Opinion
DOCKET NO. A-1515-14T2
12-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KHAALID FATE, a/k/a KASEEM FATE, a/k/a KHAHD FATE, a/k/a KHALIO FATE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 O'Connor and Whipple. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 12-05-1312 and 12-05-1318. Joseph E. Krakora, Public Defender, attorney for appellant (Lauren S. Michaels, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Khaalid Fate appeals from his convictions and sentence for aggravated assault, eluding, receiving stolen property, and various weapons offenses, for which he was sentenced, in the aggregate, to a thirty-two-year term of imprisonment. After reviewing the record and applicable legal principles, we affirm in part and remand in part for resentencing in accordance with this opinion.
In addition, both parties agree the judgment of conviction incorrectly states defendant was found guilty of third-degree resisting arrest under N.J.S.A. 2C:29-2(a)(3)(a), when in fact he was found guilty of resisting arrest under N.J.S.A. 2C:29-2(a), a disorderly persons offense. On remand, the trial court must also correct the judgment of conviction, accordingly.
I
A
Defendant and co-defendant, George Jones, were jointly tried by a jury. On October 23, 2013, the jury convicted defendant of second-degree eluding, N.J.S.A. 2C:29-2(b); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(2); third-degree receiving stolen property, N.J.S.A. 2C:20-7; fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4); fourth-degree possession of a defaced weapon, N.J.S.A. 2C:39-3(d); and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a). The jury convicted co-defendant Jones of the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a).
The jury acquitted defendant of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); and fourth-degree possession of hollow nosed bullets, N.J.S.A. 2C:39-3(f).
On October 24, 2013, the same jury found defendant guilty of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).
On March 28, 2014, defendant was sentenced in the aggregate to thirty-two years of imprisonment, with a twelve-year period of parole ineligibility. Specifically, after merging the appropriate counts, the court imposed the following terms of imprisonment: sixteen-years, with an eight-year term of parole ineligibility, for unlawful possession of a weapon; eight-years, with a four-year period of parole ineligibility, for certain persons not to have weapons; eight-years for eluding; five-years for aggravated assault; five-years for receiving stolen property; eighteen-months for possession of a defaced firearm; and six-months for resisting arrest.
The terms of imprisonment for unlawful possession of a weapon (sixteen years), aggravated assault (five years), and possession of a defaced weapon (eighteen months) were ordered to run concurrently to each other. The terms of imprisonment for eluding (eight years), receiving stolen property (five years), and resisting arrest (six months) were also ordered to run concurrently to each other. However, the term for eluding (eight years) was ordered to run consecutively to the term for unlawful possession of a weapon (sixteen years). The term for certain persons not to have weapons (eight years) was ordered to run consecutively to all other terms of imprisonment.
The pertinent evidence adduced at trial is as follows. Marco Arabia parked and locked his mother's Dodge Caravan (van) on a street in Kearny the morning of November 20, 2011. At 5:45 p.m. he noticed the van was missing and notified the police. When he got out of the van that morning, there was neither a gun nor screwdriver in the van.
At 7:30 p.m., Sergeant Matthew Ruane (Matt) of the Newark Police Department was on duty when dispatch radioed there was a "Lojack hit" on a vehicle at a nearby intersection. Matt responded to the intersection, where he spotted and got behind the subject vehicle, which was the van reported missing by Arabia. Police officers David Nieves and Ronald Bernard, on patrol in one police vehicle, also responded and got behind Matt's patrol car.
We refer to this individual by his first name because we also refer to Sergeant Thomas Ruane, Matt's brother. (Their familial relationship is immaterial to the issues on appeal). For clarity, we refer to each officer by his first name to avoid confusion. We do not intend any disrespect by referring to these two officers by their forenames.
Matt activated his overhead lights but the van did not stop. A ten-minute chase ensued, during which the driver of the van, identified as defendant, drove recklessly "like there was no law," driving through red lights and stop signs. Co-defendant Jones was in the passenger seat of the van during the chase. The chase ended when defendant ran into a pole.
Matt testified that at one point during the chase, he "staggered" his car, meaning he turned his car to the left and into the opposite lane so he could see what was ahead of the van. While staggering his car, defendant extended his left arm out of the driver's side window and fired two shots toward Matt's car. Matt is heard on the dispatch tape stating, "We're hit. I don't know what the hell they shot. Yo, I think they're shooting at me. I think they're shooting." All units were ordered to assist in stopping the van.
Matt continued to follow the van. Seizing upon an opportunity to shoot at Matt while making a left-hand turn, defendant leaned out of the driver's window and fired at Matt's patrol car. Matt radioed to the other units to "take him out," meaning the driver of a police patrol car was to position his or her car to block and stop the van.
Defendant was ultimately cornered and drove onto a sidewalk and into a pole, where he was finally stopped. Matt drove up behind him, while approximately fifteen other patrol cars closed in. Matt pointed his gun at the driver's side of the van. Defendant exited the car with his hands up and ran down the sidewalk. Jones also exited the car and ran in a different direction.
Officers Nieves and Bernard ran after and caught defendant. Matt entered the van and spotted a black handgun under the gas pedal and a spent shell casing and screwdriver on the floor of the passenger's side of the car. At trial, Matt opined screwdrivers can be used to start a car when a key is not available. Matt noticed there was no key and the ignition was damaged. He also found a gouge on the passenger door of his patrol car that appeared to be from a bullet.
Although Nieves and Bernard caught defendant, it was Matt who placed defendant under arrest. Matt testified defendant resisted arrest, requiring the use of force to restrain him. After he was "taken down," defendant repeatedly tried to get up, swinging his arms and using his legs to fight the police. It required two officers to get defendant's arms behind his back. The police used "feet, hands, and fist, and a compliance hold" to gain control over defendant in order to take him into custody.
Although Matt's electronic signature appears on the arrest report for Jones, Matt was not in fact involved in the effort to arrest Jones, who also resisted arrest. Matt's name appears on the arrest report merely because the "job [was] assigned to me . . . . [T]his whole incident is considered my incident." Only Matt's brother, Sergeant Thomas Ruane (Tom), and Sergeant William Connelly participated in the struggle to arrest Jones.
Officer Nieves, the driver of the patrol car behind Matt's car during the chase, testified he saw two shots fired at Matt's car from the driver's side of the van. Nieves's passenger, Officer Bernard, announced over the police radio "shots fired, shots fired." Nieves also observed defendant fire another shot at Matt's car while defendant turned a corner, and saw sparks "hit" Matt's car on the passenger side. Defendant fired a fourth shot toward Matt's car while making another turn. Nieves testified he saw "the muzzle of the - the flash of the gun right at [Matt's] car."
After defendant's car came to rest on the sidewalk, Nieves pulled his car in front of the van in order to "take [defendant] out." When Nieves looked inside of the van, he saw defendant had both hands on the steering wheel but also held a gun in his right hand. Defendant then ran from the van with his hands in the air.
Defendant ignored Nieves's order to stop, but defendant eventually lost his balance and slowed down, enabling Nieves and Bernard to catch him. Defendant resisted the officers attempt to handcuff him. According to Nieves, the officers had to "work hard" to get defendant under control. In addition, defendant was cupping his hands, causing the officers concern he was hiding a weapon. Eventually, the officers succeeded in gaining control and handcuffed defendant.
Nieves was not involved in Jones's arrest. Although in Nieves's report he stated both Matt and Tom were involved in his arrest, Nieves did not in fact see who arrested Jones.
Nieves's passenger, Officer Bernard, testified he saw defendant stick his arm out of the window during the chase and fire two shots toward Matt's patrol car. Nieves observed two flashes and "the rounds skip up off," meaning "you can see the bang . . . . The bullet hits the ground, it hits the blacktop[.]" Bernard then yelled over the police radio "shots fired, shots fired." Defendant shot at Matt's car two additional times during the pursuit, and Matt eventually ordered the police to "take [defendant] out." When defendant fled from the van, Bernard ordered defendant to stop but he kept running. When finally caught, the officers struggled to place defendant under arrest, who kicked his feet and moved his arms, necessitating physical force to handcuff him.
