Opinion
DOCKET NO. A-2636-09T3
01-24-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ERIC NA-EEM ROCK, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. H. Abbasi, Designated Counsel, on the brief). Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Lihotz and St. John.PER CURIAM
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-10-2332.
Joseph E. Krakora, Public Defender, attorney for appellant (Kimmo Z. H. Abbasi, Designated Counsel, on the brief).
Peter E. Warshaw, Jr., Monmouth County Prosecutor, attorney for respondent (Monica do Outeiro, Assistant Prosecutor, of counsel and on the brief).
After a jury trial, defendant Eric Na-Eem Rock was convicted of two counts of armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b); and, after a second jury trial, second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b)(1). Defendant is serving an aggregate custodial sentence of sixteen years, subject to eighty-five per cent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant argues that the trial judge erred in (1) holding that his prior convictions would be admissible to impeach his credibility, should he choose to testify; (2) admitting certain witnesses' prior statements; and (3) denying his motion for a new trial. He also argues that his sentence is excessive. For the reasons that follow, we reject these arguments and we affirm.
We briefly discuss the pertinent procedural history. In pre-trial proceedings, the State moved for leave to introduce defendant's prior convictions for fourth-degree evidence tampering, N.J.S.A. 2C:28-6, and second-degree aggravated assault, N.J.S.A. 2C:12-1(b), to impeach defendant's credibility should he choose to testify. Following a Sands hearing, the judge granted the State's application, but ordered the convictions sanitized. State v. Brunson, 132 N.J. 377 (1993). The State also moved to introduce statements made to police by witnesses Amber Hall and Christian Albert, should either testify inconsistently with the prior statement. Following a Gross hearing, the trial judge determined both statements, with certain redactions, would be admissible.
State v. Sands, 76 N.J. 127 (1978).
State v. Gross, 121 N.J. 1 (1990).
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Defendant's trial took place before Judge Edward M. Neafsey and a jury. The jury returned a verdict finding defendant guilty of all counts. A subsequent trial was then held before the same judge and jury on the weapons possession charge, and the jury returned a guilty verdict. Defendant made a motion for a new trial, asserting the verdict in the first trial was against the weight of the evidence, and was the result of prosecutorial misconduct during cross-examination. Judge Neafsey denied the motion.
After merging the possession of a weapon for an unlawful purpose offense into the armed robbery, the court imposed a custodial sentence of two concurrent terms of sixteen years subject to the eighty-five percent ineligibility period pursuant to NERA for each armed robbery count; a five year term, with two years of parole ineligibility for the unlawful possession of a weapon, to be served concurrently to the armed robbery sentences; and eight years, with five years of parole ineligibility for the certain person offense to be served concurrently to the armed robbery sentences. A five-year period of parole supervision and appropriate fines were also imposed.
We derive the facts from the pre-trial and trial record on appeal.
At trial, the State's witnesses testified to the incidences which led to defendant's arrest and prosecution. On the evening of July 3, and into the early morning hours of July 4, 2006, a group of friends, including James Pierson, Christian Albert, Chris Bills, and Amber Hall were at Albert's house in Red Bank, socializing and drinking, after having watched the local 4th of July fireworks display.
Pierson, a school teacher, volunteer firefighter, and auxiliary police officer, testified that at approximately 4:15 a.m. on July 4, 2006, he, Bills, Albert, and Hall were sitting on the front porch when he observed two men walk from across the street and walk by the front of the house. Hall yelled something out to one of the men, like, "Is that you?" as if she recognized him. One of the men replied "What?", in an aggressive manner, and then stated "I'll be back in ten minutes." Both men continued walking down the street.
Pierson remained on the porch with Bills, who was asleep. Hall and Albert got into a car parked directly in front of the house to listen to music. Albert was in the driver's seat and Hall was in the front passenger seat. Pierson observed someone on a bicycle dressed in black, with a black ski mask covering his head and face, make his way around the vehicle to the driver's side. At this point, Pierson went inside the house, called the police, and gave them a description of the individual with the mask. As he was inside the house on the call with the police dispatcher, he heard what appeared to be a gunshot, and relayed that information to the dispatcher. After completing the call, Pierson went back outside and attempted to rouse Bills to get him inside the house. However, when Bills awoke, he walked down the stairs of the porch and proceeded around the parked car to the driver's side. Pierson returned to the house and called the police a second time. He could not see what was happening to Bills or Albert as the parked car was blocking his view, however, Pierson observed the masked man brandishing a firearm to his side, which appeared to be a black handgun, similar in size to the weapon he carried as an auxiliary police officer. A police car then arrived, and Pierson observed the masked man get back on his bicycle and, as he was leaving the front yard, remove his ski mask. Pierson was unable to see the man's face. Pierson then observed the police car pursue the man on the bicycle, and pull up adjacent to him within a few feet, on the right side of the car. Pierson was still on the phone with dispatch and warned that the man had a handgun. The police car and the bicyclist then disappeared from his view.
Albert testified he was sitting in the driver's seat of the car when someone showed up at the driver's side, and told him to get out. He stated that the man was wearing a mask, a black sweatshirt, and had light colored eyes. Albert recognized the man as the one who had been walking down the street fifteen minutes earlier. Albert stated that the man told him to empty his pockets, but Albert paused. The man pointed a gun at Albert, shot the gun into the air, and told him to get out of the car. Albert testified that the man took $800 from him.
When asked on direct examination if he knew the robber, Albert replied "I'm assuming it's Eric Rock." When asked again on cross-examination, he replied "Not definitely, no." Albert also testified that at the time of the robbery and his statement to police, which started at 6:20 a.m., he was intoxicated. In his statement to police, unlike his trial testimony, he definitively identified defendant as the man who robbed him at gunpoint.
Bills testified that Pierson woke him and told him Albert was getting robbed and to come inside. Bills did not know what was going on and, being intoxicated, he went down the steps around the car in time to see his friend Albert getting "held up." There, Bills saw a man wearing a black mask pointing a handgun at Albert. The man pointed the gun at Bills's chest and asked him if he had any money on him, to which Bills replied that he did not. The man patted down Bills's pockets to confirm. Bills did not recognize the man. Bills saw the man ride away on the bike, but did not see him remove his ski mask.
At trial, Hall testified that she recalled little of the events of that night. Her testimony acknowledged that in the statement she gave to Detective Clayton on July 6, 2006, she had said that she recognized the gunman as defendant based on his voice, body language, the way he walked, and also that he called her by name that night. She had known defendant for about four years. Prior to trial, but after giving her statement to Detective Clayton, Hall spoke to the prosecutor's office and said that she was not sure who the person was that did this and that she felt it was irresponsible on her part to make the identification when she was not sure. She stated that she had identified the gunman as defendant because people were saying it was him and she was going by what she heard.
Sergeant Errico Vescio was on patrol in the area and arrived at the scene at approximately 4:30 a.m. He observed someone wearing all black, riding a bike from the scene. The individual on the bike was wearing a mask, but Sergeant Vescio saw him lift the mask up. Sergeant Vescio followed the bicyclist in his patrol car and pulled alongside of him about a foot or two away. As soon as he looked over at him, he immediately recognized him as being the defendant. Sergeant Vescio was familiar with defendant, having seen him numerous times, as he serves on bike patrol in Red Bank. Additionally, Sergeant Vescio grew up in Red Bank, and knows members of defendant's family. As he pulled alongside defendant, Sergeant Vescio called him by name and said "stop, I need to talk to you." Defendant responded "I . . . got nothing to say to you." Defendant then sped up, drove in front of the patrol car, crossed the street, jumped off the bike, and ran into the backyard of a nearby house. Sergeant Vescio pursued him on foot, but ultimately lost sight of him. He notified other units to set up a perimeter and informed them that he had identified the individual as defendant.
Detective Robert Clayton responded to the scene after receiving a telephone call at 4:55 a.m., stating that there was a robbery which involved shots being fired. Officer Talerico had already arrived and had located a spent nine millimeter shell casing on the ground approximately three feet in front of the parked car on the driver's side. The officers also located the bicycle.
Detective Clayton interviewed Pierson and Albert at the scene. The detective could smell an odor of alcohol on Albert's breath, but Albert was able to verbalize everything without delay. Detective Clayton took a formal statement from Albert later that morning. Albert stated that he was sure the robber was defendant because he could tell by his distinct voice. Albert could also see his eyes which he described as very green.
Based on interviews with the witnesses and Sergeant Vescio, unsuccessful attempts were made to locate defendant that morning at his Red Bank address, which was two blocks from the scene of the robbery. Defendant was arrested in North Carolina on October 31, 2006.
Leslie Evans, defendant's girlfriend, testified on behalf of defendant. She stated that in June 2006, she and defendant decided to move to North Carolina. Later that month, they had a conversation in which defendant expressed his intention to go to North Carolina to find a place for them to live, where he stayed at his cousin Kai Shomo's house at least through the third week in July, at which time Evans went there to visit him.
During Evans's cross-examination, the prosecutor asked her if defendant had a job, to which she responded, "Not at the moment." Defense counsel objected and moved for a mistrial. At side bar, the trial judge agreed to strike the answer, noting that the question was "objectionable," but denied defendant's motion for a mistrial, stating that he was "satisfied that he can strike from the record the last response . . . [and] that this jury, which has been paying close attention throughout the trial, will follow his instruction to disregard." The judge also instructed the prosecutor not to further question Evans "about [defendant's] financial status or any money . . . that she provides." The trial judge instructed the jury that he is striking the answer, and "you cannot consider that answer for any purpose at all in your deliberations."
Cross-examination continued, and the prosecutor asked Evans the following questions:
[Prosecutor]: And you also stated that you had an opportunity to speak with somebody from the Public Defender's office, correct?
[Evans]: Yes.
[Prosecutor]: And when you spoke to that person from the Public Defender's Office, you knew it was regarding the case, correct?
[Evans]: Yeah.
Defense counsel objected and again moved for a mistrial. At sidebar, the judge agreed to strike those questions and answers, but denied the motion for a mistrial. He again emphasized that he was
satisfied that [the jurors are] understanding the instructions I'm giving, because they've been paying close attention, particularly when I just gave the last instruction, which I will repeat. So, I don't find any manifest injustice. I'm satisfied that I'll cure it with my instruction and they will not consider it.
The judge proceeded to instruct the jury not to consider the two questions or their responses for any purpose in their deliberations. To ensure that the jury was clear on these instructions, he directed the jurors that if anyone did not understand his instructions, he or she was to raise their hand. No hands were raised.
Kai Shomo, defendant's cousin, also testified for the defense. He stated defendant moved in with him in North Carolina somewhere around the beginning of June 2006, and lived with him until defendant's arrest in October 2006.
On appeal, defendant raises the following arguments for our consideration:
POINT I
THE TRIAL COURT'S DECISION DENYING DEFENDANT'S MOTION TO PREVENT THE INTRODUCTION OF HIS ELEVEN YEAR OLD . . . SECOND DEGREE AGGRAVATED ASSAULT AND FOURTH DEGREE TAMPERING WITH PHYSICAL EVIDENCE CONVICTIONS WAS IN ERROR.
POINT II
THE TRIAL COURT'S DECISION TO ADMIT THE PRIOR STATEMENTS OF AMBER HALL AND CHRISTIAN ALBERT WAS IN ERROR AS THEIR STATEMENTS WERE UNRELIABLE AND AMOUNTED TO PROHIBITED HEARSAY.
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
POINT IV
THE SENTENCE IMPOSED OF DEFENDANT'S CONVICTION WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
We address first the issue of whether the trial judge erred in granting the State's motion to admit defendant's two prior convictions to impeach his credibility.
The 1998 convictions were fourth-degree evidence tampering and second-degree aggravated assault. The State sought to admit these convictions as impeachment evidence should defendant testify. Defendant argued that the convictions were "remote, [and] . . . it would be prejudicial to admit them for purposes that Sands allows."
The court granted the State's motion, noting that State v. Sands, 76 N.J. 127 (1978), requires a "balancing test" and that the prior convictions "are just barely beyond what is considered as the general rule for what is remote . . . of ten years." The judge noted that the evidence tampering conviction "even though it's only a fourth[-]degree crime, . . . falls into that . . . category of crimes that impact one's veracity." The judge concluded that "the convictions pass the test with regard to remoteness" and will "be admitted for purposes of impeachment if the defendant" testifies. However, "it would be appropriate to sanitize" both convictions, allowing the State to refer only to the "date of the conviction, the degree of the crimes of which he was convicted, and the sentence that was imposed for each conviction."
The decision of whether to exclude a prior conviction "rests within the sound discretion of the trial judge," Sands, supra, 76 N.J. at 144, and is therefore reviewed only for abuse of that discretion. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd in part, rev'd in part, 107 N.J. 222 (1987). The decision is reviewable even where, as here, the defendant chooses not to testify at trial. State v. Whitehead, 104 N.J. 353, 360 (1986).
The determination of whether to admit prior convictions for purposes of impeachment requires a two-tiered approach pursuant to Sands, supra, 76 N.J. at 144-45, and Brunson, supra, 132 N.J. at 390-91. First, a trial judge must make the determination now codified in N.J.R.E. 609, which permits the admission of prior convictions "[f]or the purpose of affecting the credibility of any witness . . . unless excluded by the judge as remote or for other causes."
The trial judge shall admit evidence of criminal convictions to affect credibility of a criminal defendant unless in his discretion he finds that its probative force because of its remoteness, giving due consideration to relevant circumstances such as the nature of the crime, and intervening incarcerations and convictions, is substantially outweighed so that its admission will create undue prejudice."Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." Id. at 144.
[Sands, supra, 76 N.J. at 147.]
If the judge determines that a prior conviction is admissible under N.J.R.E. 609, he or she must then determine whether the court is presented with a "case[] in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged[.]" Brunson, supra, 132 N.J. at 391. If so, the testifying defendant's prior conviction must be "sanitized," that is, "the State may introduce evidence of the defendant's prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which defendant was convicted." Ibid.
Defendant argues that his prior convictions were (1) remote; (2) not crimes involving dishonesty or forgery that would undermine his credibility;" and (3) unrelated to the charges he was facing and therefore the prejudicial effect of introducing the convictions before the jury would outweigh any probative value. We disagree.
As our Supreme Court stated in Sands:
Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. 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. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The 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.There is no bright-line rule providing a length of time after which a prior conviction is automatically considered too remote. See State v. Murphy, 412 N.J. Super. 553, 564 (App. Div.) (contrasting New Jersey case law with Fed. R. Evid. 609(b), which establishes a ten-year rule for admissibility of prior convictions), certif. denied, 203 N.J. 440 (2010). In appropriate circumstances, convictions older than ten years have been found admissible. See, e.g., State v. Pennington, 119 N.J. 547, 585-87 (1990) (approving trial court's decision to permit the State to impeach defendant with a thirteen-year-old murder conviction).
[Supra, 76 N.J. at 144-45.]
Defendant's prior convictions were eleven years old. One conviction was for second-degree aggravated assault, a serious offense, and the other for fourth-degree tampering with physical evidence, which we have concluded is an offense involving dishonesty. See State v. Kennedy, 419 N.J. Super. 475, 480 (App. Div.) (finding that tampering with physical evidence "involve[s] deceptive conduct designed to obstruct the administration of justice"), certif. denied, 208 N.J. 369 (2011). Additionally, during the eleven years, defendant was incarcerated for approximately three—and-one-half years.
We conclude the trial judge did not mistakenly exercise his discretion in ruling that defendant's convictions would be admissible if he testified. Certainly, a jury was entitled to know this information in assessing defendant's truthfulness. Moreover, these convictions clearly had a bearing on defendant's credibility and were not so distant in time to be remote.
Next, we consider defendant's contention that the trial judge erred in granting the State's motion to admit the prior statements of Hall and Albert pursuant to N.J.R.E. 803(a)(1).
N.J.R.E. 803(a)(1) provides in part:
The following statements are not excluded by the hearsay rule:
(a) Prior statements of witnesses. A statement previously made by a person who is a witness at a trial or hearing, provided it would have been admissible if made by the declarant while testifying and the statement:
(1) is inconsistent with the witness' testimony at the trial or hearing and is offered in compliance with Rule 613. However, when the statement is offered by the party calling the witness, it is admissible only if, in addition to the foregoing requirements, it (A) is contained in a sound recording or in a writing made or signed by the witness in circumstances establishing its reliability. . . .
Thus, prior inconsistent statements may be admissible as substantive evidence if they are inconsistent with a witness's testimony and, if offered by the party calling the witness, are sound-recorded or in writing made or signed by the witness. State v. Mancine, 124 N.J. 232, 247 (1991); Gross, supra, 121 N.J. at 7-9. Hall and Albert's written statements were executed by them.
Additionally, when a witness claims he or she cannot remember the events that he or she gave in a previous statement, the trial judge may consider this a feigned loss of memory and admit the statements under N.J.R.E. 803(a)(1). State v. Brown, 138 N.J. 481, 544 (1994), overruled on other grounds by, State v. Cooper, 151 N.J. 326 (1997). The jury is free to believe the version of the events in the statement or the version presented at trial (even though witness's inability to remember event suggests it may never have occurred). Id. at 542. Although the judge, in admitting the statement, is essentially making a finding that the feigned memory loss is a lie, the jury is able to observe the witness and make its own decision about which account is true. Id. at 544.
In Gross, supra, the Court agreed with the fifteen factors we articulated for proper evaluation of the reliability of a prior inconsistent statement:
"(1) the declarant's connection to and interest in the matter reported in the out-of-court statement, (2) the person or persons to whom the statement was given, (3) the place and occasion for giving the statement, (4) whether the declarant was then in custody or otherwise the target of investigation, (5) the physical and mental condition of the declarant at the time, (6) the presence or absence of other persons, (7) whether the declarant incriminated himself or sought to exculpate himself by his statement, (8) the extent to which the writing is in the declarant's hand, (9) the presence or absence, and the nature of, any interrogation, (10) whether the offered sound recording or writing contains the entirety, or only a portion of the summary, of the communication, (11) the presence or absence of any motive to fabricate, (12) the presence or absence of any express or implicit pressures, inducement or coercion for making the statement, (13) whether the anticipated use of the statement wasThe determination of the reliability of the statement, based upon all of the relevant factors, should be made out of the presence of the jury. Gross, supra, 216 N.J. Super. at 110. The proponent of the statement, the State, has the burden of proving by a preponderance of the evidence it is reliable. Gross, supra, 121 N.J. at 15. The judge conducted a pre-trial Rule 104 hearing in order to determine if the State could meet its burden.
apparent or made known to the declarant, (14) the inherent believability or lack of believability of the statement, and (15) the presence or absence of corroborating evidence."
[121 N.J. at 10 (quoting State v. Gross, 216 N.J. Super. 98, 109-10 (App. Div. 1987).]
On July 6, 2006, Hall gave a statement to Detective Clayton in which she identified defendant as the gunman, as well as described in detail the events of July 4, 2006. Her testimony at the January 27, 2009 Gross hearing and, also at trial, was inconsistent with the statement given to Clayton. At the hearing, she testified she could not remember all of the events of July 4, 2006, because she had been intoxicated. She remembered sitting in a car with Albert and hearing a gunshot in front of her, but could not remember seeing anyone holding the gun. She did, however, remember seeing a person in front of the car. She recalled hearing the police come down the street, but not speaking with them. She acknowledged that in her statement she identified defendant as the robber, but stated her identification was based on what other people had told her, not her own recollection.
Detective Clayton testified that when Hall gave her statement at the police station on July 6, 2006, she appeared "calm, cooperative." She had no difficulty answering any of the questions or remembering the details of the robbery. The information in her statement, including the "location they were at, who they were with [a]nd the way the incident went down was consistent with" information provided by the other witnesses. Hall's detailed statement consisted of a series of oral questions and answers, which were simultaneously being typewritten as they were asked and answered.
At the conclusion of the Gross hearing, the judge stated that he was "satisfied that the requirements of [N.J.R.E.] 803(a)(1)(A) are met" and that "the circumstances in which the statement was made . . . establish [re]liability." The judge noted that Hall had certified to the contents of the statement at the time and, that based on her testimony at the hearing, the court "believe[d] she was feigning lack of memory." The judge noted further the "very distinct detail" provided by Hall in her statement and that Detective Clayton testified that "the details that . . . Hall provided in the statement matched what was said by some of the other witnesses and therefor[e] there is corroboration further underpin[n]ing the [c]ourt's finding with regard to reliability."
On February 3, 2009, the judge supplemented his decision with specific findings on the Gross factors. With regard to Hall's statement, the judge determined that (1) Hall "knows . . . defendant" and her statement "has a level of certainty that is personal to [her]"; (2) her statement was given at the police station in the presence of a secretary; (3) Hall signed the statement and certified it was true; (4) "the record is devoid of pressures, inducements or coercion"; and (5) "[t]here is absolutely no evidence . . . Hall fabricated anything in the statement. In fact, the details she provided make[] the statement believable."
Defendant also asserts that the trial judge erred in admitting Albert's prior written statement. Albert gave the statement to Detective Clayton in the early morning hours of July 4, 2006, identifying defendant as the gunman. However, at the Gross hearing, he stated that while he remembered being robbed, he did not know who had robbed him, only that the robber was "a person with a . . . black mask." Everything else, he stated, was "a fog." He acknowledged that when he spoke to Detective Clayton, he had identified defendant as the robber because "that's who [he] thought it was." He stated that he had been drinking on the night of July 3, and was not "sober" when he gave his statement to Detective Clayton. Albert testified he knows defendant and has seen him "over 100 times." He also told the court he "didn't want to testify."
Detective Clayton testified that when he took Albert's statement at the police station on the morning of July 4, 2006, Albert did not appear drunk or have any difficulty communicating. However, the detective "could smell an odor of alcohol" and noted Albert was "visibly shaken." Albert had no difficulty answering any questions and did not hesitate in identifying defendant as the robber. At the completion of the interview, he signed the statement and certified to the truth of the facts therein.
The judge decided that Albert's statement would also be admissible as he was "satisfied it meets the requirements of [N.J.R.E.] 803(a)(1)(A)." The judge noted that Albert had signed the statement certifying that its contents were true, and that, although Albert stated that he had been intoxicated on July 4, Detective Clayton had testified that Albert had "no hesitation or difficulty . . . in answering the questions or in remembering details." Moreover, the judge found that Albert at the Gross hearing "did not have the demeanor of a credible witness" as "at least on two occasions . . . the witness was sitting in the witness box laughing." The judge noted that Albert's Gross testimony "impressed the [c]ourt . . . [as] not honest and truthful with regard to those statements that pertain to identifying . . . defendant as the individual with the gun" and that Albert, too, had "feigned memory loss on that issue." The court concluded by finding that Albert's prior statement to Detective Clayton was "reliable."
On February 3, 2009, the judge supplemented his decision with specific findings on the Gross factors, with regard to Albert's statement. The judge noted that (1) "Albert essentially grew up with [defendant]"; (2) his statement, too, was given "at police headquarters, with a secretary present"; (3) "[t]he statement was reviewed by . . . Albert and certified as being the truth and he signed [it]"; (4) the statement is "believable and reliable"; and (5) there was no evidence of "pressures, inducements or coercion" nor evidence "which would indicate that the statement was fabricated."
We are satisfied the trial judge's fact findings are supported by sufficient credible evidence in the record. See State v. Soto, 340 N.J. Super. 47, 69 (App. Div.), certif. denied, 170 N.J. 209 (2001). We must defer to his credibility determinations. State v. Locurto, 157 N.J. 463, 470-71 (1999). Hall and Albert's prior inconsistent statements were properly admitted under N.J.R.E. 803(a)(1)(A).
We next address defendant's argument that the trial court erred in denying his motion for a new trial because (1) the verdict was "against the weight of evidence and amounted to a manifest denial of justice" and (2) prosecutorial misconduct was so egregious as to warrant a new trial.
Defendant argues that the trial court should have set aside the jury's verdict as against the weight of the evidence. This argument is without merit. R. 2:11-3(e)(2).
A court may not set aside a jury verdict as against the weight of the evidence unless, considering the jury's opportunity to assess the credibility of the witnesses, it clearly and convincingly appears that there has been a manifest denial of justice. State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). "On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error." Ibid.
We must respect the jury's determination unless a reasonable jury could not have reached such a verdict. State v. Afanador, 134 N.J. 162, 178 (1993). When considering a motion to set aside the verdict, the court must review the evidence to determine "'whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)).
Where, as here, a jury's verdict is based on its assessment of the witnesses' credibility, the verdict cannot be set aside unless there is clear evidence of "a mistake, partiality, passion or prejudice." State v. Haines, 20 N.J. 438, 447 (1956). We are satisfied that there is no such evidence in the record, as Hall and Albert, in their statements, identified defendant as the gunman. Further, Sergeant Vescio knew defendant from the neighborhood and identified him fleeing the scene on a bicycle just moments after the robbery. The jury was in the best position to determine the credibility of the testimony. We therefore conclude that the trial court did not err by failing to set aside the jury's verdict as against the weight of the evidence.
Defendant argues the trial court erred by not granting a mistrial based on the prosecutor's questions to Evans concerning the Public Defender's Office and defendant's employment status. In general, a prosecutor may not elicit testimony concerning a defendant's unemployment to show a tendency or motive to commit a crime for financial gain. See State v. Mathis, 47 N.J. 455, 471-72 (1966); rev'd on other grounds, 403 U.S. 946, 91 S. Ct. 2277, 29 L. Ed. 2d 855 (1971). Generally, "there must be something more than poverty to tie a defendant into a criminal milieu." Id. at 472. This prohibition on eliciting testimony of defendant's unemployment is not limited to the questioning of a defendant, but applies also to witnesses. State v. Terrell, 359 N.J. Super. 241, 247 (App. Div.), certif. denied, 177 N.J. 577 (2003).
The Supreme Court addressed the impact of mentioning the involvement of the Public Defender's Office in State v. Martini, 131 N.J. 176 (1993), overruled in part as stated in. State v. Wakefield, 190 N.J. 397 (2007). In Martini, on the cross-examination of an expert witness, the witness mentioned that the case was "a 'Public Defender case.'" Id. at 265. This statement amounted to telling the jury that defendant was represented by the Public Defender's Office. The court ultimately found that this remark did not result in reversible error. Id. at 266-67.
Our Court has recently addressed the issue of inadmissible evidence and the request for a mistrial.
The primary issue to be determined is whether the trial court erred in denying defendant's motion for a mistrial. This case is a reminder that a trial is not a
perfectly scripted and choreographed theatrical presentation; rather, it is an extemporaneous production whose course is often unpredictable given the vagaries of the human condition. Attorneys will sometimes pose inartfully crafted questions, and even the most precise question may bring an unexpected response from a witness. In any trial, "inadmissible evidence frequently, often unavoidably, comes to the attention of the jury."
rState v. Yough, __ N.J. __ Super. __ (App. Div. 2011) (slip op. at __) (quoting State v. Winter, 96 N.J. 640, 646 (1984)).]
