State of New Jersey v. Barry M. Crudup

• Court: New Jersey Superior Court Appellate Division
• Decided: December 8, 2023
• Docket: A-2807-20
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2807-20

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BARRY M. CRUDUP, a/k/a WHITE BOY, and LIVE,

Defendant-Appellant. _______________________

Submitted September 19, 2023 – Decided December 8, 2023

Before Judges Sumners and Smith.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 13-06-0118.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael Timothy Denny, Assistant Deputy Public Defender, of counsel and on the briefs).

Matthew J. Platkin, Attorney General, attorney for respondent (Steven K. Cuttonaro, Deputy Attorney General, of counsel and on the brief).

PER CURIAM A jury found defendant Barry M. Crudup guilty of weapons offenses––

ranging from second- to fourth-degrees––arising from a New Jersey State Police

sting operation targeting illegal gun sales. The State's case was supported by a

sole eyewitness, Tyree Mims––a gun dealer turned paid confidential informant

(CI)––who after sales to defendant was placed in witness protection due to

unrelated shootings. Defendant was sentenced to an aggregate ten-year prison

term inclusive of two consecutive prison terms, subject to a six-year period of

parole ineligibility.

Defendant appeals, arguing:

POINT I

THE PROSECUTOR COMMITTED REVERSIBLE MISCONDUCT WHEN SHE MADE INCULPATORY STATEMENTS UNSUPPORTED BY THE RECORD IN HER SUMMATION IMPLYING THAT THE DEFENDANT WAS RESPONSIBLE FOR SHOOTING AT THE STATE'S CRITICAL WITNESS, AND BY BOLSTERING THE WITNESS[]'S CREDIBILITY. (Not Raised Below).

A. THE PROSECUTOR MADE INCULPATORY STATEMENTS THAT WERE UNSUPPORTED BY THE RECORD.

B. THE PROSECUTOR IMPROPERLY BOLSTERED THE MAIN WITNESSES' CREDIBILITY.

A-2807-20 2 C. THESE IMPROPER ARGUMENTS, BOTH INDIVIDUALLY AND TOGETHER, DEPRIVED THE DEFENDANT OF A FAIR TRIAL AND NECESSITATE REVERSAL OF HIS CONVICTIONS.

POINT II

THE TRIAL COURT ERRED WHEN IT SENTENCED [DEFENDANT] TO CONSECUTIVE SENTENCES BECAUSE IT DID NOT CONSIDER THE OVERALL FAIRNESS OF THE SENTENCE.

Our decision yields mixed results. We affirm defendant's conviction as

no unjust result occurred due to the prosecutor's summation comments about

Mims' shootings. The jury was instructed several times that defendant was

neither charged nor involved with the shooting and that Mims' relocation as a

CI was not attributable to defendant. We reverse and remand because––as the

State concedes––the trial court must explain why it was fair to impose

consecutive sentences in accordance with State v. Torres, 246 N.J. 246 (2021).

I.

We limit our discussion of the record to the facts and statements relevant

to this appeal.

A State Police investigation employed Mims to stem illegal gun sales in

the Trenton area. As part of his CI arrangement, Mims was paid $100 for every

gun he successfully purchased for the State Police (earning $1,700 over a seven-

A-2807-20 3 month period); received money for household necessities and phone bills; and

was removed from the Sex Offender Internet Registry.

The primary target of the investigation was Gary Spears. Defendant,

however, got entangled in the investigation by making two sales to Mims.

Mims had arranged to buy guns from Michael Gyampo (Nep). The State

Police had Mims wear a recording device during the transaction and gave him

money for the purchase. Mims testified he purchased a rifle from Nep and

defendant, whom he called "White Boy," and gave it to the State Police.

Two months later, Mims set up another buy with defendant. Again, the

State Police had Mims wear a recording device and gave him money for the

purchase. Mims testified he bought a handgun from defendant and gave it to the

State Police.

A subsequent purchase, not involving defendant, resulted in the seller

shooting at Mims in a robbery attempt. After another unsuccessful buy led to

Mims being shot at, he was placed in a witness relocation program.

The only evidence of defendant selling guns was Mims' testimony. The

State Police did not produce any investigation notes; policies at the time did not

require documentation of text messages or phone conversations. Additionally,

A-2807-20 4 the State Police did not test the guns for DNA or fingerprints and did not take

pictures or video surveillance of the buys.

The jury found defendant guilty of all offenses charged. After merger,

defendant was sentenced to an aggregate ten-year prison term, subject to a six-

year period of parole ineligibility, based on consecutive terms of : (1) five years

for second-degree conspiracy to unlawfully possess a weapon, N.J.S.A. 2C:5-2

and N.J.S.A. 2C:58-5 ; second-degree unlawful possession of an assault firearm,

N.J.S.A. 2C:39-5(f); third-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(c)(2); and third-degree unlawful disposition of an assault firearm,

N.J.S.A. 2C:39-9(g); and (2) five years for second-degree unlawful possession

of a firearm, N.J.S.A. 2C:39-5(b); and fourth-degree unlawful disposition of

weapons, N.J.S.A. 2C:39-9(d). In addition, defendant was sentenced to a

concurrent term of eighteen months for fourth-degree possession of a prohibited

weapon, N.J.S.A. 2C:39-3(d), and fourth-degree disposition of a prohibited

weapon, N.J.S.A. 2C:39-9(e).

II.

Defendant asserts his rights to due process and a fair trial under U.S.

Const. amends. VI, XIV and N.J. Const. art. I, ¶¶ 1, 10 were violated, warranting

reversal of his conviction due to prosecutorial misconduct––summation

A-2807-20 5 comments: (1) implying––without factual support––defendant was involved in

the Mims' shooting; and (2) improperly buttressing Mims' credibility. We

disagree.

A. Shooting Testimony

During summation, the prosecutor emphasized Mims' testimony

identifying defendant as a gun dealer and explained the lack of any forensic or

documentary evidence of defendant's possession of guns or sale to Mims of

guns. The prosecutor argued:

You can't sit there and take a video. That would be great, but it's not reality. It can’t happen in these cases. It would compromise the investigation and as you're very well aware, Mr. Mims risked getting shot. He was shot at twice. He was shot at twice in this case.

Defense counsel did not object.

The prosecutor's remarks were not "'clearly and unmistakably improper,'

and [did not] substantially prejudice[] defendant's fundamental right to have a

jury fairly evaluate the merits of his defense." State v. Smith, 167 N.J. 158, 181-

82 (2001) (quoting State v. Timmendequas, 161 N.J. 515, 575 (1999)). And

given the absence of an objection, defendant had to establish the remarks

constituted plain error, State v. Feal, 194 N.J. 293, 312 (2008), meaning they

were not "clearly capable of producing an unjust result," R. 2:10-2.

A-2807-20 6 The trial judge instructed the jury on five different occasions that

defendant was neither charged nor associated with the shootings, and that Mims'

relocation could not—and should not—be attributed to defendant. See

Timmendequas, 161 N.J. at 575 (concluding there was no reversible error when

jurors did not rely "on their suspicions of [the] defendant's prior convictions in

reaching their decisions"). The substance of the instructions was firm, clear,

and effective. See State v. Vallejo, 198 N.J. 122, 134 (2009). We assume the

jury followed the instructions, State v. Loftin, 146 N.J. 295, 367 (1996) (citation

omitted), and defendant has not provided any indication to the contrary.

The prosecutor did not argue facts not in evidence. See State v. Farrell,

61 N.J. 99, 102-03 (1972) (warning that summation comments cannot serve as

"the equivalent of testimony by the prosecutor"). In his merits brief, defendant

admits the shootings were brought up by his cross-examination of Mims to show

his continuing financial interest in cooperating with State Police. So, in

presenting the shootings to the jury, defendant has no basis to argue the

prosecutor could not refer to them during summation. See State v. Munoz, 340

N.J. Super. 204, 216 (App. Div. 2001).

The prosecutor's comments did not "transform[] the case against

[defendant] from one about selling guns to one about attempting to kill Mims ,"

A-2807-20 7 as defendant argues. Defendant correctly maintains there was no evidence he

was aware Mims was a CI and retaliated by shooting Mims. The record,

however, shows the trial was focused on Mims' allegations that defendant sold

him guns on two separate occasions.

The prosecutor's summation regarding the shootings were fair comment

on how dangerous the gun buys were, and therefore they could not be

videotaped, leaving Mims as the State's sole witness to the transactions. The

buys were audio recorded, which confirmed Mims' testimony that defendant sold

him the guns. The summation accordingly relied on facts in evidence.

B. Mims' Credibility

Defendant argues the prosecutor's comments about Mims' shootings

improperly bolstered Mims' credibility to the jury and warrants reversal of his

conviction. Because none of the comments were objected to, we review them

under the lens of plain error. Feal, 194 N.J. at 312.

The prosecutor reinforced Mims' testimony that defendant was the person

who sold him guns, saying this accusation was consistent before and after the

shootings. Defendant asserts the prosecutor invited the jury to speculate about

what would have happened to Mims if it had been known he was a CI buying

guns. The prosecutor stated: "People didn't even know he was buying guns for

A-2807-20 8 the State Police[,] and he still got shot at. Can you imagine what would have

happened if he told them?" Defendant, citing State v. W.L., 278 N.J. Super.

295, 301 (App. Div. 1995), argues the prosecutor's unsupported comments had

the "capacity to unfairly bolster the State's case and lead the jury to convict,"

especially since Mims was the only eyewitness to the buys.

The prosecutor also argued Mims told the truth about buying guns from

defendant a second time because "Gary Spears didn’t show up . . . He could have

bought the gun from anyone. . . . There's absolutely no reason for [Mims] to say

it's [defendant]. He said it was [defendant] because [defendant], White Boy,

showed up." The prosecutor further contended Mims' compensation was not

contingent on who sold him a gun and there was "no reason for him to say that

it was defendant." According to defendant, the State's argument that Mims "had

'no reason' to lie about who sold the guns completely overlooks" the financial

incentives provided to Mims.

Defendant further cites the prosecutor's improper bolstering by the

comment on Mims' testimony that it was defendant speaking on the recordings

of the buys. The prosecutor asserted: "These recordings are not going to lie to

you. And you don’t have to take Mr. Mims' word as to who was on those

recordings. You can take the word of the recordings."

A-2807-20 9 As a general principle, it is improper for a prosecutor to convey their

personal opinion to a jury. State v. Michaels, 264 N.J. Super. 579, 640 (App.

Div. 1993) (citations omitted), aff'd, 136 N.J. 299 (1994). Thus, a prosecutor's

personal opinion in summation bolstering the credibility of a witness may

constitute error. See Farrell, 61 N.J. at 105; see also State v. Rivera, 437 N.J.

Super. 434, 449 (App. Div. 2014) ("Our Supreme Court has consistently

condemned conduct that invades the exclusive province of the jury to resolve

factual disputes, assess credibility and decide whether the State’s evidence

establishes guilt."). But a prosecutor "[is] afforded considerable leeway" in

summation "if their comments are reasonably related to the scope of the

evidence before the jury." State v. Harris, 141 N.J. 525, 559 (1995). In doing

so, a prosecutor "[is] expected to make vigorous and forceful . . . argument to

the jury." Id.

Here, the prosecutor's unobjected-to remarks do not warrant reversal of

defendant's conviction. The prosecutor's bolstering of Mims' credibility was in

direct response to defendant's attempt to impeach Mims' testimony by

questioning the financial incentives he received as a CI and calling Mims

manipulative. As pronounced in State v. Frost, 158 N.J. 76, 82 (1999), this was

appropriate and expected; the State rebutted defendant's impeachment attempt

A-2807-20 10 to persuade the jury that Mims' testimony was credible. Faced with opposing

views of Mims' credibility, the jury sided with the State's version. The

prosecutor's bolstering remarks were not clearly capable of producing an unjust

result. So, there is no reason to upset the jury's verdict.

III.

In the event his conviction is not vacated, defendant contends a remand

for a full resentencing is required because, in imposing two five-year

consecutive sentences, the trial judge failed to comply with State v. Yarbough,

100 N.J. 627 (1985), and Torres. We disagree regarding Yarbough but agree as

to a limited remand to comply with Torres.

Defendant argues the judge's oral decision "ma[king] a fleeting reference

to [Yarbough]" was inadequate. The judge stated:

The first transaction was a part of a conspiracy with Gyampo, while the second sale was conducted solely by defendant. Further, the transactions involve two different guns, one a loaded assault rifle, the other a defaced handgun, and it was sold over two months apart. The transactions constitute separate instances of criminal conduct, rather than [a] single period of abhorrent behavior and the convictions for which the sentences are to be included, are numerous.

While not comprehensive, we conclude the judge's reasoning for imposing

consecutive sentences was adequate. See State v. Miller, 205 N.J. 109, 129

A-2807-20 11 (2011) (holding a remand is required when the trial judge fails state its reasons

for imposing consecutive sentences).

After defendant was sentenced, our Supreme Court decided Torres,

holding: "An explicit statement, explaining the overall fairness of a sentence

imposed on a defendant for multiple offenses in a single proceeding . . . is

essential to a proper Yarbough sentencing assessment." 246 N.J. at 268. We

might assume that by imposing the minimum five-year consecutive sentence on

second-degree offenses (defendant incorrectly asserts the maximum sentence

was imposed), the judge was implicitly considering the overall fairness of the

sentence imposed. The judge, however, did not explicitly state the overall

fairness of a sentence per Torres. Hence, as the State concedes, we vacate

defendant's consecutive sentences and remand for the judge to comply with

Torres.

As for the scope of the remand, defendant argues it should be a full

resentencing, wherein the judge would "view [him] as he stands before the court

on that day." State v. Randolph, 210 N.J. 330, 354 (2012). Torres does not, as

defendant contends, require a full resentencing. The judge's sole error was not

explaining the overall fairness of imposing consecutive sentences. See Torres,

246 N.J. at 271. We have no issue with the judge's consideration of the

A-2807-20 12 sentencing factors or explanation for imposing consecutive sentences. See id.

at 272. On remand, the judge should only determine whether the overall fairness

of the consecutive sentences. See Randolph, 210 N.J. at 354 (concluding the

trial court should not conduct a full resentencing on remand where it is ordered

to correct "a plainly technical error" or where an appellate court issues "a

directive to the judge to view the particular sentencing issue from the vantage

point of the original sentencing"). We take no position as to whether the court

should impose consecutive sentences.

To the extent that we have not addressed defendant's remaining

arguments, we conclude that they lack sufficient merit to warrant discussion in

a written opinion. R. 2:11-3(e)(2).

Affirmed as to defendant's convictions and reversed and remanded for

resentencing. We do not retain jurisdiction.

A-2807-20 13