STATE OF NEW JERSEY v. BRIAN BECKETT

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. BRIAN D. BECKETT, Defendant–Appellant.

DOCKET NO. A–3371–11T1

Decided: March 25, 2014

Before Judges Fisher and Koblitz. Joseph E. Krakora, Public Defender, attorney for appellant (William Welaj, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

A jury convicted defendant Brian D. Beckett of third-degree receiving a stolen automobile, N.J.S.A. 2C:20–7, for which he received a sentence of four years in prison on September 6, 2011.   We affirm.

The owner of the stolen car, a Chevrolet Trail Blazer, testified that she fell asleep in her apartment, having left her pocket book, cell phone and spare keys inside the car in front of her residence.   When she awoke the next morning, the Trail Blazer was missing.   The car had an OnStar tracking device.   After tracking the Trail Blazer to different locations, the police finally found it the next morning parked in the commuter parking lot in front of the Dunellen train station with defendant in the driver's seat.   He had the spare keys in his pocket.   The interior of the Trail Blazer was “trashed” and an empty box of condoms and food wrappers were strewn about.   The victim's purse was later found on the ground by a neighbor and returned to the victim.

On appeal defendant raises the following issues:

POINT I:  THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY.  (NOT RAISED BELOW)

POINT II:  THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

I

Defendant argues for the first time on appeal that the prosecutor's summation was improper because he “inferentially comment[ed] upon ․ defendant's right to remain silent.”   This argument is subject to the plain error standard of review.   R. 2:10–2.   Generally, if defendant did not object to the prosecutor's remarks during summation, they will not be deemed prejudicial.  State v. Ramseur, 106 N.J. 123, 323 (1987).   Defendant did not testify.   Defense counsel in summation suggested to the jury that defendant might not have had the knowledge that the car was stolen, as required to convict for receiving stolen property, or that defendant may have intended to return the car, a statutory affirmative defense.  N.J.S.A. 2C:20–7.   The prosecutor, in response, said in his summation that if someone found themselves in the driver's seat of a stranger's Trail Blazer,

would not one sit down and say I got to get out of here?   Something is not right here?   Let me open the door and get out of here.   Or I'm finding myself in this truck, I don't know whose it is.   Let me try and give it back.   No. None of that here.

Later the prosecutor commented without objection on the location of the Trail Blazer in the commuter lot:

So he's hiding in plain sight in sole, exclusive possession of [the victim's] truck ․ with no plan on giving it back to her.

Defendant maintains that these comments improperly infringed on his right to remain silent.   We disagree.   A prosecutor is permitted to vigorously and forcefully present the State's case and may graphically summarize the testimony.  State v. Lazo, 209 N.J. 9, 29 (2012).

Defense counsel in his summation told the jury that defendant had the right to remain silent, as did the judge in his charge to the jury.

II

Defendant also argues that his sentence is excessive.   At sentencing, the State moved to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44–3(a) with a parole disqualifier.   The judge instead imposed a sentence half-way between the maximum and minimum for a third-degree crime.   N.J.S.A. 2C:43–6(a)(2).   In determining the appropriate sentence to be imposed, the sentencing court must consider the specifically enumerated aggravating and mitigating factors identified in N.J.S.A. 2C:44–1(a) and (b), balance them, and explain how the sentence was determined.  State v. Abdullah, 184 N.J. 497, 506–07 (2005).   The judge found two aggravating factors:  the risk that defendant would commit another offense, and the need for deterrence.  N.J.S.A. 2C:44–1(a)(3) and (9).   He also found in mitigation that incarceration would cause a hardship to defendant and his family.  N.J.S.A. 2C:44–1(b)(11).   The sentence imposed was not manifestly excessive or unduly punitive and did not constitute an abuse of discretion.   State v. Bieniek, 200 N.J. 601, 607–09 (2010).

Affirmed.

PER CURIAM

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