Opinion
DOCKET NO. A-2192-10T4
08-10-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY MONTGOMERY, a/k/a ANTHONY ELEREE MONTGOMERY, ANTHONY MORGAN, NAUGHTY TONY and SUPREME, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Barbara N. Suppa, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-08-1839.
Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief).
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Barbara N. Suppa, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by SIMONELLI, J.A.D.
This case presents the novel issue of whether a defendant is entitled to a mistrial or new trial based on misconduct in the jury's presence. We hold that a defendant cannot engage in courtroom misconduct and then expect to be rewarded with a mistrial or new trial for his or her egregious behavior where the trial judge took appropriate cautionary measures to ensure a fair trial. We, therefore, affirm defendant's conviction by a jury for first-degree carjacking and numerous associated offenses. We also affirm his extended-term sentence of life imprisonment without the possibility of parole, although we reverse certain additional aspects of his sentence, and remand for entry of a corrected judgment of conviction.
Following a jury trial, defendant Anthony Montgomery was convicted of second-degree eluding, N.J.S.A. 2C:29-2b (count one); second-degree aggravated assault by eluding, N.J.S.A. 2C:12-1b(6) (count two); first-degree carjacking, N.J.S.A. 2C:15-2a (count three); third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (count four); second-degree disarming a law enforcement officer, N.J.S.A. 2C:12-11a (count five); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count six); fourth-degree injury to a law enforcement animal, N.J.S.A. 2C:2 9-3.1 (count seven); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (count eight); and fourth-degree possession of a prohibited weapon (hollow point bullets), N.J.S.A. 2C:39-3 (count nine). Following a second trial before the same jury, defendant was convicted of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1) (count ten). The trial judge also found defendant guilty of numerous motor vehicle offenses.
Prior to sentencing defendant, the trial judge granted the State's motion to impose a mandatory extended term of imprisonment pursuant N.J.S.A. 2C:43-7.1a (the three-strikes law). The judge sentenced defendant to the following terms of imprisonment: (1) life imprisonment without eligibility for parole on count three; (2) ten years' imprisonment with a five-year period of parole ineligibility on count one consecutive to count three; (3) ten years' imprisonment with an eighty-five-percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two concurrent to count one and consecutive to count three; (4) five years' imprisonment with a two-and-one-half-year period of parole ineligibility on count four consecutive to counts one, two and three; (5) ten years' imprisonment with five years of parole ineligibility on count five concurrent to count four and consecutive to counts one, two and three; (6) five years' imprisonment with a two-and-one-half-year period of parole ineligibility on count six concurrent to counts four and five; (7) eighteen months' imprisonment with a twelve-month period of parole ineligibility on count seven concurrent to counts four, five and six, and consecutive to counts one, two and three; (8) ten years' imprisonment with five years of parole ineligibility on count eight consecutive to counts one through seven; (9) eighteen months' imprisonment with twelve months of parole ineligibility on count nine concurrent to count eight and consecutive to counts one through seven; and (10) ten years' imprisonment with five years of parole ineligibility on count ten concurrent to counts eight and nine and consecutive to counts one through seven. The judge also merged the motor vehicle convictions with count one, imposed the appropriate penalties and assessments, and suspended defendant's driver's license for two years. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL AS WELL AS DEFENSE COUNSEL'S MOTION FOR A NEW TRIAL ARISING OUT OF AN ALTERCATION BETWEEN THE DEFENDANT AND TRIAL COUNSEL IN THE PRESENCE OF THE JURY.
POINT II THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S DECISION TO HAVE THE DEFENDANT SHACKLED IN THE PRESENCE OF THE JURY FOLLOWING HIS ALTERCATION WITH DEFENSE COUNSEL. (NOT RAISED BELOW).
POINT III THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL WITH RESPECT TO COUNT X CHARGING POSSESSION OF A WEAPON BY A CONVICTED FELON AS A RESULT OF THE JURY BEING INFORMED OF HIS PRIOR CONVICTIONS AS WELL AS THE NATURE OF THOSE CONVICTIONS INSTEAD OF PERMITTING DEFENSE COUNSEL TO STIPULATE THE DEFENDANT HAD PREVIOUSLY BEEN CONVICTED OF A PREDICATE OFFENSE. (NOT RAISED BELOW).
POINT IV THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A JUDGMENT OF ACQUITTAL WITH RESPECT TO COUNT [II] IN THE ABSENCE OF ANY TESTIMONY DEMONSTRATING [T.A.] SUFFERED BODILY INJURY, A REQUISITE ELEMENT OF THE OFFENSE.
POINT V THE TRIAL COURT ERRED IN RULING THAT ALL BUT THE DEFENDANT'S MOST RECENT CONVICTIONS, OCCURRING [EIGHTEEN] AND [TWENTY] YEARS PRIOR TO TRIAL, WERE ADMISSIBLE TO ATTACK CREDIBILITY.
POINT VI THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
We use initials to identify the victims in this case to protect their identities.
We derive the following facts from the trial record. On May 1, 2008, defendant engaged in a lengthy high-speed chase with police officers from the Tinton Falls Police Department. During the chase, defendant committed several motor vehicle violations, broadsided a vehicle operated by T.A., causing her to hit the entire left side of her body and her head on the inside of her car, crashed his car into the woods, tried to escape by carjacking a good Samaritan's car, resisted arrest, assaulted a police officer and a police canine, and attempted to disarm an officer. Following defendant's arrest, the police found a magazine containing nine millimeter hollow point bullets in defendant's car, and a nine millimeter handgun in close proximity to his car. In addition to several eyewitnesses, including the police involved in the chase, there were videotapes of the incident taken from several police vehicles, which were admitted into evidence and played to the jury.
I.
At the conclusion of the State's case and in the jury's presence, defendant assaulted defense counsel, fought with sheriff's officers, attempted to escape from the courtroom, and was subdued by the sheriff's officers. The trial judge immediately removed the jury from the courtroom following the outburst.
Defense counsel moved for a mistrial. Noting that there was no New Jersey authority directly on point, the judge relied on out-of-state cases mentioned in 89 A.L.R. 3d 960, "Disruptive Conduct of Accused in Presence of Jury as Ground for Mistrial or Discharge of Jury" (1979), which held that a defendant was not entitled to, and should not be rewarded with, a mistrial due to his misconduct in the courtroom. The judge denied the motion, concluding that defendant's conduct was calculated to disrupt and delay the matter. The judge stated that
[i]f I were to grant [defendant] a mistrial and in a sense, give him what he wish[ed], a delay, then he would be benefiting from what is clearly [abhorrent] conduct in a sense, declaring that anytime someone . . . did not like the way the trial is going, they can take a swing at their attorney and get a redo.
Following the jury's return to the courtroom, the judge gave a cautionary instruction that the jury must disregard the incident when deliberating and base the verdict solely on the evidence presented in the courtroom. All jurors acknowledged that they understood the instruction and could comply with it. The judge similarly charged the jury in his final instructions.
Represented by new counsel, defendant moved for a new trial, arguing that the judge should have granted a mistrial because it was impossible for the jurors to be fair and impartial after witnessing the incident, the judge's instructions were inadequate to overcome the prejudice to defendant, and defendant's conduct resulted from stress caused by his alleged pre-trial inability to adequately consult defense counsel and review all discovery. The judge denied the motion, finding that defendant's conduct was calculated to cause a mistrial because there was overwhelming evidence of his guilt. The judge was also satisfied that the jury understood and followed his instructions.
On appeal, defendant contends in Point I that the judge erred in not granting a mistrial and new trial. He raises the same arguments he raised before the trial judge, and further argues that there was no evidence that he acted to deliberately disrupt the trial in order to gain a mistrial. We reject these arguments.
"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J. 117, 205 (1997) (citations omitted), cert. denied sub nom., Harvey v. New Jersey, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000); see also State v. Allah, 170 N.J. 269, 280 (2002). We "should defer to the decision of the trial court, which is in the best position to gauge the effect of the allegedly prejudicial evidence." Harvey, supra, 151 N.J. at 205. The trial judge in this case perceived no obvious failure of justice, and nor do we.
There is no New Jersey authority directly on point. However, numerous jurisdictions have held that a defendant is not entitled to a mistrial or a new trial for misconduct in the jury's presence. See, e.g., State v. Ganal, 917 P.2d 370, 390 (Haw. 1996) (holding that the defendant "should not be rewarded for his misconduct, especially by a post-verdict grant of a new trial"); Gordon v. State, 609 N.E.2d 1085, 1087 (Ind. 1993) (holding that "[i]t is proper for a trial judge to take those steps necessary to control an obstreperous defendant whose conduct is disruptive of the trial and to proceed with the trial under those conditions"); State v. Wiggins, 337 So. 2d 1172, 1173 (La. 1976) (holding that "[a] defendant cannot complain that prejudicial conduct requires a mistrial, when the alleged prejudice was created by his own obstructive conduct met by a reasoned and ordered reaction by the trial court in the interest of maintaining orderly procedure in the courtroom").
Courts have denied a mistrial in cases with facts similar to the present case. For example, in State v. Olinghouse, 605 S.W.2d 58, 70 (Mo. 1980), the defendant pushed defense counsel in the jury's presence, causing counsel to fall against a bench, and used obscenities when referring to counsel. The defendant moved for a mistrial, which the trial judge denied. Ibid. The Supreme Court of Missouri affirmed, concluding that "[t]he trial court was not obliged to reward appellant for his outburst." Ibid.
In Chamberlain v. State, 453 S.W.2d 490, 492-93 (Tex. Crim. App. 1970), the defendant and his co-defendants engaged in a courtroom altercation with the sheriff's officers. The defendant moved for a mistrial, which the trial judge denied. Id. at 493. In affirming, the Texas Court of Criminal Appeals noted that the grant of a mistrial would have permitted the defendant "to take advantage of his own misconduct, and the attempted administration of justice would be reduced to a mockery." Ibid. The court continued:
If a witness or a defendant is not satisfied with the rules or if he thinks they are unfair and unconstitutional, he has a right to test them in the appellate courts and this does not include the right to fight the officers in the courtroom or otherwise disrupt the proceedings. The rules of procedure, like our substantive law, apply to everyone; those who violate them should know that they must suffer the consequences, especially those who would like to disrupt the orderly administration of justice and eventually destroy our judicial system.
[Ibid.]
The denial of a mistrial to a defendant who engages in violent and disruptive courtroom behavior is further proper where the trial judge questioned the jurors about their ability to remain fair and impartial after witnessing the incident, solicited a show of hands from the jurors responding to the judge's questions about the incident, gave a prompt curative instruction to remain fair and impartial, and gave a final instruction to only consider the evidence presented at trial during deliberations. People v. Cosby, 708 N.Y.S.2d 58, 59 (N.Y. App. Div.), appeal denied, 739 N.E.2d 1150 (2000); State v. Blackwell, 238 N.W.2d 131, 132-33, 139 (Iowa 1976); Hammond v. United States, 345 A.2d 140, 142 (D.C. 1975); State v. Guy, 483 P.2d 1323, 1323-24 (N.M. Ct. App. 1971).
Federal courts have reached a similar conclusion on this issue. In Pitts v. Redman, 776 F. Supp. 907, 926 (D. Del. 1991), aff'd, 970 F.2d 899 (3d Cir.), cert. denied, 506 U.S. 1003, 113 S. Ct. 611, 121 L. Ed. 2d 545 (1992), the defendant fought with corrections officers in the jury's presence, and then moved for a mistrial, which the trial judge denied. The judge did not instruct the jury to disregard the incident and continued with the trial. Ibid. On the defendant's petition for habeas relief, the federal district court determined that "[w]hen a request for a mistrial is grounded on a disruptive incident during trial, the applicable inquiry is whether the incident so prejudiced the jury that the defendant could not obtain a fair trial." Ibid. The court concluded that there had been no compromise to the defendant's right to a fair trial because the trial judge gave a final instruction that the jury must base the verdict "only on the evidence in the case." Ibid. The court also concluded that the trial judge "was not required to let [the defendant] succeed, through his own obstreperous behavior, to prematurely end the trial[,]" noting that "[c]learly the Constitution does not compel such a result." Id. at 926-27 (citing Illinois v. Allen, 397 U.S. 337, 349-50, 90 S. Ct. 1057, 1063-64, 25 L. Ed. 2d 353, 362-63 (1970) (stating that "[t]o allow the disruptive activities of a defendant . . . to prevent his trial is to allow him to profit from his own wrong" and that "[t]he Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes")).
In United States v. Aviles, 274 F.2d 179 (2d Cir.), cert. denied sub nom., Evola v. United States, 362 U.S. 974, 80 S. Ct. 1057, 4 L. Ed. 2d 1009 (1960), the Second Circuit Court of Appeals relied on the same rationale in upholding the denial of the defendants' motions for a mistrial. In that case, one of multiple defendants had "burst into a tirade before the jury[.]" Id. at 193. All defense counsel moved for a mistrial, which the trial judge denied. Ibid. In affirming, the Court of Appeals noted that the grant of a mistrial "would provide an easy device for defendants to provoke mistrials whenever they might choose to do so." Ibid. The court concluded there was no error because the judge "adequately dealt with the situation" by instructing the jury to disregard the offending defendant's statements. Ibid.
In view of the overwhelming evidence of defendant's guilt in this case, and his knowledge of his sentence exposure, we conclude that defendant's courtroom outburst was not the result of "pent-up" frustrations or stress; rather, it was a deliberate, calculated attempt to cause a mistrial. A defendant cannot engage in courtroom misconduct, especially assaulting his attorney and fighting with sheriff's officers, and then expect to be rewarded with a mistrial or new trial for his or her egregious behavior, where, as here, the judge took appropriate cautionary measures.
At the time of the plea-cutoff proceeding, defendant was aware that, if convicted on all counts, he faced life imprisonment without the possibility of parole.
In addition, defendant's right to a fair trial was not compromised because the judge's cautionary instructions were adequate. The judge twice instructed the jury to disregard defendant's misconduct and base the verdict solely on evidence in the courtroom, and he obtained their acknowledgment that they understood and would comply with his instructions. Jurors are presumed to have followed the court's instructions in the absence of evidence demonstrating otherwise. State v. Martini, 187 N.J. 469, 477 (2006), cert. denied, 549 U.S. 1223, 127 S. Ct. 1285, 157 L. Ed. 2d 104 (2007). There is no such evidence here.
II.
After the courtroom incident, the judge ordered that defendant be restrained for the remainder of the trial. Defendant contends for the first time on appeal in Point II that his restraints in the jury's presence denied him a fair trial. We review defendant's contention under the plain error standard. R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005); State v. Macon, 57 N.J. 325, 336 (1971). We review the judge's decision to restrain a defendant during trial under an abuse-of-discretion standard. See State v. Smith, 346 N.J. Super. 233, 240 (App. Div. 2002).
The decision to restrain a defendant during trial must be made by balancing the need for courtroom security against the potential prejudice of the restraints. Ibid. Accordingly, the trial judge must state on the record, out of the jury's presence, the reasons for the restraints. State v. Damon, 286 N.J. Super. 492, 499 (App. Div. 1996) (citations omitted). The judge may consider the seriousness of the present charges, threats of harm to others or to cause a disturbance, evidence from the trial, information obtained from defendant's criminal record, or statements made by law enforcement. Ibid; State v. Artwell, 177 N.J. 526, 538 (2003). Restraints may be necessary when the defendant exhibits violent conduct during the trial or threatens escape. See State v. Roberts, 86 N.J. Super. 159, 166 (App. Div. 1965). In addition, the judge must instruct the jury not to consider the restraints in assessing the proofs and determining guilt. Id. at 168; Damon, supra, 286 N.J. Super. at 499.
Here, in deciding to restrain defendant, the judge found that in addition to the present charges and the courtroom incident, defendant had pending charges for an attempted escape and assaulting a corrections officer while incarcerated, causing the officer injuries that resulted in permanent disability. Defendant also had pending charges for attempted murder and aggravated assault on other corrections officers, for using a shank against those officers. The judge concluded that defendant had to be restrained to protect those in the courtroom. In the final jury charge, the judge gave a cautionary instruction that the jury could not consider for any purpose in their deliberations the fact that defendant was restrained. The jurors acknowledged that they understood the instruction.
We discern no error, let alone plain error, or abuse of discretion in the judge's decision to restrain defendant for the remainder of the trial. The seriousness of the present charges, the pending charges against defendant, the overwhelming evidence of defendant's guilt, defendant's violent courtroom outburst and attempt to escape, and the threat that he would cause another disturbance warranted the restraints. The jury was properly instructed not to consider the restraints in assessing the proofs and determining defendant's guilt. There is no evidence that they disregarded the instruction. Martini, supra, 187 N.J. at 477.
III.
Prior to the start of the second trial on the charge of second-degree certain persons not to have weapons (count ten), the parties stipulated the authenticity of defendant's prior judgments of conviction (JOCs), which detailed the prior charges and convictions, as well as their dates and jurisdictions. The JOCs were read to the jury and admitted into evidence. On appeal, defendant contends for the first time in Point III that the judge should have permitted defense counsel to stipulate that defendant had previously been convicted of a predicate offense instead of informing the jury of the nature of the prior convictions. This contention lacks merit.
There is no dispute that the State followed the procedures set forth in State v. Ragland, 105 N.J. 189 (1986) during the bifurcated trial. In addition, among other instructions, the judge instructed the jury as follows:
The third element the State must prove beyond a reasonable doubt is that the defendant is a person who previously has been convicted of a crime named in the statute by 2C. In this matter, the parties have stipulated or agreed that these [JOCs] are accurate. If you find that these [JOCs] are proof of the defendant's conviction and accept them, which is your province, [then] the defendant would be considered a certain person under the statute.We are satisfied that there was no plain error. The JOCs were properly admitted to establish an element of N.J.S.A. 2C:39-7b(1) -- that defendant was previously convicted of a certain predicate offense -- and the judge's instruction eliminated any prejudice to defendant.
As with all evidence, undisputed facts can be accepted or rejected by the jury in reaching a verdict. Normally, evidence of a defendant's prior conviction is not permitted under our rules. This is because our rules specifically exclude evidence that a defendant has committed prior crimes when it's offered only to show that he has a disposition or tendency to do wrong and therefore, must be guilty of the present offense. However, our rules permit evidence of prior crimes when the evidence is used for some other purpose. In this case, the evidence has been introduced for the specific purpose of establishing an element of the present offense. You may not use this evidence to decide that the defendant has a tendency to commit crimes or that he is a bad person. That is, you may not decide that, just because the defendant has committed a prior crime or crimes, he must be guilty of the present crime. The evidence produced by the State concerning a prior conviction is to be considered in determining whether the State has established this burden of proof beyond a reasonable doubt.
IV.
Defendant contends in Point IV that the judge erred in denying his motion for judgment of acquittal on the second-degree aggravated assault while fleeing charge (count two) at the end of the State's case. He argues that there was no evidence that T.A. suffered bodily injury.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
N.J.S.A. 2C:12-1b(6) provides that "[a] person is guilty of aggravated assault if he . . . [c]auses bodily injury to another person while fleeing or attempting to elude a law enforcement officer[.]" "Bodily injury" is defined as "physical pain, illness or any impairment of physical condition." N.J.S.A. 2C:11-1a. Bodily injury has been construed to include a sore leg, hip and chest and elevated blood pressure caused by impact between a fleeing thief and several bystanders, State v. Sewell, 127 N.J. 133, 135-36 (1992), a stinging sensation caused by a slap in the face, N.B. v. T.B., 297 N.J. Super. 35, 43 (App. Div. 1997), and physical discomfort and non-specific pain caused by a kick, State in the Interest of S.B., 333 N.J. Super. 236, 243-44 (App. Div. 2000). Where there is no direct testimony of bodily injury, "the fact-finder may rely solely on inferences available from the proofs." State v. Stull, 403 N.J. Super. 501, 506 (App. Div. 2008).
Here, defendant was fleeing from the police at an extremely high rate of speed. T.A. testified that defendant struck her vehicle on the driver's side, causing her to hit the "whole left side" of her body, as well as her head and shoulder, on the interior portion of her car, and she was assessed by emergency medical personnel at the scene. In addition, photographs of the extensive damage to T.A.'s vehicle were admitted into evidence. We are satisfied that this evidence, viewed in its entirety and giving the State all favorable inferences therefrom, was more than sufficient to allow a reasonable jury to find defendant guilty beyond a reasonable doubt of aggravated assault while fleeing.
V.
Defendant had prior convictions in Florida in 1990 for four counts of armed robbery; in federal court in 1992 for armed robbery and possession of a firearm during the course of a bank robbery; and in New Jersey in 2003 for attempted theft of a motor vehicle and resisting arrest. He was sentenced to six years for the 1990 convictions, nine years for the 1992 convictions, and to an extended-term sentence of ten years with five years of parole ineligibility for the 2003 convictions, consecutive to a sentence he received for a federal parole violation.
At a Sands hearing, defendant argued, as he does here in Point V, that the 1990 and 1992 convictions were not admissible because they were remote and did not relate to credibility. The judge ruled the 1990 and 1992 convictions were admissible for impeachment purposes because they establish defendant's ongoing criminal conduct. The judge also ruled that the convictions would be sanitized.
State v. Sands, 76 N.J. 127, 147 (1978).
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The credibility of any witness may be impeached by the admission of evidence of that witness's prior convictions. N.J.R.E. 609. However, the trial court may exclude such evidence "as remote or for other causes." Ibid. To determine whether a prior conviction should be admissible, "[t]he trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant." State v. Murphy, 412 N.J. Super. 553, 564 (App. Div.) (internal citation omitted), certif. denied, 203 N.J. 440 (2010). "Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving." Sands, supra, 76 N.J. at 144. Purposeful and knowing crimes evidence a "conscious[] def[iance of] legal norms." State v. Cameron, 104 N.J. 42, 53 (1986).
Remoteness is not determined solely by the passage of time, and in fact no bright-line rule exists for the court to follow when determining whether a conviction is too remote to be admissible. Murphy, supra, 412 N.J. Super. at 564. Moreover, "[i]f a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible." Sands, supra, 76 N.J. at 145. This is because "[a] jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen." Ibid.
Because the admission or exclusion of evidence related to a witness's prior convictions is within the trial judge's discretion, we apply an abuse-of-discretion standard of review. See id. at 144; State v. Drury, 382 N.J. Super. 469, 483 (App. Div. 2006), aff'd in part, rev'd in part, 190 N.J. 197 (2007). There was no abuse of discretion here. Defendant's 1990 and 1992 convictions were for serious offenses that involved purposeful and knowing conduct, and these offenses indicated that defendant continued to engage in criminal conduct despite lengthy terms of incarceration.
VI.
Defendant challenges his sentence in Point VI. He does not contest the imposition of a term of life imprisonment without the possibility of parole pursuant to N.J.S.A. 2C:43-7.1a on count three; rather, he contends that the judge abused his discretion by imposing the maximum base terms on every count except count three, and sentencing him to several consecutive sentences in addition to a life sentence. Defendant also challenges the judge's finding and application of aggravating and mitigating factors, and contends the judge double-counted by considering his prior criminal record in raising the presumptive base term.
Our review of a sentence is limited. State v. Miller, 2 05 N.J. 109, 127 (2011). We review a judge's sentencing decision under an abuse-of-discretion standard. State v. Blackmon, 202 N.J. 283, 297 (2010). Our basic responsibility is to assure that the aggravating and mitigating factors found by the judge are supported by competent, credible evidence in the record. Ibid.; State v. Bieniek, 200 N.J. 601, 608 (2010). As directed by the Court, the appellate court must (1) "require that an exercise of discretion be based upon findings of fact that are grounded in competent, reasonably credible evidence[;]" (2) "require that the factfinder apply correct legal principles in exercising its discretion[;]" and (3) "modify sentences [only] when the application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).
In sentencing defendant, the judge applied aggravating factor one, "[t]he nature and circumstances of the offense[,]" N.J.S.A. 2C:44-1a(1). The judge found that "this was an offense which occurred over a period of time," and that although defendant "had an opportunity to surrender himself" he "continued his attempt to resist the actions of the police to try to bring him into custody[,]" which "escalated and put other victims, numerous victims, at risk[.]" The judge characterized defendant's actions as "a rampage through several towns in an automobile."
The judge applied aggravating factor three, "[t]he risk that the defendant will commit another offense[,]" N.J.S.A. 2C:44-1a(3), based on defendant's "history of substance abuse and a continuous course of [criminal] conduct." Noting that defendant had "numerous prior convictions" for "almost entirely the same type of offenses, armed robbery," the judge applied aggravating factor six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted[,]" N.J.S.A. 2C:44-1a(6). The judge also applied aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law[,]" N.J.S.A. 2C:44-1a(9), and found no mitigating factors.
Defendant contends that the judge double-counted by applying aggravating factors three and six. Defendant argues that the judge had already considered defendant's prior record when determining that he was a "three strikes" offender. Generally, a trial court may not "double-count" aggravating factors in sentencing; in other words, if the court applies certain aggravating factors in setting an extended-term sentence, it may not later also consider those factors in balancing the aggravating and mitigating factors. See State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005). However, the judge did not impermissibly "double-count" aggravating factor three. That factor involves the likelihood that a defendant will commit another offense, which is not necessarily connected solely to convictions; an offender's entire criminal record, including arrests and juvenile offenses, may be considered. See State v. McBride, 211 N.J. Super. 699, 704-05 (App. Div. 1986).
As to aggravating factor six, although the judge necessarily considered defendant's criminal record when sentencing defendant to a life term on count three, it was also appropriate for the judge to consider defendant's criminal record when sentencing him on the other convictions. Further, defendant had prior convictions in excess of those required to sentence him under the "three strikes" law, which, therefore, the judge appropriately considered. Consequently, unlike in Vasquez, supra, 374 N.J. Super. at 267, the judge did not utilize defendant's only prior conviction to find that an extended-term sentence was appropriate, and then also utilize that one conviction to set the length of that sentence.
Defendant also challenges the judge's application of aggravating factor one, arguing that "the nature of an offense cannot be an aggravating factor in every case," and that in this case, his crime was not "more serious than others in its class," which would not warrant its application. Based on the facts of this case, the judge did not err in concluding that defendant's "rampage through several towns," which put numerous individuals, including police officers, at risk was especially heinous, cruel, or depraved, supporting the application of this factor. See, e.g., State v. Dailey, Docket No. A-5389-09 (App. Div. June 18, 2012) (slip op. at 18) (applying aggravating factor one and finding that "[t]he depravity of defendant's conduct is patent, based on his leading police on a high-speed chase down highways and local roads while driving in excess of 100 miles per hour, erratically and recklessly, running red lights, consistently ignoring the officers' demands to pull over, and only stopping when he hit a tree").
Relying on State v. Jarbath, 114 N.J. 394, 405 (1989), defendant challenges aggravating factor nine on a similar basis, that "deterrence exists in every criminal sentencing and was not a unique aggravating factor to the present case[;]" however, in Jarbath, "[t]he underlying offense involved the accidental killing of a baby," and the court determined that the defendant's imprisonment would serve as no general or specific deterrent, considering the accidental nature of the offense, and the defendant's impaired mental state. Id. at 405-06. These circumstances were not present in this case, and the judge did not err in concluding that the record supported the application of aggravating factor nine.
Defendant also argues that the trial judge erred in failing to apply mitigating factor eleven, "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[,]" N.J.S.A. 2C:44-1b(11). Defendant claims that because he is the father of a nine-year-old son, whom he saw daily when not incarcerated, the judge should have considered the impact of defendant's imprisonment on his son. The record does not show that defendant's incarceration would constitute an "excessive" hardship on his dependents. Although defendant saw his son daily when not incarcerated, the son lives with his mother, not with defendant, and defendant was over $2,600 in child support arrears at the time of sentencing. Consequently, the record does not support mitigating factor eleven. See State v. Mirakaj, 268 N.J. Super. 48, 51 (App. Div. 1993).
In addition, the judge did not abuse his discretion in sentencing defendant to the maximum base term for each offense. In State v. Natale, 184 N.J. 458, 487-88 (2005), after eliminating presumptive terms of imprisonment, the Court determined that "the 'statutory maximum' authorized by the jury verdict . . . is the top of the sentencing range for the crime charged[.]" The court explained that trial judges would still be required to balance the aggravating and mitigating factors, and "[a]lthough no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range." Id. at 488.
The record in this case supports the judge's finding and application of aggravating and mitigating factors. Accordingly, although the judge determined that the maximum base terms were appropriate, his determination was not unreasonable in light of his discussion of the aggravating and mitigating factors. See State v. Pierce, 188 N.J. 155, 169 (2006) ("Where, within [the] range of sentences, the court chooses to sentence a defendant remains in the sound judgment of the court -- subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found."). For these reasons, we affirm the judge's decision to sentence defendant to the maximum base terms of imprisonment.
We also affirm the judge's imposition of consecutive sentences, in part. "When multiple sentences of imprisonment are imposed on a defendant for more than one offense, . . . such multiple sentences shall run concurrently or consecutively as the court determines at the time of sentence[.]" N.J.S.A. 2C:44-5a. "'[I]n fashioning consecutive or concurrent sentences under the Code, sentencing courts should be guided by the Court's paramount sentencing goals that punishment fit the crime, not the criminal, and that there be a predictable degree of uniformity in sentencing.'" State v. Friedman, 209 N.J. 102, 122 (2012) (quoting State v. Yarbough, 100 N.J. 627, 630 (1985)). Sentencing judges must state in the sentencing opinions their reasons for imposing a consecutive sentence, and should consider the following factors:
(a) the crimes and their objectives were predominantly independent of each other;"There shall be no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5a. However, "[w]here separate crimes grow out of the same series of events or from the same factual nexus, consecutive sentences are not imposed." State v. Lester, 271 N.J. Super. 289, 293 (App. Div. 1994), certif. denied, 142 N.J. 453 (1995). "Consecutive sentences are not an abuse of discretion when separate crimes involve separate victims, separate acts of violence, or occur at separate times." State v. Copling, 326 N.J. Super. 417, 441 (App. Div. 1999), certif. denied, 164 N.J. 189 (2000).
(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; [and]
(e) the convictions for which the sentences are to be imposed are numerous[.]
[Yarbough, supra, 100 N.J. at 643-44.]
Here, the judge properly imposed a life sentence on count three. In sentencing defendant to consecutive terms on counts one and two and on counts four through seven, the judge concluded that "all of these offenses were separate offenses," defendant had different objectives while committing the crimes, and that the crimes affected different victims: "[o]ne objective is escaping the police while driving an automobile and endangering all the individuals on the road, and the carjacking involved a single individual and trying to remove him from the car with the use of force."
Although defendant's sentence is lengthy, the judge did not abuse his discretion in sentencing defendant to terms of imprisonment consecutive to his life sentence for the eluding offenses (counts one and two) and aggravated assault offenses related to law enforcement officers (counts four, five, six and seven). In accordance with the Yarbough factors, the judge determined that defendant had different objectives for eluding the officers and carjacking an individual. The judge also determined that the victims of the eluding offenses (counts one and two) were the other individuals driving on the road who were endangered by defendant's behavior, while the victim of the carjacking was separate from that group of individuals. Similarly, the victims involved in the convictions for counts four, five, six, and seven were the law enforcement officers and law enforcement canine injured or potentially injured during defendant's arrest. While the crimes were committed closely in time, the other Yarbough factors support the judge's conclusion that sentences consecutive to defendant's life term were appropriate on counts one and two, and on counts four, five, six and seven. The judge properly examined the Yarbough factors in light of the record as to these counts and therefore we affirm the consecutive sentences on counts one and two and counts four, five, six, and seven. See Miller, supra, 205 N.J. at 129 ("When a sentencing court properly evaluates the Yarbough factors in light of the record, the court's decision will not normally be disturbed on appeal.").
We reach a different conclusion as to the weapons offenses in counts eight, nine, and ten. In grouping those counts, the judge made no findings regarding defendant's objectives in committing these crimes, whether there were different victims involved in these offenses, whether these crimes involved separate acts of violence or threats of violence, or whether these crimes were committed at different times or places as the other crimes, as required by Yarbough. See Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:44-5 at 1134 (2012) ("In deciding whether consecutive sentences are appropriate under the Yarbough criteria, an appellate court must consider the reasons the trial court gives; in the absence of expressed reasons a remand is ordinarily necessary."). Even had the trial judge made such findings, it is unclear that the Yarbough factors would have tipped in favor of consecutive sentences on the weapons offenses. See Lester, supra, 271 N.J. Super. at 293-94 (finding consecutive sentences inappropriate for drug possession offenses because "there were no acts of violence, no specific identifiable victims, the crimes were committed within a single period of time at a single location, there were not numerous convictions after merger and the crimes were not predominantly independent"). Accordingly, we reverse the consecutive sentences on counts eight, nine, and ten and remand to correct the JOC to reflect that the sentences on these counts shall run concurrently.
Affirmed in part; reversed in part, and remanded for entry of a corrected judgment of conviction 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