STATE OF NEW JERSEY v. ANTONIO PRATTS (2011)

On January 29, 2008, an Atlantic County grand jury issued Indictment No. 08-01-0207 charging defendant Antonio J. Pratts with first-degree armed robbery, N.J.S.A. 2C:15-1 (count one);  third-degree theft, N.J.S.A. 2C:20-3 (count two);  second-degree burglary, N.J.S.A. 2C:18-2 (count three);  fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d (count four);  third-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4d (count five);  and third-degree terroristic threats, N.J.S.A. 2C:12-3b (count six).   Following a jury trial, defendant was convicted of terroristic threats (count six) and criminal trespass, a lesser included offense to the burglary offense (count three).   The jury acquitted defendant on all other counts.

The court granted the State's motion and imposed an extended term sentence of ten years on count six, with a five-year parole ineligibility period and a concurrent eighteen-month term with a nine-month parole ineligibility period on count three.   Applicable fines and assessments were imposed.

Defendant appeals from his conviction and the sentence imposed by the court, arguing:

POINT I.

THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN A VERDICT OF GUILTY AS TO TERRORISTIC THREATS (Not raised below).

POINT II.

THE TRIAL COURT ERRED BY NOT SUA SPONTE CHARGING HARASSMENT AS A LESSER-INCLUDED OFFENSE OF TERRORISTIC THREATS.  (Not raised below).

POINT III.

TESTIMONY WHICH IMPUTED A CRIMINAL DISPOSITION TO DEFENDANT WAS ADMITTED ERRONEOUSLY, AND THE COURT IMPROPERLY FAILED TO GIVE A CAUTIONARY INSTRUCTION REGARDING THIS TESTIMONY.  (Partially raised below).

POINT IV.

DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL.

POINT V.

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

Following our review of these arguments in light of the record and applicable law, we affirm defendant's conviction and sentence.

I.

The facts are taken from the trial testimony presented by the witnesses.   On December 20, 2007, Frank Brunetti was in his Absecon apartment around 4:00 P.M. with Melissa Fifth, a prostitute.   Brunetti admitted he had engaged Fifth's services in the past, however, on this evening, the two were viewing his recent vacation photographs.   Before Fifth went to Brunetti's home, she had called him stating she needed money.   Brunetti gave her forty dollars.

While Brunetti and Fifth were looking at his pictures, someone knocked on his apartment door.   Brunetti opened the door, expecting a real estate agent who had made arrangements to show the apartment.   Instead of greeting the agent, he was confronted by defendant.   Defendant “pushed in the door and started rambling on about giving him money.”   Defendant then pushed Brunetti against the refrigerator, pulled out a lock-blade knife and demanded money.   Fifth ran out of the apartment.   Brunetti handed defendant $123.   Defendant grabbed a pack of Newport 100 cigarettes and a Bic lighter he saw on the bed and began to leave.   Before exiting, defendant, with the knife in his hand, threatened to kill Brunetti if he called the police, warning that he had “been to prison before and ․ it didn't bother him being there.”

Terah Naumchik, a real estate agent who was showing the property, was headed toward Brunetti's apartment when she observed a man, later identified as defendant, wearing a dark gray sweat-suit and a yellow backpack sitting on the stoop outside of the apartment.   Unable to get into the apartment, Naumchik took her client to the front of the building.   Thereafter, Naumchik saw defendant peddling a bicycle at a high rate of speed, heading away from the building toward the train station.   At nearly the same time, Naumchik encountered Brunetti, who approached from the rear of the building.   Brunetti “was very agitated” and stated he been robbed and “this guy pulled a knife on [him].”

Brunetti reported to a 911 operator a man wearing “a gray hoodie with a yellow backpack robbed [him] at [his] house and he was heading towards the Absecon train station.”   Within two minutes, Officer Micah O'Hara arrived to interview Naumchik and Brunetti.   Both witnesses described the suspect as “a Hispanic male, [of] short stature, wearing a black or dark gray outfit, jeans [ ] and a yellow and black bag.   He was wearing prescription eyeglasses.   He was last seen on Station Avenue heading towards the train station on a bicycle.”   Officer O'Hara radioed this information to other police units.

As the police arrived at the train station, a man fitting the description of the suspect was seen boarding a train.   With the help of passengers, the police located defendant and Fifth, who were seated in separate cars.   Also, defendant's bicycle was located in a storage area in one of the cars.   Detective Robert Ponzetti detained defendant and patted him down;  no weapons, money, or cigarettes were found.   Detective Ponzetti noticed defendant wore a custodial parole GPS bracelet on his ankle and told the arresting officer there was “no way that [he] would be involved in doing any criminal activity with a satellite that follows [him] around wherever [he goes].”

Police officers searched a trash can next to the train station ticket machine, where they found a black leather jacket, a blue denim baseball cap, and a pair of eyeglasses.   Train station staff turned over a backpack found on the train to police.   Inside were a screwdriver, a pie knife, and a can of malt liquor.   Police took defendant to the scene of the crime, where Brunetti identified him stating, “Yes, that's him.   I remember his teeth.”

Sergeant Robert Ketschek transported defendant to the police station.   After transport was completed, Sgt. Ketschek searched the back seat of his patrol car and found a black Bic lighter.   While processing defendant, Officer O'Hara found a pack of Newport 100 cigarettes.   Defendant did not have a knife that matched the witness's description, as neither the State nor Brunetti alleged that the pie knife recovered in the backpack was the knife in the robbery.   During processing, defendant told Officer O'Hara, “Look, I just went in there and I shoved the guy a few times.   That's all that happened.   I just wanted to get my girlfriend back.”

Omar Pardo testified at the request of the defense.   Pardo was a long-time friend of defendant and related a conversation he had with Fifth at a Dunkin' Donuts in late December 2007.   According to Pardo, the conversation with Fifth went as follows:

[Fifth said she] was in Absecon with [defendant] and he ends up getting blamed for robbery.   I said what happened.   She's like I went ․ to go meet a friend of mine to borrow some money and she explains how she was in the back room with the guy and [defendant] was sitting outside.   And I was like, well, how does [defendant] get blamed for anything.   She's like, oh, well, he's getting blamed ‘cause they're saying that he stuck the guy up with a pie knife, which it wasn't true.   I was like, well, what exactly happened.   She was like, well, you know, I've been beating a lot of people out here and I took the guy's money, but instead of the guy blaming me, he blamed Tony. I guess he really likes me or something.

I said so what are you going to do about it.   She said nothing, I'm not going to do anything.   I said so he's sitting there for no reason.  [She said,] Yeah.

Defendant took the stand and testified on his own behalf.²  On the day of the alleged crime, defendant was with Fifth with whom he had a romantic relationship.   Fifth intended to go to “some friend's house allegedly to borrow money or steal some quarters from him[.]”  Defendant wanted no part of Fifth's plan.   He arranged to “meet her at the train station” after he completed a dental examination.   Following his appointment, defendant waited for Fifth at the train station for two hours, when another prostitute told him Fifth was “pulling a trick” at an apartment on the White Horse Pike. Defendant left the train station and went to Brunetti's building, knocking on various doors.   When defendant knocked on Brunetti's door, Brunetti “came out in a robe and his underwear with a knife in his hand.”   Defendant claims he did not go inside the apartment, but could see Fifth through the crack of the door.   She was “in bed without her clothes.”

Defendant, while standing outside the apartment, began quarreling with Brunetti and yelling to Fifth to get dressed and leave.   Brunetti cursed at defendant and told him to “get the hell out.”   Defendant responded,

I want my girlfriend out of there, I want her to get dressed and get out of there, and I hollered through the crack of the door, I said, “Melissa, get dressed and get the hell out of there.   You didn't tell me that you were coming to do this.   You were coming to borrow money.   You weren't coming here to pull a trick, so get the hell out of there.”

As the argument escalated, defendant and Brunetti began shoving one another.   Defendant repeated his intent to get his girlfriend and suggested he did not strike Brunetti because he was holding a knife, admitting he told Brunetti “if [he] didn't have that knife, he would kick his ass.”   In response, Brunetti shoved defendant and slammed the door.   Defendant denied that he stole money or a pack of cigarettes from Brunetti, claiming he had “never smoked a cigarette in [his] life.”   Defendant waited on the apartment steps for Fifth to exit, and remembered seeing Naumchik.

Suddenly, Fifth exited the apartment, running at a “gallop.”   As she ran down the street, “like a bat out of hell,” defendant hopped on his bicycle and pedaled after her, catching up with her less than a block away.   The two began arguing and defendant told Fifth he was ending their relationship.   When the train arrived, defendant told Fifth to take the bike and the backpack, which he claimed belonged to her, and clear out her belongings from his apartment.   Defendant and Fifth sat in separate cars following their disagreement.   Before the train left the station, the police boarded the train and removed defendant.

Although the jury acquitted defendant on the more serious offenses, he was found guilty of criminal trespass, a lesser included offense to burglary, and terroristic threats.   The State moved for imposition of an extended term sentence, asserting defendant was a persistent offender.

The court granted the State's motion and sentenced defendant to ten years, with a five-year period of parole ineligibility on count six and a concurrent eighteen-month term with a nine-month period of parole ineligibility on count three.   Explaining the sentence imposed, the trial judge stated:

The defendant is [sixty] years old, but a criminal record which length and breath speaks for itself.   He has been arrested [fifty-four] times, has accrued [eleven] prior indictable convictions, nine prior disorderly persons convictions.   His convictions include armed robbery, burglary, unlawful possession of a shotgun, theft, contributing to delinquency of a minor and sexual assault.   He has a high risk of reoffending and doing so violently.   A sentence within the range of ordinary terms is inadequate to effectively punish and deter the defendant from further criminality.   He qualifies for sentencing as a persistent offender based upon the certified convictions presented to the [c]ourt.

Aggravating factors three, six and nine apply.   No mitigating factors apply.   The aggravating factors overwhelmingly outweigh the mitigating.

Defendant timely filed his appeal.

II.

A.

Defendant first argues the evidence was insufficient to support a conviction for terroristic threats.   However, defendant neither moved for a judgment of acquittal, nor made a motion for a new trial.   Rule 2:10-1 requires a new trial motion to have been made before the trial court as a prerequisite to an appellate challenge to a jury verdict on weight-of-the-evidence grounds.   State v. Saunders, 302 N.J.Super. 509, 524 (App.Div.), certif. denied, l5l N.J. 470 (1997).   That mandate is subject to relaxation and we may proceed to address the merits based on considerations of substantial justice.  State v. Smith, 262 N.J.Super. 487, 511 (App.Div.), certif. denied, 134 N.J. 476 (1993).   Here, however, we are satisfied there is no “miscarriage of justice under the law,” R. 2:10-1, as the “trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.”  State v. Herrera, 385 N.J.Super. 486, 492 (App.Div.2006) (citations omitted).

B.

Defendant also claims reversible error because the trial court failed to charge harassment as a lesser-included offense of terroristic threats.   This charge was neither requested nor raised before the trial court.

“[A] defendant ‘is entitled to a charge on all lesser included offenses supported by the evidence.’ ”  State v. Savage, 172 N.J. 374, 396 (2002) (quoting State v. Short, 131 N.J. 47, 53 (1993)).   Pursuant to N.J.S.A. 2C:1-8(d), an offense is an included offense when:

(1) It is established by proof of the same or less than all of the facts required to establish the commission of the offense charged;  or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein;  or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

Defendant was charged with terroristic threats, as set forth in N.J.S.A. 2C:12-3(b), which states:

A person is guilty of a crime of the third degree if he threatens to kill another with the purpose to put him in imminent fear of death under circumstances reasonably causing the victim to believe the immediacy of the threat and the likelihood that it will be carried out.

To be guilty of the petty disorderly offense of harassment, N.J.S.A. 2C:33-4 requires only that a person:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so[.]

Our review is informed by these established principles governing a trial court's obligation to instruct the jury on lesser-included offenses, in the absence of a request to charge from counsel.

Without question, a “trial judge has a mandatory duty to charge the jury on the fundamental principles of law which control the case[.]”  State v. Holmes, 208 N.J.Super. 480, 490 (App.Div.1986) (citing State v. Butler, 27 N.J. 560, 594-95 (1958)).   However, when a defendant does not request the court include in its charge a discussion of a lesser-included offense, the trial court “does not ․ have the obligation on its own meticulously to sift through the entire record in every [ ] trial to see if some combination of facts and inferences might rationally sustain a [lesser] charge.”  State v. Sloane, 111 N.J. 293, 303 (1988);  see also State v. Walker, 203 N.J. 73, 86 (2010) (discussing court's sua sponte obligation to charge lesser-included offenses).  “[I]t is only when the facts ‘clearly indicate’ the appropriateness of that charge that the duty of the trial court arises.”  State v. Robinson, 136 N.J. 476, 489 (1994) (internal quotations and citations omitted).   This standard is in contrast to the level of review necessary when a charge is requested.  “To be sure, when counsel requests such a charge, the court should give the charge if there is a rational basis in the record for doing so.”   Walker, supra, 203 N.J. at 86.

It is arguable whether the petty disorderly persons offense of harassment properly fits as a lesser-included offense to a terroristic threat charge.   See State v. Macilwraith, 344 N.J.Super.   544 (App.Div.2001).   In any event, the evidence in this case does not “clearly indicate” the appropriateness of a charge of harassment, triggering the court's sua sponte obligation to include the lesser-included offense.

Harassment includes harsh communication or could involve an offensive touching or striking.   The evidence here however, was much more expansive.   Both the State's and defense's cases were largely testimonial, pitting Brunetti's version of the events against defendant's.   The altercation between the two men described for the jury, under both versions, was heated, involving guttural name-calling and physical interaction, including shoving and the use of a knife.

We conclude the jury clearly understood its role to assess the evidence and the witnesses' credibility.   In doing so, it acquitted defendant of the most serious offenses of armed robbery, theft and weapon's charges.   If defendant were believable, he would have been acquitted of the terroristic threats charge along with the others.

Following our review of the evidence, we determine no legal impropriety exists and conclude the decision of the court not to charge harassment did not result in plain error.   Counsel's failure to request the charge “constitutes strong evidence that the error belatedly raised [ ] was actually of no moment.”   State v. White, 326 N.J.Super. 304, 315 (App.Div.1999), certif. denied, 163 N.J. 397 (2000).   Consequently, the absence of the charge did not have a clear capacity to bring about an unjust result.   R. 2:10-2.

C.

Defendant also urges reversal arguing the trial court “erroneously permitted the State to adduce evidence which [showed] defendant had been incarcerated on a prior occasion and was wearing an ankle bracelet at the time of his arrest [which] imputed a criminal disposition to defendant.”   Further, the court failed “to give a cautionary instruction regarding the testimony.”   We are not persuaded.

The challenge focuses on several colloquies during examination of the State's witnesses.   The first instance occurred between the prosecutor and Brunetti, as follows:

Q: At the time that Mr. Pratts told you that he'd kill you if you called the police-

A: Uh-huh.

Q: -  did he still have the knife in his hand?

A: Yes.

Q: [H]ow did you feel about that threat?   Did you feel it was a valid threat?

A: Valid threat, yeah.   He told me he'd been in prison before and ․ it didn't bother him being there.

[Defendant's counsel]:  Objection, Your Honor.

The Court:  Well, that's what he said.

Defendant argues Brunetti's statements were admitted in violation of N.J.R.E. 404(b),³ and no limiting instruction was provided.

“Evidence of events that take place during the same time frame as the crime charged ․ will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.”  State v. Cherry, 289 N.J.Super. 503, 522 (1995).   Here, the testimony regarding defendant's comment was part of the threat uttered to Brunetti to establish Brunetti reasonably believed the immediacy of the threat and the likelihood that it would be carried out.   See N.J.S.A. 2C:12-3(b).

Next, defendant cites Detective Ponzetti's testimony regarding the pat-down, when he said “I didn't feel anything on him ․ as a weapon, but he did have a [n] ankle bracelet on.”   No follow up questions were asked and Detective Ponzetti never mentioned the bracelet was a GPS tracking device or alluded to any prior criminal conviction.

We reject defendant's suggestion that Detective Ponzetti's reference “indicated to the jury that the ankle bracelet had some nexus to defendant's potential dangerousness.”   Rather, we determine the comment was innocuous, as illustrated by the lack of a defense objection.  White, supra, 326 N.J.Super. at 315.

D.

Defendant urges we reverse because counsel provided ineffective assistance as “defense counsel did not raise a diminished capacity defense, failed to make a motion to dismiss the terroristic threats charge, failed to request that harassment be charged as a lesser-included offense of terroristic threats, failed to object to the erroneous admission of Detective Ponzetti's reference to his ankle bracelet, and failed to request a cautionary anti-propensity instruction regarding [the] ankle bracelet reference and Brunetti's reference to defendant's prior imprisonment.”   Defendant argues these “errors singularly and cumulatively operated to deprive [him] of his Sixth Amendment right to the effective assistance of counsel at trial.”

We decline the invitation to resolve these claims, which are ill-suited for plenary review on direct appeal as they touch on trial strategy and might benefit from additional evidence that is outside the record.  State v. Preciose, 129 N.J. 451, 460 (1992);  State v. Dixon, 125 N.J. 223, 262 (1991).   The claims are best presented in a petition for post-conviction relief.   See Preciose, supra, 129 N.J. at 460 (“Courts have expressed a general policy against entertaining ineffective-assistance-of-counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.”).

III.

Finally, defendant asserts the trial court's “imposition of an extended term sentence of ten years imprisonment with a five year parole disqualifier for terroristic threats was manifestly excessive.”   Defendant requests his sentence be vacated and the matter remanded for re-sentencing.

A trial judge is given “wide discretion” to impose a sentence provided it is within the statutory framework, and the reviewing court must give that decision “great deference.”  State v. Dalziel, 182 N.J. 494, 500-01 (2005).   Although our review of a sentence must be “careful and vigorous,” State v. Kirk, 145 N.J. 159, 175 (1996), we may not substitute our judgment for that of the sentencing judge.  State v. Bieniek, 200 N.J. 601, 608-09 (2010).   The test is not whether this court would have imposed a different sentence, but rather “whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review.”  State v. Ghertler, 114 N.J. 383, 388 (1989).   In our review, we must make sure that the statutory sentencing guidelines have been met, that applied aggravating and mitigating factors were based upon “competent credible evidence in the record,” and that the sentence is not “clearly unreasonable so as to shock the judicial conscience.”  State v. Roth, 95 N.J. 334, 364-65 (1984).   See also Bieniek, supra, 200 N.J. at 612 (“Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing.”).

Under N.J.S.A. 2C:44-3, a court may sentence a “persistent offender” to an extended term of imprisonment.   The statute defines “persistent offender” as a person who has been convicted of two crimes on two separate occasions and was charged with the present crime within 10 years of the last release from confinement.  N.J.S.A. 2C:44-3(a).   The trial judge found defendant satisfies the criteria of the statute, as he is over eighteen, had committed prior crimes and “was only out of jail for about a year when he committed this offense.”   Accordingly, the court extended the range of the possible sentence available for imposition, starting at the minimum of the ordinary-term range and ending at the maximum of the extended-term range.  State v. Pierce, 188 N.J. 155, 169 (2006).   The extended term allows defendant's sentence to fall within the range of three to ten years.   The sentence imposed of ten years falls within this designated range.

In fixing the sentence within the range, the court found no applicable mitigating factors, N.J.S.A. 2C:44-1(b), but three aggravating factors, N.J.S.A. 2C:44-1(a), that is:  the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3);  the extent and seriousness of the defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6);  and the need for deterring the defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9).   The court articulated these facts to support its determined sentence:

[Defendant] has been arrested [fifty-four] times, has accrued [eleven] prior indictable convictions, nine prior disorderly persons convictions.   His convictions include armed robbery, burglary, unlawful possession of a shotgun, theft, contributing to delinquency of a minor and sexual assault.   He has a high risk of reoffending and doing so violently.   A sentence within the range of ordinary terms is inadequate to effectively punish and deter the defendant from further criminality.

Overall, we do not discern either a misapplication of sentencing principles or an inappropriate exercise of discretion.   The judge explicated the reasons for imposing the term of incarceration and exercising his discretion “based upon findings of fact that are grounded in competent, reasonably credible evidence.”  Roth, supra, 95 N.J. at 363.   We are not free to lightly disregard these findings, particularly when the sentence imposed, although at the top of the range, does not shock our judicial conscience.

IV.

Following our review, we find no basis to overturn defendant's conviction or interfere with the sentence imposed.

Affirmed.

FOOTNOTES

FN2. On appeal, defendant argues he felt “compelled to [take the stand] because of testimony on the State's case which depicted him as a dangerous criminal, specifically, Brunetti's claim that defendant told him he had been in prison before and Ponzetti's observation that defendant was wearing [a GPS monitored] ankle bracelet.”.  FN2. On appeal, defendant argues he felt “compelled to [take the stand] because of testimony on the State's case which depicted him as a dangerous criminal, specifically, Brunetti's claim that defendant told him he had been in prison before and Ponzetti's observation that defendant was wearing [a GPS monitored] ankle bracelet.”

FN3. N.J.R.E. 404(b) states:evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith.   Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute..  FN3. N.J.R.E. 404(b) states:evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith.   Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

PER CURIAM