STATE OF NEW JERSEY v. AMMON T. ANDREWS

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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3320-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

AMMON T. ANDREWS, a/k/a
TYREE ANDREWS,

Defendant-Appellant.

Submitted November 4, 2021 – Decided December 30, 2021

Before Judges Alvarez and Haas.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 18-04-1014.

Joseph E. Krakora, Public Defender, attorney for
appellant (Daniel S. Rockoff, Assistant Deputy Public
Defender, of counsel and on the brief).

Theodore N. Stephens, II, Acting Essex County
Prosecutor, attorney for respondent (Caitlinn Raimo,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
Tried by a jury, defendant Ammon T. Andrews was convicted of second-

degree robbery, N.J.S.A. 2C:15-1, but acquitted of third-degree terroristic

threats, N.J.S.A. 2C:12-3(b). On March 6, 2019, the trial judge sentenced

defendant to ten years' imprisonment, subject to the imposition of the No Early

Release Act's (NERA) eighty-five percent parole ineligibility. N.J.S.A. 2C:43-

7.2. Defendant appeals his conviction and sentence. We affirm.

The events leading to the indictment occurred on December 4, 2017.

C.M., the fifty-eight-year-old victim, gave an account substantially corroborated

by surveillance footage from the liquor store where he encountered defendant

that evening. C.M. testified he talked casually with defendant while waiting to

be served. He knew defendant from the community, although he had not

previously spoken to him and did not know his name. Defendant watched C.M.

pull out over $1,000 in cash to pay for his purchase.

C.M. agreed to give defendant a ride home. Once in the car, defendant

grabbed the cash out of the victim's pocket as the men exchanged punches.

Defendant jumped out of the car, ran to the driver's side, and as C.M. tried to

give chase, defendant slammed the door onto C.M.'s leg several times to keep

him from leaving, then backed away. C.M. briefly attempted to chase defendant,

who was then thirty-seven years old.

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The video did not capture the events in the car or record sound, but it did

depict the victim repeatedly flashing his brake lights in a vain effort to draw

attention to the robbery. C.M. said he also sounded his horn while flashing his

lights, until defendant threatened to kill him if he did not stop. The prosecutor

played the video for the jury while C.M. testified.

When the authorities arrived at the scene, C.M. spoke with Orange Police

Department Officer Damon Johnson. Defense counsel elicited during C.M.'s

cross-examination that he told Johnson he had $1,000, and that when the officer

asked whether he had tried buying drugs from defendant, C.M. pulled out a bag

of heroin and denied he needed to buy anything because he had some already.

While on the stand, the victim began to visibly shake, explaining outside the

jury's presence that he suffered from anxiety and panic attacks.

Phone records established the victim and defendant spoke on December

5, the day after the robbery, and that C.M. on that date gave a recorded statement

at the police station to Detective Franchot Taylor. C.M. later identified

defendant from a photo array.

Defense counsel called Taylor, presumably to develop the discrepancies

between C.M.'s statements at the scene and those he made during the trial.

While testifying, however, Taylor volunteered that in the days following his

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interview of the victim at the police station, C.M. reported he was threatened by

defendant. Taylor said he did not know whether the threats were conveyed on

the phone or in some other fashion.

Defendant immediately and unsuccessfully moved for a mistrial based on

the unexpected testimony. The judge struck the testimony and instructed the

jurors to ignore it. She repeated the instruction in her closing charge. While

deliberating, jurors requested a transcript of Taylor's December 5 interview.

They reached a verdict before receiving it.

In the relevant section, we describe the statutory factors the judge relied

upon in sentencing defendant. That portion of the opinion also include s the

judge's review of defendant's background.

Now on appeal, defendant raises the following issues for our

consideration:

POINT I

THE COURT ERRED BY DENYING DEFENDANT'S
MOTION FOR A MISTRIAL IN A ROBBERY
PROSECUTION AFTER AN OFFICER BLURTED
OUT AN UNELICITED, UNCHARGED,
IRREDEEMABLY PREJUDICIAL HEARSAY
ALLEGATION THAT THE DEFENDANT HAD
ENGAGED IN WITNESS TAMPERING.

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POINT II

THIS COURT SHOULD VACATE IMPOSITION OF
THE MAXIMUM NERA TERM, AND REMAND
FOR RESENTENCING. IT WAS REVERSIBLE
ERROR FOR THE COURT TO TREAT AS
AGGRAVATING (1) THAT THE DEFENDANT
MAINTAINED HIS INNOCENCE, AND (2) THAT
THE DEFENDANT HAD PRIOR DISMISSED
CHARGES.

"[A]n appellate court will not disturb a trial court's ruling on a motion for

a mistrial, absent an abuse of discretion that results in a manifest injustice."

State v. Jackson, 211 N.J. 394, 407 (2012); State v. Harvey, 151 N.J. 117, 205

(1997). "Likewise, when weighing the effectiveness of curative instructions, a

reviewing court should give equal deference to the determination of the trial

court." Khan v. Singh, 397 N.J. Super. 184, 202-03 (App. Div. 2007) (quoting

State v. Winter, 96 N.J. 640, 647 (1984)).

Defendant now argues the judge's denial of the motion for a mistrial was

reversible error because Taylor's comment was so prejudicial as to deprive him

of a fair trial. He also argues that alleged inconsistencies in the victim's

testimony and statements, along with his demeanor on the stand, rendered the

victim so incredible that no jury could have convicted defendant absent Taylor's

comment. We find no abuse of discretion.

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Defendant's cited cases are inapposite because the judge promptly

addressed the officer's fleeting comment during direct examination. Even if the

statement was inadmissible hearsay violating the confrontation clause, the judge

immediately instructed the jury to ignore it and reiterated the instruction during

closing. Jurors are presumed to follow instructions. State v. Herbert, 457 N.J.

Super. 490, 503 (App. Div. 2019). The judge said:

The jury is instructed to disregard any response after
["]no["] to the question did he mention receiving a call
from anyone on behalf of [defendant]. Anything said
after ["]no["] is non-responsive to the question and is
stricken from the record. The jury is directed not to
consider the response after ["]no["] in its deliberations.

In the final jury instructions, the court repeated that stricken evidence was

not to be considered during deliberations and must be disregarded. It seems

clear that Taylor's statement could not have been so prejudicial that the jury was

unable to assess the evidence independently, especially since they acquitted

defendant of the terroristic threats charge. Granted, the terroristic threats

charged were allegedly made during the confrontation between defendant and

C.M., but it is not unreasonable to posit that the jury would have been more

inclined to convict had they ignored the judge's instruction.

Any suggestion that C.M. would have been more comprehensively cross-

examined and his credibility more thoroughly damaged had the judge granted a

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mistrial and given defendant a second opportunity to question the victim is

highly speculative. Not to mention, probing into any potential communications

between defendant and the victim entailed its own risks.

The judge's instruction in this case was "firm, clear, and accomplished

without delay." See State v. Prall, 231 N.J. 567, 586 (2018) (quoting State v.

Vallejo, 198 N.J. 122, 134 (2009)); see also State v. Wakefield, 190 N.J. 397,

440 (2007) (holding trial judge's "prompt[] and effective[]" curative instruction

remedied any prejudice from prosecutor's improper comments during opening

statement); State v. Papasavvas 163 N.J. 565, 614 (2000) (holding immediate

curative instructions "were sufficient to remedy [an expert witness's] improper

testimony.").

In support of his position, defendant reminds us that the jury asked for a

transcript of Taylor's interview of C.M. However, that interview occurred

before C.M. told Taylor about the alleged threats, and regardless, the jury

rendered its verdict before receiving a response. The judge's decision to deny

the application for a mistrial was therefore not an abuse of discretion that

resulted in a manifest injustice. In the context of a very strong state's case, i t is

nothing more than speculation to suggest the judge deprived defendant of an

opportunity for a fair trial.

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II.

"An appellate court's review of a sentencing court's imposition of sentence

is guided by an abuse of discretion standard." State v. Jones, 232 N.J. 308, 318

(2018). "[A]ppellate courts are cautioned not to substitute their judgment for

those of our sentencing courts." State v. Miller, 237 N.J. 15, 28 (2019) (quoting

State v. Case, 220 N.J. 49, 65 (2014)).

The transcript includes the judge's discussion regarding defendant's

numerous dismissed juvenile and adult charges, along with other relevant

circumstances. We are not convinced, however, that State v. K.S., 220 N.J. 190,

199-200 (2015), supports the proposition urged by defendant: that trial judges

may no longer rely upon arrests in assessing aggravating and mitigating

sentencing factors. The language in K.S. appears relevant specifically to pretrial

intervention (PTI) applications. In the opinion, the Court rejected the

declaration in State v. Brooks, 175 N.J. 215 (2002), analogizing the

prosecutorial role in reviewing PTI applications to that of a sentencing court

with regard to arrests that did not result in convictions. K.S., 220 N.J. at 199

(quoting Brooks, 175 N.J. at 229). Since the Court rejected the analogy, we

infer the Court left trial judges the option to consider arrests in considering the

entirety of a defendant's circumstances.

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In this case, defendant had thirteen juvenile arrests resulting in five

adjudications of delinquency, and sixteen adult arrests resulting in three prior

convictions from two indictments, including first-degree robbery, unlawful

possession of a weapon, and first-degree attempted murder. These convictions

resulted in concurrent NERA ten-year prison terms, and defendant violated

parole on those offenses twice. He maxed out on the sentences, and at the time

of this arrest had a municipal bench warrant outstanding. The judge properly

analyzed defendant's entire criminal history—including offenses for which he

was not found guilty—and his refusal to take responsibility for this crime in

finding aggravating factor three. See N.J.S.A. 2C:44-1(a)(3). The judge's

application of aggravating factor six was soundly grounded in defendant's prior

convictions. See N.J.S.A. 2C:44-1(a)(6). Defendant's prior robberies also

highlighted the need to deter him individually as well as others. See N.J.S.A.

2C:44-1(a)(9).

The judge reviewed each requested mitigating factor and found only

mitigating factor eleven, to which she gave slight weight because every child

whose parent is incarcerated suffers a loss. See N.J.S.A. 2C:44-1(b)(11).

Hence, the judge did not abuse her discretion in her analysis of the aggravating

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and mitigating factors. Nor did she abuse her discretion by imposing the

maximum term for this second-degree offense.

Affirmed.

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