Opinion
DOCKET NO. A-3615-13T3
07-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CLARENCE CUNNINGHAM, a/k/a JAMES CUNNINGHAM, CLARENCE CUNINGHAM and CLARANCE CUNNINGHAM, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Y. Lerer, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Reisner and Leone. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 10-09-0932, 10-09-0911, and Accusation No. 08-04-0569. Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Y. Lerer, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Clarence Cunningham appeals from his conviction by a jury for disorderly-persons simple assault, N.J.S.A. 2C:12- 1(a)(1); fourth-degree obstruction, N.J.S.A. 2C:29-1; third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). He was sentenced on July 20, 2012, to an aggregate term of five years in prison, with no period of parole ineligibility. His appeal from the sentence is limited to a merger issue, respecting an eighteen-month term that was imposed concurrent to the five-year term imposed for a more serious offense.
All of the sentences imposed, including the eighteen-month sentence for obstruction and the five-year sentence for resisting arrest, were concurrent. In addition, pursuant to plea bargains in two other cases, defendant pled guilty to two other indictments, and the sentences in this case and those two cases were imposed to be concurrent to each other. --------
We affirm the conviction. We conclude that defendant's merger argument is moot, because he has already served the entire eighteen-month concurrent term which is the subject of his merger argument. In fact, his brief advises us that he is no longer confined.
The trial evidence can be summarized briefly. Defendant got into a fight with a fellow resident of a YMCA, and during the fight, the fellow resident was injured. In a post-arrest statement to the police, defendant confessed to assaulting the fellow resident, but claimed his actions were a response to the resident bullying him, breaking into his room, and taking his possessions.
After the fight, defendant left the YMCA and encountered Officer Matos, who had been dispatched to the scene. Defendant failed to obey the officer's order to stop, assaulted the officer, and physically resisted the officer's back-up team when they tried to handcuff him. A knife was found in defendant's possession. DNA evidence revealed that the victim's blood was on defendant's shirt. The victim testified for the State, as did two police officers and a DNA expert.
Defendant testified on his own behalf. His testimony with respect to the incident with the fellow resident was consistent with his statement to the police. He asserted that the fellow resident started the fight. However, he admitted having a knife, and that he took the knife out of his pocket during the altercation and held it "up against" the other resident. He also admitted punching the other resident in the nose and trying to choke him.
Defendant denied that the police told him to stop as he was leaving the building. He denied walking away from Officer Matos or resisting arrest. He testified that as soon as Officer Matos saw him, the officer grabbed his arm and punched him, and that another group of officers then assaulted him. On cross-examination, he was confronted with his post-arrest statement, in which he did not claim that any of the officers assaulted him.
The jury acquitted defendant of the most serious assault-related charges arising from the incident with the fellow resident, convicting him only of disorderly-persons simple assault and the two weapons offenses to which he essentially admitted in his testimony. The jury convicted defendant of obstruction and resisting arrest with respect to the incident involving the police.
On this appeal, defendant raises the following issues:
I. THE TRIAL COURT'S ERRONEOUS DECISION TO SANITIZE THE DEFENDANT'S SIMILAR CONVICTIONS BUT NOT HIS DISSIMILAR ONES VIOLATED STATE V. BRUNSON, 132 N.J. 377 (1993). (NOT RAISED BELOW).
II. BECAUSE THE DEFENDANT WAS FORCED TO DECIDE WHETHER TO TESTIFY BEFORE THE TRIAL COURT RULED THAT FIVE PRIOR CONVICTIONS WOULD BE ADMISSIBLE TO IMPEACH HIS TESTIMONY, THE DEFENDANT'S DECISION TO TESTIFY WAS NOT MADE KNOWINGLY. (NOT RAISED BELOW).
III. THE DEFENDANT'S CONVICTIONS FOR OBSTRUCTION AND RESISTING ARREST MUST MERGE.
For the first time on appeal, defendant argues that the judge erred in failing to sanitize his convictions for offenses dissimilar to those with which he was charged in this case, while sanitizing his convictions for offenses (assault and weapons) similar to those charged in this case. Citing State v. Brunson, 132 N.J. 377, 393 (1993), and State v. Rivera, 437 N.J. Super. 434, 458 (App. Div. 2014), defendant contends that this procedure could have caused the jury to speculate about the nature of the sanitized convictions. The State concedes that the trial court erred but contends that the error was not prejudicial. We agree that defendant has not shown plain error.
In questioning defendant about the sanitized convictions, the prosecutor elicited that in 2003, defendant "pled guilty to a fourth degree crime" and was "in prison for three days." The prosecutor also elicited defendant's admission that later in 2003, he was "convicted of a third degree crime" and "spent 60 days in prison." It is inconceivable that such relatively innocuous information could have caused the jury to speculate that the two sanitized convictions were for serious crimes.
Moreover, before and during the testimony, the judge repeatedly instructed the jury as to the very limited purpose for which they could consider this information. He also essentially told the jury not to presume that the crimes were as serious as those with which defendant was accused in this case, because New York, where the convictions occurred, uses a different degree classification system than New Jersey.
Finally, given the overwhelming evidence of defendant's guilt, the error did not have a clear capacity to produce an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 335-37 (1971).
Next, defendant argues that his decision to testify was not made knowingly because he decided to testify before the judge ruled on which of defendant's convictions could be the subject of cross-examination. Defendant analogizes this situation to the court "misinforming" him about his right to testify. His argument is without sufficient merit to warrant discussion beyond the following comments. R. 2:11-3(e)(2).
Before defendant testified, the judge questioned him to insure that he and his attorney had thoroughly discussed the issue of testifying. Defendant, who had twenty-six prior convictions, assured the judge that they had, and he wanted to testify. It was the responsibility of defense counsel, not the court, to advise his client about issues bearing upon the decision to testify. State v. Savage, 120 N.J. 594, 630-31 (1990). On this record, there is no reason to doubt that defendant's prior convictions would have formed a part of the discussion between defendant and his attorney. Defendant does not argue that any of his prior convictions were for such serious crimes that their possible disclosure to the jury would have warranted his refraining from testifying. Finally, the judge ruled that the prosecutor could only refer to five of defendant's numerous prior convictions. Defendant knew of the judge's rulings before he actually took the stand, and thus defendant cannot show prejudice. We find no basis to disturb defendant's conviction in this case.
Lastly, for the first time on appeal, defendant argues that his convictions for fourth-degree obstruction and third-degree resisting arrest should have been merged for purposes of imposing sentence. Merger does not implicate a challenge to defendant's convictions. Rather, "in merger cases, only multiple punishments are at issue." State v. Miller, 108 N.J. 112, 116 (1987). The sentencing issue defendant seeks to raise here is moot, because defendant has already served the entire sentence he seeks to challenge. He was sentenced on July 20, 2012 to an eighteen-month term for obstruction, to run concurrent to the five-year term for resisting arrest. He has already served the eighteen-month sentence. In fact, his brief indicates that he is no longer confined with respect to any portion of his sentence.
However, for completeness, if we consider defendant's merger argument, we would reject it, because the State introduced evidence that defendant refused Officer Matos's command to stop and walked away from the officer — an act of flight which constituted the completed act of obstruction. N.J.S.A. 2C:29-1(a). The State also introduced evidence that after defendant committed obstruction, Officer Matos caught up with him and attempted to arrest him. At that point, defendant assaulted the officer, an act of physical violence which constituted the separate offense of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3). See State v. Reece, 222 N.J. 154, 171-73 (2015); State v. Tate, 216 N.J. 300, 311-12 (2013).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION