Opinion
DOCKET NO. A-4212-12T4
07-08-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FRANCIS J. PRETO, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John, Guadagno and Vernoia. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 11-05-0884. Joseph E. Krakora, Public Defender, attorney for appellant (Jacqueline E. Turner, Assistant Deputy Public Defender, of counsel and on the brief). Joseph D. Coronato, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Supervising Assistant Prosecutor, of counsel; Nicholas Norcia, Assistant Prosecutor, on the brief). PER CURIAM
Defendant Francis J. Preto appeals his conviction and sentence on two counts of conspiracy to commit murder and one count of attempted murder. For the reasons explained below, we affirm defendant's conviction, but remand for recalculation of the gap-time and jail credits consistent with this opinion.
I.
The record reveals the following facts. In 2008, defendant was incarcerated in the Ocean County Jail. Around that time, his wife filed for divorce. Defendant asked a fellow inmate, Timothy Milton, to kill defendant's wife in exchange for $10,000.
Defendant reportedly provided Milton with his wife's address, and warned Milton that one of his wife's neighbors was a state trooper. Rather than carry out the murder, Milton went to the police and struck an arrangement whereby he would wear a recording device in exchange for a plea deal.
On July 2 and 16, 2008, Milton surreptitiously recorded his discussions with defendant regarding the details of their plan. Based in part on the tapes, defendant was charged by an Ocean County grand jury under Indictment No. 08-10-1638 for conspiracy to commit murder, N.J.S.A. 2C:5-2 and 2C:11-3(a) (count one), and attempted murder, N.J.S.A. 2C:5-1 and 2C:11-3(a) (count two). Milton was subsequently released, though he was soon reimprisoned in the same facility on new charges.
Upon learning that Milton had recorded their conversations on behalf of the police, defendant began looking for someone who would kill Milton. Two inmates, Jacarlos McKoy and Charles Anderson, claimed they each discussed with defendant the possibility of killing Milton in exchange for money. Another inmate, Maurice Peace, claimed defendant approached him regarding the possibility of killing Milton. Like Milton, Peace also approached authorities and offered to wear a recording device in exchange for a plea deal. Defendant was recorded giving detailed instructions to Peace regarding how to carry out the murder, and offering to obtain a handgun for Peace's use.
As a result of the recordings by Peace, on August 4, 2009, an Ocean County grand jury issued superseding Indictment No. 09-08-1381, charging defendant with the original counts and two additional counts: conspiracy to murder Timothy Milton, N.J.S.A. 2C:5-2 and 2C:11-3(a) (count three), and the attempted murder of Timothy Milton, N.J.S.A. 2C:5-1 and 2C:11-3(a) (count four).
Defendant moved to sever counts one and two from counts three and four, but the judge, following oral argument, denied the motion on January 22, 2010. The matter was subsequently transferred to a second judge. On February 9, 2011, the second judge granted the State's motion to exclude two defense witnesses, two Ocean County corrections officers, who would have provided expert testimony on prison culture that inmates often project "a tough image" in order to avoid abuse by other inmates.
On February 15 and 16, 2011, a Driver hearing took place to determine the admissibility of the audio recordings of defendant's conversations with Milton and Peace. State v. Driver, 38 N.J. 255 (1969). The second judge noted that the recordings contained both audible and inaudible material. She held the recordings to be admissible, but ordered the inaudible portions be redacted.
A jury trial began on February 16, 2011, and ended on March 1, with a hung jury mistrial. Consequently, on May 7, 2011, superseding Indictment No. 11-05-0884 was issued, and the case was transferred back to the first judge.
On September 13, 2012, the State moved for reconsideration of the court's February 16, 2011 decision ordering redaction of the recordings made of defendant's conversations with Peace. Defendant cross-moved to bar the recording and transcript entirely. The judge held a second Driver hearing, including direct and cross-examination of the officers who created the recordings. At the end of the hearing, the judge granted the State's motion, and held that he would permit the recordings to be played before the jury.
On September 20, 2012, the State again moved to exclude the testimony of the corrections officers, just as it had done in the previous trial. The judge granted the motion, holding that the testimony of the officers was not relevant to the issue of whether or not defendant lied, and that the testimony would intrude upon the jury's prerogative to determine the credibility of witnesses.
The re-trial took place before a jury between September 20 and October 10, 2012. The defense argued that defendant never really intended to have anyone killed, but merely sought to cultivate a violent image in order to protect himself from abuse by other inmates. The jury convicted defendant of counts one, two, and three, but acquitted defendant of count four.
On March 25, 2013, defendant was sentenced to sixteen years in prison, subject to 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 (which was merged with count one), and sixteen years in prison, subject to an eighty-five percent period of parole ineligibility pursuant to NERA, on count three, to run concurrently with his sentence for count two, but consecutively with the unrelated prison sentence he was then serving. The court found that defendant was entitled to 1003 days of jail credit and 699 days of gap-time credit on counts two and three.
On appeal, defendant presents the following issues for our consideration:
POINT I
THE TRIAL JUDGE ERRED IN GRANTING THE STATE'S MOTION TO BAR THE TESTIMONY OF TWO SHERIFF'S OFFICERS WHO WOULD HAVE TESTIFIED AS TO THE EFFECT OF JAIL CONFINEMENT ON AN INMATE'S NEED TO EXAGGERATE HIS PROPENSITY FOR VIOLENCE IN AN EFFORT TO PROTECT HIMSELF.
POINT II
WHILE THE DENIAL OF THE DEFENSE MOTION FOR SEVERANCE WAS REASONABLE, A STRONG CHARGE TO THE JURY, AS THE JUDGE INITIALLY STATED HE WOULD GIVE, WAS NECESSARY. WHEN THE TRIAL JUDGE FAILED TO GIVE ANY SUCH INSTRUCTION, THE DEFENDANT WAS DENIED DUE PROCESS AND A FAIR TRIAL. (Not Raised Below).
POINT III
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT'S MOTION TO BAR THE SECOND SET OF RECORDED CONVERSATIONS FROM GOING TO THE JURY, AS THEY WERE VIRTUALLY INAUDIBLE.
POINT IV
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
II.
We begin with defendant's first argument: that the trial court improperly barred testimony from two corrections officers regarding prison culture and the need for prisoners to project a violent image in order to avoid abuse.
"The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52-53 (2015) (citing State v. Berry, 140 N.J. 280, 293 (1995)). We do not substitute our "own judgment for that of the trial court, unless 'the trial court's ruling was so wide of the mark that a manifest denial of justice resulted.'" State v. Kuropchak, 221 N.J. 368, 385 (2015) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)).
At the motion hearing, defense counsel categorized the testimony of the corrections officers under N.J.R.E. 404(a)(1) and 405(b) as "[e]vidence of a pertinent trait of the accused's character offered by the accused[.]" According to defense counsel, the "pertinent trait" in this case was defendant's propensity to "talk[] tough, that he's a bluster[er], he talks tough, that he's an exaggerator . . . ." Counsel proffered the testimony of the officers as evidence,
that inmates who are, who are weak and who are white and who are small are preyed upon by other inmates in the jail, and that's to avoid being preyed upon, he talked tough and you pretend you have connections and you have capabilities of doing things that you don't really have, just to, just for survival.
Based on the proffer offered by the defense, the judge found the testimony to be irrelevant to any character trait of the defendant, particularly in light of the defense's theory that defendant was a habitual liar both before and during his incarceration. The judge also held that "the jury is well within their ability to determine the believability of the threat, what was intended by the threat, whether it was purposeful."
On appeal, defendant contends that the testimony of the two corrections officers should have been admitted because it was directly relevant to defendant's primary argument at trial, that he was merely acting tough in order to protect himself from abuse in prison. Defendant also argues that the officers should have been permitted to testify as experts, under N.J.R.E. 702, in the field of prison culture. Alternatively, defendant argues that the officers' testimony should have been permitted as lay opinion testimony, under N.J.R.E. 701, regarding their observations of prison culture.
