Opinion
DOCKET NO. A-5238-09T2
03-01-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. NORVELL O. PENDLETON, JR., Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and St. John.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 07-01-0043.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief). PER CURIAM
After a jury trial, defendant Norvell O. Pendleton, Jr. was convicted of second-degree aggravated assault of Orlando Andrews, N.J.S.A. 2C:12-1(b)(1)(Count Two); third-degree aggravated assault of Rewa Andrews, N.J.S.A. 2C:12-1(b)(7), a lesser-included offense to second-degree aggravated assault N.J.S.A. 2C:12-1(b)(1) (Count Three); third-degree aggravated assault of Orlando Andrews with a deadly weapon, N.J.S.A. 2C:12-1(b)(2) (Count Four); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (Count Six); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (Count Seven); third-degree hindering apprehension, N.J.S.A. 2C:29-3(a) (Count Eight); second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:12-1 and 2C:5-2 (Count Ten); and third-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2 and 2C:12-1 (Count Eleven).
After appropriate merger of offenses, defendant was sentenced to an aggregate term of thirteen years incarceration. On Count Two, defendant was sentenced to eight years incarceration subject to the provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2; on Count Three, a consecutive five-year term; on each of Counts Four, Six, Seven, and Eight, five-year terms to run concurrently to each other and to Count Two; and on Count Ten, an eight-year concurrent term. The judge imposed appropriate fines and penalties.
The judgment of conviction orders a five-year term of parole supervision. Defendant was sentenced for a crime of the second-degree and the mandatory period of parole supervision is a three-year term. N.J.S.A. 2C:43-7.2(c).
I.
We briefly summarize the procedural history and facts based on the evidence presented at trial.
On the evening of Friday, July 28, 2006, Orlando Andrews, his girlfriend, Karen Pendleton, and his sister, Rewa Andrews, went to a bar in New Brunswick. At the bar an altercation arose between Orlando and Karen. The verbal altercation escalated on route to their home in Carteret. Although testimony was not consistent, it is clear that Orlando and Karen's altercation became mutually physical. After exiting the Turnpike and passing through the Carteret toll, Karen either voluntarily left the vehicle or was forced to by Orlando. Karen testified that Orlando dragged her from the car, and stomped and kicked her.
Rewa insisted that Orlando go back and pick Karen up, and he complied. Karen got back in the rear seat of the car, with Rewa in the front seat, and Orlando driving. Karen called her father and asked him to come and get her. Rewa testified that she heard Karen tell her father that Orlando had hit her. However, Karen testified that she told her father that Orlando had simply left her on the road and that her father should come and get her. After Karen reentered the car, they proceeded about a half mile and entered the parking lot of an all night gas station and convenience store.
Defendant is Karen's father. Defendant testified that when Karen called, he, his father, Norvell, Sr., and his brother, Rowland, all picked up the telephone on separate extensions. They heard Karen crying, saying that she had been left on Industrial Road at the Carteret exit. All three then proceeded in Norvell, Sr.'s car to retrieve her. The Pendletons called Karen to determine her location and she told them they had just pulled into the gas station.
Orlando went into the convenience store and Rewa followed him. Just as Orlando and Rewa came out of the store, the Pendletons arrived and Karen exited Orlando's vehicle and began to walk toward her family.
Although there were only slight discrepancies in testimony up to this point, the description of what then transpired diverged widely. Rewa testified that defendant had a kitchen knife in his hand and that the Pendletons immediately jumped Orlando. A melee broke out, with Rowland punching Rewa as she was attempting to jump on the Pendletons to try to get them off her brother. Rewa stated that Orlando was on his hands and knees, and defendant was stabbing him in the back with a knife blade. Rewa thought she and her brother had a flashlight in the car, but did not see anyone holding a flashlight and did not know whether she had been hit with one. The incident lasted about a minute after which the Pendletons got in their car and left. Rewa stated that just before they left, defendant ran up to her with the knife and cut her under her eye. She displayed the resulting scar to the jury.
Defendant's witnesses told a different story. Karen did not remember much of what happened, but she did remember seeing Orlando holding the scissors that he kept in the car next to the ash tray "to cut the blunts." She did not see anything occur between Rowland and Rewa.
Defendant testified that when Karen got out of Orlando's car, her face was red and swollen under her right eye. She was staggering as he tried to get her into their car. He saw Orlando walking toward him, cursing, and not swinging his left arm, which led him to believe Orlando had a weapon. Defendant punched Orlando which caused Orlando to drop a pair of scissors. Defendant then grabbed Orlando, but Orlando picked up the scissors and began stabbing defendant's left arm. Rowland and Norvell, Sr. were trying to help defendant get the scissors away from Orlando. Rewa was also trying to get the scissors. Rowland attempted to keep Rewa away and, at one point, hit her in the face with a flashlight. Defendant and Orlando were on the ground fighting for the scissors and defendant managed to get the scissors and stab Orlando. Defendant stated he did not stab Rewa or have any physical confrontation with her during the course of the fight. He also stated that no one at the scene had a knife.
Orlando testified that he had no recollection of how he had been stabbed. No weapon was found at the scene.
Defense counsel's strategy was to argue that defendant had come to the gas station unarmed and had been stabbed with scissors by Orlando who had initiated the fight. Counsel posited that during the ensuing fight, defendant seized the scissors from Orlando and stabbed him in defense of himself, as well as in defense of Karen.
Orlando suffered serious wounds, which required extended hospitalization, and Rewa suffered a gash on her left cheek, a black eye, and a swollen shut left eye. In addition, she had abrasions and bruises on her face, scratches on her neck, and a broken toe.
The gas station had an operative surveillance system which showed the incident from three different camera angles, and a tape of the incident was played at trial.
II.
On appeal, defendant raises the following issues for our consideration:
POINT I
THE TRIAL WAS IRREPARABLY TAINTED WHEN REWA ANDREWS TESTIFIED, WITHOUT ANY REMEDIAL ACTION ON THE COURT'S PART, THAT THE PENDLETONS WERE "KNOWN FOR . . . STABBING PEOPLE, CUTTING PEOPLE." (Not Raised Below).
POINT II
THE COURT ERRED IN ITS FAILURE TO CHARGE SIMPLE ASSAULT AS A LESSER INCLUDED OFFENSE WITH REGARD TO REWA ANDREWS. (Not Raised Below).
POINT III
THE SENTENCE IMPOSED WAS EXCESSIVE, IN PART BECAUSE THE COURT ERRED IN IMPOSING A CONSECUTIVE TERM FOR THE ASSAULT OF REWA ANDREWS.
We first address the standard that guides our review of the points asserted by defendant that were "not raised below." Because defendant failed to raise these issues before the trial court, we review these arguments under the plain error standard articulated in Rule 2:10-2. We therefore consider whether "the possibility of injustice [was] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)).
Defendant argues that his trial was irreparably tainted by certain testimony of Rewa, elicited by defense counsel. During cross-examination, Rewa testified to certain propensities of the Pendletons, which defendant asserts should, at the very least, have educed a limiting instruction from the trial judge. Defendant contends that the testimony was evidence of "other crimes, wrongs, or acts" and was governed by N.J.R.E. 404(b).
Q. You testified on direct that, I forget the language you used, or the words you used, something to the effect that once she made the call to ask for her dad to come assist her, that you knew there was going to be a problem. Do you recall saying that?
A. Yes.
Q. Why did you say that?
A. Because they're known for it, stabbing people, cutting people. You asked me --
Q. I got a lot more questions to ask.
A. Go ahead.
Q. You said that -- I think you said something to the effect you took off your shoes, you were anticipating a fight.
A. I knew.
Q. It's your testimony you knew there was going to be a fight, as you said, they were known for it. Right?
A. Yeah.
Defendant's trial strategy was to argue that Orlando was armed with scissors and that the Pendletons had not brought a knife with them. Recognizing that the Pendletons were known for "stabbing people," it would stand to reason that Orlando would arm himself with scissors.
We recognize the well established principle in our system of criminal jurisprudence that "an accused is entitled to advance in his defense any evidence which may rationally tend to refute his guilt or buttress his innocence of the charge made." State v. Garfole, 76 N.J. 445, 453 (1978), aff'd following remand, 80 N.J. 350 (1979). We also acknowledge that the admission of other-crime evidence "creates the strong potential for prejudice because of its natural tendency to demonstrate a criminal predisposition." State v. Blakney, 189 N.J. 88, 93 (2006) (quotation omitted). For that reason, "[w]hen dealing with other-crimes evidence, a court must precisely instruct the jury that the proper use of such evidence is to prove a relevant issue in dispute and not to impugn the character of the defendant." Id. at 92.
Despite these legal standards, defendant's argument that the court should have instructed the jury as to the defensive use of other-crime evidence is unavailing. Although "a defendant may use similar other-crime evidence defensively if in reason it tends, alone or with other evidence, to negate his guilt of the crime charged against him[,]" Garfole, supra, 76 N.J. at 453; see also State v. Williams, 214 N.J. Super. 12, 20 (App. Div. 1986), certif. denied, 107 N.J. 629 (1987), the court is not required to give this instruction when other-crime evidence is introduced for defensive use.
"[W]hen the defendant is offering [other-crime] proof exculpatorily, prejudice to the defendant is no longer a factor, and simple relevance to guilt or innocence should suffice as the standard of admissibility." Garfole, supra, 76 N.J. at 452-53. Hence, the strong potential for prejudice that led the Court to mandate the issuance of appropriate limiting instructions in State v. Cofield, 127 N.J. 328 (1992), and Blakney, is not a factor when the evidence is for defensive use. See State v. Franklin, 384 N.J. Super. 306, 310 (App. Div. 2006) (when defense offers other-crime evidence, prejudice to defendant not a factor). Thus, the court here did not err by failing to give the defensive use charge. Further, the admission of the testimony did not have a clear capacity to bring about an unjust result. R. 2:10-2.
Defendant argues that the trial judge erred by failing to sua sponte charge simple assault, N.J.S.A. 2C:12-1(a), as a lesser-included offense to the charge of aggravated assault of Rewa as contained in Count Three of the indictment. Defense counsel requested and the trial judge agreed to charge third-degree aggravated assault, as a lesser-included charge to second-degree aggravated assault.
Without question, a "trial judge has a mandatory duty to charge the jury on the fundamental principles of law which control the case[.]" State v. Holmes, 208 N.J. Super. 480, 490 (App. Div. 1986) (citing State v. Butler, 27 N.J. 560, 594-95 (1958)). However, when a defendant does not request the court include in its charge a discussion of a lesser-included offense, the trial court "does not . . . have the obligation on its own meticulously to sift through the entire record in every [] trial to see if some combination of facts and inferences might rationally sustain a [lesser] charge." State v. Sloane, 111 N.J. 293, 303 (1988); see also State v. Walker, 203 N.J. 73, 86 (2010) (discussing court's sua sponte obligation to charge lesser-included offenses). "[I]t is only when the facts 'clearly indicate' the appropriateness of that charge that the duty of the trial court arises." State v. Robinson, 136 N.J. 476, 489 (1994) (internal quotations and citations omitted). This standard is in contrast to the level of review necessary when a charge is requested. "To be sure, when counsel requests such a charge, the court should give the charge if there is a rational basis in the record for doing so." Walker, supra, 203 N.J. at 86.
Following our review of the evidence, including Rewa's testimony that defendant cut her face with a knife, we determine no legal impropriety exists and conclude the decision of the court not to charge simple assault did not result in plain error. Counsel's failure to request the charge "constitutes strong evidence that the error belatedly raised [] was actually of no moment." State v. White, 32 6 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000). Consequently, the absence of the charge did not have a clear capacity to bring about an unjust result. R. 2:10-2.
Defendant asserts that the sentence imposed on Counts Two and Three is manifestly excessive. The judge sentenced defendant on Count Two, second-degree aggravated assault of Orlando Andrews, to a term of eight years in prison, subject to the provisions of NERA. The judge then sentenced defendant on Count Three, third-degree aggravated assault of Rewa, to a term of five years to run consecutive to the sentence imposed on Count Two. Defendant first contends that the sentencing court was unduly harsh because the judge did not give due consideration to the provocation of the physical assault upon defendant's daughter.
Our Supreme Court recently fortified the authority of sentencing judges, reminding appellate tribunals to avoid substituting their preferences for legally compliant sentencing actions. State v. Bieniek, 200 N.J. 601, 612 (2010). "'[J]udges who exercise discretion and comply with the principles of sentencing remain free from the fear of second guessing.'" State v. McGuire, 419 N.J. Super. 88, 160 (App. Div.) (quoting State v. Dalziel, 182 N.J. 494, 501 (2005)), certif. denied, 208 N.J. 335 (2011). Once the trial court balances the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and -1(b), it "may impose a term within the permissible range for the offense." Bieniek, supra, 200 N.J. at 608. If a court adheres to the sentencing guidelines, the sentence imposed should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
The sentencing judge found aggravating factor (3), the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); (6), the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and (9), the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge also found mitigating factor (5), the victim of defendant's conduct induced or facilitated its commission, N.J.S.A. 2C:44-1(b)(5). The judge concluded that the aggravating factors "clearly substantially outweigh" the lone mitigating factor.
Defendant's pre-sentence report reveals an extensive criminal history with four convictions in New Jersey. He is also a multi-state offender, having been convicted in Pennsylvania. The nature of these offenses and their sheer volume amply support the trial court's findings that defendant is at risk to re-offend and the sentence is necessary to deter defendant's unlawful conduct. The court's findings of aggravating factors (3), (6), and (9) are supported by credible evidence in the record.
As to defendant's assertion that the trial court erred by imposing a consecutive sentence, N.J.S.A. 2C:44-5(d) provides that a trial court has discretion to impose either consecutive or concurrent sentences for two or more crimes. See State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). In Yarbough, supra, our Supreme Court enumerated five factors a court should consider when making this determination: (1) whether "the crimes and their objectives were predominantly independent of each other[;]" (2) whether they "involved separate acts of violence or threats of violence[;]" (3) whether they "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[;]" (4) whether they "involved multiple victims[;]" and (5) whether "the convictions for which the sentences are to be imposed are numerous[.]" Ibid. (citations omitted).
Defendant contends that because the judge found only factor four applicable, he should have imposed concurrent sentences on all convictions. Notably, however, the five Yarbough factors "should be applied qualitatively, not quantitatively." State v. Carey, 168 N.J. 413, 427 (2001). As such, "a sentencing court may impose consecutive sentences even though a majority of the Yarbough factors support concurrent sentences." State v. Ellis, 346 N.J. Super. 583, 594 (App. Div.) (quoting Carey, supra, 168 N.J. at 427-28), aff'd o.b., 174 N.J. 535 (2002). The fact that there are multiple victims is one of the offense-related factors identified in Yarbough for consideration in determining whether to impose consecutive sentences. This factor is generally applied in cases in which there are multiple victims of the crime for which defendant was convicted or multiple acts of violence. See, e.g., State v. Roach, 146 N.J. 208, 230, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
The sentencing judge determined that the crimes of third-degree aggravated assault of Rewa (Count Three) and second-degree aggravated assault of Orlando (Count Two) were sufficiently independent of one another under Yarbough to justify a consecutive sentence. "[W]e [should] not substitute our judgment for that of the trial court unless the sentence is so wide of the mark as to require our intervention." State v. Spivey, 179 N.J. 229, 245 (2004) (citing Carey, supra, 168 N.J. at 430-31). The sentence imposed complies with the statutory framework and does not constitute an abuse of discretion.
Remanded to the trial judge for correction of the term of parole supervision. Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION