STATE OF NEW JERSEY VS. THOMAS I. MOORE (17-10-2812, ESSEX COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE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-1872-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
THOMAS I. MOORE,
Defendant-Appellant.
Argued February 24, 2021 – Decided March 22, 2021
Before Judges Fuentes, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Indictment No. 17-10-2812.
Susan L. Romeo, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Susan L. Romeo, of counsel
and on the brief).
Barbara A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the cause
for respondent (Theodore N. Stephens, II, Acting Essex
County Prosecutor, attorney; Barbara A. Rosenkrans,
of counsel and on the brief).
PER CURIAM
A jury convicted defendant Thomas I. Moore of armed robbery,
conspiracy to commit robbery, and related weapons offenses for his involvement
in the attempted theft of a man who was never identified. But the crime was
witnessed by law enforcement officers who were in the area conducting
surveillance of a home on Franklin Avenue in Newark (Franklin home). During
the short trial, the State presented the testimony of two detectives who witnessed
the crime, and another who arrested defendant when he returned to the Franklin
home shortly thereafter. Defendant testified but did not present the testimony
of the witnesses named in his alibi notice. Following his convictions, defendant
pled guilty to two additional robberies and was thereafter sentenced to an
aggregate twenty-five-year prison term. He must serve eighty-five percent of
that term under the No Early Release Act, N.J.S.A. 2C:43-7.2.
Defendant now appeals, raising the following points for our consideration:
POINT I
DEFENDANT WAS DENIED A FAIR TRIAL BY
THE CUMULATIVE EFFECT OF THE
PROSECUTOR'S IMPROPER CROSS-
EXAMINATION AND ARGUMENTS RELATING
TO THE TIMING AND CONTENTS OF
DEFENDANT'S NOTICE OF ALIBI AND THE
ALLEGEDLY MISSING WITNESSES LISTED
THERE.
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(Not raised below).
[A]. The Prosecutor's Questions And
Argument To The Jury Regarding The
Notice Of Alibi Violated Defendant's Right
To Silence.
[B]. The Prosecutor's Questions And
Argument To The Jury Regarding The
Notice Of Alibi Witnesses Who Did Not
Testify Impermissibly Shifted The Burden
Of Proof To Defendant.
[C]. The Prosecutor Committed Gross
Misconduct With Summation Comments
On The Notice Of Alibi And The Allegedly
Missing Witnesses That Denigrated The
Defense, Urged Jurors To Render A
Decision Based On Personal Emotion And
Inconvenience, And Shifted The Burden
Of Proof To Defendant.
[D]. The Cumulative Effect Of The
Prosecutor's Improper Questioning And
Argument Regarding Defendant's Notice
Of Alibi And Its Contents Was Plain Error.
POINT II
DEFENDANT'S SENTENCE ON [THE UNLAWFUL
POSSESSION OF A WEAPON CONVICTION]
MUST BE REVERSED, BECAUSE HIS EIGHT-
YEAR SENTENCE WITH A FOUR-YEAR
MINIMUM TERM FOR A FOURTH-DEGREE
CRIME UNDER N.J.S.A. 2[C]:39-5(d) WAS
ILLEGAL, AND BECAUSE THE COURT
IMPROPERLY IMPOSED A CONSECUTIVE
SENTENCE FOR UNLAWFUL POSSESSION OF A
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WEAPON, WITH NO FINDING THAT THE
CONSECUTIVE SENTENCE WAS WARRANTED
UNDER THE YARBOUGH1 FACTORS.
We reject the belated contentions raised in point I and affirm defendant's
convictions. However, we are compelled to remand the matter for resentencing
because the trial court: (1) improperly sentenced defendant to serve a term of
imprisonment within the second-degree range on his fourth-degree unlawful
possession of a weapon conviction; and (2) imposed consecutive terms of
imprisonment without conducting the analysis required under Yarbough, 100
N.J. 643-44.
I.
Following a string of robberies that occurred between May 20 and June 4,
2017, defendant was charged in a nineteen-count Essex County indictment with:
four counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2
and 2C:15-1 (counts one, five, nine, and fifteen); first-degree armed robbery,
N.J.S.A. 2C:15-1 (counts two, six, ten, and sixteen); third-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (counts three, seven, eleven,
and seventeen); second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a) (counts four, eight, twelve, and eighteen); fourth-degree
1
State v. Yarbough, 100 N.J. 627 (1985).
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aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts thirteen and fourteen); and
third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count nineteen).
Defendant's sister, Shalina2 was charged in the same indictment with counts nine
through twelve, and nineteen. Shalina's boyfriend, Zachery Hoger, was charged
with counts one through eight, fifteen through eighteen, and nineteen. 3
In September 2018, defendant was tried separately from Hoger on counts
fifteen through eighteen, renumbered as counts one through four for trial. We
summarize the trial testimony, prosecutor's summation, and jury instruction that
are pertinent to defendant's belated assertions of prosecutorial misconduct raised
in point I.
Around 9:30 p.m. on June 4, 2017, about one dozen plainclothes
detectives in three unmarked police cars established surveillance of the Franklin
home in anticipation of "effectuat[ing] a legal process."4 The Franklin home
2
Because defendant and Shalina share the same surname, we use Shalina's first
name to avoid confusion. We intend no disrespect in doing so.
3
The record on appeal does not indicate the disposition of the charges agains t
Shalina and Hoger; they are not parties to this appeal.
4
Prior to the commencement of testimony, the trial court granted the
prosecutor's application to substitute the term, "legal process" for "search
warrant" and to lead the detectives in view of the prior mistrial in that regard.
The court denied the prosecutor's application to elicit testimony from the
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was located in the Stephen Crane Village housing complex in Newark near the
Belleville border. The detectives were assigned to the Newark Police
Department, Belleville Police Department, and Essex County Sheriff's Office. 5
At trial, the State presented the testimony of Belleville Police Detectives David
Sheridan and Michael Agosta, and Newark Police Detective Philip Turzani.
Sheridan, Turzani and another detective were in a car located directly in
front of the Franklin home; Agosta was in another vehicle parked "just south of"
the Franklin home. Both Sheridan and Agosta testified that they saw defendant
and Hoger exit the front door of the home a few times, look to their left and right
on Franklin Avenue, then reenter the Franklin home. When defendant and
Hoger came outside the final time, they noticed another man walking
southbound on Franklin Avenue. This time, defendant and Hoger reentered the
Franklin home and exited through the back door. Detectives stationed in another
(continued)
detectives that they had viewed defendant's photograph prior to establishing
surveillance. Instead, the court permitted the State "to present testimony
through the officers of what they observed that day, what they communicated,
[and] what they said to the other officers."
5
Three departments participated in the search warrant's execution because the
affidavit was based on information that defendant and Hoger had committed
multiple robberies in Newark and Belleville. That information was not disclosed
to the jury, which instead was advised that the crime occurred in Newark on the
border of Belleville.
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police car at the rear of the home radioed the others that defendant now appeared
to be limping.
Agosta saw defendant "pull[] out a long style rifle from the right side of
his pant leg . . . [and] point[] the rifle up at . . . the male that they saw walking
originally." Agosta and the other detectives in his car proceeded on foot in their
direction. Agosta heard defendant or Hoger tell the unidentified man: "Stop.
Give me your shit." Sheridan and Agosta testified they were certain defendant
held the weapon; both detectives identified defendant in court.
When the detectives approached defendant and Hoger, defendant
"dropped the weapon and then proceeded back northbound into the complex,"
which is "kind of a maze." Hoger was arrested in the complex. The officers
recovered a BB gun at the scene. Defendant was not apprehended until about
fifteen to twenty minutes later, when he entered the Franklin home through the
back door. At that point, Turzani and other detectives were executing the search
warrant at the Franklin home.
Both Sheridan and Turzani testified that defendant was "sweating" and
"breathing heavily" when he entered the Franklin home's back door. Sheridan,
who wrote the incident report, acknowledged on cross-examination that he did
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not include that description in the report. When the detectives asked defendant
for his address, he provided the Franklin home's address.
Defendant testified and denied he had been at the Franklin home on June
4, 2017 prior to his arrest. Instead, defendant claimed he was home "all day" at
the residence he shared with Adriana Gonzalez and the couple's two children
(Peabody home). Defendant asserted that he did not leave the Peabody home
until Gonzalez told him to leave following the couple's argument about
defendant's ex-girlfriend. Defendant walked "1.7" miles to the Franklin home,
where his parents lived with Shalina, Hoger, and defendant's other sister.
Arriving at "[a]bout 10:30" p.m., the walk took about "thirty, thirty-five
minutes." Defendant denied he was sweating. Defendant asserted he: "was
never in the vicinity of [the Franklin home] until after [he] left [the Peabody
home]"; "never was in possession of a BB gun"; "never was in the presence of
Zachery Hoger"; and "never committed any robberies."
Several weeks before trial, defendant served the State with a notice of alibi
pursuant to Rule 3:12-2(a).6 On cross-examination, after asking defendant about
6
The notice of alibi was not provided on appeal or admitted in evidence at trial.
During oral argument before us, we questioned appellate counsel about the
contents of the notice. Appellate counsel candidly acknowledged she was
unable to obtain a copy of the notice. Accordingly, defendant's merits brief
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his address and relationship with Hoger, the prosecutor established that the alibi
notice was dated August 5, 2018. The prosecutor then elicited testimony from
defendant that "it took [him] a year and two months to put down in writing where
[he] claim[ed he was] on the day of the incident." The prosecutor also asked:
"Now, in that document and in your testimony you indicate there were a number
of people present [at the] Peabody [home] on the day you were there . . .
includ[ing your] girlfriend?" Defendant responded: "My child's [sic] mother,
my kids, and her mother." The prosecutor then asked why Gonzalez and her
mother were not testifying and defendant responded that they were working.
Defense counsel posed no objections to that line of inquiry.
Prior to summations, outside the presence of the jury, the prosecutor
stated:
For the record, it's my understanding in the
case law that I am obligated to advise
defense counsel prior to my summation
that I intend to comment on the fact that
there were two alleged witnesses to . . .
defendant's alibi testimony, who have not
been produced. I am not asking for a
[Clawans]7 charge with regard to that. I'm
(continued)
relies upon the prosecutor's cross-examination as to the general contents of the
notice. We do the same.
7
State v. Clawans, 38 N.J. 162 (1962).
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merely indicating to the defense and to the
court that I intend to comment on the
failure of those witnesses to be called.
[D]efendant indicated that both of them are
at work, indicating that he had knowledge
of where they were and they were not
produced, and I intend to comment on that
upon my summation.
Defense counsel posed no objection and instead replied: "I received the
information. I understand that." After verifying that the two witnesses were
Gonzalez and her mother, Gladys Valentine, and having heard no objection from
the defense, the trial court granted the prosecutor's request.
During his summation, the prosecutor prefaced his remarks about
defendant's testimony by telling the jury defendant's "story" was "positively
absurd." The prosecutor then commented:
He doesn't have to testify, but once he testifies, you
judge him just like you would judge any other witness.
According to him, he's with two adults in a house or an
apartment, whatever you want to call it, 1.3, whatever
it is, miles away and I asked him, "Where are those
people, why aren't they here today?" [Defendant
replied:] "They're working." Guess what? All of you,
but for the fact that you received a notice from the court
to be here, would be working today too, if you're not
retired. [Defendant's witnesses could have been]
subpoenaed, just like you were, to be here, but neither
of them came here to verify the fact that he was on . . .
whatever the name of that street was, Peabody Street.
Neither of them. You didn't hear a word from anyone
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other than Mr. Moore, that he was in fact at that
address.
After recounting the detectives' testimony, and the omission from the
police report that defendant was "sweating and breathing heavy," the prosecutor
commented:
That report was written the day of or the day after the
incident. Mr. Moore signed his notice of alibi in
August of this year. So, the police had no idea at that
point that Mr. Moore was going to claim, "I wasn't even
there at the time of the robbery." So, the "sweating
profusely" and the "heaving beathing" wasn't especially
relevant until he finally told us in August of this year,
"No guys, you had it all wrong. I wasn't here. I was [at
the Peabody home]."
During the final instructions, the trial court closely followed the model
jury charge for alibi. Model Jury Charges (Criminal), "Alibi" (rev. May 12,
2008). Pursuant to that charge, the court informed the jury:
I instructed [sic] that Mr. Moore had no obligation to
provide an account of [sic] any time and there may be
many reasons for not doing so. You may not use the
testimony about when Mr. Moore first came forward to
affect his ability [sic] or to conclude that he violated
some obligation to come forward, because Mr. Moore
had no duty to speak on the subject with anyone.
Defense counsel raised no objections to the prosecutor's summation or
final jury charge.
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II.
A.
For the first time on appeal, defendant contends the prosecutor's cross-
examination and closing remarks, individually and cumulatively, "had the clear
capacity to bring about an unjust result." Because defendant did not object at
trial, the plain error standard applies. R. 2:10-2.
Initially, we consider defendant's arguments that the prosecutor
impermissibly questioned defendant about the timing of his alibi notice and
commented to the jury about that timing. In State v. Noble, we held a
prosecutor's repeated references to timing of the defendant's alibi notice did not
violate the defendant's right to remain silent, where the timing was used to
highlight inconsistencies between the factual assertions in the notice and the
defendant's trial testimony two days later. 398 N.J. Super. 574, 589-90 (App.
Div. 2008). Accordingly, the State may cross-examine a defendant on the late
filing of an alibi defense to highlight inconsistencies in his trial testimony, not
to "impale" a defendant on the failure to furnish the defense earlier. Id. at 592.
We therefore expect competent prosecutors to refrain from commenting on the
timing of defendant's alibi notice in the absence of some inconsistency.
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In the present case, defense counsel did not ask defendant who was home
with him on the day of the incident. Instead, counsel asked defendant why he
left the Peabody home. Defendant responded he had an argument with
Gonzalez, who asked him to leave. Defendant did not mention Gonzalez's
mother during his direct testimony, but expressly stated Valentine was present
at the Peabody home on cross-examination. That question was fair game by the
prosecutor. Nonetheless, we discern no inconsistency between defendant's
testimony and his alibi notice that would warrant the prosecutor to elicit the date
on which defendant signed the notice.
Nor are we convinced by the State's contention that the prosecutor's
comment in summation about the timing of defendant's alibi notice sought to
explain why the police report did not reflect that defendant was sweating
profusely and out of breath when he entered the Franklin home. Notably, the
prosecutor did not ask the detective why those details were omitted from his
report. In our view, the timing of defendant's alibi had no bearing upon the
detective's report. Stated another way, whether police believe a defendant will
later assert an alibi defense should not impact the officer's report of the crime.
Accordingly, there is no doubt that the prosecutor's cross-examination of
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defendant and closing remarks about the timing of defendant's alibi notice
violated the proscription we enunciated in Noble.
Despite having reached that conclusion, however, we are satisfied that the
prosecutor's errors do not warrant reversal of defendant's convictions. As stated,
defense counsel did not object at the time the prosecutor questioned defendant
or made the comment in summation. Although the question and remark clearly
were improper, they nevertheless were fleeting and not capable of bringing
about an unjust result. Crucially, "the prosecutor never argued that defendant's
alibi was untrue because he waited so long to furnish it." Noble, 398 N.J. Super.
at 591.
Moreover, the trial court properly instructed the jury pursuant to the model
charge for alibi that it may not consider defendant's testimony about when he
"first came forward," reinforcing defendant "had no duty to speak on the subject
with anyone." We presume the jury followed that instruction. State v. Smith,
212 N.J. 365, 409 (2012). We therefore conclude the errors did not have the
capacity to compromise the integrity of the trial. See State v. Elkwisni, 190 N.J.
169, 181 (2007).
We turn to the remainder of the prosecutor's closing remarks that
defendant now claims were prejudicial. Defendant contends the prosecutor
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improperly urged the jury "to question the absence of testimony from [his]
girlfriend and her mother." He further argues the prosecutor "deliberate[ly]
attempt[ed] to inflame [the] jurors against defendant" by commenting that his
alibi witnesses were at work, where they would likely be if they had not
"received a notice from the court to be here." And defendant claims the
prosecutor's remark that "the defense was 'positively absurd' also had no basis
in admissible evidence."
Defendant did not object to the comments now challenged, "suggest[ing]
that defense counsel did not believe the remarks were prejudicial at the time
they were made." State v. Frost, 158 N.J. 76, 84 (1999); see also State v.
Pressley, 232 N.J. 587, 594 (2018). "The failure to object also deprive[d] the
court of an opportunity to take curative action." Frost, 158 N.J. at 84.
"Generally, if no objection was made to the improper remarks, the remarks will
not be deemed prejudicial." State v. R.B., 183 N.J. 308, 333 (2005) (citation
omitted).
Moreover, New Jersey courts have long recognized prosecutors "are
afforded considerable leeway in making opening statements and summations."
State v. Williams, 113 N.J. 393, 447 (1988). They may even do so "graphically
and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988).
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"Prosecutors can sum up cases with force and vigor, and are afforded
considerable leeway so long as their comments are 'reasonably related to the
scope of the evidence presented.'" Pressley, 232 N.J. at 593 (quoting State v.
Timmendequas, 161 N.J. 515, 587 (1999)). "[I]f a prosecutor's arguments are
based on the facts of the case and reasonable inferences therefrom, what is said
in discussing them, 'by way of comment, denunciation or appeal, will afford no
ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State
v. Johnson, 31 N.J. 489, 510 (1960)).
Nonetheless, "the primary duty of a prosecutor is not to obtain convictions
but to see that justice is done." Smith, 212 N.J. at 402-03. A prosecutor's "duty
is to prove the State's case based on the evidence and not to play on the passions
of the jury or trigger emotional flashpoints, deflecting attention from the hard
facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88,
96 (2006). "A prosecutor must 'conscientiously and ethically undertak[e] the
difficult task of maintaining the precarious balance between promoting justice
and achieving a conviction,' ensuring that at all times his or her 'remarks and
actions [are] consistent with his or her duty to ensure that justice is achieved.'"
State v. Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (quoting
Williams, 113 N.J. at 447-48).
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Even if the prosecutor exceeds the bounds of proper conduct, that finding
does not end our inquiry "because, in order to justify reversal, the misconduct
must have been 'so egregious that it deprived the defendant of a fair trial.'"
Smith, 167 N.J. at 181 (quoting Frost, 158 N.J. at 83). "To justify reversal, the
prosecutor's conduct must have been clearly and unmistakably improper, and
must have substantially prejudiced defendant's fundamental right to have a jury
fairly evaluate the merits of his defense." Timmendequas, 161 N.J. at 575(internal quotation marks omitted); see also State v. Nelson, 173 N.J. 417, 460
(2002).
Prior to summations in the present case, the prosecutor properly advised
defense counsel and the court of his intention to comment that defendant failed
to produce the two witnesses named in his alibi notice and refrained from
seeking a Clawans adverse inference charge. See State v. Hill, 199 N.J. 545,
560-61 (2009) (generally disapproving of the use of a Clawans instruction
against defendants in a criminal trial but recognizing "[t]he procedure of prior
notification is . . . required whenever a party wishes to mention the inference
during closing argument"). Defense counsel raised no objection and we discern
no error in the prosecutor's comments on the absence of the alibi witnesses at
trial.
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Defendant's newly-minted objections to the prosecutor's remaining
comments require little comment. "It is well settled that prosecutors are not
permitted to cast unjustified aspersions on the defense or defense counsel."
State v. Rodriguez, 365 N.J. Super. 38, 50 (App. Div. 2003); see also Frost, 158
N.J. at 86. In context, however, the prosecutor's comment that defendant's
version of events was "positively absurd," while perhaps better avoided, was not
egregious or unfair and did not have the capacity to bring about a result the jury
might not otherwise have reached. See Timmendequas, 161 N.J. at 589-90.
After making the remark, the prosecutor commented on defendant's failure
to call Gonzalez and Valentine, defendant's relationship with Hoger and the
unreliability of defendant's statements that he had not discussed this matter with
Hoger while they were locked up on the charges at police headquarters. The
prosecutor then discussed the reliability of the detectives' identifications in view
of the court's ensuing instructions. To the extent the prosecutor's fleeting remark
could be viewed as improper, we conclude it does not rise to plain error. See R.
2:10-2.
Finally, the prosecutor's remark that the alibi witnesses did not testify
because they were working, while the jurors were noticed to appear for the trial
and unable to attend work, should have been avoided. That analogy could have
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been construed as an appeal to the juror's emotions rather than a comment on
the evidence or lack thereof. However, having reviewed the prosecutor's
comments "within the context of the trial as a whole," State v. Feaster, 156 N.J.
1, 64 (1998), we decline to find reversable error.
We therefore determine none of the assistant prosecutor's remarks warrant
reversal because, individually or cumulatively, they were not so egregious to
substantially prejudice defendant's right to a fair trial. Timmendequas, 161 N.J.
at 575. To the extent not specifically addressed, defendant's remaining
contentions lack sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(2).
B.
Pertinent to the issues raised in point II, prior to closing arguments, the
trial court amended the indictment based upon the evidence adduced a trial. The
court amended count seventeen (renumbered as count three for trial) from third-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1), as charged, to
N.J.S.A. 2C:39-5(d), a fourth-degree offense; and count eighteen (renumbered
as count four for trial), second-degree possession of a weapon for an unlawful
purpose, N.J.S.A. 2C:39-4(a), as charged, to N.J.S.A. 2C:39-4(d), a third-degree
offense. At sentencing, however, the court imposed an eight-year term of
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imprisonment, with a four-year term of parole ineligibility under the Graves Act,
N.J.S.A. 2C:43-6(c), on count seventeen. After ordering appropriate mergers,
the court imposed a consecutive sentence on that conviction, without conducting
an analysis under the factors established by our Supreme Court in Yarbough,
100 N.J. at 643-44.
We agree with defendant's contentions that the trial judge incorrectly :
imposed sentence on count seventeen within the second-degree range, N.J.S.A.
2C:43-6(a)(2) (fixing the term of imprisonment "between five years and [ten]
years"); and failed to conduct a Yarbough analysis. We therefore vacate
defendant's sentence on the unlawful possession of a weapon conviction,
charged in count seventeen only. On remand the court shall impose sentence on
that conviction within the fourth-degree range, N.J.S.A. 2C:43-6(a)(4)
(requiring "a specific term" that "shall not exceed [eighteen] months"). The
court also shall apply the Yarbough factors in deciding whether to impose to a
consecutive sentence on that count.
We disagree, however, with defendant's assertion that the trial court
incorrectly determined the Graves Act applies to defendant's unlawful
possession of a BB gun conviction under the circumstances presented here. See
N.J.S.A. 2C:43-6(c) (mandating the Graves Act disqualifier where the defendant
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"while in the course of committing" a robbery "used . . . a firearm" as defined in
N.J.S.A. 2C:39-1(f)). As we recognized in State v. Austin, a BB gun is a firearm
within the definition of N.J.S.A. 2C: 39-1(f). 335 N.J. Super. 486, 494 (App.
Div. 2000). We therefore conclude the court correctly determined the Graves
Act applies here.
Affirmed in part; vacated and remanded in part. We do not retain
jurisdiction.
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