Opinion
DOCKET NO. A-2982-14T3
09-16-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ZAHIER K. CROSELL, a/k/a ZAHIR K. CROSELL, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Suter. On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14-04-0246. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John T. Lenahan, Salem County Prosecutor, attorney for respondent (Lisa M. Rastelli, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Zahier K. Crosell was convicted of third-degree theft, N.J.S.A. 2C:20-3, and sentenced to a three-year term of imprisonment. He raises the following points on appeal:
POINT I: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL FOLLOWING THE STATE'S ELICITATION OF TESTIMONY CONNECTING THE DEFENDANT WITH OTHER CRIMINAL CONDUCT, CONTRARY TO N.J.R.E. 404(b).We have considered these arguments in light of the record and applicable legal standards. We affirm.
POINT II: THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S FAILURE TO ISSUE A CURATIVE INSTRUCTION TO THE JURY AS REQUESTED BY TRIAL COUNSEL REGARDING TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER REFERENCING AN ARREST OF THE DEFENDANT UNRELATED TO THE PRESENT CASE. (PARTIALLY RAISED BELOW)
POINT III: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
I.
The State contended that defendant removed various items from the victim's home during a raucous party thrown by her daughter in her and her husband's absence and without their knowledge. When the victim returned home, she noticed certain jewelry was missing from her bedroom, including her husband's wedding ring, as well as a wall-mounted television from the gym, located in a building separate from the house but on the same property. During the party, the victim's daughter permitted her girlfriend to sleep in her parents' bedroom. This young woman testified that as she slept, defendant, who was at the party, repeatedly entered the bedroom claiming to be searching for his car keys.
Another person at the party, Jermaine Dunkins, testified defendant was still at the party when Dunkins and his friends left. One of Dunkins' friends attempted to take a television from the home and put it in Dunkins' car, but Dunkins told him to return it. Dunkins spoke to defendant the next day, after the victim's daughter had accused Dunkins of stealing things from the home. Dunkins asked defendant about the alleged theft, and defendant said "[h]e didn't have any of their stuff."
After providing a formal statement to police, Dunkins agreed to permit the police to record a phone conversation between him and defendant. The jury heard a tape recording of that conversation. When Dunkins asked what he could do to get the "stuff back," defendant told him "[e]verything is sold." Defendant also said that "Teron got the TV."
At other points, this individual is identified as "Tavon." One of the arresting officers testified that Dunkins was unable to provide any further information as to the identity of this person.
Defendant was arrested. During processing, he was found to be in possession of the victim's husband's wedding ring. Defendant told police that he "found the ring in a Cracker Jack box."
II.
A.
During direct examination of the victim's daughter by the prosecutor, the following colloquy took place:
Q. Now after the party, over the next couple days, did you discover items missing from your house?Defense counsel asked to approach sidebar, but the judge immediately sustained any nascent objection.
A. Well [my girlfriend] had money that was taken —
On direct examination, the daughter's girlfriend testified that money was missing from her purse when she awoke the morning after the party. Defense counsel objected, arguing "[t]he witness is testifying about a theft that's not subject to this indictment." The judge overruled the objection, reasoning the witness was "talking about the surrounding circumstances." The witness also testified that other people awoke after the party and realized their cell phones were missing.
After lunch, defense counsel moved for a mistrial. She argued any evidence of uncharged thefts violated N.J.R.E. 404(b). The judge decided to deny the motion "for the moment[,]" but the issue continued to percolate throughout the afternoon session. The judge eventually concluded that permitting the testimony was a mistake. The testimony in the brief trial concluded later that day, and the judge clarified that he was not granting a mistrial.
As proceedings began the following day, the judge asked defense counsel whether she wanted a curative instruction, as suggested by the prosecutor. Defense counsel proposed an instruction, which the judge essentially adopted and provided to the jury in his final charge. The judge told the jurors: "There was testimony from the witness . . . among her other testimony, that money was missing from her purse. That has no relevance whatsoever to this case[] and is not to be considered by you. That testimony should not enter into your deliberations in any manner at any time." There was no further objection to the charge as given.
Defendant argues it was error not to grant a mistrial. The State contends the evidence was not prohibited under N.J.R.E. 404(b) because the witness never claimed defendant stole the money from her purse or stole other people's cell phones. Alternatively, the State argues the curative instruction was sufficient and any error was harmless.
N.J.R.E. 404(b) provides that:
[e]xcept [in circumstances not present here], evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted
for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.In order to introduce evidence of uncharged bad acts, the State must satisfy the four-prong test enunciated in State v. Cofield, 127 N.J. 328, 338 (1992).
The evidence of the uncharged crime must be "relevant to a material issue[,]" "similar in kind and reasonably close in time to the offense charged[,]" "clear and convincing," and its "probative value . . . must not be outweighed by its apparent prejudice." Cofield, supra, 127 N.J. at 338.
We reject the State's argument that testimony about other thefts committed in the victim's home on the night of the party did not violate N.J.R.E. 404(b). The clear inference was that defendant, who repeatedly entered the bedroom during the night, stole not only the victim's jewelry, but also the witness's money. The judge properly determined that his initial decision to admit the testimony was error. The only remaining question is whether a mistrial was warranted, as defendant suggests, or whether the curative instruction, essentially crafted by defense counsel, was a sufficient remedy.
As the Court has explained:
[A] trial is not a perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given
the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury.""Whether testimony or a comment by counsel is prejudicial and whether a prejudicial remark can be neutralized through a curative instruction or undermines the fairness of a trial are matters 'peculiarly within the competence of the trial judge.'" Ibid. (quoting Winter, supra, 96 N.J. at 646-47). "The grant of a mistrial is an extraordinary remedy to be exercised only when necessary 'to prevent an obvious failure of justice.'" Ibid. (quoting State v. Harvey, 151 N.J. 117, 205 (1997)). "For that reason, an appellate court should not reverse a trial court's denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)).
[State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646 (1984)).]
Defendant does not specifically challenge the sufficiency of the judge's curative charge, but only contends that any curative charge was insufficient. We disagree.
At trial, the focus became the witness's testimony regarding the theft of money from her purse and not the theft of other people's cell phones. --------
The improper testimony was relatively brief and not referenced again during summation. All the testimony in the case was concluded in one day, and the judge provided the curative instruction in the general charge the next day. His instructions made clear that there was no permissible use for the testimony, and it should be disregarded by the jury in its entirety. In short, we cannot conclude that the judge mistakenly exercised his broad discretion in denying the mistrial motion, or that defendant suffered actual harm.
B.
During her cross-examination of one of the troopers involved in the investigation, defense counsel asked where defendant was physically located when arrested by another officer. The testifying trooper responded he was unsure, but "understood" defendant was "at a party." The officer gratuitously explained, "[defendant] was arrested on the other matter, other than my warrant." There was no immediate objection, but defense counsel later requested a curative instruction. The prosecutor did not object, and the judge ended the day by telling defense counsel "if you still want it [when we're all done,] you tell me and we'll do it." The record does not indicate that defense counsel ever renewed the request.
Defendant argues he was denied a fair trial because the trooper's reference to "the other matter" implied defendant was involved in prior criminal activity. We agree that the testimony was not responsive to defense counsel's questioning and was improper. We also agree that defense counsel's failure to renew her request does not foreclose our review of the issue.
However, "when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Yough, supra, 208 N.J. at 397-98 (quoting R. 2:10-2). "[T]here [must] be 'some degree of possibility that [the error] led to an unjust result. The possibility must be real, one sufficient to raise a reasonable doubt as to whether [it] led the jury to a verdict it otherwise might not have reached.'" State v. Lazo, 209 N.J. 9, 26 (2012) (quoting State v. R.B., 183 N.J. 308, 330 (2005) (third and fourth alterations in original)).
In this case, the troopers fleeting reference to some "other matter" does not raise a reasonable doubt that the jury was led astray from dispassionate consideration of the actual evidence of defendant's guilt, which was substantial. We affirm defendant's conviction.
III.
Finally, defendant argues his sentence was excessive. Defense counsel acknowledged at sentencing that, although defendant was convicted of a third-degree offense, the presumption against incarceration was not present based upon defendant's prior conviction. See N.J.S.A. 2C:44-1(e). However, she argued several mitigating sentencing factors were present. N.J.S.A. 2C:44-1(b).
The judge rejected the argument. Citing defendant's "extensive juvenile arrest history," his violations of probation and lack of any "work history," the judge found aggravating sentencing factors three, six, nine and eleven. See N.J.S.A. 2C:44-1(a)(3) (risk of re-offense); (a)(6) (extent of prior criminal record and seriousness of the offense); (a)(9) (need to deter defendant and others); (a)(11) (imposition of a fine or restitution without a term of imprisonment would be perceived as "part of the cost of doing business"). The judge sentenced defendant to a three-year term of imprisonment, the minimum ordinary term of imprisonment for a third-degree offense. See N.J.S.A. 2C:43-6(a)(3).
Before us, defendant argues the judge abused his discretion because the record supported the finding of only aggravating factor nine and supported many mitigating sentencing factors. We disagree.
"Appellate review of the length of a sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011). As the Court has said:
The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
In this case, the record supports the aggravating sentencing factors cited by the judge. Moreover, the record did not support a finding that defendant did not contemplate, nor did his conduct cause, serious harm. N.J.S.A. 2C:44-1(b)(1) and (2). Defendant stealthily removed jewelry and other valuables from the victim's home and sold most of them before being caught. Additionally, defendant kept a ring, worth thousands of dollars, for himself. Defendant had significant contacts with the criminal justice system prior to this offense, so mitigating factor seven did not apply. See N.J.S.A. 2C:44-1(b)(7) ("defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense"). Defendant was apparently expecting the birth of a child, but, as the judge noted, defendant was not employed. There was no evidence that his incarceration would entail excessive hardship to his dependents. N.J.S.A. 2C:44-1(b)(11).
In short, the judge engaged in the proper exercise of his broad sentencing discretion. State v. Case, 220 N.J. 49, 65 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION