Opinion
DOCKET NO. A-3084-10T4
12-24-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. CAMILE LAMAR WILLIAMS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief). Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad, Nugent and Haas.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 06-11-2028.
Joseph E. Krakora, Public Defender, attorney for appellant (Monique Moyse, Designated Counsel, on the brief).
Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Vando Cardoso, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Camile Williams appeals from his convictions of multiple crimes arising out of a series of armed robberies committed in Jersey City. Defendant argues the trial court erred in ruling the police had probable cause to arrest him, in admitting his various statements to them, and in curtailing his cross-examination of a State witness. He further challenges his sentence as excessive. We reverse defendant's convictions on four of the armed robbery counts, but affirm his convictions and sentences in all other respects.
I.
On November 2, 2006, the Hudson County Grand Jury indicted defendant on twenty-seven counts of first-degree armed robbery, N.J.S.A. 2C:15-1 (counts eight through ten, seventeen through twenty, twenty-eight through thirty, thirty-eight, forty-one through forty-four, fifty-two through fifty-four, sixty-four, sixty-five, seventy-one, seventy-seven, eighty-three, eighty-nine, ninety-four, one hundred, and one hundred and one); forty-two counts of second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (counts eleven through thirteen, twenty-one through twenty-four, thirty-one through thirty-four, thirty-nine, forty-five through forty-eight, fifty-five through fifty-eight, sixty-six through sixty-eight, seventy-two through seventy-five, seventy-eight through eighty-one, eighty-four through eighty-six, ninety, ninety-one, ninety-five through ninety-seven, one hundred and two, one hundred and three, and one hundred and seven); fourteen counts of third- degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (counts fourteen, twenty-five, thirty-five, forty, forty-nine, fifty-nine, sixty-nine, seventy-six, eighty-two, eighty-seven, ninety-two, ninety-eight, one hundred and four, and one hundred and eight); seven counts of second-degree conspiracy to commit armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-2 (counts fifteen, twenty-six, thirty-six, fifty, sixty, seventy, and one hundred and five); three counts of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts eighty-eight, ninety-three, and ninety-nine); one count of second-degree attempted armed robbery, N.J.S.A. 2C:15-1 and N.J.S.A. 2C:5-1 (count one hundred and six); one count of fourth-degree defacement of a weapon, N.J.S.A. 2C:39-9(e) (count one hundred and nine); and one count of fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f) (count one hundred and ten).
Co-defendants Devenir Mack, Marvis Boyd, Bradley Burgess, Allen Rouse, and Kareema Porter were also charged under this indictment but either worked out a plea deal with the State or were tried separately.
On March 26, 2007, defendant pled guilty pursuant to a plea agreement. Pursuant to its terms, defendant agreed to plead guilty to seven counts of armed robbery (counts seventeen, eighteen, twenty-eight, thirty-eight, forty-one, sixty-four and one hundred), and testify against any co-defendant who did not resolve his case prior to trial. In exchange, the State agreed to recommend he receive a fifteen-year custodial sentence with an eighty-five percent parole disqualifier.
Pertinent to this appeal, on November 29, 2007, defendant testified at the trial of co-defendant Burgess. During his testimony, defendant admitted to his role in various armed robberies, but insisted that Burgess, whom defendant had originally implicated in his statements to police, did not actually participate in the robbery for which he was being tried. At the conclusion of the trial, Burgess was acquitted, and the State subsequently moved to vacate defendant's plea. Defendant did not oppose this motion, which was granted by the trial court on March 14, 2008.
Defendant was tried on various dates in September 2009. On September 21, 2009, the trial court granted the State's motion to dismiss counts thirty-eight through forty, fifty-two through sixty, seventy-seven through eighty-two, eighty-eight through ninety-three, and one hundred through one hundred and six. The court subsequently dismissed as cumulative counts twelve, thirteen, twenty-two through twenty-four, thirty-two through thirty-four, forty-six through forty-eight, sixty-seven, sixty-eight, seventy-three through seventy-five, eighty-five, eighty- six, ninety-six, and ninety-seven. On September 28, 2009, the jury acquitted defendant on counts eleven, fourteen, eighteen through twenty-one, twenty-five, thirty-one, thirty-five, forty-five, forty-nine, sixty-six, sixty-nine, seventy-two, seventy-six, eighty-four, eighty-seven, ninety-five, and ninety-eight. The jury convicted defendant on all the remaining counts.
At sentencing on January 8, 2010, the court merged the remaining conspiracy counts (fifteen, twenty-six, thirty-six, fifty, and seventy) and the corresponding substantive armed robbery counts (eight, seventeen, twenty-eight, forty-one, and sixty-four), as well as counts one hundred and eight (possession of a handgun without a permit) and one hundred and seven (possession of a handgun for an unlawful purpose). The court then sentenced defendant to an aggregate custodial term of forty years subject to a NERA eighty-five percent parole disqualifer, consisting of: consecutive twenty-year custodial terms subject to NERA on counts eight and seventeen; fourteen concurrent twenty-year custodial terms subject to NERA on counts nine, ten, twenty-eight through thirty, forty-one through forty-four, sixty-four, sixty-five, seventy-one, eighty-three, and ninety-four; two concurrent eighteen-month custodial terms on counts ninety-nine and one hundred and ten; a concurrent ten-year custodial term with a five-year period of parole ineligibility on count one hundred and seven; and a concurrent five-year custodial term on count one hundred and nine. The court also imposed mandatory fines, fees, and penalties. This appeal ensued.
II.
The following testimony and evidence was adduced at trial. At about 10:00 p.m. on January 20, 2006, four men armed with handguns and wearing ski masks entered Cherry's Bar in Jersey City. One of the men jumped over the bar and began "ransacking the cash registers." A second man approached bartender Charles Bratton and pointed a gun at him. He ordered Bratton to come out from behind the bar, and struck him in the head with the butt of his gun. The man then pointed his gun at another bar employee, Annie Johnson, and ordered her to retrieve the bar's safe, which was kept in a back room. According to Bratton, the safe likely contained $4000 or $5000. Bratton did not recall that anything was stolen from the bar's patrons who remained seated at the bar. The men fled after emptying the safe.
Sometime between 6:00 and 7:00 p.m. on January 26, 2006, four or five men armed with handguns and wearing ski masks rushed into Bill and Ruth's Bar in Jersey City, shouting, "Get down . . . on the damn ground." One of the men ran behind the bar, approached the owner, Emma Ruth Moore, and pointed a gun at her head while demanding she "give [him] the money." Moore gave the man all of the money in the register, and also handed over a small safe she kept in the kitchen. The other armed men searched the bar patrons, who were lying on the floor, for money and valuables. Before the men ran out of the bar they kicked several of the patrons. Moore estimated that the men made off with over $200.
During the afternoon on February 4, 2006, Charlene Hatcher was getting her hair done at the Santo Domingo Hair Salon in Jersey City when two men armed with handguns and wearing ski masks entered the salon. They pointed their guns at the roughly fifteen people inside, announced it was "a stickup," and demanded that everyone get down on the floor. The men went behind the reception desk and then ordered the stylist at gunpoint to "open the safe." The men left shortly afterwards. Hatcher did not identify by name any of the patrons in the salon, and confirmed that nothing was stolen from her.
At approximately 8:30 p.m. on February 16, 2006, three men armed with handguns and wearing ski masks entered the Virginia Bar Tavern in Jersey City. One man put a gun to bar owner Frank Cuozze's head, threatened to blow his head off, and demanded to know where he kept the money. He brought Cuozze over to the register, where another man was taking $300 from it and was taking the extra cash Cuozze kept in a bag next to the register. A third man pointed a gun at the three bar patrons, Margaret Keelan, Alberto Serrano, and Tyrone Tucker. The first man demanded Cuozze give him the $300-$400 he had in his pockets, and then he hit Cuozze in the back of the head with the gun and made him lay on the floor. He continued to demand to know where the money was, and fired a shot above Cuozze. The men made Tucker lie on the floor and then took Serrano's wallet and Keelan's pocketbook. The men left shortly after firing the shot.
At about 9:00 p.m. on March 2, 2006, Royal Lanier and her two young daughters, ages eight and ten, were at a hair salon called Monique's Techniques in Jersey City when an armed intruder wearing a ski mask entered and ordered everyone to the ground. According to Lanier, the only other people in the salon were her stylist "Sophia" and another customer whom she identified as "Miss Freeman." The man pointed his gun at the women and then held the gun to Sophia's head. Lanier's children begged the intruder not to kill Lanier or anyone else. The man searched the register and various work stations for money, and demanded all valuables. Before leaving, the man pulled out a roll of tape and ordered Lanier's two daughters to bind the wrists of the adults in the salon. He directed the children not to remove the tape until he was gone. The man did not take anything from Lanier or her children.
Shortly before 11 p.m. on March 17, 2006, an armed robber wearing a mask entered the Burger King on Bergen Avenue in Jersey City and pointed a gun at employee Droanne Ray. After learning that Ray could not open the restaurant's safe, he ordered her to give him the money from the registers. He directed the other employees to lay on the floor. The man pushed his gun against Ray's head as she handed over approximately $1000 in cash and some employee checks. After instructing Ray to lay on the floor, the man ran out.
Sometime after 7:15 a.m. on March 24, 2006, a young man wearing a mask entered the Burger King on Route 440 in Jersey City and pulled out a gun. He grabbed the manager by the shirt, pointed his gun at employee Ethel Wilson and ordered them both into the back office. The intruder directed the manager to open the safe while still keeping his gun pressed against Wilson's head. The manager gave the robber all of the money in the safe. The robber then brought the pair back out front and ordered the manager to empty all of the registers. After the manager handed over these additional monies, the robber ordered the two women to lay on the floor on their stomachs and proceeded to use duct tape to tape their hands and feet together before fleeing.
Sometime around midnight on March 31, 2006, an armed robber wearing a mask approached Kareem Beebers who was taking out the trash at the Wendy's on Route 440 in Jersey City. He put a gun to Beebers's back, and forced him back into the restaurant. The man then approached a female employee, pushed her to the floor and put his gun to her head. He said he was going to shoot unless the manager opened the office. The manager opened the office door and the robber proceeded to strike her in the face with the gun and to demand money. The manager gave him the money, and the intruder fled.
At some point on April 5, 2006, Sergeant John Joy of the Jersey City Police Department received a phone call that prompted him to go to 30 Kensington Avenue looking for a specific vehicle. He found the vehicle, a silver Mercury Cougar, parked on Kensington Avenue and, between 6:00 and 7:00 p.m., he and Detective Wael Shahid set up surveillance of the Cougar in two separate police units. Several hours later, the officers observed a black male enter the vehicle and drive off, eastbound. They followed, and along with several other units including one operated by Sergeant Michael Kolodij, began a zigzag surveillance.
The police followed the vehicle to a Wendy's in Bayonne and watched as it slowly circled the restaurant without parking or going through the drive-thru. The driver of the vehicle then drove back to 30 Kensington Avenue, parked, and went inside. Sgt. Joy and Det. Shahid continued their surveillance, and observed as the driver re-emerged thirty minutes later and again drove off. Multiple units, again including Sgt. Kolodij's, followed the vehicle to a nearby McDonald's, arriving at 11:09 p.m., and watched as the vehicle slowly circled the building before pulling into the drive-thru lane.
At this point, the various units were advised to "move in" in order to prevent a possible robbery, and Sgt. Kolodij pulled his car in front of the drive-thru lane, blocking both the Cougar and another vehicle. The officer approached the passenger side of the Cougar and opened the door. He saw the driver reach into his front pocket and start to pull out a black nine-millimeter automatic weapon. The officer yelled "gun," drew his own weapon and pointed it at the driver. He told the driver to stop what he was doing, and the driver complied. The officer then grabbed the gun, which was protruding from the driver's right front pocket. Det. Shahid ran to the driver's side door and pulled the driver, later identified as defendant, out of the car, and he was placed under arrest. The detective searched the car and discovered a black face mask in the rear passenger seat area.
Defendant was transported to the major case office and briefly placed in a holding cell. He was then brought to an office shared by six or seven detectives, and Detective Victor Cherry advised him of his rights at 12:45 a.m. The detective told defendant the police believed he had been involved in a string of robberies. For approximately forty-five minutes defendant denied any involvement in, or knowledge of, any such robberies, but eventually he agreed to give sworn statements regarding them. Several detectives became involved in taking statements from defendant, including Detectives Cherry, Jose Alvarez, and Michael Gajewski. Defendant was re-advised of his right to remain silent prior to every statement.
Defendant initially claimed that some of the robberies were not committed by him but by people he knew. However, eventually defendant admitted he was one of the perpetrators, explaining that he lied earlier because he was scared. In particular, defendant admitted to directly participating in the robberies at Cherry's Bar that netted $5000, at Bill & Ruth's that netted $50, at the Santa Domingo Hair Salon that netted $350 and some purses, and at the Virginia Tavern that netted $1800. He also admitted to: (1) serving as the lookout during the armed robbery of Monique's Techniques where the robber came away with $170, a watch and two rings; (2) loaning his girlfriend's silver Cougar to an individual who robbed the Burger King on Route 440, netting $2400 of which defendant received $500; (3) loaning a jacket to an individual who robbed the Burger King on Bergen Avenue, netting $700 of which defendant received $200; and (4) loaning the Cougar to an individual who robbed the Wendy's on Route 440, netting $2800 of which defendant received $500.
Defendant gave statements until 5:04 p.m. on April 6, 2006. Based upon these statements, the police were able to retrieve several pocketbooks at a location identified by defendant.
At trial, the court admitted both defendant's statements to police and portions of his testimony from the trial of his co-defendant Burgess. In this testimony, defendant admitted he was one of the armed robbers at Cherry's Bar. He also admitted to his involvement in fourteen separate, but unspecified, robberies, some of which he committed alone.
Defendant took the stand in his own defense. He explained he went to the McDonald's on the night of April 5, 2006, because his girlfriend worked there and he was going to pick up some food. He claimed that, after the police brought him down to the precinct, they kept him in a cell, handcuffed, for approximately nineteen hours. He claimed that early on Det. Cherry stopped by and advised that if the police could verify his story about why he was at the McDonald's, they would let him go. However, about two hours later, Det. Cherry informed him that, although they had verified his story, he was not free to leave. Defendant then claimed he asked if he could call his mother so she could arrange for an attorney, but Det. Cherry said he did not need a lawyer because the police just wanted to talk to him about an investigation.
According to defendant, the detective returned an hour later with a portfolio and began asking him about certain armed robberies. Defendant initially denied any knowledge of the robberies. Defendant testified that after the detective threatened him, he named an individual he thought might be the perpetrator. The detective then told defendant he had two choices: either cooperate and identify the perpetrators, in which case the most he would be facing would be the gun charges; or continue to stonewall the investigation and spend the rest of his life in jail.
After speaking with Det. Cherry, defendant was permitted to call his mother. Thereafter, he told police he wanted to "come clean," explaining that he, and not the individual he had identified, had committed the robberies. Defendant insisted, however, that he actually was not guilty but had changed his story because he was afraid of the actual perpetrator, the individual he had identified. Thereafter, he signed statements prepared by the police based upon reports they had regarding each robbery.
Defendant related that this was the first time he was ever in trouble with the law. He insisted that, while he was at the precinct, he was tired and hungry but was not allowed to rest or eat. He claimed he was handcuffed nearly the entire time and repeatedly asked for an attorney. Defendant further stated that he subsequently decided to enter into a plea agreement, not because he was guilty but because he understood that his total exposure for all the crimes was 800 years in prison, and he wanted to lessen his time behind bars.
Det. Shahid was also called by the defense and confirmed that he documented in his report defendant's explanation as to why defendant was at the McDonald's. He further confirmed that he was directed to go back to the McDonald's to verify defendant's story.
III.
On appeal, defendant argues:
POINT I
THE TRIAL COURT ERRED WHEN IT RULED THAT THE POLICE HAD PROBABLE CAUSE TO ARREST [DEFENDANT]; AS A RESULT OF HIS ILLEGAL ARREST, ALL STATEMENTS AND EVIDENCE SHOULD HAVE BEEN SUPPRESSED AS FRUIT OF THE POISONOUS TREE.
POINT II
THE TRIAL COURT VIOLATED [DEFENDANT'S] RIGHT TO CONFRONTATION WHEN IT PREVENTED HIM FROM CROSS-EXAMINING A STATE WITNESS ABOUT THE WITNESS'S UNTRUTHFUL TESTIMONY, WHICH WENT TO THE HEART OF [DEFENDANT'S] DEFENSE.
POINT III
THE TRIAL COURT'S ADMISSION OF [DEFENDANT'S] INCULPATORY STATEMENTS VIOLATED HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AS THEY WERE NOT VOLUNTARILY MADE. U.S. Const. Amends. V, XIV, N.J. Const. Art. I, p. 1.
POINT IV
STATE WITNESS TESTIMONY REGARDING WHY THE POLICE BEGAN SURVEILLANCE ON [DEFENDANT] VIOLATED STATE V. BANKSTON, 63 N.J. 263 (1973) AND STATE V. BRANCH, 182 N.J. 338 (2005), AND DEPRIVED [DEFENDANT] OF HIS RIGHTS TO CONFRONTATION AND DUE PROCESS.
POINT V
THE TRIAL COURT ERRED WHEN IT ALLOWED THE JURY TO VIEW A VIDEOTAPE OF [DEFENDANT'S] PRIOR TESTIMONY AT CO-DEFENDANT BRADLEY BURGESS'S TRIAL.
POINT VI
THE TRIAL COURT ABUSED ITS DISCRETION BY DENYING [DEFENDANT'S] MOTION FOR JUDGMENT OF ACQUITTAL ON COUNTS 28, 29, 30, 42, 64, AND 65.
POINT VII
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A MANIFESTLY EXCESSIVE SENTENCE.
Defendant first argues the court erred in ruling that the police had probable cause to arrest him, so the gun and mask they seized following his arrest, as well as his statement, should have been suppressed. We are not persuaded by this argument.
Defendant's probable-cause-to-arrest argument was not raised prior to trial, rather he raised it midway through trial. Defense counsel argued that, based upon the later confirmation that defendant had only been at the McDonald's to pick up food, the police had made an illegal or false arrest. The court denied the motion, ruling that the police had probable cause to believe that an attempted robbery was about to occur based upon their observations of defendant that evening.
In reviewing a motion to suppress evidence, we defer to the trial court's fact findings and "feel" of the case and may not substitute our own conclusions regarding the evidence. State v. Locurto, 157 N.J. 463, 471 (1999); State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010).
The probable cause standard is a
well-grounded suspicion that a crime has been or is being committed. Probable cause exists where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed. The substance of all the definitions of probable cause is a reasonable ground for belief of guilt.A decision on the issue of probable cause to arrest requires "a practical, common sense determination." State v. O'Neal, 190 N.J. 601, 612 (2007) (internal quotation marks and citation omitted). The court must "make a practical, common sense determination whether, given all of the circumstances, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Moore, supra, 181 N.J. at 46 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)).
[State v. Moore, 181 N.J. 40, 45-46 (2004) (alterations in original) (internal quotation marks and citations omitted).]
Brief investigative stops are permitted when the police have an "articulable, reasonable basis for suspicion" that the person stopped is, or is about to be, engaged in criminal activity. State v. Alexander, 191 N.J. Super. 573, 576 (App. Div. 1983), certif. denied, 96 N.J. 267 (1984). The reasonableness of an officer's basis for making an investigatory stop is evaluated by considering the totality of the circumstances confronting the officer at the time of the stop. State v. Davis, 104 N.J. 490, 504 (1986). It cannot be overlooked that a "police officer must often act on the spur of the moment." State v. Bynum, 25 9 N.J. Super. 417, 421-22 (App. Div. 1992).
An anonymous tip, by itself, is unlikely to support a finding of probable cause, although it may carry enough indicia of reliability to establish the reasonable articulable suspicion of criminal activity needed for an investigatory stop. State v. Rodriguez, 172 N.J. 117, 127 (2002); Jefferson, supra, 413 N.J. Super. at 353. As such, before effectuating an arrest based on an anonymous tip, the police "must verify that the tip is reliable by some independent corroborative effort." Rodriguez, supra, 172 N.J. at 127. A constitutional violation generally will not be found where there has been independent corroboration of significant aspects of the informant's tip. Id. at 127-28. The totality of the circumstances must be considered. Id. at 128. Notably, a call placed and processed via the 9-1-1 system is considered to possess enhanced reliability as compared to other anonymous tips. State v. Golotta, 178 N.J. 2 05, 218 (2003).
In general, evidence obtained following a violation of a defendant's federal or state constitutional rights will be excluded as proof against the defendant unless it can be shown that it was obtained in a "sufficiently independent" manner to "dissipate the taint" of the prior illegal conduct. State v. Johnson, 118 N.J. 639, 651-53 (1990). According to our Supreme Court, "a confession obtained through custodial interrogation after an illegal arrest should be excluded unless the chain of causation between the illegal arrest and the confession is sufficiently attenuated so that the confession was 'sufficiently an act of free will to purge the primary taint.'" State v. Chippero, 164 N.J. 342, 353 (2000) (quoting State v. Worlock, 117 N.J. 596, 621 (1990)). In assessing whether a confession is the "fruit" of prior illegal police conduct, and must therefore be excluded, three factors must be considered: (1) the temporal proximity between the illegal conduct and the taking of the statement; (2) the presence or absence of intervening circumstances; and (3) the flagrancy and purpose of the police misconduct. Chippero, supra, 164 N.J. at 353; State v. Harvey, 121 N.J. 407, 418 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991).
According to defendant, the police merely saw him engage in innocent conduct before his arrest. He notes that he was not wearing a mask at the time of his arrest. He also points out that the State never demonstrated the reliability of the anonymous tip.
We note preliminarily that defendant did not properly raise this issue by filing the appropriate suppression motion. As such, no hearing was held outside the presence of the jury during which the State could have presented testimony regarding the exact contents of the anonymous tip and whether, in fact, as is presently suggested by the State, the call came in over the 9-1-1 system and was, thus, of enhanced reliability. Nonetheless, while the State was precluded from presenting all of the information it had regarding the anonymous tip, testimony presented at trial did establish that the tip carried certain indicia of reliability.
In particular, the police were able to locate the specified vehicle at the designated location. Additionally, the police observed the vehicle being driven in a suspicious manner around a Wendy's, and then to a McDonald's, both likely targets for a robbery in light of the recent spate of armed robberies at fast food restaurants. We are satisfied the tip as described at trial, the observations by police, and the nature of the recent crime spree in Jersey City provided the police with the degree of suspicion necessary to conduct an investigatory stop. Once the police observed defendant reach into his front pocket and start to pull out a gun, there was ample basis for his arrest.
We discern no violation of defendant's right to confrontation in the judge's ruling regarding his questioning of Det. Shahid. It is of no moment whether the judge permitted defendant to confront the detective with the statement of Shannon Thompson, then deceased, that defendant had gone to McDonald's to get food, whether on cross-examination or when recalled as his own witness. As that count (106) was dismissed, testimony about defendant's purpose in going to the McDonald's became largely irrelevant.
We are not persuaded by defendant's response that the omission of this testimony undermined his defense that the "police jumped the gun and pinned the other robberies on him" because they wanted to resolve them. Whatever information the police received three hours after defendant's arrest did not negate all of the information and observations that led the police to arrest defendant, nor did it negate the fact that he was discovered to be in possession of an illegal weapon and a mask.
We note that the right to cross-examine is not unlimited. State v. Harvey, 151 N.J. 117, 188 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). While N.J.R.E. 611(b) broadly authorizes questioning on "matters affecting the credibility of the witness," the cross-examination of a witness may nonetheless be limited by N.J.R.E. 403 considerations of undue prejudice, confusion of the issues, and waste of time. State v. Mance, 3 00 N.J. Super. 37, 59-62 (App. Div. 1997). The scope of cross-examination is a matter left to the court's discretion, and its rulings in this regard will not be disturbed in the absence of clear error. State v. Martini, 131 N.J. 176, 263 (1993); State v. Murray, 240 N.J. Super. 378, 394 (App. Div.), certif. denied, 122 N.J. 334 (1990).
Turning to defendant's next challenge, we discern no error by the court in admitting the various inculpatory statements defendant made to police. At the Miranda hearing, the State presented testimony from Detectives Cherry, Gajewski, and Alvarez regarding the events surrounding defendant's interrogation. Det. Cherry testified that after defendant was arrested at about 11:09 p.m. he was brought straight to the major crimes office so the detective could speak with him. During a pre-interview, Det. Cherry advised defendant that there had recently been seventeen or eighteen armed robberies in Jersey City, and asked if he knew anything about this. For approximately forty-five minutes, defendant denied any knowledge or involvement. The detective then told defendant about another case he had worked on involving multiple armed robberies and the jail time the perpetrators were facing. Defendant then stated he wanted to do the right thing and to confess, and asked if Det. Cherry could help him out. Det. Cherry said he was not in a position to do anything but he would take down what defendant had to say.
