STATE OF NEW JERSEY v. DONALD GRADY JR DONALD PATRICK GRADY DON GRADY DONALD PATRICK GRADY JR MICHAEL RHATICAN KEVIN BUSINSKI

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. DONALD P. O'GRADY, JR., a/k/a DONALD PATRICK O'GRADY, a/k/a DON O'GRADY, a/k/a DONALD PATRICK O'GRADY, JR., a/k/a MICHAEL RHATICAN, a/k/a KEVIN BUSINSKI, Defendant–Appellant.

DOCKET NO. A–3811–11T2

Decided: March 20, 2014

Before Judges Yannotti and Ashrafi. Joseph E. Krakora, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief). Richard T. Burke, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief).

Defendant Donald P. O'Grady, Jr. was tried before a jury and found guilty of first-degree felony murder.   He was sentenced to an aggregate term of fifty years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43–7.2 Defendant appeals from the judgment of conviction entered by the trial court on July 10, 2009.   We affirm.

I.

This appeal arises from the following facts, as established at trial.   On August 18, 2006, Mary Bostian was found lifeless in the second-floor bedroom of her home in Phillipsburg.   She was 75 years old at the time of her death.   The Warren County medical examiner testified that Ms. Bostian had numerous bruises on her face, neck, shoulders and arms.   Ms. Bostian had five broken ribs with actual displacement, indicating that she had been kicked or a knee had been placed on her chest.   She also sustained defensive injuries, including bruises on her left wrist and hands, as well as scrapes on her right knee.   The medical examiner testified that the injuries were consistent with a struggle, and the cause of death was asphyxia, resulting from having been suffocated.

Ms. Bostian's son, John Counterman, told the police that he kept a safe in a bedroom of his mother's home.   In the safe, Counterman had about $25,000 to $26,000 in bills and coins, as well as a nine-millimeter handgun.   The safe was disguised with a wood frame and attached to the sheetrock walls of the closet.   Counterman told his live-in girlfriend, Naomi Frey (Naomi), that he had a safe in his mother's house.   A few others also knew about the safe, but only Counterman knew the combination.

In Ms. Bostian's home, the police observed sheetrock dust and scratches on the surface of the first floor and on the wooden steps going out to the backyard, suggesting that the safe had been dragged out of the house at the rear.   The police also discovered a medallion on the floor.   Counterman was shown a sketch of the medallion and he said it was identical to the medallion he had in his car.   Naomi said the sketch depicted medallions she had purchased for Counterman and her estranged husband, Thor Frey (Frey).

The Phillipsburg Police identified Frey and defendant as persons of interest, and the Pennsylvania State Police assisted in the search by canvassing Pennsylvania motels.   Frey was found outside a motel in a wooded area near Wind Gap, Pennsylvania, and immediately transported to the State Police in Belfast.   After Frey was taken into custody, two other individuals drove up to the motel in a car.   Daniel Stracquadaine was the driver of the vehicle and defendant was the passenger.   Defendant and Stracquadaine were arrested, and defendant was taken to the State Police barracks in Belfast.

There, a detective from the Philipsburg Police Department and an officer from the Warren County Prosecutor's Office informed defendant of his Miranda rights.1  Defendant gave a recorded statement, in which he denied any involvement in the burglary of the Bostian home and Ms. Bostian's death.   After smoking a cigarette, defendant asked to speak to the officers without being recorded.   Defendant recanted his previous denials and provided another statement.

Defendant said that, at about 3:00 a.m. on August 18, 2006, he and Frey approached Ms. Bostian's home on foot.   They entered the home to steal the safe.   Defendant wore socks on his hands so he would not leave any fingerprints.   He entered the residence through the unlocked window adjacent to the front door, and let Frey into the house through the rear door.   They went through the house, looking for the safe.

Upstairs, they found Ms. Bostian asleep in one of the bedrooms.   Defendant threw a blanket over Ms. Bostian's head.   He used his knee “a little bit” to hold her down on the floor.   He said he wanted to hold her like that “just long enough” so he could get out of the house.   Ms. Bostian revealed that the safe was in a closet of one of the bedrooms on the second floor.   After twenty to thirty minutes of restraining her, defendant noticed that Ms. Bostian was not resisting.   He then began to tie her hands, and discovered she had stopped breathing.

While defendant was restraining Ms. Bostian, Frey located the safe and tried to open it with a sledge hammer and other tools he found in the house.   Defendant said he first observed the safe on the first floor.   They took the safe out the back of the house.

Because it was heavy, defendant and Frey moved the safe by flipping it over and over.   They left without the safe and quickly returned with a car.   Defendant checked on Ms. Bostian and saw that she was in the same position.   They then loaded the safe into the car and transported it unopened to Wind Gap, where they dumped it in the woods.

Defendant and Frey returned to the safe several days later and opened it.   Inside, they found the nine-millimeter gun, an ammunition clip, thousands of dollars in cash, coins and videotapes.   They discarded the gun and the clip in the woods.   They took the cash and left the videotapes and coins.   Defendant said he spent about half of his cash on cocaine and tattoos during the following two days, while staying at the motel.   Later, defendant and Frey returned to the safe to retrieve the coins.

Defendant was charged with first-degree felony murder, N.J.S.A. 2C:11–3(a)(3);  second-degree robbery, N.J.S.A. 2C:15–1(a);  third-degree burglary, N.J.S.A. 2C:18–2;  and criminal mischief, N.J.S.A. 2C:17–3(a)(1).   He filed a motion to suppress the statement he gave to the investigators.   The trial court denied the motion.   As noted previously, defendant was tried before a jury and found guilty on all counts.2  Thereafter, the court denied defendant's motion for a new trial.

At sentencing, the court merged the burglary and criminal mischief counts with the robbery charge.   The court sentenced defendant to fifty years of incarceration for the felony murder and ordered that defendant must serve 85% of that term, as required by NERA. The court also imposed a concurrent ten-year term for the robbery.   The court entered a judgment of conviction dated July 10, 2009, and this appeal followed.

Defendant raises the following arguments for our consideration:

POINT I

IMPROPER SUMMATION REMARKS DISPARAGED DEFENSE COUNSEL AND DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.   U.S. CONST.   AMEND.  XIV, N.J. CONST.  (1947) ART. I, PARS. 1, 9, 10.  (Not Raised Below).

POINT II

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

II.

Defendant argues that he was deprived of his right to due process and a fair trial because of certain remarks that the assistant prosecutor made in his summation.

In addressing this contention, we begin with a summary of the relevant part of defense counsel's summation.   Counsel asserted that the State had not presented any testimony concerning fingerprints, DNA, fibers, or hair linking defendant to the crimes.

There were no eyewitnesses.   He said the jurors were left with the State's circumstantial evidence, which included evidence that defendant was found with items taken in the robbery, and defendant's admission that he knew there was a safe in the Bostian home and where the safe was located.

Counsel then discussed the statement defendant gave to the investigators.   He said “[defendant] gets things wrong.   He gets things very wrong.”   He noted that defendant had mentioned a garage, but Ms. Bostian's home did not have a garage.   There also was no sidewalk in the backyard, but defendant said that he and Frey flipped the safe to the end of the sidewalk in the yard.

Counsel told the jury that no one heard “a thumping safe,” even though a neighbor testified that she heard a screen door close at 5:45 a.m. on the date the crimes were committed.   The neighbor also said that she heard a vehicle that sounded like a truck, but defendant told the investigators the safe had been moved in a car.   Counsel noted that defendant had stated that he walked to the crime scene without any tools or a combination to the safe, and had no way of transporting the safe from the house.   Counsel stated, “That's just not logical.”   He asked the jury, “What makes more sense to move the safe around in?   A truck or a car?”

Counsel also discussed the manner in which Ms. Bostian died.   He noted that defendant told the investigators he had worn socks on his hands, and Ms. Bostian had been tied up with knots.   Counsel asked how knots “like that” could be made with sock-covered hands.   He also noted that defendant told investigators that, at one point, he returned to the house and was not wearing socks on his hands.   Counsel said that defendant's statement made no sense because fingerprints were not found in the house.

In addition, counsel pointed out that Counterman had said there was $25,000 in the safe, while defendant told the investigators that he and Frey recovered much less.   Counsel added that, if defendant and Frey had taken so much money, why did they return to the safe several days later, to pick up the coins they had left behind.   Defendant's statement, he said, “doesn't add up.”

Counsel further discussed the condition of Ms. Bostian's body.   He said the medical examiner's testimony suggested that Ms. Bostian had suffered a savage beating before she died, but this was not the accidental death that defendant had described.   Counsel pointed out that defendant told the investigators he did not want Ms. Bostian to see his face, but when she was found, her eyes were “staring forward at the door.”   He stated that the testimony regarding Ms. Bostian's broken ribs did not match defendant's statement.

Counsel also noted that, in his statement, defendant did not explain how the safe was moved from the second floor to the first floor.   Counsel noted that there was damage to the second-floor closet where the safe was located.   There also was damage on the floor downstairs and the steps down to the rear yard.   Counsel said defendant's statement indicated that one person moved the safe to the first floor without doing any damage.

Counsel concluded by asserting that the evidence did not “match” defendant's statement.   He said the evidence “screams of questions” and “[s]omething isn't right here.”   Counsel stated that “[t]he fingers are pointing in ․ 1001 different directions” and “that's not proof beyond a reasonable doubt.”

In response, the assistant prosecutor reviewed the evidence.   He responded to defense counsel's comments about the safe:

All this business about flip-flopping the safe, that is the most ridiculous thing, I suggest to you, that I heard in my life.   When you could drag it, why would you pick it up and flip it?   That's absolutely ridiculous.   You heard about the slide marks on the stairs and across the backyard, but again if it helps [defendant], he says they're flipping it, believe him.   Believe him.   When he says it was an accident [that] she died, believe him.   But if it doesn't help him don't believe it.   That's the argument presented to you by counsel.

The safe is downstairs, Frey slides it down the stairs.   There's a carpet, remember on the stairs, take a look.   There is carpet through the whole house.   He slides it down the stairs.

The assistant prosecutor also noted that defense counsel had suggested that defendant had guessed about what had happened at the Bostian residence, based on news accounts.   He said that, at one point, defendant returned to the house

and what does he do?   He says he goes upstairs and he takes the cover off of Mary Bostian.   Remember the photographs of Ms. Bostian laying on the floor on her side like he said he put her there, blanket on the side, pillows up on the bed.   Only the killer could know that.   Is he telling the truth when he said I took the blanket off her?   I tied her up.   That was earlier but, yeah, that's all true.   And only the killer knows that.

In addition, the assistant prosecutor referred to “this nonsense” that defendant read about the murder in the papers.   He told the jury to go back to defendant's statement, in which he initially provided a “flat out denial.”   However, when the two officers confronted him with “some evidence” he gave “it up.”   The prosecutor said the investigators “knew how to get at the truth and they did.”   He noted again that defendant knew things about the crimes that “only someone there that night would know.”

Defendant contends that, in his summation, the assistant prosecutor improperly disparaged defense counsel and his role in the criminal justice system in order to impute guilt to his client.   We do not agree.

“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);  State v. Williams, 113 N.J. 393, 447 (1988)).  “Indeed, prosecutors in criminal cases are expected to make vigorous and forceful closing arguments to juries.”  Ibid. (citing Harris, supra, 141 N.J. at 559).   A prosecutor “ ‘is entitled to be forceful and graphic in his summation to the jury, so long as he confines himself to fair comments on the evidence presented.’ ”  Id. at 83 (quoting State v. DiPaglia, 64 N.J. 288, 305 (1974 (Clifford, J., dissenting).

We are convinced that the assistant prosecutor did not improperly disparage defense counsel by stating that his comments regarding the safe were “absolutely ridiculous.”   The remark was a fair comment on the evidence.   The assistant prosecutor explained that the forensic evidence showed that the safe had been moved from the second floor to the first and then taken outside.

Moreover, there was nothing improper about the assistant prosecutor's response to the assertion that defendant learned about the details of the robbery and murder from news accounts.   He called the assertion “nonsense” but that statement also was a fair comment on the evidence.   The prosecutor explained that defendant had recounted details of the crimes that only the perpetrator would have known.

Although the assistant prosecutor might have used more polite language in responding to defense counsel's assertions, the remarks were not egregious and did not deny defendant of his right to a fair trial.   We note that defendant's counsel did not object to the remarks when they were made.   If no objection is made to remarks later claimed to be improper, “the remarks will not be deemed prejudicial.”  Id. at 83–84 (citing State v. Ramseur, 106 N.J. 123, 323 (1987)).

III.

Defendant also argues that his sentence is excessive.   Again, we disagree.

Here, the trial judge found aggravating factors two, N.J.S.A. 2C:44–1(a)(2) (gravity and seriousness of harm inflicted on the victim);  three, N.J.S.A. 2C:44–1(a)(3) (risk that defendant will commit another offense);  six, N.J.S.A. 2C:44–1(a)(6) (extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted);  nine, N.J.S.A. 2C:44–1(a)(9) (need to deter defendant and others from violating the law);  and twelve, N.J.S.A. 2C:44–1(a)(12) (defendant committed the offense against a person he knew or should have known was 60 years or older, or disabled).

The judge stated that defendant's “criminal history covers over 20 years,” and it included convictions for theft, burglary, related crimes as well as crimes related to controlled dangerous substances.   The judge also found no mitigating factors.   As we stated previously, the judge sentenced defendant to an aggregate term of fifty years, with a period of parole ineligibility as prescribed by NERA.

Defendant argues that the record substantiated several mitigating factors that the court erroneously failed to acknowledge.   He contends that the judge should have found mitigating factors four, N.J.S.A. 2C:44–1(b)(4) (substantial grounds to excuse or justify defendant's conduct, though not a defense);  eight, N.J.S.A. 2C:44–1(b)(8) (defendant's conduct was the result of circumstances unlikely to recur);  eleven, N.J.S.A. 2C:44–1(b)(11) (incarceration would entail excessive hardship to defendant or his dependents);  and twelve, N.J.S.A. 2C:44–1(b)(12) (cooperation with law enforcement).

The judge refused to find these mitigating factors, noting on the record that defendant's motivation was greed.   The judge stated that defendant had engaged in a violent, intentional crime, which resulted in Ms. Bostian's death.   The judge said there was no justification for defendant's conduct.   The judge also said that mitigating factor twelve did not apply because, after he committed the crimes, defendant spent several days enjoying “the fruits of his crime[s] by hiding at a motel in Wind Gap, getting tattooed, buying cocaine and having a pretty good time,” rather than walking into the police department and confessing to the crimes.

We are convinced that the record fully supports the judge's findings of aggravating factors, and his refusal to find any mitigating factor.   Defendant's arguments to the contrary are without sufficient merit to warrant further comment.   R. 2:11–3(e)(2).

We conclude that defendant's sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience.  State v. O'Donnell, 117 N.J. 210, 215–16 (1989);  State v. Roth, 95 N.J. 334, 363–65 (1984).

Affirmed.

FOOTNOTES

1.  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

2.  FN2. Frey was separately charged, found guilty by a jury and sentenced to forty years of imprisonment.

PER CURIAM

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