STATE OF NEW JERSEY v. MICHAEL RUSH

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NOT FOR PUBLICATION WITHOUT THE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.

MICHAEL RUSH,

Defendant-Appellant.

December 24, 2014

 

Submitted December 16, 2014 Decided

Before Judges Fasciale and Hoffman.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment Nos. 12-01-0075 and 12-04-0735.

Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Kevin J. Murray, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

After a jury trial, defendant appeals from his convictions for fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2); third-degree burglary, N.J.S.A. 2C:18-2; and fourth-degree joyriding, N.J.S.A. 2C:20-10b.1 We affirm.

The evidence presented at trial indicated that the police received a call reporting that gun shots were heard, arrived at the scene, and observed defendant holding a shotgun. The police instructed defendant to drop the shotgun, but defendant fled. After a lengthy pursuit on foot involving multiple officers spanning several blocks the police found defendant hiding in a corner of a locked boiler room in the basement of a building. The police later recovered a shotgun shell and a disassembled shotgun near the scene.

The judge granted the State's motion to treat defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3a. The judge imposed a six-year prison term on the burglary conviction, concurrent to eighteen months in prison for resisting arrest and a twelve-month prison term for joyriding.

On appeal, defendant argues the following points

POINT I

THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY (NOT RAISED BELOW).

POINT II

THE TRIAL COURT ERRED BY FAILING TO MERGE COUNT III CHARGING RESISTING ARREST BY FLIGHT INTO COUNT IV CHARGING BURGLARY IN WHICH THE OFFENSE ALLEGED TO HAVE BEEN COMMITTED BY THE DEFENDANT WAS THE SAME RESISTING ARREST (NOT RAISED BELOW).

POINT III

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE

I.

We reject defendant's argument that the cumulative impact of the assistant prosecutor's remarks during summation deprived him of his right to a fair trial.

We apply the plain error standard because defense counsel 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)).

At the outset, we note that defendant's failure to timely object to any of the prosecution's remarks during summation "indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). "Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial." Ibid.

To determine whether a prosecutor's improper comments in summation warrant reversal, we must assess whether the impropriety was "so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). The prosecution's duty to achieve justice does not forbid a prosecutor from presenting the State's case in a "'vigorous and forceful'" manner. State v. Ramseur, 106 N.J. 123, 320 (1987) (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)). Moreover, "[p]rosecutors are afforded considerable leeway in closing arguments" and may respond to arguments raised by defense counsel, "as long as their comments are reasonably related to the scope of the evidence presented." Frost, supra, 158 N.J. at 82.

Here, there was nothing improper about the assistant prosecutor's comments in summation. Contrary to defendant's assertion, the assistant prosecutor did not impermissibly express her personal opinion as to a witness's credibility or suggest that defendant was the cause of the witness's apprehension to testifying

She was scared, ladies and gentlemen. As she was testifying, you could tell that she was scared. You could tell that she didn't want to be here. In fact, she told you she did not want to participate in this prosecution at all, but she did, she came in, and I submit to you that she told you the truth.

Although an assistant prosecutor may not express a personal belief or opinion as to the credibility of a State witness, State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993), the assistant prosecutor's remarks here were in response to defense counsel's attacks on the witness's credibility. See State v. Wakefield, 190 N.J. 397, 463-66 (2007) (allowing prosecutors latitude in responding to comments made in defense counsel's summations).

During his opening statement, defense counsel made certain statements regarding the witness's believability

You must listen to her carefully, and you must evaluate whether she is believable to you or not. And I submit to you that there are a number of things that [the witness] is going to tell you that are going to call into question what happened that night.

Then in his summation, in response to the weapons-related charges, defense counsel reminded the jury

Now, when I opened, I told you to keep a listen out for what [the witness] was going to tell you . . . . I said to keep an eye out for this . . . general strangeness about what she told you.

. . . .

[D]id she really forget [the names of the other witnesses] or is she protecting someone because the way this all started isn't at all like she said. Whose word do we have that [defendant] ran off down the block with a shotgun? Whose word do we have on that? We have [the witness's] word[,]. . . . who is only a seven out of ten [certain] that she even saw [defendant] with a gun that night at all. That's whose word we have that that's what happened.

Therefore, the assistant prosecutor's remarks, taken in context with defense counsel's opening and closing statements, did not amount to plain error clearly capable of producing an unjust result. This is especially so in light of the jury acquitting defendant of the weapons charges.

We also reject defendant's contention that the assistant prosecutor insinuated that defendant engaged in witness intimidation. The assistant prosecutor merely referenced the witness's testimony that the witness initially did not want to be involved in the prosecution of this case. The assistant prosecutor did not imply in any way that defendant intimidated the witness.

We see no merit to defendant's contention that in her summation, the assistant prosecutor commented on defendant's failure to testify. In his merits brief, defense counsel highlights the following remarks made by the assistant prosecutor

Ladies and gentlemen, this defendant had [an] ample amount of time, whether he was an expert or a novice, to take apart that gun in the amount of time that it took [the police] to come around the block and get rid of it. He dropped the gun right here and knew he couldn't be found with the gun. He probably assumed that the police would come to the opposite block. There's no other way out. He would have to get out of the backyard some way. He can't go back out where [the police were]. Drops the gun, goes over here trying to get away, but what he doesn't know is that [the police were] going up to the second floor of that building. Looks out the kitchen window and sees the defendant right here on the roof of this carport. Again yells to him, stop, police. Does the defendant stop? No. He rolled over and was out of sight. And then . . . [an officer testified] that he [saw] the defendant from the elevated location.

I would also ask you to consider . . . the carport. This is where [the police saw] the defendant roll. Where else could he roll to. He rolls here, that's where [an officer saw] him from the window. At that point, who knows, he might have been disoriented. I seriously doubt he was taking a nap, I will give you that. He might have been disoriented. Again he's told, stop, police, and doesn't stop. At that point he gets off that shed and somehow enters the backyard of 107 North Street.2

These remarks were logical inferences drawn from testimony presented at trial by several of the police officers involved in the pursuit and therefore within the scope of the evidence presented. See State v. Harris, 156 N.J. 122, 194 (1998) (noting that a prosecutor may make remarks that constitute legitimate inferences from the facts, provided that he or she does not go beyond the facts before the jury). The assistant prosecutor answered her own rhetorical questions based on the testimony of the officers and did not pose questions that required defendant to testify, as defendant contends. Even so, the judge's clear and explicit instruction to the jury not to consider defendant's failure to testify in reaching a verdict cured any potential inference that defendant had an obligation to testify on his own behalf.

II.

Defendant contends, for the first time, that the judge erred by failing to merge the resisting arrest conviction into the burglary conviction.

The doctrine of merger is based on the well-established concept that "an accused [who] committed only one offense . . . cannot be punished as if for two." State v. Davis, 68 N.J. 69, 77 (1975). "When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense." N.J.S.A. 2C:1-8a. However, merger is required when one offense is a lesser-included offense of another and "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." N.J.S.A. 2C:1-8d.

The standard for merger of offenses as required by N.J.S.A. 2C:1-8 has been characterized as "mechanical." State v. Truglia, 97 N.J. 513, 520 (1984). Consequently, courts are to apply the standard articulated in Davis as the "preferred and more flexible standard." State v. Diaz, 144 N.J. 628, 637 (1996). It requires

analysis of the evidence in terms of, among other things, the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[Davis, supra, 68 N.J. at 81.]

When raising a merger claim for the first time on appeal, defendant must show "by a preponderance of the evidence, that the record supports his merger claim." Truglia, supra, 97 N.J. at 519.

Applying these well-settled standards, the merger of resisting arrest into the burglary conviction was unwarranted. Under N.J.S.A. 2C:29-2a, a person is guilty of fourth-degree resisting arrest "if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." Under N.J.S.A. 2C:18-2, a person is guilty of third-degree burglary if that person enters a structure "with purpose to commit an offense therein."

Thus, resisting arrest and burglary are different crimes with different elements. It is undisputed that defendant entered the building with the intention to hide from the police and resist arrest. Defendant fled from multiple officers, hid on the roof of a garage and then the roof of a shed, and finally in the boiler room in the basement of a building. Defendant performed several acts that constituted the crime of resisting arrest.

Defendant completed the crime of burglary when he entered the building with the intent to resist arrest. He then proceeded to further hide under a blanket. See State v. Pantusco, 330 N.J. Super. 424, 449-50 (App. Div. 2000) (declining to merge convictions of burglary and attempted theft of a car); State v. Martes, 266 N.J. Super. 117, 121 (Law Div. 1993) (noting that "[b]urglary and the underlying offenses such as theft have consistently been treated as separate and distinct offenses").

III.

Defendant concedes that he is eligible for an extended prison term as a persistent offender, but argues that the six-year sentence was excessive.

Review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not disturb a sentence unless it is manifestly excessive or unduly punitive, or it constitutes an abuse of discretion, or shocks the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). 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." O'Donnell, supra, 117 N.J. at 215. 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.

The judge did not abuse his discretion by imposing the six-year term. The judge properly found that 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), substantially outweighed the non-existing mitigating factors. The judge stated

[Defendant] is [twenty-six] years of age, and he's amassed . . . quite a record in those years. He's unemployed, admitted to weekly marijuana use from ages [fourteen] to [twenty-four], [and] occasional alcohol use [during that same period]. I believe at age [twenty-four], he may have been incarcerated. So, I don't know that it stopped because of incarceration or because he saw the light of day . . . .

. . . .

I have considered and find the following factors: I find 3, the risk the defendant will commit another offense, and I weigh it heavily based upon his record and recidivism as already set forth on the record . . .; 6[,] the extent [defendant's] prior criminal record and seriousness of the offenses for which he's been convicted . . . . I weigh 3 and 6 heavily. And 9, the need to deter the defendant and others from violating the law is almost always present, and it's certainly present in this matter. Although, whatever reason the defendant entered the structure, it was someone's home, and that alone is reason to deter conduct. People should be able to live their lives without anyone else intruding upon them, and that's why he was convicted of the burglary along with the resisting. I mean, you need to respect law enforcement as well. So there's a strong need to deter.

We reject defendant's contention that the court ignored mitigating factors (1) (defendant's conduct neither caused nor threatened serious harm) and (2) (defendant did not contemplate that his conduct would cause or threaten serious harm). The judge acknowledged that defendant intruded upon several homes, disobeyed law enforcement officers and subjected the police and the public to potential harm by causing multiple officers to pursue him at length.

Although defendant now asserts that mitigating factor eleven excessive hardship applies, defense counsel did not argue to the judge that imprisonment would result in excessive hardship to his seven-year-old son and his son's mother. On this record, however, there is insufficient evidence to show that defendant's incarceration will be a hardship to any dependents. See State v. Dalziel, 182 N.J. 494, 505 (2005) (noting that mitigating factor eleven required evidence that the sentence length would cause excessive hardship to fiancé and child); State v. Blackmon, 202 N.J. 283, 301 (2010) (finding that mitigating factor eleven does not apply when the record does not suggest a defendant is supporting any family members). Therefore, "[m]itigating factors 'called to the court's attention' [were not] ignored" here. State v. Case, ___ N.J. ___ (2014) (slip op. at 25) (quoting Blackmon, supra, 202 N.J. at 297 (2010)).

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 The jury acquitted defendant of third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; and third-degree possession of a weapon without a permit, N.J.S.A. 2C:39-5c(1).

2 Emphasis added in appellant's brief.