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(NOTE: The status of this decision is unpublished.)


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1054-04T41054-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES M. LYONS,

Defendant-Appellant.

_______________________________________


Submitted December 5, 2005 - Decided January 30, 2006

Before Judges A. A. Rodríguez and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 03-12-1101, 01-01-0048.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jean B. Bennett, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was convicted of third degree burglary (N.J.S.A. 2C:18-2a), and theft by unlawful taking, a disorderly persons offense (N.J.S.A. 2C:20-3a). The judge denied the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3a. Defendant was sentenced to a five-year term of incarceration, with a two-year period of parole ineligibility, for the burglary conviction; and a six- month concurrent term for the theft by unlawful taking. Defendant appeals from the judgment of conviction.

I.

We briefly summarize the evidence presented at trial. In April 2003, Spencer Palmer and Helen Commiso were living in a single family house in Trenton. They rented their unattached garage to defendant, who lived there with his girlfriend Diane Hoffman. When defendant moved into the garage, he was told that he was not permitted to enter the house. Defendant did not have a key to the house.

Defendant worked at times for Palmer's company, All Phase Construction. Defendant also worked from time-to-time for certain companies owned by Steven Waltz. Waltz testified that, when defendant was working for him, he would pick defendant up for work. Waltz observed defendant come out of the Palmer/Commiso house. Waltz said that, after work, when he dropped defendant off at home, he saw defendant go into the house. Waltz said that defendant's girlfriend "was always in there."

On or around May 8, 2003, Commiso noticed that a pair of Timberland boots, certain pieces of jewelry, compact discs (CDs) and VHS tapes were missing from the house. Commiso said that some of the items had been stored in the house and some were kept in a box on the front porch. Commiso testified that the jewelry had a value of more than $500, and the CDs and VHS tapes had a value of about $600 to $700. The CDs were marked with the letters "S.P." or "H.C." Waltz testified that defendant admitted taking the VCR tapes from Palmer.

Ralph "Bud" DiDonato owns a thrift store on Lalor Street in Trenton. DiDonato testified that, in May 2003, defendant sold him a "shoe box filled with CDs and a few tapes." The CDs and tapes were in a box for "Timberland boots." The CDs each were marked with the initials "H.C." DiDonato estimated that there were "probably" twenty CDs and "maybe" five VHS tapes in the box.

DiDonato further testified that he had hired Palmer to make certain roof repairs. When Palmer came to the shop to give an estimate, he recognized the CDs and tapes and told DiDonato that the items belonged to Commiso. Palmer called Commiso and she identified the CDs and tapes. The jewelry and the boots were not recovered. Commiso reported the matter to the police.

Defendant was arrested on May 13, 2003. Detective Albert Piepszak of the Trenton Police Department testified at trial that he assisted Detective Frederick J. Simpson in the questioning of defendant. Defendant was informed of his right to remain silent. Piepszak read the Trenton Police "Uniform Rights Form" to defendant and defendant read it back aloud. Defendant, Simpson and Piepszak signed the form.

Defendant told Piepszak that he did not want to make a written statement and he did not want the detectives to take a formal statement from him. Defendant said that he just wanted to "talk about what happened." Defendant told the detectives that he went into the house on Jersey Street and took the CDs and jewelry because he was doing work for the person who lived there. Defendant said he took the CDs and jewelry because money was owed to him.

Defendant raises the following contentions for our consideration:

POINT I: DEFENDANT'S ORAL STATEMENT MADE TO THE POLICE OFFICER WHILE IN CUSTODY WAS IN VIOLATION OF HIS RIGHTS UNDER MIRANDA.

POINT II: DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT III: DEFENDANT'S CONVICTION IS AGAINST THE WEIGHT OF THE EVIDENCE AND THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

POINT IV: DEFENDANT WAS PREJUDICED, AND HIS RIGHT TO DUE PROCESS OF LAW WAS DENIED BECAUSE OF THE PROSECUTOR'S MISCONDUCT.

POINT V: THE TRIAL JUDGE'S INSTRUCTION REGARDING DEFENDANT'S OUT OF COURT STATEMENT WAS IMPROPER.

POINT VI: THE SENTENCE IMPOSED VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS AND IS MANIFESTLY EXCESSIVE.

For the reasons that follow, we affirm defendant's conviction and conclude that the imposition of a five-year sentence on the burglary conviction is not manifestly excessive. However, we vacate the sentence and remand for re-sentencing in accordance with State v. Natale, 184 N.J. 458 (2005).

II.

We first consider defendant's contention that the judge erred by denying his motion to suppress the statements made to the detectives in the custodial interrogation. Defendant contends that, at the time, he was feeling ill from heroin withdrawal and he did not have the requisite state of mind to knowingly and intelligently waive his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.2d 694 (1966). We disagree.

"[A] heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Id. at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724. "In New Jersey, the State must demonstrate validity of waiver beyond a reasonable doubt." State v. Adams, 127 N.J. 438, 447 (1992)(citing State v. Gerald, 113 N.J. 40, 118 (1988)). Whether a defendant validly waived his right against self-incrimination and his right to counsel must be decided based on the facts and circumstances of each case. State v. Chew, 150 N.J. 30, 65 (1997) (citing Adams, supra, 127 N.J. at 448)).

In State v. Warmbrun, 277 N.J. Super. 51 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995), we considered defendant's claim that he was "too intoxicated to knowingly and intelligently waive his" Miranda rights. Id. at 61. We noted that a police officer testified that, after a body was observed on the side of the road, he was dispatched to the scene. Id. at 54. It appeared that the victim had been struck by a vehicle. Another officer found defendant leaning against his car. Id. at 55. He was covered with pieces of broken glass. The officer testified that the defendant was having difficulty standing and he smelled alcohol on the defendant's breath. Ibid. The defendant admitted he had been drinking. The officer arrested defendant and after he was informed of his Miranda rights, defendant told the officer that he understood his rights. The defendant said that his car had been damaged because someone had shot at his windshield. Id. at 61.

At the police station, the officer again read the defendant his Miranda rights but the defendant refused to sign a waiver card. The officer asked defendant how much he had to drink and the defendant told him that he had a couple of glasses of wine earlier that day. Ibid. Defendant was asked to perform several balance tests and an alphabet test, which he failed. Id. at 55. The officer testified that, although the defendant was intoxicated, he understood the questions and his answers were responsive. Id. at 61.

We held in Warmbrun that the defendant had made a valid and intelligent waiver of his Miranda rights. We noted that, "the voluntariness of defendant's waiver is tested by the totality of all the surrounding circumstances." Id. at 62 (citing State v. Miller, 76 N.J. 392, 402 (1978)). We held that there was sufficient support in the record for the judge's finding that, although intoxicated, the defendant had been "capable of communicating" and he provided responsive answers to the officer's questions. Id. at 64. The judge's finding that defendant waived his rights was supported by adequate and substantial evidence in the record. Ibid. (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)).

In this case, the officer informed defendant of his rights under Miranda, defendant said that he understood and he signed the waiver form. Detectives Piepszak and Simpson testified at the suppression hearing that defendant did not appear to be ill when he signed the form. The detectives also testified that defendant understood their questions and was able to provide responsive answers.

In denying the motion to suppress, the judge noted that, although defendant claimed he was "dope sick" when he made his statement to the police, the defendant was able to recall what had occurred when he made the statements. The judge found that the State had proven beyond a reasonable doubt that the officers informed defendant of his rights under Miranda and defendant knowingly and voluntarily waived his rights.

The judge's finding is supported by sufficient credible evidence in the record. We are satisfied that, despite defendant's claim that he was feeling the effects of heroin withdrawal when he made his statements, he understood his rights, understood the questions posed by the officers, was capable of communicating and provided responsive answers. In our view, the suppression motion was correctly denied.

III.

We turn to defendant's contention that he was denied the effective assistance of counsel because his trial attorney did not present expert testimony concerning his state of mind when he made his incriminating statements to the police. Defendant also asserts that trial counsel erred because he did not request a curative instruction when Palmer mentioned in his testimony that defendant had a "drug habit."

To prevail on his claim of ineffective assistance, defendant must satisfy the test that was established in Strickland v. Washington, 466 U. S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed.2d 674, 698 (1984), and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). Defendant must show that his counsel was deficient and the deficiencies prejudiced his defense. Fritz, supra, 105 N.J. at 52 (quoting from Strickland, supra, 466 U. S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693). "This requires showing that counsel's errors were so serious as to deprive defendant of a fair trial, a trial whose result is reliable." Ibid.

To establish that his attorney's performance was deficient, defendant must show that counsel's actions "were outside the wide range of professionally competent assistance." Strickland, supra, 466 U. S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. In assessing whether counsel was deficient in his representation, the court must presume that the attorney made "all significant decisions in the exercise of reasonable professional judgment." State v. Savage, 120 N.J. 594, 614 (1990) (quoting from Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695). Moreover, to show that defendant was prejudiced by the deficient performance of his attorney, defendant must show that there is "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Fritz, supra, 105 N.J. at 52 (quoting from Strickland, supra, 466 U. S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698).

We are not convinced that defense counsel's performance was deficient. As we stated previously, there was ample support in the record for the judge's finding that defendant knowingly and intelligently waived his rights under Miranda. Defendant asserts that an expert would have offered an opinion that his state of mind was affected by his withdrawal from heroin. However, defendant has not presented any report or statement from an individual qualified to offer such an opinion. We cannot conclude that the result here would have been different based on the assumption that an expert would have provided that testimony.

In addition, we are not convinced that counsel's failure to seek a curative instruction concerning Palmer's statement fell outside of the "wide range" of reasonable professional conduct. Strickland, supra, 466 U. S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694. Palmer's reference to defendant's "drug habit" was the only mention of defendant's addiction during the trial. Counsel may have elected not to seek a curative instruction as a matter of trial strategy because he preferred to avoid any further mention of defendant's use of drugs. We are not convinced that defendant was prejudiced by counsel's omission. There was considerable evidence to support the charges. We are satisfied that, had the judge given the jurors a curative instruction respecting Palmer's comment, it would not have changed the result.

IV.

Defendant argues that the judge erred in denying his motion under R. 3:18-1 for a judgment of acquittal. We disagree.

When a motion is made pursuant to R. 3:18-1, the trial judge must determine whether the evidence, and all favorable inferences to be drawn therefrom, would allow a reasonable jury to find defendant guilty as charged beyond a reasonable doubt. State v. Foreshaw, 245 N.J. Super. 166, 185 (App. Div.), certif. denied, 126 N.J. 327 (1991). We are convinced that the trial judge properly denied defendant's motion. The issues raised by defendant concerning the strength of the State's evidence go to the credibility of the witnesses and the weight to be accorded the testimony. In our view, the evidence provided the jury with a sufficient evidential basis to find defendant guilty of burglary and theft by unlawful taking.

Defendant also contends that his conviction was against the weight of the evidence. Again, we disagree. Defense counsel did not make a motion for a new trial. Under R. 2:10-1, the issue is not cognizable on appeal. Nevertheless, we have considered defendant's argument. We are satisfied that, had the motion been made, it would have been without merit. We are convinced that the evidence provided the jury with a sufficient basis upon which to find defendant guilty of burglary and theft by unlawful taking. The interests of justice do not require a new trial in this matter. R. 3:20-1.

V.

Defendant next argues that the assistant prosecutor engaged in misconduct by making the following comments:

The first witness that was called was Detective Piepszak, and you heard his testimony. A police officer with the City of Trenton who was not assigned to this case, had no responsibility to this case, and he testified that, 1, that the defendant freely signed the Miranda form; and 2, that the defendant admitted to taking the property of Helen Commiso and Spencer Palmer, and refused to give a written statement.

Now, I ask you, if Detective Piepszak wanted to set up the defendant, or for that matter, anyone wanted to set up defendant, why wouldn't they go all the way? Why wouldn't Officer Piepszak, after having [defendant] sign a Miranda form, if he made up the fact that [defendant] made the statement about admitting to stealing the stuff, why wouldn't he go all the way? Why wouldn't he write it down in his report exactly what was said? If you're going to make up a lie, make it a good one. He didn't go all the way because he was telling the truth, and he was frank about it. I asked him questions about what he remembered, and he couldn't give exact details. He wasn't lying, he was telling the truth. The one thing that stood out in his mind was the fact that [defendant] admitted to taking the property.

Now, the defense claims from the time that all the prosecution witnesses are lying in some way, and in fact, all the prosecution witnesses are lying, and all the defense witnesses are lying in some way . . . .

Now we move to the defense witness . . . Stephen Waltz. Both Palmer and the defendant did work for him. Why would he single out the defendant? Why would he testify from this stand that the defendant admitted to taking the tapes? He has no reason to lie. No, motive. In fact, he's still a friend of [defendant's], says he's a good guy. But yet the defendant admitted to him that he took the tapes.

What would be Bud DiDonato's motive, what would be Stephen Waltz's motive for singling out the defendant? They have nothing to gain. The reason they testified to it is because it's the truth.

"Prosecutors are afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999)(citing State v. Harris, 141 N.J. 525, 559 (1995)). Prosecutors are expected to make "vigorous and forceful closing arguments to juries." Ibid. In reviewing a claim that a prosecutor engaged in misconduct in summation, we consider whether defense counsel made a timely objection to the remarks, whether the assertion was withdrawn and whether the court gave the jury a curative instruction. State v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U. S. 858, 122 S. Ct. 136, 151 L. Ed.2d 89 (2001) (citing State v. Ramseur, 106 N.J. 123, 322-23 (1987)). Not every assertion by a prosecutor of questionable propriety will result in reversal of a conviction. The prosecutorial misconduct must be "so egregious that it deprived defendant of a fair trial." Ramseur, supra, 106 N.J. at 322.

We are satisfied that the assistant prosecutor's remarks were not improper. In our view, the assistant prosecutor's assertions were fair comment on the evidence and the credibility of the witnesses. Indeed, the assistant prosecutor was responding to arguments of defense counsel who: questioned the veracity of Piepszak's testimony; asserted that Commiso's and Palmer's testimony was "somewhat rehearsed;" and stated that DiDonato had not been "entirely truthful." We note that defense counsel saw no impropriety in the prosecutor's remarks. "The failure to object suggests that defense counsel did not believe that the remarks were prejudicial at the time they were made." Frost, supra, 158 N.J. at 84. In general, if no objection is made to improper comments, "the remarks will not be deemed prejudicial." Id. at 83 (citing Ramseur, supra, 106 N.J. at 323). We are satisfied that the assistant prosecutor's remarks did not deprive defendant of his right to a fair trial.

VI.

We next consider defendant's assertion that the judge failed to provide instructions required by State v. Kociolek, 23 N.J. 400, 421 (1957), and State v. Hampton, 61 N.J. 250, 272 (1972), regarding defendant's statements to the police.

A Kociolek charge "concerns the reliability of an inculpatory statement made by the defendant to any witness." State v. Crumb, 307 N.J. Super. 204, 250 (App. Div. 1997), certif. denied, 153 N.J. 215 (1998). In Kociolek, the Supreme Court stated that, because of the risk of inaccuracy and error in communication and recollection, the jury should be instructed to "receive, weigh and consider such evidence with caution." Kociolek, supra, 23 N.J. at 421. In Hampton, the Court concluded that a jury must be instructed as to its role in deciding whether a defendant's confession is true. The members of the jury must be told that if they do not find that the confession is credible, the confession should be disregarded when determining the ultimate issue of the defendant's guilt or innocence. Hampton, supra, 61 N.J. at 272.

Here, the trial judge provide the following instruction:

Now, there is for your consideration in this case an alleged oral statement, and again, alleged to be made by [defendant]. It is your function to determine whether or not the statement was actually made by [defendant], and if made, whether the statement or any part of it is credible.

In considering whether or not an oral statement was actually made by [defendant], and if made, whether it is credible, you should receive, weigh and consider this evidence with caution based on the generally recognized risk of misunderstanding by the hearer or the ability of the hearer to recall accurately the words used by the defendant. The specific words used and the ability to remember them are important to the correct understanding of any oral communication, because the presence or absence or change of a single word may substantially change the true meaning of even the shortest sentence. You should, therefore, receive, weigh and consider such evidence with caution.

In considering whether or not the statement is credible, you should take into consideration the circumstances and facts as to how the statement was made, as well as all other evidence in this case relating to that issue. If, after consideration of these factors you determine that the statement was not actually made, or that the statement is not credible, then you must disregard the statement completely. If you find that the statement was made, and that part or all of the statement is credible, you may give what weight you think appropriate to that part of the statement you find to be truthful and credible.

We are satisfied that the instruction satisfied the requirements of Kociolek and Hampton. Defendant's argument to the contrary is entirely without merit.

VII.

Defendant additionally contends that his five-year sentence is excessive. We disagree. The judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk of re-offense); N.J.S.A. 2C:44-1a(6) (extensive criminal record); N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law); and N.J.S.A. 2C:44-1a(11) (a penalty short of imprisonment would be seen as a cost of doing business). The judge found no mitigating factors.

Defendant argues that the judge should have found mitigating factors under N.J.S.A. 2C:44-1b(8) (defendant's conduct not likely to recur); N.J.S.A. 2C:44-1b(10) (defendant particularly likely to respond to probationary treatment); N.J.S.A. 2C:44-1b(11) (imprisonment would cause serious hardships); and N.J.S.A. 2C:44-1b(12) (defendant was willing to cooperate with law enforcement). Defendant further contends that his sentence is excessive and should be reduced. Again, we disagree.

In our view, the judge's findings of aggravating factors are amply supported by the record. Contrary to defendant's assertions, the judge did not err in finding no mitigating factors. We are further convinced that the judge did not abuse his discretion in sentencing defendant to a five-year term with a two-year period of parole ineligibility on the burglary conviction. The sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

However, because the judge imposed a sentence on the burglary conviction that is longer than the presumptive term, and in doing so did not rely solely upon defendant's prior criminal history, we vacate that sentence and remand for re-sentencing in accordance with Natale, supra, 184 N.J. at 495-96.


Affirmed in part, reversed in part and remanded for re-sentencing on the burglary conviction. We do not retain jurisdiction.

(continued)

(continued)

18

A-1054-04T4

January 30, 2006




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