Opinion
DOCKET NO. A-0229-09T1
08-09-2011
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER T. CARR, Defendant-Appellant.
Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and LeWinn.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-05-00669.
Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Roberta DiBiase, Assistant Prosecutor, on the brief). PER CURIAM
A jury found defendant Christopher T. Carr guilty of second-degree robbery, N.J.S.A. 2C:15-1. Because defendant committed this robbery while he was released on bail pending adjudication of another robbery charge, of which he was subsequently convicted, defendant was eligible for an extended term pursuant to N.J.S.A. 2C:44-5.1. The judge granted the State's motion for imposition of the extended term and sentenced defendant to a fourteen-year term of imprisonment subject to parole ineligibility and supervision terms required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant appeals, challenging two of the judge's rulings on evidentiary issues and contending that during sentencing, the judge should have given more consideration to defendant's age, bipolar disorder and the fact that he did not possess a weapon during the robbery. We affirm.
On the morning of December 2, 2007, defendant borrowed a truck from his mother. Instead of using the truck to move his belongings, as he had said, defendant drove to a bank. Upon entering the bank, he first went to the area where withdrawal slips are kept and then approached a teller. He handed the teller a withdrawal slip on which he had written, "I have a gun. Give me $10,000" and the name "John Smith."
The teller panicked because she did not have $10,000 in her drawer, until she remembered that she could get that amount from the bank cash machine without a manager's approval. After getting the cash, she gave it to defendant. As defendant left, the teller cried and yelled. A co-worker who saw the teller's interaction with defendant described her as nervous, shaking and flustered and confused.
Later that day, defendant returned the truck to his mother and gave her four $100 bills. Thereafter, defendant attempted to hide out but several days later, he was apprehended at a shopping center. Following his arrest, defendant gave statements to the police, which were introduced at trial. He testified and acknowledged that he was the person who took money from the teller. The theory of the defense was that defendant's crime was a theft, not a robbery because he did not have the purpose of putting the teller "in fear of immediate bodily injury." N.J.S.A. 2C:15-1a(2).
Defendant raises three issues on appeal:
I. EVIDENCE INTRODUCED BY THE STATE THAT THE DEFENDANT WAS IMPOVERISHED, AND THUS COMMITTED THE CRIME OF ROBBERY DUE TO HIS IMPECUNIOSITY, WAS SO PREJUDICIAL AS TO DENY DEFENDANT HIS FEDERAL AND STATE RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10) [sic]. (PARTIALLY RAISED BELOW).
II. THE ADMISSION OF HIGHLY PREJUDICIAL OTHER-CRIMES EVIDENCE, INCLUDING THE FACT THAT DEFENDANT HAD COMMITTED A PRIOR BANK ROBBERY, IN VIOLATION OF THE COURT'S SANIZATION [sic] RULING, DEPRIVED THE DEFENDANT OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE
PROCESS OF LAW AND FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, AND 10) [sic].
III. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
The argument presented in Point I requires no discussion beyond the observation that it rests on an erroneous assumption that an unredacted transcript of the statement defendant made to the police was given to the jurors to follow while they listened to the redacted recording. The State's appendix, however, includes the redacted transcript bearing an exhibit tag demonstrating that it was presented to the jurors at trial. Based on our comparison of the redacted and unredacted transcripts, we can state that the statements about which defendant complains were excised from the transcript given to the jurors. There is no need to discuss this claim. R. 2:11-3(e)(2).
We turn to consider defendant's claim that the judge erred by allowing the State to introduce evidence of his motive to commit the robbery. Defendant articulated the motive during his post-arrest interview, and his girlfriend, who testified at trial, confirmed it. The motive was to get sufficient funds to flee from New Jersey and avoid sentencing for another offense. This motive was referenced by the prosecutor in his opening statement, and the testimony presented to establish the predicate facts did not reference the crime.
At the conclusion of the prosecutor's opening statement, the judge gave a thorough and appropriate instruction on the limited relevance of the evidence and directed the jurors that they were not permitted to draw an inference of guilt based on the fact that defendant was being sentenced for another crime. The judge reiterated those directions in his final instruction to the jurors.
Evidence of a defendant's prior bad acts is admissible only for limited purposes and subject to jury instructions explaining the permissible uses of the evidence and prohibiting an inference based upon propensity for criminality. N.J.R.E. 404(b); State v. Blakney, 189 N.J. 88, 92-93 (2006). Indeed, motive is an issue on which such evidence may be admitted, N.J.R.E. 404(b), and the trial court gave appropriate limiting instructions.
When the trial court has analyzed the question of admissibility of evidence of other crimes or wrongful acts in accordance with the controlling standards, the question for this court is whether the trial court abused its discretion. State v. Lykes, 192 N.J. 519, 534 (2007); see State v. Kemp, 195 N.J. 136, 149 (2008). In this case, Judge Hodgson conducted a proper analysis, concluded that this evidence of motive was highly probative and determined that the risk of prejudice did not warrant exclusion. We find no abuse of discretion, and we affirm his ruling on this evidence of motive substantially for the reasons stated by the judge in his oral decisions on the State's motion to introduce the evidence and in defendant's motion for a new trial. As with the arguments presented in support of Point I, the arguments defendant offers to establish this error are primarily based on the erroneous assumption that the jurors were given the unredacted transcript of defendant's custodial interrogation.
We have considered defendant's claim that his sentence is manifestly excessive and conclude that the judge based the sentence on facts supported by the record and a proper application of sentencing law. State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
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CLERK OF THE APPELLATE DIVISION