead, forcing Shakur to go to trial.

First, the State did have the discretion to condition a plea offer upon other defendants accepting the offer as well. Conway, supra, 416 N.J. Super. at 411. Second, under these circumstances, the court was constrained to impose upon Shakur a life sentence without parole. In addition to other crimes, Shakur had been convicted of two first-degree robbery convictions before being convicted of the crimes arising out of the incident in the pharmacy. Under N.J.S.A. 2C:43-7.1(a), a "Three Strikes" law, a "person convicted of a crime under . . . N.J.S.A. 2C:15-1 . . ., who has been convicted of two or more crimes that were committed on prior and separate occasions . . . shall be sentenced to a term of life imprisonment by the court, with no eligibility for parole."

III.

 

James Waldren raises the following issues on appeal:

POINT I: POLICE TESTIMONY THAT AFTER HIS ARREST DEFENDANT EXERCISED HIS RIGHT TO REMAIN SILENT AND INVOKED HIS RIGHT TO COUNSEL VIOLATED DEFENDANT'S RIGHT AGAINST SELF-INCRIMINATION.

 

POINT II: THE SHOW-UP PROCEDURE UTILIZED BY THE POLICE WAS IMPERMISSIBLY SUGGESTIVE AND DEPRIVED DEFENDANT OF A FAIR TRIAL.

 

POINT III: IT WAS ERROR FOR THE TRIAL COURT TO FAIL TO INSTRUCT THE JURY SUA SPONTE ON CROSS-RACIAL IDENTIFICATIONS.

 

POINT IV: THE TESTIMONY OF DET. VARINELLI THAT DEFENDANT ORCHESTRATED THE ROBBERY DEPRIVED DEFENDANT OF A FAIR TRIAL.

 

POINT V: THE DISCRETIONARY EXTENDED TERM SENTENCE IMPOSED UPON THE DEFENDANT OF FIFTEEN (15) YEARS WITH 85% PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED.

 

A

 

In Point I of his brief, defendant Waldren complains that one of the police officers gave testimony exposing defendant's post-arrest silence. Waldren contends such evidence violated his Fifth Amendment rights against self-incrimination. This argument was raised for the first time on appeal and is thus subject to the plain error rule. R. 2:10-2.

The record reflects that it was not the State but Waldren's counsel who elicited the alleged improper testimony from the police officer. In response to his attorney's questions, the officer testified that he told Fulton that Waldren had confessed. In further response to his attorney's questions, the officer acknowledged that in fact Waldren had not confessed but instead requested to speak to his attorney. It is this latter response that Waldren contends violated his Fifth Amendment rights. We view the question that generated the response as one emanating from a strategic decision to attack the officer's credibility.

Waldren also complains the same officer testified that Shakur and Waldren "orchestrated" the robbery, evidence Waldren claims deprived him of a fair trial. Specifically, the officer testified that his "training and experience tells me that [Shakur and Waldren] orchestrated the entire event," referring to the robbery. Waldren argues the officer's factual conclusions about Waldren's role in the crime usurped the jury's function as the exclusive fact-finder. This testimony was also educed by Waldren's own attorney.

A decision "as to what testimony to present is clearly a matter of trial strategy which is entrusted to the sound discretion of competent trial counsel." State v. Coruzzi, 189 N.J. Super. 273, 321 (App. Div.), certif. denied, 94 N.J. 531 (1983). We must accord substantial deference to trial counsel's decisions on how to conduct his examination of witnesses, which is overcome only if a defendant shows a strategic decision was based upon a lack of trial preparation, see State v. Arthur, 184 N.J. 307, 321-23 (2005), an argument defendant does not advance.

In both instances, defendant made the calculated decision to elicit the testimony about which he now complains. The testimony was the product of trial strategy. Under the circumstances, we reject defendant's claims these actions provide a basis to reverse the jury's verdict.

B

In Point II of his brief, Waldren argues the show-up

procedure was impermissibly suggestive and deprived him of a fair trial. In Point III, he contends the court erred by failing to give the jury the Cromedy charge on cross-racial identification. Our disposition of these very same issues when addressing Shakur's points applies equally to Waldren.

C

Waldren argues the imposition of an extended term sentence of fifteen-years, with eighty-five percent parole ineligibility, was excessive. We disagree. There were sufficient grounds under N.J.S.A. 2C:44-3(a) to impose an extended term. His argument is without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

IV.

 

Benjamin Fulton raises the following issues on appeal:

POINT I: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN ADMITTING PROOF OF THE DEFENDANT'S 20 YEAR OLD PRIOR CRIMINAL CONVICTIONS TO IMPEACH HIS CREDIBILITY BECAUSE THEY WERE REMOTE AND BECAUSE ITS RULING HAD AN ADVERSE IMPACT ON THE JURY'S "SENSE OF JUSTICE."

 

POINT II: THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BECAUSE THE JURY FAILED TO RATIONALLY APPLY THE REASONABLE DOUBT STANDARD.

 

POINT III: THE 12 YEAR BASE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR ELUDING ON COUNT THIRTY-TWO WAS MANIFESTLY EXCESSIVE BECAUSE THE TRIAL COURT MISAPPLIED ITS DISCRETION IN GRANTING THE STATE'S MOTION TO SENTENCE THE DEFENDANT TO AN EXTENDED TERM AS A PERSISTENT OFFENDER.

A

 

Defendant Fulton contends the court erred when it admitted evidence of a 1989 conviction for first-degree robbery, third-degree unlawful possession of a weapon, and fourth-degree unlawful possession of a weapon. He argues these convictions were too remote under N.J.R.E. 609 to be admissible. We disagree.

In August 1989, defendant was sentenced to an aggregate of fifteen years on the three convictions. He was paroled in November 1992. In April 1998, he returned to prison for violating parole; he was released eight months later. When out on parole between 1992 and 1998, he was convicted of two disorderly persons offenses: lewdness, N.J.S.A. 2C:14-4, and disorderly conduct, N.J.S.A. 2C:33-2(b).

Between 1998 and the subject offense, he was convicted of the five following disorderly persons offenses: simple assault, N.J.S.A. 2C:12-1(a); simple assault by physical menace, N.J.S.A. 2C:12-1(a)(3); wandering with the purpose to either obtain or sell drugs, N.J.S.A. 2C:33-2.1; possession of drug paraphernalia, N.J.S.A. 2C:36-2; and disorderly conduct, N.J.S.A. 2C:33-2(b).

On January 16, 2009, Fulton pled guilty to third-degree conspiracy to possess CDS with intent to distribute, N.J.S.A. 2C:5-2, for which he was sentenced to three years of probation, conditioned upon serving 231 days in jail. At the time he pled, he had served 231 days and was released from confinement.

N.J.R.E. 6099 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.

 

The decision to admit a prior conviction for impeachment purposes rests within the sound discretion of the trial court, and should not be reversed except for an abuse of discretion reflecting a clear error of judgment. State v. Harris, 209 N.J. 431, 439 (2012).

Remoteness is not determined by the passage of time alone. State v. Sands, 76 N.J. 127, 144 (1978). The nature of the conviction is a more significant factor. "Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving." Ibid. In addition, a trial court must consider any convictions between the one defendant deems too remote to be admissible and the crime for which he is being prosecuted, as

[w]hen 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. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Id. at 145 (emphasis added).]

The Court recently reaffirmed these principles in Harris, supra, 209 N.J. 431. Significantly, the Court further held that not only convictions of crimes but also convictions of disorderly persons offenses may "bridge the gap" between the alleged remote conviction and the prosecution of the new offense. Id. at 444-45.

Here, the twenty-year old conviction for first-degree armed robbery satisfies the "serious crimes" standard established in Sands. In addition, between the time of the 1989 convictions and the prosecution on the subject eluding charge, defendant was convicted of seven disorderly persons offenses and a third-degree conspiracy to possess drugs with the intent to distribute. There was no abuse of discretion when the trial judge admitted the 1989 convictions, as defendant's criminal history displayed a long-standing "contempt for the bounds of behavior placed on citizens." Sands, supra, 76 N.J. at 145.

B

The trial court rejected the argument, asserted in Fulton's motion for a new trial, that the jury "failed to rationally apply the reasonable doubt standard." Fulton asserts the same argument on appeal. We find that this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Fulton also argues his sentence to a term of twelve years was excessive because he did not qualify as a persistent offender under N.J.S.A. 2C:44-3(a). We disagree. This statute states that a person may be sentenced to an extended term if he has been convicted of a crime of the first, second or third degree and is a persistent offender. Under the statute a persistent offender is defined as a

person who at the time of the commission of the crime is 21 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 18 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 10 years of the date of the crime for which the defendant is being sentenced.

 

Fulton met the definition of persistent offender. Further, the extended term sentencing range for a person convicted of a second-degree crime is between ten and twenty years. See N.J.S.A. 2C:43-7(a)(3). The imposition of a term of twelve years was well within the trial court's discretion, to which we are obligated to give deference. See State v. Bieniek, 200 N.J. 601, 612 (2010).

Affirmed.

 

1 This Act is commonly referred to as a "Three Strikes" law, which provides mandatory life imprisonment for certain third-time criminal offenders. State v. Oliver, 162 N.J. 580, 583 (2000).

2 U.S. Const. amend. V.

3 During his testimony, Arnold referred to Shakur as "Ra" and Waldren as "the bald guy with the beard"; it was clarified that the former was Shakur and the latter Waldren.

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

5 By the time of the Wade hearing, Arnold had pled guilty, rendering moot the issue whether the employees' out-of-court identifications of him were admissible.

6 It is not disputed that the holding in State v. Henderson, 208 N.J. 208 (2011), had not taken effect at the time of the Wade hearing and is not applicable.

7 U.S. Const. amend. VI

8 U.S. Const. amend. XIV 1

9 The adoption of an amendment to N.J.R.E. 609, effective July 1, 2014, shall expressly authorize consideration of gap-bridging offenses and crimes, along with shifting the burden to the State to show why convictions older than ten years should be admitted. See Amendments to the New Jersey Evidence Rule 609, 213 N.J.L.J. 2 (Sept. 16, 2013). The amendment obviously does not apply to this case.