We affirm the decision of the trial court because the officers' putative testimony concerned the credibility of defendant's out-of-court statements regarding his intention to kill the victims. See State v. Vandeweaghe, 177 N.J. 229, 231 (2003). "'[C]redibility is an issue which is peculiarly within the jury's ken and with respect to which ordinarily jurors require no expert assistance.'" State v. Frisby, 174 N.J. 583, 595 (2002). Likewise, "[t]he phenomenon of lying, and situations in which prevarications might be expected to occur, have traditionally been regarded as within the ordinary facility of jurors to assess." Vandeweaghe, supra, 177 N.J. 229 at 239 (quoting State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993)). Based upon the defense's proffer at the September 20 hearing, the officers were essentially being called to bolster defendant's theory that his statements were mere "puffing," even though their testimony was ostensibly targeted towards the credibility of prisoners generally. The trial judge was therefore within his discretion in precluding the officers from testifying at trial.
III.
Next, we address defendant's contention that he was denied due process of law because the court failed to give an adequately "strong" jury instruction regarding the jury's duty to consider each attempted murder charge separately from the other. Defendant argues the court should have given an "other crimes" jury instruction like that given when evidence of other, unrelated crimes is presented at trial under N.J.R.E. 404(b). We disagree.
N.J.R.E. 404(b) only requires an "other crimes" jury instruction where evidence of an "uncharged" other crime is introduced at trial for some permissible purpose, such as to prove motive, opportunity, or intent. See State v. Sheppard, 437 N.J. Super. 171, 193 (2014); State v. Rose, 206 N.J. 141, 179-80 (2011). The instruction must "inform the jury of the purposes for which it may, and for which it may not, consider the evidence of defendant's uncharged misconduct." Id. at 161. However, N.J.R.E. 404(b) does not apply if "the evidence does not involve some other crime, but instead pertains to the charged crime." Ibid.
In the case of multiple charged offenses that have not been severed, a court is not required to deliver an N.J.R.E. 404(b) "other crimes" jury instruction. Rather, it is sufficient if the court delivers the model charge regarding separate consideration of each count, Model Jury Charge (Criminal), "Criminal Final Charge-Complete, Multiple Charges" (2014). See State v. Pitts, 116 N.J. 580, 603 (1989).
Here, the evidence at issue pertained to a charged crime, and did not fall within the ambit of N.J.R.E. 404(b). Furthermore, the court delivered an instruction tracking the required model jury charge. In his charge, the judge stated,
[t]here are four offenses charged in the indictment. They are separate offenses and
separate counts of the indictment. In your determination of whether the State has proven the defendant guilty of the crimes charged in the indictment beyond a reasonable doubt, the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge based on the law as I will give it to you.
This instruction, reiterated twice later in the charge, was accurate and provided sufficiently clear guidance to the jury. See Pitts, supra, 116 N.J. at 603 (stating that, in a case where multiple charges are joined, it is "adequate" if the court "caution[s] the jurors to deliberate separately on each of the . . . counts, and to return a judgment of conviction only if convinced that each element of the individual counts had been proved beyond a reasonable doubt.").
IV.
Defendant argues the court abused its discretion by admitting the recordings of defendant's conversations into evidence. Defendant essentially contends that the tapes should not have been admitted because substantial portions of the recordings are inaudible. He concedes that there is much probative evidence contained in the recordings, but argues they are "seriously prejudicial" because they are "virtually the only evidence" against defendant on count three. We disagree.
The trial judge held a full Driver hearing with witnesses. He listened to the recordings in question, and found that, although there were inaudible portions of the recordings, they were reliably made, authentic, and extremely probative. Defendant's argument fails to show how the court may have incorrectly weighed the reliability and probative value of the recordings against any undue prejudice they may have caused. It is well settled that, "if a tape is partially intelligible and has probative value, it is admissible even though substantial portions thereof are inaudible." State v. Nantambu, 221 N.J. 390, 406 (2015) (quoting State v. Zicarelli, 122 N.J. Super. 225, 239 (App. Div.), certif. denied, 63 N.J. 252, cert. denied, 414 U.S. 875, 94 S. Ct. 71, 38 L. Ed. 2d 120 (1973)). We see no reason to disturb the trial judge's decision.
V.
We now turn to defendant's arguments regarding sentencing. Defendant contends the trial judge erred by inconsistently interpreting the mitigating and aggravating factors. He argues the judge considered the risk of future offense to be an aggravating factor, yet also found that defendant was unlikely to commit another offense. Defendant also contends his advanced age (he states he was over sixty years old when initially incarcerated), and his numerous medical conditions, including bipolar disorder, anxiety, stress, and obsessive/compulsive disorder, should have been more heavily weighed as mitigating factors. We disagree. The sentencing judge properly weighed the mitigating and aggravating factors, and reached a reasonable sentence supported by the facts of the case.
Our "review of a sentence is generally guided by the abuse of discretion standard." State v. Robinson, 217 N.J. 594, 603 (2014) (citing State v. Roth, 95 N.J. 334, 364-65 (1984). We are not permitted to substitute our own judgment for that of the sentencing court. See State v. Case, 220 N.J. 49, 65 (2014). We must affirm the sentence imposed by a sentencing court, unless,
(1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014) (quoting Roth, supra, 95 N.J. at 364-65).]
At sentencing, the judge explicitly weighed the mitigating and aggravating factors under N.J.S.A. 2C:44-1. The judge found that defendant's continuing course of conduct increased the risk of a future offense (factor three). The judge also found the seriousness and extent of defendant's criminal record (factor six), and the pecuniary incentive for the crime (factor seven) to be aggravating factors.
The judge found that the offenses were mitigated by defendant's drug and mental health issues (factor four), and that these rendered defendant less likely to commit future crimes (factor nine), and defendant's imprisonment an excessive hardship (factor eleven). The judge concluded the aggravating factors were predominant.
We conclude the trial judge's findings and the resultant balancing of the aggravating and mitigating factors are supported by adequate competent and credible evidence in the record, and the sentence is neither inconsistent with sentencing provisions of the Code of Criminal Justice nor shocking to the judicial conscience. See Fuentes, supra, 217 N.J. at 70.
Furthermore, the court's findings of aggravating factor three and mitigating factor nine are not inconsistent. The court's conclusion under aggravating factor three was informed by defendant's history of crime which suggested a likelihood of future crime. However, the court's finding under mitigating factor nine was informed by testimony and character letters submitted by friends of defendant. The two factors are based on different criteria and are not logically exclusive of each other.
VI.
Finally, we turn to the State's argument, made for the first time on appeal, that the sentencing judge incorrectly applied a 699 day gap-time credit and 372 days of jail credit to defendant's sentence. Having reviewed the sentence in light of applicable law, we agree.
"[T]here is no room for discretion in either granting or denying credits." State v. Hernandez, 208 N.J. 24, 48-49 (2011). Rather, the application or denial of sentencing credits is a legal issue, reviewed de novo. State v. DiAngelo, 4 34 N.J. Super. 443, 451 (App. Div. 2014).
With respect to the 699 day gap-time credit, N.J.S.A. 2C:44-5(B) prohibits gap-time credits for time spent in custody prior to sentencing if the subsequent offense was committed while in custody. State v. Franklin, 175 N.J. 456, 471 (2003). There is no dispute that the offenses in this case were committed while defendant was in custody. Therefore, the 699 day gap-time credit is improper.
Likewise, with respect to the 1003 day jail credit, Rule 3:21-8 states that a "defendant shall receive credit on the term of a custodial sentence for any time served in custody in jail or in a state hospital between arrest and the imposition of sentence." However, a defendant is not entitled to credit for time served for a separate offense before the relevant arrest or statement of charges has been made. DiAngelo, supra, 434 N.J. Super. at 462.
In this case, with respect to count two, defendant was entitled to 631 days of jail credit, for the period starting October 23, 2008, because that was the date defendant was first charged on that count. However, with respect to count three, defendant was not charged with that offense until August 4, 2009. Indeed, the facts underlying count three did not even occur until late 2008 or early 2009. It was therefore improper for the sentencing judge to allot defendant an additional 372-day jail credit based on an October 23, 2008 starting date.
In light of the foregoing, we affirm defendant's convictions, but remand for recalculation of the gap-time and jail credits consistent 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
State v. Driver, 38 N.J. 255 (1969).