Opinion
DOCKET NO. A-5813-13T1
11-23-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. TYREESE STEWART, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Haas and Currier. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-03-0295. Joseph E. Krakora, Public Defender, attorney for appellant (Brian Plunkett, Assistant Deputy Public Defender, of counsel and on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Nancy A. Hulett, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Tyreese Stewart appeals from his convictions of robbery and resisting arrest, arguing the joinder of the charges was prejudicial. He also contends the trial judge erred in the imposition of his sentence. After a review of the record and considering the arguments in light of the applicable principles of law, we disagree with defendant's contentions and affirm. We remand to the trial court only for the amendment of the Judgment of Conviction (JOC) to correct several errors.
In June 2013, 16-year old F.A. was walking home from the bus stop. As he neared his home, he noticed two men walking towards him, one of whom was later identified as defendant. When the men were passing F.A., defendant grabbed him and placed him in a chokehold. While the other man watched and laughed, defendant tried to reach in the backpack, asking "what you got there." F.A. choked and struggled to escape, and he threw his bag to the ground. F.A.'s neighbor saw this incident while standing on his front lawn and recognized defendant. The neighbor yelled at the men to leave F.A. alone; defendant eventually released the boy and walked away with his cohort, leaving the bag on the ground. F.A. reported the incident to the police telling them that the men were trying to rob him.
We refer to F.A., a minor, by his initials to protect his identity.
Approximately an hour later that afternoon, a team of officers with an arrest warrant for defendant regarding an unrelated shooting were sent to apprehend him. As the officers headed to a location where they believed they would find defendant, they were notified that he was a suspect in the robbery of a juvenile. When the officers found defendant driving in the area with a passenger, they blocked his car with their vehicles, got out of their cars, drew their weapons, and ordered defendant to turn off his car. Defendant tried unsuccessfully to drive away, nearly hitting one of the officers. The police again ordered defendant to exit the car, but he did not comply. As a result, the officers forcibly removed defendant from the vehicle. Defendant continued to struggle with the four officers who were attempting to handcuff him. Eventually he was subdued and handcuffed.
Defendant was charged in an indictment with: first-degree robbery, N.J.S.A. 2C:15-1; second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5); fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(h); second-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(1); and third-degree aggravated assault on a police officer with a deadly weapon, N.J.S.A. 2C:12-1(b)(2).
Following a trial, the jury found defendant guilty of second-degree robbery; second-degree conspiracy to commit robbery; the lesser-included offense of simple assault; and a disorderly persons offense of resisting arrest. Defendant was found not guilty of the remaining charges.
At sentencing, the judge merged the conspiracy charge into the robbery charge. On the merged convictions, defendant was sentenced to ten years in prison with an 85% parole ineligibility period. The judge imposed a six-month sentence for the simple assault charge and a three-year sentence for the resisting arrest charge; both terms to run concurrently with the ten-year sentence.
On appeal, defendant asserts the following contentions:
POINT I: BECAUSE THE STATE IMPROPERLY PRESENTED TWO SEPARATE EVENTS AS A SINGLE INCIDENT THE STATE INFRINGED ON THE DECISION MAKING FUNCTION OF FIRST THE GRAND JURY AND THEN THE PETIT JURY BY MIXING THE SEPARATE EVENTS TO ITS OWN ADVANTAGE AND CAUSING PREJUDICE TO THE DEFENDANT FOR WHICH HIS CONVICTIONS SHOULD BE REVERSED AND THE INDICTMENT AGAINST HIM DISMISSED.
A. The State's extraneous evidence infringed on the decision making function of the Grand Jury and deprived defendant of his constitutional right to due process.
B. Substantial trial testimony produced in support of violent accusations stemming from the defendant's arrest for separate
crimes created overwhelming prejudice depriving defendant of a fair trial.
C. The State's extraneous evidence violated the rule of State v. Bankston.
POINT II: BECAUSE THE NATURE OF THE OFFENSE IS THE SINGLE MOST IMPORTANT FACTOR IN SENTENCING AND BECAUSE THE TRIAL COURT OVERLOOKED THAT DEFENDANT DID NOT CAUSE OR CONTEMPLATE HARMING THE VICTIM, THE MATTER SHOULD BE REMANDED FOR RESENTENCING.
Defendant argues that the joinder of the robbery charges and the resisting arrest charges in the same indictment and at trial was greatly prejudicial to him. He contends that the joinder misled the jury into believing defendant's arrest was for the robbery of F.A. rather than for the unrelated shooting. He argues that by the jury hearing of the measures the police were taking to arrest him - a team of officers, the blocking of his vehicle and drawing of their weapons - the circumstances of the arrest served to undercut defendant's posture that he only intended to joke and play around with F.A.
Defendant was charged in a separate indictment with aggravated assault, weapons offenses and other related charges arising out of the shooting incident. Those charges were not revealed to the jury during the subject case and the jury heard no details regarding the shooting allegations.
Although a defendant may move for relief from a prejudicial joinder under Rule 3:15-2(b) at any time before trial, defense counsel did not do so. A failure to move for relief before trial constitutes a waiver of the defense or objection unless the defendant can show good cause. R. 3:10-2(c). Defendant does not present any argument supporting a finding of good cause other than the statement that defense counsel did not raise the joinder issue since she "erroneously believed that these were parts of one event." We find this assertion to be without merit.
The record reflects that trial counsel used the events of the arrest to support a defense theory that law enforcement's reaction to the "roughhousing" incident between defendant and F.A. was overblown and out of proportion to the circumstances. She pointed out in her summation that the police assembled a "task force" to arrest defendant even though they found him in the exact same spot where he had "joked" around with F.A. earlier that day. She also emphasized in her cross-examination of the arresting officers and in her closing argument the use of force employed by the officers as out of proportion to the trivial incident with F.A., reminding the jury that defendant had not even gone into the teenager's bag, much less robbed him. It is clear that counsel employed the joinder of the robbery and resisting arrest charges to defendant's advantage.
Although we agree with the State that the joinder argument was waived, we review the argument under the plain error standard, Rule 2:10-2, and find it to be without merit. Rule 3:7-6 permits joinder "when there is some connection between separate counts rendering the evidence probative of a material issue in another charge." State v. Sterling, 215 N.J. 65, 91 (2013). All of the offenses in the indictment were alleged to have taken place on the same date within a short timeframe. The robbery and the arrest were temporally linked. Finally, defense counsel effectively used the circumstances of the robbery and arrest to support her trial strategy that resulted in convictions on lesser-included offenses and the acquittal of defendant on several charges.
In a related argument, defendant argues that including the resisting arrest charges in the robbery trial violated the principles of State v. Bankston, 63 N.J. 263 (1973). We disagree. In Bankston, a drug prosecution, police officers testified that they arrested the defendant based on an informant's tip that he was in a tavern and in possession of narcotics. Id. at 265-67. The Supreme Court found that the officers' testimony about the informant's tip was inadmissible hearsay, stating that when an officer specifically repeats an informant's out-of-court statement concerning a crime by the defendant, such testimony can improperly lead the jury to conclude that the defendant is guilty of the crime. Id. at 268-69. Therefore, the Court determined that such testimony is inadmissible hearsay and violates a defendant's Sixth Amendment right to confront the witnesses against him. Ibid.
Defendant argues that the State's evidence about the arrest violated Bankston because it "clearly conveyed that police had unstated information that [defendant] was dangerous and violent and needed to be arrested by a tactical team of officers." This argument is inapposite. The State presented evidence that the officers created a plan to arrest defendant, that detectives executed that plan on the afternoon of the robbery, and that defendant did not react peaceably to his arrest. The State made no mention of defendant's implication in an unrelated shooting nor of an informant telling the police that defendant was "dangerous and violent." There was no danger of the jury presupposing defendant's guilt based on an unidentified informer's statement and no violation of Bankston.
Defendant challenges his sentence as being excessive and contends the judge erred in improperly weighing the aggravating and mitigating factors.
In reviewing a trial court's sentence, we are "expected to exercise a vigorous and close review for abuses of discretion by the trial courts," State v. Cassady, 198 N.J. 165, 180 (2009), and "assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)). We must not, however, "substitute [our] assessment . . . for that of the trial court"; only when we "determine[] that the trial court has found aggravating and mitigating factors unsupported by the record," are we entitled to "intervene and disturb such a sentence." Bieniek, supra, 200 N.J. at 608. Ultimately, a sentence "must be affirmed unless it 'shocks the judicial conscience.'" Cassady, supra, 198 N.J. at 181.
In finding several aggravating factors, the judge explained his reasoning and noted there were no mitigating factors. His qualitative analysis was supported by the credible evidence and we see no reason to disturb the imposed sentence.
We affirm the convictions and sentence. However, we are in agreement with the State that there are several errors in the JOC, and therefore, we remand to the trial court only for the entry of an amended JOC.
The JOC states that the simple assault conviction is a third-degree crime; it should be amended to reflect the conviction of a disorderly persons offense. The JOC states the sentence for resisting arrest is three years; it should be amended to comport with the judge's oral decision of a six-month sentence. --------
Affirmed. Remanded for the entry of an amended JOC.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION