MARIE T. PINO VS. JOSE R. POLANCOÂ (L-1744-13, CAMDEN COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0527-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JERMAINE EASON, a/k/a JULITO
EASON and JERMAINE JULITO,
Defendant-Appellant.
_________________________________
Submitted April 24, 2017 – Decided May 4, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
11-08-0754.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Tom Dominic Osadnik,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Jermaine Eason appeals from an August 31, 2015
judgment of conviction for third-degree unlawful possession of a
handgun and from his custodial sentence. He raises the following
arguments:
POINT I
CERTAIN CONDUCT BY THE PROSECUTOR WAS GROSSLY
PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR
TRIAL.
POINT II
IT WAS ERROR FOR THE COURT TO FAIL TO SANITIZE
THE DEFENDANT'S PRIOR CONVICTION.
POINT III
THE SENTENCE OF FIVE (5) YEARS WITH TWO AND
ONE HALF (2 1/2) YEARS OF PAROLE INELIGIBILITY
WAS EXCESSIVE AND SHOULD BE MODIFIED AND
REDUCED. (Not raised below).
For the reasons that follow, we affirm.
In August 2011, a Passaic County grand jury charged defendant
with one count of second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (count one), and one count
of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b) (count two). At trial, a jury acquitted defendant of the
first count and convicted him of the second. On August 31, 2015,
a judge sentenced defendant to a five-year prison term and imposed
a two and one-half year period of parole ineligibility in
accordance with N.J.S.A. 2C:43-6(b). The judge also ordered
defendant to pay appropriate fines and assessments. Defendant
appealed.
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The State developed the following proofs at trial. At
approximately 2:30 p.m. on March 30, 2011, Officer Frank Narvaez
was off-duty and getting a haircut at a barber shop on Market
Street in Paterson. As he looked out the window, he "observed a
male wearing a red hooded sweatshirt" walking down Market Street
towards Summer Street. The man, later identified as defendant,
reached into his waistband, pulled out a large black handgun, and
pointed it at a man working on his car. Officer Narvaez exited
the barber shop and defendant began walking quickly towards Summer
Street.
Once outside, Officer Narvaez approached the man working on
his car. The man said, a "black man pointed a handgun at [me]."
After speaking with the man, Officer Narvaez entered his personal
vehicle, put on his police badge, and followed defendant. As he
approached the Summer Street intersection, the officer observed
defendant cross the street in his direction towards Park Avenue.
Officer Narvaez exited his vehicle, took out his service weapon,
and approached defendant. Defendant turned to face the officer
when the two were approximately ten feet from each other.
Officer Narvaez announced, with his weapon drawn, "police,
police, show me your hands." In response, defendant pulled out
his handgun and pointed it directly at the officer as he continued
to walk across the street. Fearing for his life, Officer Narvaez
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discharged his firearm, but did not know whether the rounds hit
defendant. Defendant began to run but continued to point his
weapon at the officer. As defendant ran, he tossed his gun to the
ground and then dropped to the ground himself. Defendant spread
his arms and legs on the ground as Officer Narvaez placed his foot
on defendant's back to hold him down until backup arrived.
The Passaic County Sheriff's Department and other law
enforcement officers responded. Sheriff's Detective Jason Barbier
testified he took Officer Narvaez's firearm from Paterson Police
Officer Cruz. A few feet away from Officer Cruz, Detective Barbier
recovered a black air gun. Detective Barbier removed the cartridge
from the air gun and placed both weapons in separate boxes.
Defendant elected to testify. The court held a Sands/Brunson1
hearing to determine the scope of the admissibility of defendant's
2010 third-degree theft conviction, for which defendant received
a 737-day county jail sentence. At the hearing, defense counsel
argued the conviction should have been "sanitized" because the
theft charge allowed the jury to draw inferences about defendant's
current weapons charges. Specifically, defense counsel believed
the jury could infer defendant pointed the gun at the man working
on his car in an attempt to rob him.
1 State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J.
377 (1993).
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The judge admitted defendant's prior conviction for purposes
of impeachment, and found that the theft was distinct from the
weapons offenses. Accordingly, the judge declined to sanitize the
conviction, but limited the description of the prior offense to
"theft" rather than "theft from a person."
Defendant's testimony contradicted the State's proofs.
Defendant testified he was walking to a grocery store on Market
Street with his friend, Qua. During their walk, defendant
encountered Luis Bonilla, someone with whom he had "problems" in
the past. According to defendant, Bonilla "hopped" out of his
truck and grabbed defendant by the arm. Defendant "snatched" his
arm away. He feared Bonilla had a knife in his pocket because he
knew him to carry knives. Although Bonilla never brandished a
knife, defendant flashed the handle of a BB gun. Bonilla "stopped"
and defendant put the BB gun "back in" before continuing towards
Summer Street.
When defendant and Qua reached the intersection of Summer
Street and Park Avenue, a white Acura drove across the sidewalk
and cut them off. An unknown Spanish man, who defendant later
learned was Officer Narvaez, got out of the car with a gun in
hand. Defendant did not hear Officer Narvaez say anything, and
did not observe a badge around the officer's neck. Defendant
thought the officer was one of Bonilla's "boys." Believing he was
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going to be shot, defendant ran up Park Avenue and was shot in the
back of his arm. While he ran, his BB gun fell out of his pocket.2
After he fell to the ground, Officer Narvaez placed his foot on
defendant's back. Additional officers arrived, and defendant was
transported to a local hospital for medical treatment where he
remained for six days.
At trial, the prosecutor made several remarks which defendant
contends deprived him of a fair trial. In her opening statement,
the prosecutor said, "[w]hat is uncontested in this case [is] that
defendant does not have a permit to carry this handgun and that
defendant was in possession of this handgun." Defense counsel did
not object. Next, the prosecutor asserted Officer Narvaez and two
other law enforcement officers were "very and extremely credible
witnesses." Defense counsel objected to this statement, alleging
it was improper for the prosecutor to comment on the credibility
of her witnesses. Defense counsel did not believe a curative
instruction was an appropriate remedy and instead moved for a
mistrial. In response, the prosecutor explained she intended her
comment to explain the concept of credibility to the jury. She
suggested the judge provide a curative instruction in lieu of
declaring a mistrial.
2 Defendant testified he did not have a permit to carry the BB
gun.
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The judge denied defendant's application for a mistrial and
gave the following curative instruction:
All right. Ladies and gentlemen . . . toward
the end of [the prosecutor's] opening
statement, there was a comment in terms of the
State calling . . . three credible witnesses.
You're to disregard that comment. It is for
the jury to determine. As I've already
instructed you a few moments ago, you're the
judges of the facts and it's you, the jury,
that is to determine the credibility of
witnesses . . . . That's a function of the
jury. It's not a function of the [p]rosecutor
in this case, so you are to disregard that
comment. What the [p]rosecutor has said in
opening statements, as I've already told you,
is not evidence. The evidence will come from
the witnesses that testify as well as other
tangible evidence and written evidence that
may come in through the course of the trial.
And, again, with regard to . . . credibility
determinations, that's your role, entirely
your role, and so you're to disregard that
comment.
In the prosecutor's closing statement, she argued, "Officer
Narvaez, he had no interest. His actions were reviewed by another
proceeding. He doesn't have an interest in the outcome of this
case." Defense counsel did not object to this comment.
On appeal, defendant first contends the prosecutor's comments
during her opening and closing deprived him of a fair trial. We
disagree.
It is well settled that "prosecutors, as lawyers, are engaged
in an oratorical profession" and given "latitude for forceful and
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graphic advocacy." State v. Reddish, 181 N.J. 553, 640 (2004)
(citations omitted). As such, courts afford prosecutors
"considerable leeway" in opening and closing statements. State
v. Timmendequas, 161 N.J. 515, 577, 587 (1999), cert. denied, 534
U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Nonetheless,
"prosecutors should not make inaccurate legal or factual
assertions during a trial and . . . must confine their comments
to evidence revealed during the trial and reasonable inferences
to be drawn from that evidence." Reddish, supra, 181 N.J. at 641(quoting State v. Smith, 167 N.J. 158, 178 (2001)).