Sergeant Connolly testified he participated in the pursuit after he heard gunshots and Matt's statement over the radio shots had been fired at him. Connolly joined the pursuit behind the car in which Nieves and Bernard were riding. When the van came to a stop and Jones jumped out and ran, Connolly pursued and apprehended Jones; Connolly was not involved in apprehending or arresting defendant. Connolly indicated Jones struggled against being subdued and arrested, and both he and Tom needed to use force to handcuff Jones.
Tom did not testify. Luke Laterza, an expert in firearm examinations, testified the gun found in the van, a nine-millimeter High Point luger with a defaced serial number, had the capacity to hold nine cartridges; five hollow-point cartridges were found at the crime scene. One spent casing was recovered from the van and another from the area where defendant was observed firing at Matt two times. Laterza examined both casings and determined both had been fired from the gun found in the van.
Because they were satisfied defendant was the shooter, the police did not test the van or defendant's hands and clothing for gunshot residue. A detective who investigated the incident testified there was damage to Matt's patrol car consistent with "a gunshot skipping off of it." An expert in fingerprint examination testified she was unable to obtain any latent fingerprints from the gun found in the van. However, she commented it is difficult to obtain fingerprints from guns and of the thousands of weapons she has examined, on only one occasion were fingerprints obtained.
Defendant was taken to a local hospital immediately following his arrest. His emergency room records reveal he reported being hit in the face and head "with fists," and complained of pain in his face and right wrist. The staff observed facial swelling and bruising on his head. He denied any loss of consciousness.
A doctor determined defendant had an abrasion and he received staples to his head but no other treatment. When discharged early the next morning, defendant denied having any pain. He never filed a claim in any forum alleging the police used excessive force against him or that he had been falsely arrested.
B
After the jury was selected but before opening statements, defense counsel informed the court she had "googled" Matt and learned from a "Huffington Post" article he had shot an unarmed individual to death, resulting in a municipality paying one million dollars "in a settlement after a jury . . . concluded that the officers used excessive force." Defense counsel acknowledged Matt did not fire any shots during the incident involving defendant, but she nevertheless contended evidence of the civil matter would detract from Matt's credibility if he asserted defendant shot at him. She also requested the court review any internal affairs files pertaining to Matt.
The court questioned the relevance of the civil matter and expressed concern the evidence could be highly prejudicial. Ultimately, the court ruled against defendant, but stated he could raise the issue again if warranted by the evidence.
The following day, the State advised the court, and defendant did not refute, it was in fact Tom, not Matt, who was the party to the civil matter to which defense counsel had referred the previous day. Defense counsel indicated she might call Tom to question him about the civil matter. The court found evidence of such matter inadmissible under N.J.R.E. 403, 404(b), and 608. The court also denied defendant's request to review Matt's internal affairs files because he was not involved in the civil matter.
During Matt's testimony, defense counsel brought to the court's attention a copy of a document filed by the American Civil Liberties Union (ACLU) in the Civil Rights Division Special Litigation Section of the United States Department of Justice. In this document, the ACLU alleged Matt falsely arrested an individual in 2008. Counsel claimed Matt settled such matter for $21,000, and advised the court she intended to question Matt about whether he had ever been "cited" for using excessive force.
The court denied counsel's request, stating, "[f]irst of all, there's no allegation [in the ACLU document] about anybody falsely arresting anybody. . . . This has nothing to do with any type of excessive force or anything like that. [The document] talks about false arrest. . . . He arrested the wrong person."
Later in the trial, defense counsel again informed the court she intended to cross-examine Tom about his civil matter and, if Tom were not called as a witness, she intended to call Matt to question him about his particular civil matter. Counsel argued evidence of Matt's civil lawsuit would reveal he had a motive to fabricate what transpired during the subject incident, given he had been "admonished" in the past. The court stated the issue would be addressed later.
During defendant's case, defense counsel asked the court to make a ruling, indicating she had subpoenaed both Matt and Tom in order to question them about their respective civil matters. The court determined evidence of these matters was inadmissible under N.J.R.E. 608(b) and N.J.R.E. 404(b).
The court found N.J.R.E. 608(b) unavailing because, among other things, the rule pertains to attacking the credibility of a witness in a criminal matter when such witness has made a prior false accusation – not arrest - against a person of a crime similar to the crime with which the defendant had been charged. The court found 404(b) inapplicable because the alleged prior wrongs were not relevant and there was no showing Matt and Tom committed the alleged wrongs by clear and convincing evidence.
II
On appeal, defendant raises the following points for our consideration:
POINT I – THE JUDGE COMMITTED REVERSIBLE ERROR BY PROHIBITING DEFENSE COUNSEL FROM QUESTIONING THE STATE'S MAIN WITNESS,
MATTHEW RUANE, AND ARRESTING OFFICER THOMAS RUANE ABOUT THE FALSE-ARREST AND EXCESSIVE-FORCE JUDGMENTS AGAINST THEM, AND BY REFUSING TO REVIEW THEIR INTERNAL-AFFAIRS FILES. [THE COURT] ALSO APPLIED THE INCORRECT STANDARD FOR DEFENSIVE USE OF RULE 404(B) EVIDENCE.
POINT II - THE PROSECUTOR'S SUGGESTION TO THE JURY THAT IT SHOULD PRESUME DEFENDANT'S GUILT BECAUSE OF DIFFERENCES BETWEEN HOW HE AND CO-DEFENDANT WERE CHARGED, AND THE PROSECUTOR'S IMPROPER BOLSTERING AND VOUCHING FOR TESTIFYING POLICE OFFICERS, WERE PLAIN ERROR.
POINT III - THE CUMULATIVE EFFECT OF THE AFOREMENTIONED ERRORS DENIED DEFENDANT A FAIR TRIAL.
POINT IV - THE 32-YEAR SENTENCE, WITH A 12-YEAR PAROLE DISQUALIFIER, WAS IMPOSED ERRONEOUSLY AND IS MANIFESTLY EXCESSIVE.
A. The Judge Erred In Imposing The Maximum Parole Bar On Count Four Without Providing Any Justification For Doing So.
B. The Judge Erred In Applying Aggravating Factor Eight To Offenses Which Were Not, In Fact, Committed Against A Police Officer, And Erred In Her Finding And Weighing Of Other Aggravating And Mitigating Factors.
C. The Judge Erred In Running Three Sets Of Sentences Consecutively.
D. For The Foregoing Reasons, And The Multiple-Counting Of Defendant's Criminal Record, His
Aggregate Sentence Is Manifestly Excessive And Unduly Punitive.
A
In his first argument point, defendant contends the trial court erred when it precluded him from questioning Matt and Tom about their respective civil matters. He also claims by declining to review their internal affairs files, the court thwarted defendant from learning of any pending investigations against them.
Defendant notes his defense "rested heavily on the excessive force used against the defendants, and discrediting the officers' accounts of the pursuit." He argues the inability to use the civil matters to impair these witnesses' credibility deprived him of the right to confront them and present a defense. Thus, he claims, he did not have a fair trial, mandating reversal of all of the convictions and a new trial. We are not persuaded by these arguments.
In particular, defendant attacks the trial court's ruling the judgments were inadmissible under N.J.R.E. 404(b). He argued a defendant is not required to meet the four factors established in State v. Cofield, 127 N.J. 328, 338 (1992), when a party seeks to admit evidence of a crime or prior wrong committed by a witness called by the prosecution. Defendant contends, under such circumstances, a defendant need only show such evidence is relevant.
In Cofield, the Court held extrinsic evidence of other crimes or wrongs may not be admitted unless such evidence is (1) relevant to a material issue; (2) similar in kind and reasonably close in time to the offense charged; (3) clear and convincing; and (4) more probative than prejudicial. Cofield, supra, 127 N.J. at 338.
We review evidential rulings of a trial court under an abuse of discretion standard. State v. Marrero, 148 N.J. 469, 483-84 (1997). "A trial court's ruling will not be upset unless there has been an abuse of that discretion, i.e., there has been a clear error of judgment." State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied sub nom., Koedatich v. New Jersey, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). Moreover, even when an evidentiary ruling is erroneous, reversal is not warranted unless the ruling was of such a nature so as to have been clearly capable of producing an unjust result. R. 2:10-2.
As indicated, the admission of evidence of other crimes or wrongs is governed by N.J.R.E. 404(b), which prohibits the admission of such evidence "to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule permits, however, admission of such evidence "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." Ibid.
Although courts generally apply N.J.R.E. 404(b) to evidence of other crimes or wrongs of the defendant in a criminal case, the rule is also applicable to the prior crimes or wrongs of a prosecution witness. See State v. Gookins, 135 N.J. 42, 46 (1994). That is because "an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978).
"[W]hen the defendant is offering that kind of proof exculpatorily, . . . simple relevance to guilt or innocence should suffice as the standard of admissibility . . . ." Id. at 452-53. However, a trial court "must still determine that the probative value of the evidence is not substantially outweighed by any of the [N.J.R.E.] 403 factors" for exclusion. State v. Weaver, 219 N.J. 131, 151 (2014). Those factors under Rule 403 include undue prejudice, confusion of issues, misleading the jury, undue delay, waste of time or needless presentation of cumulative evidence. Ibid. (citing State v. Cook, 179 N.J. 533, 567 (2004)); see also N.J.R.E. 403.
Here, even if the trial court misapplied Rule 404(b), any abuse of discretion in that ruling was inconsequential. Evidence of these civil matters was not only irrelevant and devoid of probative value, but was also unduly prejudicial.
First, defendant, not Jones, filed this appeal. Tom's connection to this incident is limited to his participation in the arrest of Jones, not defendant. There is no evidence Tom was involved in the effort to catch, subdue, or arrest defendant. Moreover, defendant has never alleged and there is no evidence Tom used excessive force against him. Probative of nothing, evidence of the civil judgment entered against Tom is inadmissible as irrelevant.
Second, as for the judgment against Matt for false arrest, defendant has not alleged and there is no evidence Matt falsely arrested him. Defendant failed to provide and we do not discern any plausible reason how evidence of Matt's settlement of a claim for false arrest is relevant. Moreover, evidence of such settlement had the potential of being a distraction and likely would have necessitated a time-consuming mini-trial to place the facts of the underlying settlement in context.
In addition, even if evidence of the civil matter were admitted and Matt's credibility impaired, there still remained considerable evidence independent of Matt's testimony to support the verdicts in this matter. For example, officers Nieves and Bernard observed defendant firing a gun four times in the direction of Matt's car; Bernard saw defendant holding a gun when the van came to rest; a gun was found in the van; spent casings found in the van and in an area where defendant was observed shooting at Matt contained markings consistent with the gun found in the van; there was physical evidence a bullet had struck Matt's car; and Nieves, Bernard, and Connolly provided evidence defendant eluded the police and resisted arrest.
Accordingly, because evidence of the subject civil matters was plainly irrelevant, the trial court did not err when it found such evidence inadmissible.
B
Defendant argues the prosecutor made highly prejudicial remarks during both summations, warranting reversal of his convictions and a new trial. Because defendant failed to object to these remarks at the time of trial, we review his arguments under the plain error rule, see R. 2:10-2.
As previously noted, evidence pertaining to the charge certain persons not to have weapons was presented to the jury after it returned its verdict on the other charges. --------
The theme of defense counsel's first summation was the police were dishonest and conspired to fabricate defendant committed the crimes with which he was charged. Defense counsel also argued there was insufficient evidence defendant ever handled a gun, let alone shot at anyone that evening, and there was no proof defendant stole the van. Defense counsel maintained defendant's only transgression was failing to pull over when the police activated their lights and sirens.
Defense counsel's comments during the first summation included: (1) the police "cover each other and that's what this case is about: covering each other[;]" (2) the police failed to test defendant's hands and clothing, as well as the van, for gunshot residue because they were not truly interested in finding who the real shooter was, having determined to target defendant and charge him with crimes; and (3) "[i]f you make the police chase you, what's gonna happen to you? You got to pay a price for that. You make [the police] come and get you, and you get them upset . . . . They beat [defendants] down. . . . And they beat 'em down like dogs."
In his first summation, the prosecutor summarized the evidence against defendant, and commented upon defendant's suggestion the police conspired to bring false charges against him. Providing a reason the State did not test for gunshot residue, the prosecutor stated:
Defense counsel brings out gunshot residue. We don't need to know the identity of the shooter. We already know who the identity of the shooter is. You have direct evidence from that [witness] stand who the shooter was.Defendant contends these remarks constituted impermissible vouching of the police officers' credibility. We disagree.
We are mindful it is "'improper' to imply that police testimony should be accepted, 'not because of its believability but because the witnesses were policemen.'" State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993) (quoting State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969)). But that did not happen here. The prosecutor was not improperly bolstering the credibility of the police witnesses.
In an obvious reference to the witnesses who testified they saw defendant shoot a gun at Matt, the prosecutor pointed out gunshot residue testing was unnecessary because the identity of the shooter was already known. His identity was known because eyewitnesses saw defendant was the shooter. The prosecutor did not suggest the testimony of such witnesses was credible because they were police officers.
The prosecutor also responded to defendant's suggestion the police were unscrupulous and conspired to bring baseless charges against defendant, without any consideration for the evidence. The prosecutor stated:
But you know what's more credible, ladies and gentlemen, and I said to you in my opening is how the defendants are charged. These are rogue cops. Well, let's just put all the same charges on Mr. Jones. Right? Why not? Bad cops, let's get 'em all. . . . We know Mr. Jones didn't fire a gun. Didn't have the gun. He was never charged with it.Defendant argues these comments were improper because the prosecutor insinuated he had superior knowledge outside of the record about why charges were made in this case. Again, we disagree.
The prosecutor noted there was no evidence Jones had committed any weapons offenses and, accordingly, he was not charged with any. The prosecutor argued that had the police been truly "rogue" or "bad," Jones would have been charged with such offenses, implying the fact Jones was not so charged revealed the charging decisions in this matter were based upon the evidence.
The prosecutor's comments were legitimate responses to offset defense counsel's suggestion the police made reckless accusations without any regard to the evidence. The prosecutor was properly responding to an issue raised by his adversary, as he was permitted to do. See State v. Johnson, 287 N.J. Super. 247, 266 (App. Div.), certif. denied, 144 N.J. 587 (1996).
During the second phase of the trial, at which the jury was tasked with determining whether defendant was guilty of certain persons not to have weapons, see N.J.S.A. 2C:39-7(b), no new evidence was admitted. The evidence pertaining to defendant's possession of a handgun from the first phase of the trial was merely introduced; the parties also stipulated defendant had been previously convicted of one of the offenses set forth in N.J.S.A. 2C:39-7(b).
During her second summation, defense counsel argued there was insufficient proof defendant had been in possession of the handgun found in the van. At one point, counsel again called into question the failure of the police to test defendant for gunshot residue, and challenged the fingerprint expert's opinion fingerprints could not be recovered from the gun.
During the second summation the prosecutor countered:
[T]he biggest piece of evidence, ladies and gentlemen, in this case is that Dispatch tape. That's irrefutable evidence. 10 minutes and 40 seconds, ladies and gentlemen, from start to finish. It's not acting. It's not made up. It's real life, real time. Use your common sense. You can see that there is no way police could have done anything dishonest, anything inappropriate. It's real time that captured the moment like any other piece of
evidence I've ever seen in the 13 years I've been doing this.
[Emphasis added.]
Defendant argues the prosecutor again improperly vouched for the police officers' credibility when he stated "there is no way police could have done anything dishonest, anything inappropriate." However, in context, the prosecutor's comments were largely responsive to defense counsel's overall theme the police were untrustworthy and conspired to wrongfully prosecute defendant.
In so many words, the prosecutor pointed out the dispatch tape refuted the contention the police were deceitful, because the tape was recording what occurred as events unfolded, and the evidence on the tape supported the State's case. Further, even if the police had been dishonest, the police did not have the opportunity during the approximately ten-minute long car chase to plant or alter the evidence in the State's favor.
Defendant also complains the comment, "It's real time that captured the moment like any other piece of evidence I've ever seen in the 13 years I've been doing this[,]" was inappropriate. We concur, because the prosecutor improperly voiced his personal opinion about the quality of the evidence. As we observed in State v. Hinds, 278 N.J. Super. 1 (App. Div. 1994), rev'd on other grounds, 143 N.J. 540 (1996), it is improper for a prosecutor to refer to his prosecutorial experience and interject his personal opinion into the case. Id. at 18.
That said, because defendant did not object to the prosecutor's comments at the time of trial, we must examine whether the prosecutor's remarks were so egregious that but for his conduct, the jury rendered a verdict it might not otherwise have reached. See R. 2:10-2. Measured by that standard, we conclude the error, which would not affect any of the convictions but for the certain persons not to have weapons conviction, was not capable of producing an unjust result.
There was substantial evidence defendant was in possession of the weapon. He was seen by three officers firing a gun; one officer saw him holding a gun in his hand just before defendant fled the van; a gun was found in the van that matched a spent casing found in one of the areas defendant was seen firing a weapon; and there was no evidence Jones was ever in possession of a gun. When considered under the plain error standard, the prosecutor's remarks were not so egregious it deprived defendant of a fair trial on this charge. State v. Echols, 199 N.J. 344, 360 (2009).
At one point the prosecutor stated:
There is no conspiracy in the police department in this case. . . . 10 minutes and 40 seconds, ladies and gentleman. Those police officer[s] are out there putting their lives on the line and this defendant, ladies and gentlemen, we've proven this case, possessed the weapon.Defendant contends the remark the "police officers are out there putting their lives on the line" was inappropriate. We agree, but the statement was not capable of producing an unjust result in light of the evidence. Ibid.
[Emphasis added.]
C
Defendant contends the trial court erred because it (1) improperly applied the aggravating factors, see N.J.S.A. 2C:44-1(a); (2) imposed the maximum parole bar for unlawful possession of a weapon; (3) failed to justify the imposition of consecutive sentences; and (4) imposed an excessive term of imprisonment.
We reject the contention the sentencing court failed to properly analyze and weigh the aggravating factors. The court found applicable aggravating factors three, N.J.S.A. 2C:44-1(a)(3); six, N.J.S.A. 2C:44-1(a)(6); eight, N.J.S.A. 2C:44-1(a)(8); and nine, N.J.S.A. 2C:44-1(a)(9). It considered but determined no mitigating factors, see N.J.S.A. 2C:44-1(b), existed.
Defendant argues aggravating factor eight did not apply to all of his convictions. This factor provides, in pertinent part, "[t]he defendant committed the offense against a police or other law enforcement officer . . . acting in the performance of his duties while in uniform or exhibiting evidence of his authority." N.J.S.A. 2C:44-1(a)(8).
We need not dwell on this argument. Even if aggravating factor eight did not apply, the exclusion of this factor from the court's consideration would not have materially affected the weight of the remaining aggravating factors and have altered defendant's sentence. Based upon defendant's prior criminal record and acts, the three remaining aggravating factors are supported by the record. Because there are no mitigating factors, the aggravating factors predominate. Therefore, we decline to find any abuse of discretion. See State v. Bolvito, 217 N.J. 221, 228 (2014). If a sentencing court has identified and balanced the aggravating and mitigating factors and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Grate, 220 N.J. 317, 337 (2015).
Defendant next complains the court erred when it imposed the maximum parole bar for unlawful possession of a weapon. The court ordered defendant to serve a prison term of sixteen-years, with an eight-year period of parole ineligibility, for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). As even the State concedes, it is not entirely clear how the court reached its decision. After perusing the record, we are unable to discern with certainty the statutory or decisional authority upon which the court relied to arrive at its decision to impose the eight-year period of parole ineligibility for this particular offense.
If a sentencing court orders a period of parole ineligibility, the court "shall state on the record the reasons for imposing the sentence[.]" State v. Bessix, 309 N.J. Super. 126, 130 (App. Div. 1998) (quoting State v. Kruse, 105 N.J. 354, 359 (1987)). In the absence of any explanation for the basis of a court's determination, which hinders appellate review, remand to the trial court is the appropriate solution. Ibid. Because the court did not adequately explain why it imposed the eight-year period of parole ineligibility, we must vacate and remand for resentencing the issue of parole ineligibility for unlawful possession of a weapon.
We next turn to defendant's contention the imposition of the consecutive sentences was error. The court ordered the term for eluding to run consecutively to the term for unlawful possession of a weapon, and the term for certain persons not to have weapons to run consecutively to all other terms of imprisonment. The trial court found the act of eluding to be
very separate from the gun, just almost to the same degree as the gun is separate in the felon in possession because it's a whole different part of crime being committed on society. It's one thing to be in a stolen car and then [elude], resist arrest[;] it's another thing to have a weapon while you're doing all of those things. . . .
If there wasn't the pointing [at a police officer] and the other it might have still been concurrent because he would have just had a weapon in a car that was stolen, then I might have made it . . . concurrent.
But the fact that this is a whole different type of assault and offense, it does appear to this court that it's independent, it's a separate act of violence, pointing at an officer. . . . [A]nd under Yarbough I do find that, as again, the receiving stolen property, then the [eluding], and then the resisting arrest are very separate -- the aggravated assault and unlawful [possession] of the weapon charges, with doing something with the weapon charges, more than just having a weapon in position.
In State v. Yarbough, 100 N.J. 627 (1985), the Court adopted criteria as general sentencing guidelines for the determination of whether to impose concurrent or consecutive sentences. Id. at 643-44. The Court instructed trial courts to focus on the following factors:
(a) the crimes and their objectives were predominantly independent of each other;
(b) the crimes involved separate acts of violence or threats of violence;
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
(d) any of the crimes involved multiple victims;
(e) the convictions for which the sentences are to be imposed are numerous.
[State v. Molina, 168 N.J. 436, 441-42 (2001) (quoting Yarbough, supra, 100 N.J. at 644).]
In determining the consecutive sentences imposed, essentially the trial court merely observed the weapons offenses were separate from the others, but failed to address the remaining Yarbough factors. It is "crucial to the appellate review process" that a trial court "give 'a separate statement of reasons for its decision to impose consecutive sentences.'" Id. at 442 (quoting State v. Miller, 108 N.J. 112, 122 (1987)).
We conclude the statement of reasons provided here fell short of assessing all of the Yarbough factors. Thus, a remand is necessary to permit the court to conduct the required analysis.
After carefully considering the record and the briefs, we conclude defendant's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11- 3(e)(2).
In summary, we affirm defendant's convictions, but remand for re-sentencing on the period of parole ineligibility for the conviction for unlawful possession of a weapon, and for resentencing on whether consecutive sentences for eluding and certain persons not to have weapons are warranted. Finally, within thirty days, the trial court shall amend the judgment of conviction to reflect defendant was found guilty of resisting arrest under N.J.S.A. 2C:29-2(a), a disorderly persons offense, and not resisting arrest under N.J.S.A. 2C:29-2(a)(3)(a), a third-degree offense.
Affirmed in part and remanded in part in accordance 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