Evans's remarks concerned defendant's employment status in 2009, almost three years after the date of the incident. They were made in a fashion and without further elaboration such that they did not infer anything about defendant's employment status in 2006, let alone suggest a motive for the crime charged.
The decision whether inadmissible evidence is curable by a limiting instruction or requires a mistrial is within the competence of the trial judge, "who has the feel of the case and is best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting." Winter, supra, 96 N.J. at 646-47. The judge's determination "must be upheld on appeal unless there is a 'clear showing that the court abused its discretion or that the defendant suffered actual harm.'" State v. L.P., 352 N.J. Super. 369, 379 (App. Div.) (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)), certif. denied, 174 N.J. 546 (2002).
Where a curative instruction is timely given after the offending testimony, the evidence of the defendant's guilt is strong, and the error is not of a constitutional dimension, the offending testimony will not be grounds for a mistrial unless it is "clearly capable of producing an unjust result." State v. La Porte, 62 N.J. 312, 318-19 (1973). In La Porte, the defendant's motion for a mistrial was denied and the jury was instructed to disregard the statement completely as it had nothing to do with the case. Id. at 318. The Supreme Court found the disclosure was improper; however, it did not warrant a mistrial in view of the "overall picture" of the trial. Ibid.
Here, the curative instructions were delivered "without delay." State v. Vallejo, 198 N.J. 122, 134 (2009). We note that defendant interposed no objection to the content of the curative instruction and thus our review is one of plain error, that is, error clearly capable of producing an unjust result. R. 2:10-2. Nonetheless, we are satisfied Judge Neafsey's instructions were not error, let alone plain error, as they were "firm, clear" and "alleviate[d] potential prejudice to [] defendant[.]" Vallejo, supra, 198 N.J. at 134, 135.
We are convinced that in light of the facts of this case, the references to defendant's impecuniosity played no part in the jury's determination of defendant's guilt, State v. Copeland, 94 N.J. Super. 196, 202 (App. Div. 1967), and that such error was incapable of producing an unjust result.
Finally, defendant asserts that the sentence imposed was manifestly excessive and constituted an abuse of judicial discretion. We disagree.
Appellate review of a sentence must be "careful and vigorous," but we will not substitute our judgment for that of the sentencing judge. State v. Kirk, 145 N.J. 159, 175 (1996). The test is not whether we would have imposed a different sentence, but rather "whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Ghertler, 114 N.J. 383, 388 (1989). A trial judge is accorded "wide discretion" to impose a sentence, provided it is within the statutory framework, and as a reviewing court, we must give that decision "great deference." State v. Dalziel, 182 N.J. 494, 500-01 (2005). We are obliged, however, to insure that the sentencing guidelines set forth in N.J.S.A. 2C:44-1(a) and (b) have been met and the sentence is not "'clearly unreasonable so as to shock the judicial conscience.'" Id. at 501 (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
Armed robbery is a first-degree crime for which a custodial sentence between ten to twenty years is mandated if a term of imprisonment is imposed. N.J.S.A. 2C:43-6(a)(1). The period of parole ineligibility is mandated pursuant to NERA.
The judge appropriately considered the aggravating and mitigating factors under N.J.S.A. 2C:44-1(a) and (b). His conclusion that there were no mitigating factors is supported by the record. Similarly, the judge's finding that there were three aggravating factors was adequately supported by the record. See N.J.S.A. 2C:44-1(a)(3), (6), and (9) (accounting for the risk that the defendant will commit another offense, the extent of the defendant's prior criminal record, and the need for deterring the defendant and others from future offenses). Consequently, the sentence imposed does not shock the judicial conscience. Roth, supra, 95 N.J. at 364-65.
Affirmed.