Opinion
DOCKET NO. A-6223-11T4
09-12-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. RICHARD B. JONES, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outiero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and Maven. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 11-05-0887. Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief). Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney for respondent (Monica do Outiero, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
On May 13, 2011, defendant Richard Jones was charged with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count one), and third-degree terroristic threats, N.J.S.A. 2C:12-3 (count two). Following a trial on February 1, 2012, the jury convicted defendant of both counts. The judge granted the State's motion to sentence defendant to an extended term of imprisonment as a persistent offender, N.J.S.A. 2C:44-3(a). On May 11, 2012, the judge sentenced defendant to a fifteen-year term of imprisonment on count one, subject to a seven-and-one-half year period of parole ineligibility. On count two, the judge sentenced defendant to a concurrent five-year term of imprisonment, subject to a two-and-one-half year period of parole ineligibility. Upon review of the sentencing record, it is apparent the judge incorrectly referred to the charges as counts two and three, rather than one and two. Furthermore, the judgment of conviction (JOC) also reflects an incorrect sentence for count two. This appeal followed.
Defendant raises the following arguments on appeal:
POINT I
DEFENDANT WAS DENIED A FAIR TRIAL AND DUE PROCESS OF LAW WHEN THE TRIAL JUDGE REFUSED TO GRANT A MISTRIAL AFTER THE PROSECUTOR PURPOSEFULLY ELICITED TESTIMONY FROM [J.S.] THAT DEFENDANT TOLD HER "THE ONLY WAY WE WOULD EVER BREAK UP IS IF HE HELD A GUN TO MY HEAD, MY SON'S HEAD, AND TO HIS HEAD." (U.S. Const., Amends. V, VI, XIV; N.J. Const. (1947), Art. I, Paras. 1, 9 AND 10).
POINT II
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The facts as adduced from the trial record are as follows. In December 2010, defendant moved in with his girlfriend, Jennifer, and her fourteen-year-old son, David. Defendant's relationship with David soured shortly thereafter. Defendant thought Jennifer was "too soft" with David, and that it was up to him to discipline David properly. David and Jennifer testified to numerous instances of defendant's abuse against David, including strangulation, violent shaking, and threats of physical abuse.
We have fictionalized the names of the victim and his family.
On February 18, 2011, David reported defendant's behavior to a friend and the vice principal at his school. The school then contacted the Division of Youth and Family Services (the Division). A member of the Division, accompanied by law enforcement, was waiting for David at his residence when he returned home from school that day. Defendant was asked to step outside while the Division employee interviewed Jennifer and David. However, defendant left the scene and was later found in a nearby grocery store parking lot, where he provided law enforcement officers with a false name and was arrested.
On June 29, 2012, the New Jersey Division of Youth and Family Services was renamed to the Division of Child Protection and Permanency. See L. 2012, c. 16, § 20 (amending N.J.S.A. 9:3A-10(b)).
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I.
In Point I, defendant contends the judge's decision to deny his motion for a mistrial, after the State elicited improper and incurable testimony, was reversible error. We disagree. In this regard, we recite the testimony adduced at trial.
In early February 2011, Jennifer attempted to break up with defendant. However, defendant told Jennifer that was not an option. Jennifer testified that "if it came down to it, the only way we would ever break up is if [defendant] held a gun to my head, [David's] head, and to his head." After the comment, defense counsel objected and moved for a mistrial pursuant to N.J.R.E. 404(b), contending that the judge could not "un-ring the bell." The judge denied the motion and issued the following curative instruction to the jury:
The information that the witness gave about threats to her and a gun or anything like that have nothing to do with this case, so I'm going to strike that testimony and direct that you, as a jury, the entire body, disregard that in its entirety. We're going to try this case based on the allegations in the indictment and what we're dealing with here. This has nothing to do with what was just elicited.
At the end of the State's case, defendant renewed his motion for a mistrial, arguing "I think this is one of those cases where a curative instruction just can't do it." In denying the motion, the judge stated: "I usually have pretty good powers of persuasion with juries. When I ask them or tell them to do something, they follow my instruction." During the final charge, the judge instructed the jury as follows:
There was some testimony elicited from the boy's mother about her attempts to break up with the defendant, and she referred to what she perceived he would do and I struck that. I am going to repeat that again in the strongest terms possible: you are not to use that in your deliberations. You are not to refer to it in your deliberations. It is an absolute non-factor in this case.
Evidence "of other crimes, wrongs or acts is not admissible to prove the disposition of a person in order to show that he acted in conformity therewith." N.J.R.E. 404(b). In general, the rule is one of exclusion rather than inclusion, and is intended to prevent the admission of other crimes or bad acts when the evidence is offered solely to establish a defendant's propensity to commit crimes. State v. Herrerra, 211 N.J. 308, 339 (2012). "Although evidence of other crimes may be admitted for other purposes, its probative value must not be outweighed by the prejudice resulting from its introduction." State v. Reddish, 181 N.J. 553, 608 (2004) (citing State v. Cofield, 127 N.J. 328, 338 (1992)).
A trial court has broad discretion when determining whether to grant a motion for a mistrial due to a violation of N.J.R.E. 404(b), namely whether the error was such that manifest injustice would result from continuing the trial, or whether curative instructions would suffice. State v. Winter, 96 N.J. 640, 646-47 (1984). A judge's curative instructions in such a case "must be firm, clear, and accomplished without delay." State v. Vallejo, 198 N.J. 122, 134 (2009) (citation omitted). The Supreme Court has "consistently stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into trial." Id. at 135. Furthermore, jurors are presumed to have followed the trial judge's curative instructions. State v. Winder, 200 N.J. 231, 256 (2009).
Here, defense counsel objected immediately to Jennifer's prejudicial testimony. The trial judge issued a satisfactory curative instruction immediately thereafter. The curative instruction was firm in that the judge emphasized the importance of disregarding the improper testimony, and the judge reminded the jurors that it was their duty to follow the judge's instructions. The instruction was clear in that it identified the offending statement and why it was improper. But Cf. Vallejo, supra, 198 N.J. at 136-37 (holding that the trial judge's curative instruction was inadequate because it did not identify the improper testimony). Finally, the trial judge gave the instruction without delay, because he did so immediately after the testimony was elicited.
Without evidence to the contrary, we presume the jury followed the trial judge's satisfactory instructions. Winder, supra, 200 N.J. at 256. Furthermore, any prejudicial effect was harmless, as there was overwhelming proof submitted by the State of defendant's guilt. See State v. Gillispie, 208 N.J. 59, 93-94 (2011). For the foregoing reasons, we determine the judge's instruction properly blunted any harmful effect of the offending testimony.
II.
In Point II, defendant contends that his sentence is manifestly excessive because the trial judge improperly granted the State's motion for a discretionary extended term as a persistent offender, and the judge's analysis of the aggravating and mitigating factors was flawed. We disagree with both arguments.
Review of a criminal sentence is limited; a reviewing court must decide whether there is a "clear showing of abuse of discretion." State v. Bolvito, 217 N.J. 221, 228 (2014). A sentence must be affirmed unless "(1) the sentencing guidelines were violated; (2) the findings of aggravating and mitigating factors were not based upon competent credible evidence in the record; or (3) the application of the guidelines to the facts of the case shock[s] the judicial conscience." Ibid. (alteration in original) (internal quotation marks omitted).
Defendant does not contest he meets the statutory definition of a persistent offender, triggering the court's review of whether he should be sentenced to an extended term. State v. Robinson, 217 N.J. 594, 607 (2014). Pursuant to N.J.S.A. 2C:44-3(a),
A persistent offender is 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.After a sentencing court determines that a defendant qualifies as a persistent offender, it may impose a discretionary extended-term sentence. State v. Pierce, 188 N.J. 155, 161 (2006). The range for an extended sentence for a second degree offense is between five and twenty years, which ranges from the minimum of the ordinary-term for a second degree offense under N.J.S.A. 2C:43-6(a)(2) to the maximum of the extended-term for a second degree offense under N.J.S.A. 2C:43-7(a)(3).
[N.J.S.A. 2C:44-3(a).]
Here, the sentencing judge determined defendant satisfied the statutory requirement as a persistent offender. At fifty-five years old, defendant had been presently convicted of a second degree offense and had a number of criminal convictions to satisfy the statutory requirement. The judge then weighed the applicable aggravating and mitigating factors and applied aggravating factor two, N.J.S.A. 2C:44-1(a)(2) (the gravity and seriousness of the harm inflicted on the victim, including whether defendant knew that the victim was particularly vulnerable); three, N.J.S.A. 2C:44-1(a)(3) (the risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (the need for deterring defendant and others from violating the law). The court did not find any mitigating factors applicable under N.J.S.A. 2C:44-1(b).
With respect to aggravating factor two, the judge recognized that David had communication delays, had special needs and learning disabilities, and had been placed in special education classes at the time of the abuse. The judge determined this child was particularly vulnerable to defendant's abusive behavior.
As to aggravating factors three and six, the judge noted defendant's extensive criminal history and stated:
I went through his record, which is significant. He was convicted in 1991 of possession with intent to distribute a controlled dangerous substance, a third-degree offense. In the same year, he was convicted of a contempt of court matter. In 1996, five years later, he was convicted of possession of a controlled dangerous substance. In 2002, he was convicted of possession of a controlled dangerous substance, a third-degree offense. He was given four years in New Jersey State Prison. He got out of prison in 2007. He was convicted of second-degree eluding. He received five years in New Jersey State Prison and he had a two-and-a-half year period of parole ineligibility.The judge found a preponderance of aggravating factors.
Defendant argues on appeal that the trial court failed to consider his nonviolent nature. However, such a consideration is neither a necessary factor in the court's determination of whether defendant is a persistent offender, N.J.S.A. 2C:44-3(a), nor one of the enumerated mitigating factors to be weighed pursuant to N.J.S.A. 2C:44-1(b).
Having reviewed the record, it is evident that while defendant's prior offenses were not significantly violent, his history demonstrates a failure to abide by the law. Notably, defendant's presentence report (PSR) indicates that defendant has had numerous municipal and superior court charges, dating back to 1991. Defendant amassed eleven municipal court convictions and eight superior court convictions involving theft, possession and distribution of CDS, eluding and two convictions for aggravating assault. Defendant violated probation on two occasions, and parole. He had been sentenced to county jail on multiple occasions and to state prison three times. Importantly, the nature of his crimes has changed and the more recent offenses now includes violent assaults. It is readily apparent, defendant has extensive contacts with the criminal justice system, yet continues to re-offend. On this record, defendant's argument of a non-violent past is baseless.
Finally, defendant's argues the court erred in failing to apply mitigating factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify defendant's conduct). We reject this contention, as it is without sufficient merit to warrant further written discussion. R. 2:11-3(e)(1)(E).
After considering the record and the arguments presented on appeal, we conclude the judge did not mistakenly exercise his discretion in imposing the extended term sentence. The judge's finding of the aggravating factors were based on adequate, credible evidence in the record. See State v. Fuentes, 217 N.J. 57, 78 (2014). Further, the sentence is a reasonable one and does not shock the judicial conscience. Bolvito, supra, 217 N.J. at 228.
Regarding the errors in the JOC, the State concedes the judge misspoke at sentencing with respect to the enumeration of counts. In addition, the State consents to a remand for the correction of the JOC to reflect the five year sentence on count two.
Affirmed as to conviction and sentence. Remand to amend the JOC consistent with this opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION