STATE OF NEW JERSEY v. RAYMOND FERGUSON RAYMOND FERGSON RAYMOND FERGUESON RAYMON FERGUSON

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. RAYMOND FERGUSON, a/k/a RAYMOND FERGSON, a/k/a RAYMOND FERGUESON, a/k/a RAYMON A. FERGUSON, Defendant–Appellant.

DOCKET NO. A–5379–11T1

Decided: April 7, 2014

Before Judges Ostrer and Carroll. Joseph E. Krakora, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (John E. Anderson, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).

Defendant Raymond Ferguson appeals from his conviction, after a jury trial, of fourth-degree criminal trespass, N.J.S.A. 2C:18–3(a), as a lesser-included offense of second-degree burglary, N.J.S.A. 2C:18–2(b)(1);  and third-degree resisting arrest by physical force or violence, N.J.S.A. 2C:29–2(a)(3)(a).   The jury acquitted defendant of second-degree weapons-related offenses, N.J.S.A. 2C:39–4(a) and –5(b);  third-degree terroristic threats, N.J.S.A. 2C:12–3;  and third- and fourth-degree aggravated assault, N.J.S.A. 2C:12–1(b)(5)(a) and –1(b)(4).   Defendant also appeals his aggregate sentence of five years.   We affirm.

I.

The charges against defendant arise out of his entry into the ground floor apartment of an elderly couple in Newark, and defendant's subsequent altercation with police.   As a neighbor, defendant asserted he did odd jobs for the couple, possessed a key to their apartment, and was permitted to enter.   To establish that defendant's entry was unauthorized, the State presented evidence that someone had tried to pry open the bolt lock from the front door frame.   Defendant was observed entering the apartment through a window, and removed a television from the apartment.

The entry took place around 10:40 p.m. on a warm evening in late March 2010, while the couple was not at home.   The couple's nephew, Gary,1 lived upstairs.   He testified he heard noises from his aunt and uncle's apartment.   Upon investigation, he observed the damage to the front door.   Then, he saw defendant walk by.   Gary recognized defendant from the neighborhood.   Gary also acknowledged that defendant sometimes did work for his aunt and uncle, had a key to their apartment, walked their dog, and sometimes was permitted to use their car.

Moments later, defendant walked by again, carrying a snow shovel and wearing a ski mask.   Gary then left the house to find a pay phone — as his own telephone service was suspended — to call his cousin Samuel and inform him that someone had tried to break into Samuel's parents' home.   On defendant's way out, Gary saw defendant attempting to enter his aunt and uncle's living room through a side window.   Defendant's legs were hanging out of the window.

Gary confronted defendant.   Gary testified that defendant told him to calm down and also asked him if he wanted to get shot, showing him the butt of a gun in his waistband.   Gary testified that defendant later removed the gun and pointed it at him.   Defendant chased Gary around a tree, then returned to the house and re-entered the apartment window.   Gary then drove to a drug store and called the police.

When he returned to the area with police, Gary found that the front door to the ground floor apartment was wide open, surmising it was opened from the inside.   The window was damaged.   Decorative items were knocked to the floor, and the couple's large flat-screen television was missing.

The State introduced into evidence various photographs after Gary testified they accurately depicted the appearance of the door and window, and the vicinity of the house, after the incident.   The photographs were taken shortly before the December 2011 trial, but damage to the door jamb had not been repaired.   Although defense counsel noted that the photographs had not been disclosed before trial, he did not object on that ground.

The defense highlighted inconsistencies between Gary's testimony and his version of events as reported to police.   For example, Gary told police he saw defendant carrying the television toward his home, but did not recall that at trial.   On the other hand, Gary did not tell police he saw defendant carrying a shovel and wearing a ski mask, although he testified to those observations at trial.

The elderly couple's son Samuel testified that on the day of the incident, his father — a wheel-chair bound stroke survivor — had been living with him in the Bronx for about two weeks.   His mother had been in a nursing home for a month for treatment of renal failure.   Samuel acknowledged that defendant had done some odd jobs around his parent's home;  walked their dogs;  had been inside their home;  had perhaps hooked up their television;  and once or twice had been permitted to use their car.   He testified that he had recently changed the locks on his parents' home.   Samuel testified that the apartment was ransacked and the television was missing when he arrived after Gary's call.

Ahmad Stuckey was among the Newark police officers who responded to Gary's call for assistance.   Detective Stuckey located defendant behind a car in a driveway, about ten feet from the door to his home.   Another detective, Jermaine Marbley, described defendant as kneeling beside the car.   Upon questioning, defendant asserted he was simply locking his sister's car.   Police later found a flat-screen television on the floor near defendant's doorway.

After Gary identified defendant, Marbley attempted to place defendant under arrest.   Defendant resisted by swinging his arms.   He was forced to the ground.   As officers attempted to handcuff him, he bit the hand of another officer, Kenneth Gaulette, according to Marbley and Gaulette.   The State introduced a photograph depicting Gaulette's injured hand.   An officer who transported defendant to the hospital for AIDS testing testified that defendant said “[h]e hoped he had ․ AIDS to give it to the ․ officer.”

The owners of the home did not testify.   Defendant moved for a judgment of acquittal on the burglary charge, asserting that absent the owners' testimony, there was insufficient evidence that his entry into the home was unauthorized.   The court denied the motion.   Citing State v. Reyes, 50 N.J. 454 (1967), the court held that there was sufficient circumstantial evidence to support a possible finding of guilt, including defendant's entry through the window, his alleged attempt to pry open the front door, and his removal of the television.

Defendant testified in his own defense.   Before he did so, the court conducted a Sands–Brunson 2 hearing in chambers, off the record.   The court determined that the State could utilize a previous conviction for burglary and weapons possession, once sanitized.   The court summarized its off-the-record determination, stating:  “[I]t was agreed that because there's a previous conviction for burglary and weapon ․ everything will be sanitized so that the year, degree and sentence would be useable[.]”  The court did not expressly identify which convictions would be usable.   However, based on defendant's direct examination, it is apparent the court permitted introduction of convictions dating back to 1991.   Defendant acknowledged:  a five-year “indeterminate” sentence in 1991 for a third-degree crime;  a seven-year sentence for a third-degree crime in 1999;  a five-year sentence in 2000 for a third-degree crime;  and a 348–day sentence in 2007 for second- and third-degree crimes.3

Defendant testified that he had a close relationship with the elderly couple.   He asserted he cooked and shopped for them;  took them to the hospital;  cared for their animals;  and slept over in their home multiple times.   He asserted he had keys to their house, but not the deadbolt lock.   He also claimed that he and the couple had a practice of leaving the side window unlocked, in case he needed to enter in a medical emergency.   He asserted he used the window to enter the house on multiple occasions.

Defendant testified that he went to the couple's house to check on Gary's aunt on March 23, because she had not called him in a while.   He also said that weeks earlier, she had agreed to allow him to borrow their television for his birthday, which was March 24.   When he was unable to enter with his key, he entered the home through the window.

Defendant stated that Gary confronted him, but defendant denied that he possessed a gun or gestured as if he did.   Defendant testified that he removed the television, leaving through the front door, which he said he closed.

Defendant denied resisting arrest.   He claimed that police threw him down to the pavement, choked him, and violently restrained him.   He denied biting Gaulette.   He implied that Gaulette must have injured his hand in the melee.   Defendant also denied saying he wished he had AIDS so he could infect the officer.

As noted, the jury found defendant guilty of fourth-degree criminal trespass as a lesser-included offense.   The court also convicted defendant of third-degree resisting arrest, with the use or threat of use of force or violence, but acquitted defendant of attempting to cause bodily injury to Gaulette.

The court sentenced defendant to eighteen months on the criminal trespass and five years on the resisting arrest.   The State apparently had filed a motion for an extended term, as a persistent offender.   Defense counsel urged the court to decline to impose one.   The court did not expressly decide the motion.

The court applied aggravating factor two, N.J.S.A. 2C:44–1(a)(2):

The gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance․

The court found the victims were “elderly people who really can't watch out for themselves, and [defendant] took advantage of that.”

Noting that defendant had twenty-one adult arrests and six prior indictable convictions, and had been incarcerated a great deal of his life, the court also applied aggravating factors three, N.J.S.A. 2C:44–1(a)(3), the risk of reoffending;  six, N.J.S.A. 2C:44–1(a)(6), prior criminal record;  and nine, N.J.S.A. 2C:44–1(a)(9), need to deter.   The court rejected defendant's argument that various mitigating factors applied, but recognized that defendant was willing to accept a plea offer of the State.   The presiding judge apparently refused to allow a waiver of a plea cut-off.   Nonetheless, the court declined to impose the three-year term that the State offered pre-trial.

This appeal followed.   Defendant presents the following points for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING THE DEFENSE'S MOTION FOR ACQUITTAL ON COUNT FOUR OF THE INDICTMENT CHARGING BURGLARY.

POINT II

THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INTRODUCE PHOTOGRAPHS OF THE SCENE OF THE INCIDENT AS THE STATE FAILED TO PROVIDE THOSE PHOTOGRAPHS TO THE DEFENSE AS REQUIRED BY R. 3:13–3 (NOT RAISED BELOW).

POINT III

THE ADMITTANCE INTO EVIDENCE OF REMOTE CRIMINAL CONVICTIONS TO AFFECT MR. FERGUSON'S CREDIBILITY CONSTITUTED A CLEAR ABUSE OF DISCRETION AND VIOLATED MR. FERGUSON'S RIGHT TO A FAIR TRIAL (RAISED BELOW).

POINT IV

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. FERGUSON (NOT RAISED BELOW).

II.

We consider first defendant's challenge to the court's denial of his motion for acquittal.   In deciding a motion for judgment of acquittal, the court must view the State's evidence in its entirety, and “giv[e] the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom.”  Reyes, supra, 50 N.J. at 459.   The appellate court will apply the same standard as the trial court to evaluate whether the trial judge should have acquitted a defendant.  State v. Moffa, 42 N.J. 258, 263 (1964).

Applying this standard, we are unpersuaded by defendant's argument.   Although the property owners did not testify — apparently because of their medical conditions — there was sufficient evidence, albeit circumstantial, upon which a jury could, and this jury ultimately did, conclude that defendant lacked authority to enter their home.   See N.J.S.A. 2C:18–2(a) (defining elements of burglary to include entry into a structure unless it was open to the public “or the actor is licensed or privileged to enter”);  N.J.S.A. 2C:18–3(a) (defining elements of criminal trespass to include knowledge that one is “not licensed or privileged” to enter premises).   As the trial court noted, the State presented evidence that defendant entered the home through a window;  the living room was ransacked;  there was an attempt to pry open the front door;  and the television was removed in the late evening.   Even if the jury found that defendant had authority to enter the home under other circumstances, a jury could reasonably conclude defendant lacked authority when he entered the home on the evening of March 23, 2010.

We also find no merit in defendant's argument that the court erred in admitting into evidence photographs of the scene because they were not disclosed before trial.   Defense counsel did not object to their admission into evidence, choosing instead to highlight that they were taken long after the incident.  “[T]o rerun a trial when the error could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal.”  State v. Macon, 57 N.J. 325, 333 (1971).   Thus, a claim of error not raised below will not be entertained unless it is perfectly clear that there actually was error.  Ibid.

The court did not abuse its discretion in allowing the evidence.   See State v. Heisler, 422 N.J.Super. 399, 415 (App.Div.2011) (stating that a court is vested with broad discretion to determine what remedy, if any, it should impose for a failure to make disclosures).   Although defendant urges us to conclude that the photographs were prejudicial, he has failed to include them in the record before us.   We cannot reach an issue in the absence of essential parts of the trial record.   See Soc'y Hill Condo.   Assoc. v. Soc'y Hill Assocs., 347 N.J.Super. 163, 177–78 (App.Div.2002) (stating “[w]ithout the necessary documents” court lacks basis for deciding issue on appeal).   In any event, it appears the photographs in large part confirmed uncontested facts.   Consequently, we do not conclude the unsubmitted photographs were clearly capable of producing an unjust result.   See R. 2:10–2;  Macon, supra, 57 N.J. at 336.

The court erred in addressing Sands/Brunson issues in chambers and off-the-record.   See R. 1:2–1;  R. 1:2–2.   The court also failed to provide a clear statement of its determination and its reasoning on the record.   See R. 1:7–4.   Nonetheless, we discern no error in the court's determination that defendant's convictions from the 1990s would be admissible under N.J.R.E. 609.   Defendant does not challenge the admissibility of his judgments of convictions from 2000 and 2007.   Those more recent convictions may be deemed to “bridge the gap” of time between the more remote convictions and trial.  State v. Harris, 209 N.J. 431, 444–45 (2012) (holding the trial court did not err in finding that fourteen-year-old convictions were not too remote, since defendant had been convicted of numerous disorderly persons offenses in the intervening years).   Also bridging the gap were a municipal conviction for CDS possession in 1997;  and another municipal conviction in 2006 of a charge downgraded from terroristic threats.4

Finally, we discern no error in the court's sentence.   In our review, we must (a) determine if the sentencing guidelines were violated;  (b) review the aggravating and mitigating factors found to determine whether the court's consideration of those factors was based upon competent credible evidence in the record;  and (c) if the court imposed a sentence in accord with the statutory mandates, whether the sentence was clearly unreasonable so as to “shock the judicial conscience.”  State v. Roth, 95 N.J. 334, 364–65 (1984).   We do not substitute our judgment for the trial judge's.  State v. O'Donnell, 117 N.J. 210, 215 (1989).

Reviewed under these standards, we are satisfied the trial court appropriately weighed the aggravating factors and imposed a sentence in accord with the statutory guidelines.   In particular, the court did not err in applying aggravating factor two to this case.  N.J.S.A. 2C:44–1(a)(2).   The victims were elderly, infirm, and vulnerable, and defendant knew that.   The harm to the victims consisted of more than the violation of a property right inherent in any criminal trespass.   Although they were not present when the crime occurred, the trespass consisted of a serious violation of their security.   In view of defendant's extensive prior criminal record, the court's sentence does not “shock the judicial conscience,” Roth, supra, 95 N.J. at 365, and we discern no basis to disturb it.

Affirmed.

FOOTNOTES

1.  FN1. To protect the crime victims' privacy, we only use the witness's first name.

2.  FN2. State v. Sands, 76 N.J. 127 (1978);  State v. Brunson, 132 N.J. 377 (1993).

3.  FN3. Defendant's presentence report reflects that he was sentenced to:  five years of probation in 1990 for drug-related offenses and conspiracy, N.J.S.A. 2C:35–10(a)(1), N.J.S.A. 2C:35–5(b)(3), N.J.S.A. 2C:5–2, committed in 1989;  five years of incarceration in 1991 for a third-degree school zone offense, N.J.S.A. 2C:35–7, committed in 1990;  seven years of incarceration in 2000 for third-degree burglary, N.J.S.A. 2C:18–2, committed in 1999;  five years incarceration in 2000 for third-degree theft by receiving stolen property, N.J.S.A. 2C:20–7, and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39–5(b), committed in 1999;  and time served in 2008 for third-degree aggravated assault, N.J.S.A. 2C:12–1(b)(1), committed in 2007.

4.  FN4. We note the adoption of an amendment to N.J.R.E. 609, effective July 1, 2014, that expressly authorizes consideration of gap-bridging offenses and crimes, along with shifting the burden to the State to show why convictions older than ten years should be admitted.   See Amendments to the New Jersey Evidence Rule 609, 213 N.J.L.J. 2 (Sept. 16, 2013).   The revised rule obviously did not apply to this case.

PER CURIAM

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