A prosecutor's comments justify reversal only when they are
"clearly and unmistakably improper" and "substantially prejudice[]
defendant's fundamental right to have a jury fairly evaluate the
merits of his defense." Timmendequas, supra, 161 N.J. at 575(citations omitted). In assessing whether a prosecutor's remarks
deprived defendant of a fair trial, courts "consider the tenor of
the trial and the responsiveness of counsel and the court to the
improprieties when they occurred." Ibid. (citing State v.
Scherzer, 301 N.J. Super. 363, 433 (App. Div.), certif. denied,
151 N.J. 466 (1997)). Thus, "an appellate court must consider (1)
whether defense counsel made timely and proper objections to the
improper remarks; (2) whether the remarks were withdrawn promptly;
and (3) whether the court ordered the remarks stricken from the
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record and instructed the jury to disregard them." State v. Frost
158 N.J. 76, 83 (1999) (citations omitted).
We turn first to the prosecutor's characterization of her law
enforcement witnesses as "very and extremely credible." This
statement was improper and the prosecutor's explanation for making
the improper remark is hardly credible. Nonetheless, we are unable
to conclude the remark deprived defendant of a fair trial.
"A prosecutor may argue that a witness is credible but may
not personally vouch for the credibility of a State witness or
suggest that the witness's testimony has been 'checked out,'
thereby referring to matters outside the record." Scherzer, supra,
301 N.J. Super. at 445 (quoting State v. Marshall, 123 N.J. 1, 156
(1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.
2d 694 (1993)). See also State v. Staples, 263 N.J. Super. 602,
605 (App. Div. 1993) (stating prosecutors cannot express their own
beliefs regarding the truthfulness of their witness's testimony).
When proper curative instructions are given, however, we "act on
the belief and expectation that jurors will follow the instructions
given them by the court." State v. T.J.M., 220 N.J. 220, 237
(2015) (citations omitted). Here, the trial court gave a prompt
curative instruction.
In addition, defendant admitted to possessing the BB gun
without a permit to carry, and the jury acquitted him of possessing
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a weapon for an unlawful purpose. Defendant does not discuss how,
in view of his admission and the jury's verdict, he was deprived
of a fair trial.
We reach the same conclusion concerning the prosecutor's
opening remark that defendant's possession of a gun was
uncontested, and the prosecutor's remarks during summation that
Officer Narvaez had no interest in the case or its outcome, and
his actions were reviewed in another proceeding.
The prosecutor's comments concerning the officer's interest
were made in response to defendant's argument "that Narvaez also
has an interest and he has a bias and he testified before you and
we're going to look at his testimony and we're going to carefully
examine it." Defendant could not reasonably expect that the
prosecutor would not respond to the attack on the officer's
credibility.
The prosecutor should not have stated in her opening, before
any evidence was presented, that the possessory offense was
uncontested. Her comment in summation about another proceeding
was equally improper. Nonetheless, defendant did not object to
these comments. "Generally, if no objection was made to the
improper remarks, the remarks will not be deemed prejudicial."
Timmendequas, supra, 161 N.J. at 576 (citation omitted).
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Therefore, "defendant must demonstrate plain error to prevail."
Ibid. (citation omitted).
As we previously noted, defendant admitted to the possessory
offense and the jury acquitted him of possessing a weapon for an
unlawful purpose. Considering defendant's admission, his failure
to make timely objections, and the outcome of the trial, we
conclude the prosecutor's remarks, though improper, were not
clearly capable of producing an unjust result. R. 2:10-2.
We next turn to defendant's contention the trial court
improperly failed to sanitize his prior third-degree theft
conviction. Defendant contends the jury might infer from the
circumstances surrounding his weapons charges that he was
attempting to commit a theft and his weapons charges were thus
similar to his prior theft conviction. Based on that reasoning,
defendant argues the judge should have eliminated the substantive
word "theft" when referencing his prior conviction. In raising
this argument, defendant alleges the trial court failed to
recognize its authority to fully sanitize his conviction. We
disagree.
"Our rules of evidence allow a witness's prior convictions
to be admitted for impeachment purposes despite the obvious
prejudice that flows from such evidence, particularly for a
criminal defendant." State v. Hamilton, 193 N.J. 255, 256 (2008);
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see also N.J.R.E. 609. However, in cases where "a testifying
defendant previously has been convicted of a crime that is the
same or similar to the offense charged, the State may introduce
evidence of the defendant's prior conviction limited to the degree
of the crime and the date of the offense but excluding any evidence
of the specific crime of which [the] defendant was convicted."
State v. Brunson, 132 N.J. 377, 391 (1993). In other words,
similar prior convictions must be "sanitized," "allowing the jury
to learn only limited information about the conviction." Hamilton,
supra, 193 N.J. at 257 (citation omitted). "Sanitization protects
a defendant from the risk that a jury will be influenced by
knowledge of the prior conviction for the same or a similar offense
when determining whether to convict the defendant on the new
charge." Ibid. (citation omitted).
Expanding upon the Brunson rule for prior similar
convictions, the Court in Hamilton held trial courts have
"discretion to consider sanitization of prior conviction evidence
in any other circumstances that posed a risk of undue prejudice
to a defendant." Id. at 269.
Here, the trial court acknowledged it was "within the realm
of possibility" that defendant's present offense could create an
inference of theft. The judge explained that he "listened to the
[trial] testimony [and] didn't hear anything about a potential
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robbery or theft." As a precaution, the judge nevertheless
sanitized defendant's prior theft conviction to the extent it
referred to a person. Thus, on direct examination, the following
colloquy occurred between defendant and his attorney:
[Defense Counsel:] Now, [defendant], you were
convicted of the crime of theft on July [29],
2011 and you received time served, 737 days
in the Passaic County Jail, is that correct?
[Defendant:] Yes.
Because no witness suggested defendant attempted to rob
Bonilla, it is difficult to conceive how jurors would have drawn
an inference that defendant's weapons offenses were similar to a
theft. For that reason, and for those previously explained
concerning the jury's verdict, the judge's error, if any, was
harmless. R. 2:10-2.
Lastly, defendant challenges his sentence as excessive and
contends the trial judge abused his discretion by imposing a period
of parole ineligibility under N.J.S.A. 2C:43-6(b). Defendant
argues the judge unjustifiably relied upon aggravating factors
three, the risk that defendant will commit another offense,
N.J.S.A. 2C:44-1(3); and six, the extent of defendant's prior
criminal record and the seriousness of his present convictions,
N.J.S.A. 2C:44-1(6).
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An appellate court reviews a sentence under a deferential
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). Under that
standard, "[a]n appellate court is bound to affirm a sentence,
even if it would have arrived at a different result, as long as
the trial court properly identifies and balances aggravating and
mitigating factors that are supported by competent credible
evidence in the record." State v. O'Donnell, 117 N.J. 210, 215
(1989) (citing State v. Jarbath, 114 N.J. 394, 400-01 (1989)).
Here, the trial judge found aggravating factor three based
on defendant's prior juvenile and municipal CDS offenses, his
prior indictable theft conviction, his drug use and marijuana
abuse, and his failure to complete school or maintain employment.
The judge found aggravating factor six because he believed
defendant's present conviction was serious, "notwithstanding that
it[] [involved] a BB gun." The judge also based aggravating factor
six on defendant's criminal record. From the judge's thorough
review of defendant's circumstances at sentencing, we find no
abuse of discretion in the decision to consider aggravating factors
three and six. The judge's findings are amply supported by the
record.
Regarding defendant's period of parole ineligibility, "[t]he
sentencing court, when 'clearly convinced that the aggravating
factors substantially outweigh the mitigating factors,' may
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sentence a defendant to 'a minimum term not to exceed one-half of
the term' allowed by the statute." State v. Case, 220 N.J. 49,
65-66 (2014) (quoting N.J.S.A. 2C:43-6(b)). In imposing such a
sentence, "the court must 'specifically place on the record the
aggravating factors . . . which justify the imposition of a minimum
term.'" Id. at 66 (quoting N.J.S.A. 2C:44-1(f)(1)).
Here, the trial judge thoroughly explained his reasons for
finding the aggravating factors, and was "clearly convinced that
the aggravating factors substantially outweigh[ed] any non-
existent mitigating factors." He properly exercised his
discretion by imposing a minimum term that did not exceed one-half
of defendant's overall custodial sentence.
Affirmed.
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