Opinion
DOCKET NO. A-4849-13T3
02-08-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BOBBY SINGLETARY, Defendant-Appellant.
Jamie B. Herrera, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Arielle E. Katz, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Hoffman and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 13-01-0002. Jamie B. Herrera, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Arielle E. Katz, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Teresa A. Blair, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Bobby Singletary, previously employed as a corrections officer at the Adult Diagnostic Treatment Center (Center), appeals from his convictions and sentence for official misconduct, bribery, conspiracy to commit official misconduct and bribery, and conspiracy to distribute controlled dangerous substances. After reviewing the record and applicable legal principles, we affirm in part and remand in part for resentencing in accordance with this opinion.
I
A
Defendant was one of seven charged in the same indictment. All but defendant and co-defendant Sharrod Hardgrove pled guilty. In September 2013, Defendant and Hardgrove were jointly tried by a jury, which convicted defendant of second-degree conspiracy to commit official misconduct and bribery, as well as conspiracy to distribute controlled dangerous substances (heroin and marijuana), N.J.S.A. 2C:5-2 (count one); second-degree official misconduct, N.J.S.A. 2C:30-2 (count two); and bribery in official matters, N.J.S.A. 2C:27-2(c)(count seven).
The verdict sheet pertaining to defendant incorrectly refers to this count as "Count 4" instead of "count seven." Defendant was not charged with a crime in count four.
Hardgrove was acquitted of all charges. Along with all the other defendants, Hardgrove had been charged in count one of the indictment. In addition, Hardgrove had been charged with second-degree bribery in official matters, N.J.S.A. 2C:27-2(c), (count four); and third-degree money laundering, N.J.S.A. 2C:21-25 and N.J.S.A. 2C:2-6 (count ten).
On March 28, 2014, the court sentenced defendant to a term of seven years, with a five-year period of parole ineligibility, for official misconduct (count two); the remaining two counts were merged into count two. In addition, defendant was permanently disqualified from public employment, see N.J.S.A. 2C:51-2, and his pension was forfeited pursuant to N.J.S.A. 43:1-3.1.
Before imposing the sentence, the court found aggravating factors four, breach of the public trust, N.J.S.A. 2C:44-1(a)(4), and nine, need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found mitigating factors seven, no prior criminal record, N.J.S.A. 2C:44-1(b)(7), and eight, the circumstances are unlikely to recur, N.J.S.A. 2C:44-1(b)(8). The court determined the aggravating factors outweighed the mitigating ones.
We summarize only the evidence that puts the issues on appeal into perspective. In 2007, defendant was employed as a corrections officer at the Center. Stephanie Bugg, defendant's former girlfriend, testified she and defendant devised and executed a plan in which she and her son bought heroin and marijuana, and defendant then smuggled these drugs in cigarette boxes into the Center for sale to various residents. To reduce the likelihood defendant would be found connected to these transactions, the buyers were instructed to send payment for their purchases to Bugg, other third parties defendant trusted, or to Western Union, where the money sent by a resident was picked up by one of the third parties and turned over to defendant.
Residents are not permitted to have cash but they are permitted to maintain accounts at the Center, in which they may deposit cash. To make a purchase, residents must fill out a form, which is turned over to the staff in the Center's business office. The staff enters the form into a database and issues a check from the resident's account to the person or entity the resident wishes to send money.
Former co-defendants Michael Bordo, Leon Fitzpatrick, and J.P., all residents of the Center, were called by the State as witnesses. All three testified they purchased drugs from defendant; Bordo also sold drugs on defendant's behalf at an adjacent treatment facility.
J.P. is in the Center because he was adjudicated a delinquent for committing sexual offenses as a juvenile; therefore, we use his initials to protect his privacy, even though he is no longer a minor. --------
J.P. explained after he paid one of the designated third parties or gave defendant cash for his purchase, defendant typically turned over J.P.'s drugs in a cigarette box or told J.P. to clean a bathroom, where a cigarette box containing drugs would be located. Defendant also paid J.P. to resell the drugs. J.P. observed defendant deliver heroin, marijuana, and "rock" to at least three other residents; on occasion, J.P. delivered drugs to other residents on defendant's behalf. Defendant also enlisted J.P. to "talk" to a resident who had received but had not paid for his drugs; J.P. understood the word "talk" to mean he was to threaten the defendant's debtor.
Admitted into evidence was a statement from another corrections officer, Luis Roman, who claimed he observed heroin in a cigarette box defendant had given to a resident. Roman also stated defendant had encouraged him to sell marijuana, but he declined to do so.
Investigator Samuel Wise, a senior investigator with the New Jersey Department of Corrections (DOC), Special Investigations Division, testified the DOC received a letter from Bugg, in 2010, informing it of defendant's illegal activities. Bugg testified she was motivated to expose defendant because he had ended their relationship and became involved with another woman. Wise looked over the records of the residents' financial transactions and discovered some residents had sent checks to the third parties Bugg identified had received money on defendant's behalf. Wise also obtained records from Western Union and discovered Bugg received approximately $2,400 in cash as well.
Neither defendant nor Hardgrove testified.
B
Before the trial began, defendant filed two motions. One was to sever his trial from co-defendant Hardgrove's. Defendant contended Hardgrove would provide testimony exculpating him if the trials were severed. The other motion sought to admit evidence Michael Bordo, Leon Fitzpatrick, and J.P. were civilly committed to the Center if called as witnesses by the State. The trial court denied both motions.
As for the motion to sever the trial, defendant contended he wanted to call Hardgrove, another resident of the Center, to provide the alleged exculpatory evidence, but was aware Hardgrove was unwilling to testify at his own trial. The court informed the parties Hardgrove's trial would precede defendant's if defendant's motion to sever were granted.
The court was mindful of the criteria to consider before deciding a severance motion based upon a claim a co-defendant will provide exculpatory testimony, see State v. Sanchez, 143 N.J. 273 (1996). These criteria are:
(1) the defendant will call his codefendant as a witness in a separate trial; (2) the codefendant, although unwilling to testify at a joint trial, will testify at a separate
trial either prior or subsequent to his own trial; and (3) the codefendant's proffered testimony will be credible and substantially exculpatory.To enable it to make a decision, the court conducted a hearing, at which Hardgrove testified.
[Id. at 293.]
Hardgrove stated he would testify at a separate trial for defendant, but did not state whether he would be willing to testify at defendant's trial if such trial were conducted before his own. As for the alleged exculpatory evidence, Hardgrove testified he never committed any crimes with defendant "in terms of bringing drugs into the jails, either for my own personal use or to sell to other residents," had not conspired with defendant, and had not attempted to bribe him. The trial court denied the severance motion, finding Hardgrove's testimony merely included "a conclusory assertion of innocence" and did not include any exculpatory evidence.
With respect to defendant's motion seeking leave to admit evidence residents of the Center were civilly committed, defendant argued civilly committed persons are "a threat to society" and such fact negatively affects their credibility. The court found the probative value of such evidence outweighed by its prejudice, especially given Hardgrove was a resident as well. Specifically, if defendant cross-examined Bordo, Fitzpatrick, or J.P. about being committed, the jury might conclude Hardgrove was civilly confined as well and view him unfavorably.
The court acknowledged defendant could ask a resident to identify the crimes for which he was convicted, the date of the conviction, and the sentence imposed for his crimes. The court also ordered the Center could be referred to as "a State institution governed by the Department of Corrections," but no resident could be cross-examined on whether he had been civilly committed.
During the course of the trial, defendant renewed his motion to cross-examine a resident on the fact he was civilly committed, but provided a new reason for his request. Defendant wanted to probe the residents about whether testifying on behalf of the State earned him privileges at or an early release from the Center.
Defendant argued:
[W]e should have the opportunity to cross-examine and explore the true status of these residents, and here's why. We're — we're obviously cross-examining on anybody who has made a deal with the State, plea bargain if you will, and that covers only a portion of the interest in the outcome of this case that they have. . . .
[W]e can't properly cross-examine and we can't really show the true nature of this case without getting into the fact that
these residents, if you will, have served their criminal sentence and instead of being released into society[,] they are now housed for God knows how many years. . . .
Now, I don't wish to cross-examine them on the fact that they have been housed and [are] required to be a resident and not released. But it has come to my attention that they can gain certain privileges. And the privileges are, for example, a furlough. The privileges are probably more than that, but the main attractor is . . . that by testifying here they could then go back to the [review] committee . . . , whoever it is that reviews their status, and say, . . . "I've testified for the State. I am rehabilitated. I did what the State wanted me to do [and] therefore I am a — I could be a productive member of society. Look at what I did, I played by the rules and I think I should start getting furloughs. . . . Or I think that my term . . . should come to an end. . . .
[Thus,] they have an awful lot to gain by coming here. They really don't have anything to lose per se, but they have everything to gain with regard to their status.
The trial court rejected the argument, noting the reason a resident is civilly committed is to receive treatment for "sex problems" and testifying for the State does not affect the need for that treatment.
II
On appeal, defendant presents the following points for our consideration:
POINT I — THE COURT ABUSED ITS DISCRETION IN FAILING TO SEVER THE DEFENDANTS AT TRIAL.
A. The Trial Judge's Failure to Sever Prevented the Defendant from Calling the Co-defendant as a Witness and Violated Defendant's Right to a Fair Trial. U.S. Const. Amend. VI, XIV, N.J. Const. Art. 1, paras. 1, 9, 10.
B. The Trial Judge's Ruling That Defendant Could Not Cross-Examine the Witnesses on Their Status as Civilly-Committed Persons Violated Defendant's Right to a Fair Trial. U.S. Const. Amend. VI, XIV, N.J. Const. Art. 1 paras. 1, 9, 10.
C. The Trial Judge's Ruling That Defendant Could Not Cross-Examine J.P. on his Prior Juvenile Convictions Violated Defendant's Right to a Fair Trial. U.S. Const. Amend. Vi, XIV, N.J. Const. Art. 1, paras. 1, 9, 10.
POINT II — THE TRIAL JUDGE IMPROPERLY DOUBLE-COUNTED IN FINDING AGGRAVATING FACTOR FOUR APPLIED TO THESE FACTS.
A
We first address defendant's contention the trial court erred when it denied his motion to sever his trial from Hardgrove's. In this discussion we also address and dispose of defendant's argument the court erred when it barred evidence the residents of the Adult Diagnostic Treatment Center were civilly committed.
Rule 3:7-7 allows for joinder of two or more defendants who are "alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting an offense." There is a "general preference to try co-defendants jointly." State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992). Because the disposition of a motion to sever is left to "the sound discretion of the trial judge," State v. Brown, 170 N.J. 138, 160 (2001) (quoting State v. Scioscia, 200 N.J. Super. 28, 42 (App. Div.), certif. denied, 101 N.J. 277 (1985)), we will not reverse the denial of a severance motion "unless there is a clear showing of abuse of discretion." State v. Bass, 221 N.J. Super. 466, 475 (App. Div. 1987), certif. denied, 110 N.J. 186 (1988).
Defendant contends the denial of his severance motion was prejudicial because it precluded him from calling Hardgrove, who was unwilling to testify at his own trial. Defendant argues had the trial been severed, that obstacle would have been removed, and he could have called Hardgrove, who would have provided exculpatory evidence. We reject defendant's argument the court erred when it denied his motion for severance. Further, even if the court erred, such error did not prejudice defendant.
As previously noted, where a severance motion is based upon an assertion a co-defendant may provide exculpatory testimony if tried separately, the court must consider the following criteria:
(1) the defendant will call his codefendant as a witness in a separate trial; (2) the codefendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his own trial; and (3) the codefendant's proffered testimony will be credible and substantially exculpatory.
[Sanchez, supra, 143 N.J. at 293.]
Here, the third factor does not apply. None of the testimony proffered by Hardgrove was exculpatory, let alone substantially so. As the trial court noted, Hardgrove merely stated he had no knowledge defendant committed any crimes, and he had not conspired with or bribed defendant. The former statement is probative of nothing and the latter is merely a conclusory one proclaiming Hardgrove's innocence. A mere assertion of ultimate facts is not substantially exculpatory. See United States v. Ford, 870 F.2d 729, 732 (D.C. Cir. 1989).
The only person who would tend to be exonerated by Hardgrove's testimony is Hardgrove himself. Hardgrove did not state or provide evidence defendant did not conspire with the other co-defendants who previously pled guilty, or evidence defendant was innocent of official misconduct and bribery. Because defendant was unable to show the third factor applied, the trial court did not abuse its discretion when it denied defendant's severance motion on the ground Hardgrove could provide exculpatory testimony.
Defendant next argues had the trials been severed, there would not have been any reason to bar evidence the residents had been civilly committed. One reason the trial court declined to permit such testimony was the risk the jury would use such knowledge against Hardgrove. Defendant argues if Hardgrove's trial had been severed from his, that risk would have disappeared and defendant would have been able to impeach the residents called by the State. However, the fact the residents are civilly committed is irrelevant.
As he did before the trial court, defendant claims one who is civilly committed is a danger to others because he is unwilling to conform to "societal norms" and refrain from hurting others. Defendant contends one who does not conform to societal norms is more likely to lie under oath. Therefore, defendant maintains, the fact a witness is civilly committed negatively reflects upon his credibility.
Defendant further contends a resident may be motivated to testify for the State to show he has become rehabilitated and is willing to conform to societal norms, as reflected by his support for law enforcement. As a resident becomes more rehabilitated, he earns more privileges; therefore, defendant reasons, a civilly committed witness benefits from testifying in favor of the State. We reject these arguments.
A "sexually violent predator" is a person
who has been convicted, adjudicated delinquent or found not guilty by reason of insanity for commission of a sexually violent offense . . . and suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for control, care and treatment.Sexually violent predators are civilly committed because they suffer from these abnormalities or disorders, which make them likely to engage in repeat acts of predatory sexual violence if not treated for their mental conditions. See N.J.S.A. 30:4-27.25(a). Thus, the residents called by the State in this matter were civilly committed because they are afflicted with an abnormality or disorder that compels them to be violent; they are also confined so they may get treatment. They are not committed because they inherently disrespect the law or have spurned societal mores; they are committed because they cannot help themselves from hurting others and they need treatment.
[N.J.S.A. 30:4-27.26 (emphasis added).]
While of course those residents called by the State had either been convicted or adjudicated a delinquent and thus had broken the law — and defendant was permitted to elicit from the residents the crimes with which they had been convicted - it does not follow they were driven by a need to engage in unlawful behavior per se. In addition, defendant provided no evidence there is any correlation between testifying in favor of the State and obtaining any privileges or an earlier release from the Center.
B
Defendant argues the court erred when it barred testimony showing J.P. had been adjudicated a delinquent. We disagree. N.J.R.E. 609 does permit use of a witness's prior conviction for purposes of impeachment and evaluating credibility. However, it has long been settled in this State that juvenile delinquency adjudications are not convictions of a crime. Interest of K.P., 167 N.J. Super. 290, 293-94 (App. Div. 1979), certif. denied, 87 N.J. 394 (1981). "Juvenile offenses are . . . excluded from evidence because the Legislature has determined that they are not to be deemed criminal offenses, and accordingly, they may not be used to impeach credibility." State v. Reynolds, 41 N.J. 163, 179 (1963) (citing State v. Wolak, 26 N.J. 464, 482 (1958)). Thus, adjudications of delinquency may not be used to impeach a witness's credibility. See State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999). The trial court properly precluded defendant from questioning J.P. about his adjudications of delinquency.
C
Finally, defendant argues the court erred when it found applicable aggravating factor four, breach of public trust, N.J.S.A. 2C:44-1(a)(4). In finding this factor applicable, the trial court stated:
I do find Aggravating Factor Number 4, a lesser sentence will depreciate the seriousness of the defendant's offense, because it involved a breach of the public trust. Defendant took advantage of a position of trust or confidence in committing the offense.
Defendant contends this factor overlaps with an element in the official misconduct statute, N.J.S.A. 2C:30-2(a). He argues the court was prohibited from using any aggravating factor that shares an element of a statutory offense with which he had been convicted of violating.
As our Supreme Court observed in State v. Kromphold, 162 N.J. 345 (2000):
In State v. Yarbough, 100 N.J. 627, 633 (1985), we recognized that facts that established elements of a crime for which a defendant is being sentenced should not be considered as aggravating circumstances in determining that sentence. We reasoned that
the Legislature had already considered the elements of an offense in the gradation of a crime. Ibid. If we held otherwise, every offense arguably would implicate aggravating factors merely by its commission, thereby eroding the basis for the gradation of offenses and the distinction between elements and aggravating circumstances. In the same manner, double-counting of elements of the offenses as aggravating factors would be likely to interfere with the Code's dedication to uniformity in sentencing.
[Id. at 353.]
N.J.S.A. 2C:30-2(a) provides:
A public servant is guilty of official misconduct when, with purpose to obtain a benefit for himself or another or to injure or to deprive another of a benefit:
a. He commits an act relating to his office but constituting an unauthorized exercise of his official functions, knowing that such act is unauthorized or he is committing such act in an unauthorized manner.
N.J.S.A. 2C:44-1(a)(4) states:
A lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense.
While arguably aggravating factor four and the element of the crime of official misconduct in N.J.S.A. 2C:30-2(a) do not always dovetail, we question, without deciding, whether in this case there is a distinction. We cannot discern from the record whether the trial court considered whether there was an overlap between aggravating factor four and N.J.S.A. 2C:30-2(a) and, if so, what its resolution was.
Accordingly, we remand for resentencing. Where the proper legal principles may not have been applied, it is not for us to agree or disagree with the sentence; it is for the court to resentence, applying the correct sentencing guidelines to the facts of record. State v. Dalziel, 182 N.J. 494, 501-02 (2005). We express no opinion about how the court should resolve this question or what defendant's ultimate sentence should be. See id. at 506.
Affirmed in part and remanded in part for further proceedings 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