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
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Defendant waived his right to remain silent by executing a waiver form at 12:45 a.m., and began to discuss the robberies with Det. Cherry. Eventually Det. Cherry, and then Detectives Gajewski and Alvarez began taking formal statements from defendant, each of which was preceded by the execution of a new waiver form. Defendant reviewed the statements for accuracy and signed them. Defendant continued to give statements until shortly after 5:00 p.m.
All three detectives confirmed that they interviewed defendant in the relatively large major cases office, not a cell, and that there were several detectives present. According to Det. Alvarez, defendant was only briefly remanded to a cell once during the day. Defendant was given breaks for food and water, and to use the bathroom. He never asked to speak with an attorney or to rest, and did not appear tired.
Both Detectives Cherry and Alvarez maintained that defendant was not handcuffed when they spoke with him, but was sitting unrestrained next to their desks. Det. Gajewski acknowledged that defendant was handcuffed to the chair by his non-writing hand when he spoke with him. Det. Cherry denied that defendant was shown police reports regarding the various robberies, or that he threatened defendant in any way. Both Detectives Cherry and Alvarez confirmed that, every time defendant gave a statement, he was advised of the charges he was facing.
In its decision denying defendant's motion to suppress, the court found that each officer testified "extremely" credibly regarding the events surrounding the statements. The judge additionally found all of the testimony indicated that defendant was not continuously handcuffed, his basic needs were attended to, he was constantly made aware of his rights, and was repeatedly advised that he could stop the proceedings any time he chose. The judge was satisfied there was no evidence of coercion. He noted that the questioning did continue for a very protracted period, however, multiple officers indicated that defendant did not appear tired or ask to rest, but instead seemed to want to "just get things over with." Additionally, some time was lost when certain statements had to be retaken after defendant changed his testimony. Accordingly, the court admitted into evidence all of defendant's inculpatory statements to police.
"A suspect's waiver of his [or her] Fifth Amendment right to silence is valid only if made 'voluntarily, knowingly and intelligently.'" State v. Adams, 127 N.J. 438, 447 (1992) (quoting Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 707). A determination of the voluntariness of a custodial statement requires an assessment of the totality of the circumstances surrounding the giving of the statement. State v. Roach, 146 N.J. 208, 227, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996). A court must look at the characteristics of the suspect, such as his or her age, education, intelligence, and prior encounters with the law. State v. Galloway, 133 N.J. 631, 654 (1993); State v. Miller, 76 N.J. 392, 402 (1978). It must also consider the nature of the interrogation, such as whether it was prolonged and resulted in the suspect's mental exhaustion and also whether the suspect was subjected to physical or psychological coercion. Ibid.
Where a suspect has been subjected to a psychologically-oriented technique during questioning, any resulting statement may still be deemed voluntary provided the suspect's decision to confess resulted from a change of mind and not from an over-bearing of his or her will. Miller, supra, 76 N.J. at 405. Likewise, a misrepresentation by police does not render a confession or waiver involuntary unless the misrepresentation actually induced the confession. State v. Cooper, 151 N.J. 326, 355-56 (1997); Galloway, supra, 133 N.J. at 656-57; Miller, supra, 76 N.J. at 403-05.
Defendant disputes the court's finding, asserting his inculpatory statements were the product of the coercive tactics employed by the officers who interrogated him after his arrest. In this regard, defendant notes that: (1) he was only twenty years old at the time of his arrest; (2) he had no prior experience with the law; (3) he was not allowed to call his mother for hours; (4) he was subjected to a "grueling" interrogation by multiple officers over the course of nearly twenty-four hours; (5) he was deprived of sleep and food during this period; and (6) he was handcuffed for almost the entire time. Defendant also points out that the officers wrongly told him that they would let him go if they were able to verify his stated reason for being at the McDonald's that night, and further threatened him that if he did not reveal who committed the robberies, they would prepare reports that would ensure that he went to prison for life.
We defer to the judge's credibility findings, amply explained and based on the record, regarding defendant's interrogation, and his conclusion that defendant's statements were knowingly and voluntarily made. He was entitled to accept the testimony of the various detectives that defendant was not handcuffed and deprived of food the entire time he was being questioned, that he was not denied the opportunity to make phone calls, and that he was not threatened. Defendant has not produced any phone records confirming the allegedly lengthy period before which he was allowed to call his mother. While it is undeniable that defendant was somewhat young and inexperienced with the law at the time of his interrogation, the motion record indicated that he was repeatedly advised of his rights and confirmed that he understood them. Defendant was interviewed by only one officer at a time in a relaxed setting and began to confess after a relatively short period. He never advised the detectives that he needed to rest. Overall, the record does not reflect an interrogation unusual in terms of length or police procedure.
Defendant next argues his right to confront the witnesses against him was violated when Sgt. Joy testified regarding a tip received by the police that led them to initiate surveillance. We disagree.
During the prosecutor's direct examination of Sgt. Joy, the following colloquy occurred:
[Prosecutor]: April 5th of 2006, what if anything occurred during your shift?
[Joy]: I was informed by a concerned citizen --
[Defense counsel]: Judge, objection. Objection to the testimony. I need to be heard at sidebar.
THE COURT: Sidebar.
(Sidebar)
THE COURT: Now since I didn't have an answer, what was he going to say, do you know?
. . . .
[Defense counsel]: I'm asking -- I'm asking for an objection and a curative because he just said something about a concerned --
THE COURT: No, I'm not going to. This --
[Defense counsel]: Can I put my --
THE COURT: We haven't --
[Defense counsel]: --objection on the record?
THE COURT: Yeah. But we haven't gotten anything out yet.
[Defense counsel]: He said, "concerned citizen." That shouldn't have even come out of his mouth.
THE COURT: At this juncture, he said nothing. Just ask a new question, okay. Thank you.
[Defense counsel]: Can I just make the record clear?
THE COURT: No. Let's go. Let's --
[Defense counsel]: I can't make the record clear?
THE COURT: No. Next question.
. . . .
[Prosecutor]: Sergeant, without getting into any specifics --
[Joy]: Okay.
[Prosecutor]: What -- no specifics, what occurred during that shift?
. . . .
[Joy]: Without anything specific --
. . . .
THE COURT: Did you receive a phone call?
[Joy]: Yes, I did, Your Honor.
THE COURT: AS a result of that phone call, did you go anywhere?
[Joy]: Yes, I did, Your Honor.
THE COURT: Where did you go?
[Joy]: I responded to the area of 30 Kensington Avenue.
THE COURT: Okay.
[Prosecutor]: And what did you do upon arriving at 30 Kensington?
[Joy]: I was looking for a specific vehicle . . . [and] I found that vehicle.
[Prosecutor]: Where was that vehicle parked?
[Joy]: That vehicle was parked in the area of 30 Kensington.
Defendant now contends, relying upon State v. Bankston, 63 N.J. 263 (1973), that he was denied a fair trial as a result of Sgt. Joy's testimony because the jury had to have concluded that the "concerned citizen" directly implicated defendant in connection with the string of armed robberies occurring in Jersey City. In Bankston, our Supreme Court confirmed that the hearsay rule is not violated when a police officer explains that he approached a suspect or went to a crime scene based "upon information received," because such testimony explains his subsequent conduct and shows that the officer was not acting in an arbitrary manner. Id. at 268; accord State v. Luna, 193 N.J. 202, 217 (2007). However, the Bankston Court cautioned that both the hearsay rule and an accused's Sixth Amendment right to be confronted by the witnesses against him or her are violated if the officer becomes more specific and repeats what another person told the officer linking the defendant to a crime. Bankston, supra, 63 N.J. at 268-69.
According to the Court, "[w]hen the logical implication to be drawn from the testimony leads the jury to believe that a non-testifying witness has given the police evidence of the accused's guilt, the testimony should be disallowed as hearsay." Id. at 271. See also State v. Branch, 182 N.J. 338, 352 (2005) (holding the phrase "based on information received" may be used by police officers to explain their actions, but only if necessary to rebut a suggestion that they acted arbitrarily and where use of that phrase does not create an inference that the defendant was implicated in a crime by some unknown person). Nonetheless, erroneous admission of such testimony is not automatic grounds for reversal, but may be assessed under the harmless error standard. Bankston, supra, 63 N.J. at 272-73.
Contrary to defendant's representations, Sgt. Joy's testimony did not lead to the inescapable conclusion that the "concerned citizen" had specifically advised that defendant was involved in criminal activity. The information provided here pertained to an address and a car. The car did not belong to defendant and it was never established that defendant was the only individual residing at 30 Kensington. The police did not immediately move to arrest defendant. Rather, they conducted surveillance and were content to let events unfold. As such, and because the defense did raise the issue of arbitrariness on the part of police, we reject defendant's contention that he was denied a fair trial as a result of a Bankston violation.
Defendant next challenges the court's ruling permitting the State to introduce a videotape of his testimony at Burgess' trial. Defense counsel objected to the admission of this testimony under N.J.R.E. 410. The court disagreed, finding the testimony was given after plea negotiations concluded and because defendant was under an obligation to tell the truth. Defense counsel then asked that portions of defendant's testimony where he discussed his plea deal be redacted. The prosecutor agreed.
The court decided to show the jury the entirety of defendant's direct testimony on November 29, 2007, which solely addressed the robbery at Cherry's Bar, and then allowed counsel time to determine what portions of defendant's cross-examination could be admitted. After defendant's direct testimony was played for the jury, defense counsel moved for a mistrial, arguing the tape was highly prejudicial and the defense had received no notice that the State was going to seek to introduce it. The court denied the motion, ruling the defense was aware of the existence of this tape and failed to make a motion to suppress.
Thereafter, defense counsel requested that the entire tape be played. The prosecutor opposed this request, maintaining that the portions referring to defendant's plea had to be redacted. The court agreed that it would be reversible error for those portions to be presented to the jury. Ultimately, only those portions of defendant's cross-examination pertaining to the robbery were shown to the jury.
N.J.R.E. 410 provides in pertinent part that
evidence of a plea of guilty which was later withdrawn, of any statement made in theThe purpose of this rule is to facilitate plea bargaining and encourage defendants to negotiate without fear that their statements will later be used against them. State v. Brabham, 413 N.J. Super. 196, 208 (App. Div.), certif. denied, 203 N.J. 440 (2010).
course of that plea proceeding, and of any statement made during plea negotiations when either no guilty plea resulted or a guilty plea was later withdrawn, is not admissible in any civil or criminal proceeding against the person who made the plea or statement or who was the subject of the plea negotiations.
In State v. Malik-Ismail, 292 N.J. Super. 590, 592 (App. Div. 1996), the defendant and a co-defendant were charged with several offenses, including first-degree murder. The defendant entered a plea agreement with the State, pursuant to which he agreed to give a statement to the prosecutor and to testify truthfully at the trial of his co-defendant. Ibid. The defendant subsequently pled guilty and, later that same day, gave an inculpatory statement to the prosecutor. Id. at 593. The prosecutor's office also interviewed the defendant on two other occasions seven months later in preparation for his trial testimony. Ibid.
When the prosecutor later learned the defendant had lied about being unarmed at the time of the murder, and he intended to lie at his co-defendant's trial, the prosecutor successfully moved to withdraw from the plea agreement. Id. at 592, 594. Thereafter, the trial court suppressed all of the defendant's plea and post-plea statements. Id. at 594.
On appeal, we affirmed the trial court's suppression of the statement made by the defendant on the same day he entered his guilty plea, ruling that this statement "should fairly be considered as part of the plea bargaining process and . . . within the bar of N.J.R.E. 410." Id. at 595. As to the statements made by the defendant seven months later, however, we were satisfied that N.J.R.E. 410 did not preclude their admission. Id. at 597-98. We explained that
Federal Evidence Rule 410, which is the source rule of N.J.R.E. 410, originally had proposed language which would cover this situation; namely, precluding statements made as a "consequence of such pleas or plea discussions." See Preliminary Draft of Proposed Amendments to the Federal Rules of Evidence, 77 F.R.D. 507, 610-612 (1978) (emphasis added); see also Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee comment to N.J.R.E. 410 (1995) (noting that N.J.R.E. 410 "generally follows Fed.R.Evid. 410"). This proposed language was not placed in the federal or State rule.
[Id. at 597.]
We further observed that, if the defendant were harmed by the introduction of these statements, it was due to his breach of his promise to tell the truth. Id. at 598. We found defendant had, in essence, simply "stubbed his toe." Ibid.
Defendant now insists that Malik-Ismail is not controlling here because his testimony in the Burgess matter was a necessary part of his plea agreement, while the defendant in Malik-Ismail was not required to be interviewed by the prosecutor's office as part of his plea agreement. Additionally, defendant points out that, unlike the defendant in Malik-Ismail, whose untruthful statement lessened his own role in the crime, defendant's "inconsistent" testimony related only to Burgess' participation in the robbery. Defendant thus urges that the admission of his prior testimony in the Burgess matter did not serve the purpose of undercutting his credibility, as was the case in Malik-Ismail. Lastly, defendant argues that, because of the trial court's erroneous decision to admit his prior testimony, he was forced to explain to the jury why he had previously pled guilty. We are not persuaded by these arguments.
The critical factor here is that defendant's testimony in the Burgess matter was offered long after his plea negotiations had been concluded and his deal achieved. N.J.R.E. 410 does not preclude statements made as a "consequence" of a plea agreement. Exclusion of this testimony would not have served the purpose of encouraging compromise for which N.J.R.E. 410 was adopted. See United States v. Davis, 617 F.2d 677, 686 (D.C. Cir. 1979) (inculpatory statements made by the defendant before grand jury pursuant to a plea agreement deemed admissible despite the defendant's subsequent withdrawal from the agreement before entering his plea of guilty), cert. denied, 445 U.S. 967, 100 S. Ct. 1659, 64 L. Ed. 2d 244 (1980).
The fact of the matter is that defendant voluntarily decided to violate his plea agreement. If his testimony at the Burgess trial had been excluded, he would have accomplished this breach with impunity. As we noted in Malik-Ismail, our criminal justice system does not operate to protect a defendant from the consequences of his own wrongdoing in his dealings with the State. Supra, 292 N.J. Super. at 598. Defendant was not prejudiced by the jury viewing portions of his testimony at the Burgess trial, as any reference to his prior guilty plea was redacted.
Defendant next contends the court erred in denying his motion for a judgment of acquittal with respect to counts twenty-eight (Duran) and twenty-nine (Soriano) at the Domingo Hair Salon, thirty (Montano) and forty-two (Tucker) at the Virginia Bar Tavern, and sixty-four (Kim Murray) and sixty-five (Sophia McCoy) at Monique's Technique's. We agree with defendant that counts twenty-eight, twenty-nine, forty-two, and sixty-four should have been dismissed, and direct a remand for dismissal of those counts.
At the close of the State's case, defense counsel moved for a judgment of acquittal as to all remaining counts of the indictment, arguing that the State had failed to meet its burden of proof. The court denied this motion, ruling that the statements made by defendant to police, if believed by the jury, provided "sufficient grounds for each and every charge remaining in the indictment."
In ruling upon a motion for a judgment of acquittal at the close of the State's case, the test to be applied is
whether the evidence viewed in its entirety and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.See also State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)) ("In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'").
[State v. Moffa, 42 N.J. 258, 263 (1964).]
The elements of robbery under N.J.S.A. 2C:15-1 are:
"(1) theft or attempted theft; (2) intimidating or assaultive conduct consisting of (a) inflicting bodily injury upon another or (b) threatening another with or purposely putting him in fear ofRobbery is a crime of the first degree if "in the course of committing the theft the actor attempts to kill anyone, or purposely inflicts or attempts to inflict serious bodily injury, or is armed with, or uses or threatens the immediate use of a deadly weapon." N.J.S.A. 2C:15-1(b).
immediate bodily injury or (c) committing or threatening immediately to commit any crime of the first or second degree [or (d) using force upon another person]; (3) the intimidating or assaultive conduct must have occurred during the theft or attempted theft or in immediate flight after the theft or attempted theft; and (4) defendant must have acted purposely."
[State v. Lopez, 187 N.J. 91, 98 (2006) (quoting State v. Farrad, 164 N.J. 247, 257 (2000)).]
A prerequisite for a robbery is a theft or an attempted theft. Farrad, supra, 164 N.J. at 257; State ex rel. L.W., 333 N.J. Super. 492, 497 (App. Div. 2000). Theft is generally defined as the unlawful taking or exercise of unlawful control over property of another with the intent to deprive him or her thereof. State v. Carlos, 187 N.J. Super. 406, 412 (App. Div. 1982), certif. denied, 93 N.J. 297 (1983); N.J.S.A. 2C:20-3. One who attempts to commit a theft, with the aggravating circumstances for a robbery being present, is guilty of robbery under N.J.S.A. 2C:15-1. State v. Schenck, 186 N.J. Super. 236, 240 (Law Div. 1982).
Where a criminal event involves more than one victim, a full set of separable elements is necessary for each robbery charge arising out of that event. State v. Sewell, 127 N.J. 133, 137-38 (1992). Each charge of robbery requires its own theft or attempted theft and its own force or threat of force. Ibid.; accord State v. Lawson, 217 N.J. Super. 47, 51 (App. Div. 1987) (concluding every "robbery conviction must be premised upon a separate theft"). In order to achieve a single robbery, however, the person injured or threatened does not have to be the same as the person from whom there was a theft. State v. Mirault, 92 N.J. 492, 497, 499 (1983).
Defendant argues the court should have dismissed count forty-two because no proof was presented that anything was stolen from Tucker at the Virginia Bar Tavern. Our review of the record confirms that neither Cuozze nor Keelan testified that the perpetrators attempted to steal or actually stole anything from Tucker. Since defendant was charged with multiple counts of armed robbery in connection with this criminal event, the State was required to present a full set of separable elements for each charge. See Sewell, supra, 127 N.J. at 137-38 (where there was only a single theft, defendant's infliction of physical harm on three separate persons while escaping did not create three separate robberies); Carlos, supra, 187 N.J. Super. at 416-17 (the presence of two threatened bystanders during theft from two other persons did not convert two robberies to four). Because the State failed to prove that Tucker was also the victim of a theft or an attempted theft, we reverse defendant's conviction on count forty-two.
Defendant makes a similar argument with respect to counts twenty-eight, twenty-nine, and thirty because Hatcher did not testify that Duran, Soriano, or Montano, the three victims named in these counts, were present at the time of, or victims of, the armed robbery of the Santo Domingo Hair Salon. These were the only armed robbery counts arising out of the criminal incident at the salon, and defendant is correct that these supposed victims never testified or were identified in any way at trial. There was no proof presented that these individuals were present at the salon at the time of the robbery or had items stolen from them. As such, it appears that at least two of these counts should have been dismissed. However, given defendant's confession, it was appropriate for one count of armed robbery to have gone to the jury in connection with this incident. Accordingly, we reverse defendant's convictions on counts twenty-eight and twenty-nine.
As to counts sixty-four and sixty-five, defendant argues the record did not confirm that either Murray or McCoy were present at Monique's Techniques when the armed robbery occurred. Once again, these were the only armed robbery counts arising out of the criminal incident at that salon, and defendant is correct that these supposed victims never testified. Moreover, Murray was never identified in any way at trial, and there was no proof presented that Murray was present at the salon at the time of the robbery or had items stolen from her. Under these circumstances, count sixty-four should have been dismissed.
As to count sixty-five, however, Lanier did testify that her stylist was named "Sophia." The jury could have inferred that Lanier's "Sophia" was Sophia McCoy and that her workstation was one of those searched for money. Accordingly, count sixty-five was arguable sustainable.
We turn now to defendant's challenge to his sentence. He contends the court erred in imposing two consecutive maximum terms of imprisonment based upon a faulty assessment of the applicable aggravating and mitigating factors, and without performing the necessary analysis under State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). We are not persuaded by these arguments.
The judge found aggravating factors #l (the nature and circumstance of the offense), N.J.S.A. 2C:44-1(a)(1), #3 (the risk that defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3), and #9 (the need for deterrence), N.J.S.A. 2C:44-1(a)(9). He found a single mitigating factor, namely, defendant's lack of a prior history of delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7).
The court explained:
I find aggravating factor number one. During some of the incidents the victims were bound, the victims were struck with weapons, the victims had guns placed to their heads, children had guns placed to their heads, children were threatened. I think the nature of some of these incidents clearly show [aggravating factor one].He sentenced defendant to two consecutive twenty-year sentences subject to NERA and numerous concurrent sentences, which included the four counts we have dismissed.
I find aggravating factor number three. This incident happened on separate dates over a four-month period of time. The defendant entered into a plea bargain . . . believing he was locked into a very good deal agreeing to testify against the codefendant who had an extremely bad record.
He contradicted his plea allocution at the time and the defendant, I believe, was calculating that the State could not take back their plea offer and he could do anything he wanted. I think that shows that he is more likely to re-offend again.
I find aggravating [factor] number nine, defendant must clearly be deterred from re-involvement. It appears from his attitude and actions the only means of deterring him is incarceration.
So I found aggravating factors three, nine, and one.
I do find mitigating factor number seven, but I must give this little or no weight. He confessed basically to 19 armed robberies, . . . this Court heard the Miranda testimony involving his statements and the taking of his statements and the voluntariness of those statements.
Now, clearly, he has not been convicted of . . . that number of cases. But this Court is aware that he actually confessed to those number of cases, which again shows me that he's more likely to be re-involved in criminal activities in the future, and, therefore, mitigating factor seven is so far outweighed by the . . . aggravating factors.
Defendant first argues that the judge erred in disregarding the contents of defendant's presentence report (PSR) in finding aggravating factors three and nine. He notes the PSR indicated: (1) he violated the terms of his plea agreement not because he was calculating, but because he had received threats of physical assault in the event he testified against Burgess; and (2) defendant was prevailed upon to participate in the robberies by local gang members.
The trial judge was not obligated to accept the assertions made by defendant to justify his actions. Nothing in the record indicates that defendant made the judge aware of the threats he had supposedly received before he took the stand in the Burgess trial. Notably, the same judge presided over both his trial and the Burgess trial. Additionally, in the PSR, defendant actually admitted that he initially agreed to participate in the group robberies because he needed money to pay his bills. It also cannot be ignored that defendant confessed to committing many crimes on his own, thereby further belying his assertion that all of his criminal activity was at the behest of others.
Defendant next argues the facts do not warrant aggravating factor #1 and urges that the court should have found mitigating factors #3 (acted under strong provocation), N.J.S.A. 2C:44-1(b)(3), #4 (there were substantial grounds tending to excuse or justify defendant's conduct), N.J.S.A. 2C:44-1(b)(4), #8 (that his conduct was the result of circumstances unlikely to recur), N.J.S.A. 2C:44-1(b)(8), and #13 (he was influenced by another person more mature than defendant, N.J.S.A. 2C:44-1(b)(13).
In performing its review of a sentence, we avoid substituting our judgment for the judgment of the trial court. State v. O'Donnell, 117 N.J. 210, 215 (1989); State v. Roth, 95 N.J. 334, 365 (1984). We are satisfied the judge here made findings of fact regarding aggravating and mitigating factors that were based on competent and reasonably credible evidence in the record, applied the correct sentencing guidelines enunciated in the Code, and the application of the factors to the law do not constitute such clear error of judgment as to shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-16; State v. Jarbath, 114 N.J. 394, 401 (1989). Accordingly, we discern no basis to second-guess the sentence.
We also discern no error in the judge's imposition of consecutive sentences. We are satisfied the judge performed the appropriate analysis under Yarbough, supra, 100 N.J. at 630. As the judge noted, defendant was convicted of nine different incidents, but he had confessed to nineteen different incidents; the trial involved a series of armed robberies over a four-month period, which originated with several defendants, two of which had long records; and defendant then started to proceed on his own to another series of individual robberies. The judge further explained that based upon his actions defendant should have received additional consecutive sentences, but "[t]he fact that he had no prior incidents was a weighing factor" which militated in favor of only two consecutive sentences.
The court's denial of defendant's pretrial severance motion is irrelevant to this determination. The motion was denied not because the crimes were not separate acts, but because the crimes were part of an overall scheme and had a nexus to one another as they were committed by the same group of individuals, and evidence of all of the crimes would have been admissible at a trial of any one of the crimes. R. 3:7-6.
We reverse defendant's convictions on counts twenty-eight, twenty-nine, forty-two, and sixty-four, and remand for correction of the judgment of conviction; we affirm the balance of defendant's convictions and sentences.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION