NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1868-16T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DARIUS H. GITTENS,
Defendant-Appellant. ______________________________
Submitted December 12, 2018 – Decided July 18, 2019
Before Judges Koblitz, Ostrer and Currier.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 13-06- 0659.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Scott A. Coffina, Burlington County Prosecutor, attorney for respondent (Alexis R. Agre, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM A ninety-six count indictment charged defendant Darius Gittens and a co-
defendant with twenty-five burglaries and related offenses between 2011 and
2012 in several municipalities. After the court severed seven counts, a jury
convicted defendant of third-degree burglary of three homes and a second-
degree theft from one of them; and acquitted him of the attempted burglary of a
fourth home. The jury also separately acquitted him of a second-degree certain
persons not to have weapons offense.1 Thereafter, with the intention of applying
to Drug Court, defendant entered an open plea to twenty additional third-degree
burglaries, three related second-degree thefts, and one third-degree attempted
burglary. By agreement, the State then dismissed without prejudice six
firearms-related offenses, including the remaining certain persons offenses.
After the court denied defendant's Drug Court application, the court imposed an
aggregate term of seventeen years, with an eight-year parole disqualifier.
Following the merger of four burglary counts into related theft counts, the court
imposed consecutive terms of ten years and seven years on two of the theft
counts, with parole ineligibility terms of five and three years, respectively. The
court imposed concurrent seven-year terms on the remaining two theft counts.
1 The seventh charge, a fourth-degree certain persons not to have weapons offense, was apparently not tried. A-1868-16T3 2 As for the multiple remaining (unmerged) burglary and attempted burglary
counts, the court imposed concurrent five-year terms. The State then dismissed
the remaining counts.
On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE COURT ERRED IN DENYING DEFENDANT'S ADMISSION INTO DRUG COURT.
POINT II
DEFENDANT'S MOTION FOR MISTRIAL BASED UPON A DNA SCIENTIST'S TESTIMONY THAT CODIS MEANT CONVICTED OFFENDER DNA INDEXING SYSTEM SHOULD HAVE BEEN GRANTED.
POINT III
COMMENTS MADE BY THE COURT CONCERNING A SUITCASE FOUND IN DEFENDANT'S BEDROOM WERE PREJUDICIAL AND DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT IV
THE STATE PRESENTED IMPROPER OPINION TESTIMONY WHICH INFRINGED ON THE FACT- FINDING DUTY OF THE JURY WHICH REQUIRES REVERSAL OF DEFENDANT'S CONVICTION (not raised below).
A-1868-16T3 3 POINT V
ADMISSION OF IRRELEVANT IMMATERIAL AND PREJUDICIAL ITEMS AND DOCUMENTS INTO EVIDENCE WAS ERROR THAT DENIED THE DEFENDANT A FAIR TRIAL.
POINT VI
THE SENTENCE OF 17 YEARS WITH 8 YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND SHOULD BE MODIFIED AND REDUCED (Not raised below).
POINT VII
THE AGGREGATE OF ERRORS DENIED DEFENDANT A FAIR TRIAL (Not raised below).
Finding no merit in any of these contentions, we affirm.
I.
We turn first to defendant's challenge of his jury trial conviction. We
consider defendant's points against the backdrop of substantial evidence of guilt.
DNA from blood found on broken glass, window blinds, and fabrics at the
three burglary scenes matched defendant's DNA sample. The police seized from
defendant's home various tools and devices that could be used in committing a
burglary, including a list of police radio frequencies and a police scanner, radios,
flashlights, a jewelry test kit and cleaner, and a wireless camera locator. A
A-1868-16T3 4 police witness testified that defendant admitted his involvement in the four
burglaries. Defendant also secured the return of several stolen items.
Defendant testified in his own defense, but the jury evidently rejected his
explanation that he possessed the various instruments for use in his security
business; he sold various stolen items at his co-defendant's behest, unaware they
were stolen; his admission that he was involved in a burglary was "satirical";
and his co-defendant planted his blood at the scenes.
Defendant called his co-defendant to testify. The co-defendant had
pleaded guilty to two counts of third-degree burglary. Rather than exonerate
defendant, the co-defendant confirmed he pleaded guilty to conspiring –
implicitly with defendant – to commit the burglary at one of the three homes
involved in defendant's trial; and he denied planting defendant's blood at the
scene.
In the face of this evidence, defendant contends that he was deprived of a
fair trial because a State Police Laboratory DNA scientist, who mentioned that
he once worked for the CODIS laboratory, explained erroneously that the
acronym stood for "Convicted Offender DNA Indexing System." 2 The judge
2 CODIS actually stands for Combined DNA Index System. See Maryland v. King, 569 U.S. 435, 444 (2013); 34 U.S.C. § 40702(a)(3).
A-1868-16T3 5 denied defendant's motion for a mistrial, reasoning that the statement referred to
the witness's employment background, not defendant's criminal background.
The witness did not imply that defendant was a convicted offender or that a
sample of his DNA was in CODIS.
The court had previously delivered the model charge on DNA databases,
see Model Jury Charges (Criminal), "Instruction Regarding DNA Evidence and
CODIS" (May 13, 2013), which instructed the jury not to speculate about the
source of defendant's DNA sample. The judge described various databases that
would not associate defendant with past criminal behavior. After denying t he
mistrial motion, the judge promptly delivered a curative instruction. He stated
there was "nothing before this Court that connects Mr. Gittens to [CODIS]," and
referred back to the model charge he delivered earlier. The judge reiterated that
instruction in his final charge.
Absent an abuse of discretion resulting in a manifest injustice, we will not
disturb a trial court's denial of a mistrial motion and its determination that its
instruction cured any potential prejudice from an errant remark. State v.
Herbert, 457 N.J. Super. 490, 503 (App. Div. 2019). The witness's reference
posed little risk of prejudice, since he did not link defendant to CODIS or to
A-1868-16T3 6 "convicted offenders." The judge then swiftly emphasized the point. We
discern no error.
Nor was defendant denied a fair trial because of the judge's off-hand
remark, describing for the record a suitcase the State offered in evidence. The
judge stated, "And the Court doesn't mean to make light of it but that fact is if
we'd seen that thing open up in an airport, we all would have run. It appears to
have a battery and bunch of wires and who knows what else, but it fills the
suitcase." Defense counsel objected to admission of the suitcase on other
grounds, but did not object to the judge's characterization. Therefore, we
consider defendant's argument under a plain error standard.
Applying that standard, the judge's allusion to suitcase bombs was not
"sufficient to raise a reasonable doubt as to whether the error led the jury to a
result it otherwise might not have reached," or "denied a fair trial and fair
decision on the merits." State v. Macon, 57 N.J. 325, 336, 338 (1971). Although
the judge's remark was ill-advised, the State did not contend, nor did the judge
seriously suggest, that defendant was a bomb-maker, or the suitcase was a bomb.
Rather, the State contended that defendant utilized various forms of technical
electronic equipment to foil home security systems and to commit burglaries
undetected by police. In his own defense, defendant said he was an expert in
A-1868-16T3 7 security systems, but he used his expertise as a security consultant, not a burglar.
He explained that the suitcase was a home-made "signal jammer," which he used
to detect meeting attendees who surreptitiously transmit information in violation
of non-disclosure agreements. Under these circumstances, the judge's remark
did not constitute plain error.
Defendant also challenges the court's admission into evidence, over his
objection, several items taken from defendant's residence – a police scanner,
nine flashlights, a jewelry cleaning kit, handcuffs, and a "Non-deadly Force
Training Commission Identification Card."3 He also contends the court erred in
admitting into evidence a property loss report that one burglary victi m filed with
the police, which itemized various items she said were stolen from her home.
Relatedly, as a point of plain error, defendant argues that a detective, without
being offered as an expert witness, impermissibly offered an expert opinion that
"items like flashlights, scanners, are items that would be in the possession of a
potential burglar committing burglaries in the evening hours." Although defense
counsel objected when the prosecutor asked the detective whether the items
seized from defendant's home had "any significance" to him, he did so on the
3 Defendant also argues the court erred in permitting the State to introduce gloves into evidence; however, the record reflects that the State agreed not to introduce them after the court pressed the State to explain their relevance. A-1868-16T3 8 ground that the witness "already testified as to the exact point," not that the
question called for an expert opinion.
We discern no error in the admission of the items taken from defendant's
residence, or plain error in the admission of the detective's opinion. Turning
first to the opinion, we agree that the detective's testimony was, properly
characterized, expert opinion, as it relied on his specialized knowledge, skill,
experience or training. See State v. Hyman, 451 N.J. Super. 429, 443-44 (App.
Div. 2017) (distinguishing between expert and lay opinion of police witnesses).
However, defendant was obliged to raise an objection, to enable the court to
rule, and the State to respond. See State v. Robinson, 200 N.J. 1, 19 (2009).
Instead, defendant remained silent, and deprived the State of the opportunity to
qualify the detective as an expert, which it readily could have done, in light of
the detective's description of his training during his seventeen-year career.
The opinion itself, if offered by an expert, did not usurp the jury's function
as defendant contends. The defense established on cross-examination that the
items could be purchased and used legally, and they were not directly tied to one
of the burglaries. On redirect, the officer offered his opinion that "items like
flashlights" – defendant had several in his bedroom – and "scanners" were
burglar's tools. That was not an opinion as to defendant's guilt that usurped the
A-1868-16T3 9 jury's function. See State v. Salernitano, 27 N.J. Super. 537, 541-42 (App. Div.
1953) (affirming conviction of possession of burglar's tools based in part on an
expert opinion); State v. Knudtson, 195 N.W.2d 698, 700-01 (Iowa 1972)
(approving admission of opinion from qualified expert that prybar, channel lock
pliers and other items were "burglar tools" in prosecution for breaking and
entering). We therefore discern no plain error in the admission, without
objection, of the detective's opinion. Cf. Hyman, 451 N.J. Super. at 458-59
(concluding that admission of police witness's opinion as lay instead of expert
was harmless error where witness's expert qualifications were apparent from the
record).
As for the items seized from defendant's residence, we deferentially
review the trial court's relevance determinations for an abuse of discretion. See
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (stating that
"[d]eterminations pursuant to N.J.R.E. 403 should not be overturned on appeal
'unless it can be shown that the trial court palpably abused its discretion, that is,
that its finding was so wide off the mark that a manifest denial of justice
resulted'") (quoting State v. Carter, 99 N.J. 86, 106 (1982)). We find no abuse
of discretion here. As the trial judge observed, defendant possessed devices and
tools that would enable him to commit burglaries, regardless of whether the
A-1868-16T3 10 items were purchased legally and had lawful uses. Therefore, the items were
relevant, as they tended to prove his guilt.
Finally, defendant contends the court erred in permitting into evidence a
burglary victim's written itemization of her losses prepared shortly after the
burglary of her home. The State used the document to refresh the victim's
recollection of numerous items of jewelry and other collectibles that were taken,
and their appraised values. The list was not admissible as a past recollection
recorded, N.J.R.E. 803(c)(5), because the witness testified that, once refreshed
by the document, she recalled the items and their values. At trial, the prosecutor
contended that the document was admissible under N.J.R.E. 607 as a prior
consistent statement, but the State does not press that contention before us, nor
point to any express or implied charge of recent fabrication. Rather, the State
now contends that the document was not hearsay at all, because the victim
testified. As to that point, we disagree. The witness's availability may assure
defendant's right of confrontation, but it does not convert a hearsay document
into non-hearsay.
Nonetheless, we are convinced that any error in admitting the document
was harmless. The document was cumulative. The witness testified at length
about the items taken from her home. Many of them were returned by defendant
A-1868-16T3 11 himself. The total value of the items taken exceeded $115,000 – far more than
the $75,000 threshold for a second-degree theft. We are unconvinced that the
document's admission was prejudicial or confused the jury.
To the extent not addressed, defendant's remaining points challenging his
jury conviction lack sufficient merit to warrant discussion. R. 2:11-3(e)(2).
II.
Defendant contends the trial court erred in denying his Drug Court
application.4 It was his second. His first was denied because he was statutorily
barred, apparently based on the firearms charges in the indictment. He applied
again after his guilty plea and the State's dismissal of the remaining firearms
charges.5
The court found that defendant met all but one of the nine criteria for
admission under N.J.S.A. 2C:35-14(a)(1)-(9). He was ineligible because the
court could not find that "no danger to the community w[ould] result from the
person being placed on special probation," N.J.S.A. 2C:35-14(a)(9). The court
cited defendant's numerous prior contacts with the criminal justice system,
4 The judge who ruled on the Drug Court appeal was not the judge who presided over the trial and sentenced defendant. 5 Although defendant was acquitted of one count of being a certain person not to possess a firearm, other firearms-related offenses remained. A-1868-16T3 12 including his prior escape from incarceration. Defendant's record included
convictions for: burglary in California in 1979, and in New York in 1982 and
1985; escape in New York in 1988; and misdemeanor theft in Florida in 2009.
The court focused on the serious nature of defendant's crimes, noting they
extended over a year, involved sophisticated, well-planned burglaries, and
resulted in thefts involving substantial value. The judge stated, "The instant
burglaries were not mere impulsive petty thefts taking small monetary amounts,
they were repetitive, planned out, and sophisticated acts with an intended
outcome of substantial monetary gain. The court considers the degree [and]
frequency of the present crimes as an indication that [d]efendant would and will
present a danger to the community."
Although a decision whether the Drug Court statute governs a particular
case is a legal question that we review de novo, State v. Maurer, 438 N.J. Super.
402, 411 (App. Div. 2014), "application of N.J.S.A. 2C:35-14(a)(9) requires
fact-finding and an exercise of the sentencing judge's discretion." State v.
Hyland, 238 N.J. 135, 139 (2019). We therefore review the trial court's finding
for an abuse of discretion, rather than exercise de novo review, as defendant
contends. Under that deferential standard, we may not substitute our judgment
for the trial court. Instead, our task is to ascertain whether there is sufficient
A-1868-16T3 13 evidence in the record to support the court's decision. State v. Roth, 95 N.J.
334, 363-64 (1984).
We conclude there was. As the trial court noted, defendant was not a
burglar who engaged in petty thefts to support his drug addiction. Defendant
engaged in twenty-three home burglaries over an extended period of time. He
used sophisticated equipment to foil security devices and evade the police. The
monetary harm of his crimes was substantial. The fact that defendant succeeded
in avoiding confrontations with residents of the homes he burglarized, which
defendant highlights, does not obviate the danger he posed to their safety; the
impact his crimes had on their sense of security; or the obvious risk he posed to
the community's property.
We recognize that the Legislature in 2012 relaxed the requirements for
admission to Drug Court, by removing the blanket prohibition of persons
convicted of second-degree burglary and second-degree robbery. L. 2012, c. 23,
§ 5; see N.J.S.A. 2C:35-14(b)(2). Nonetheless, the Legislature anticipated that
few such offenders would surmount the hurdle presented by the factors in
N.J.S.A. 2C:35-14(a)(1)-(9). While 3000 individuals were anticipated to
become newly eligible under the expanded admission criteria, only 100 were
expected to ultimately gain admission. See Fiscal Note to S. 881 (Third
A-1868-16T3 14 Reprint), 215th Legislature 6 (June 25, 2012) (stating that the Administrative
Office of the Courts estimated that 3000 additional defendants per year would
become eligible under the expanded admissions criteria); Senate Budget and
Appropriations Comm. Statement to S. 881 (First Reprint), 215th Legislature 6
(April 3, 2012) (noting that, since robbery or burglary typically involves
violence, the Judiciary estimated that the proposed amendment would result in
the additional admission into the Drug Court Program of 100 offenders).
The recent revision of the Drug Court Manual clarifies what is meant by
"danger to the community" as set forth in factor nine. "Danger to the community
means that the supervisory resources of drug court are not adequate to safely
treat the defendant in the community at the appropriate level of care." New
Jersey Statewide Drug Court Manual 9 (June 2019 ed.). Although unavailable
to the trial court, this revision supports the court's conclusion that the scope and
sophistication of defendant's criminal behavior posed a threat to the community
that the Drug Court Program could not be expected to control.
We therefore affirm the trial court's denial of defendant's Drug Court
application.
A-1868-16T3 15 III.
Finally, we reject defendant's argument that the aggregate seventeen-year
sentence was excessive and should be set aside. "The reviewing court must not
substitute its judgment for that of the sentencing court." State v. Fuentes, 217
N.J. 57, 70 (2014). We may not set aside a trial court's sentence "unless: (1) the
sentencing guidelines were violated; (2) the findings of aggravating and
mitigating factors were not 'based upon competent credible evidence in the
record;' or (3) 'the application of the guidelines to the facts' of the case 'shock[s]
the judicial conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014) (alteration
in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).
There was sufficient evidential support for the trial judge's findings of
aggravating factors three, the risk of reoffending; six, the extent of defendant's
prior record; and nine, the need to deter. See N.J.S.A. 2C:44-1(a)(3), (6) and
(9). Although defendant emphasizes that his prior burglary convictions were
remote in time, the court did not err in attaching weight to his criminal record,
particularly related to aggravating factor six, inasmuch as his criminal behavior
continued thereafter, including a theft in 2009. Nor did the court err in finding
that defendant posed a risk of reoffending, particularly in view of his record, his
A-1868-16T3 16 sophistication in the commission of crimes, and his admitted substance abuse
problem.
Defendant contends the court erred in finding no mitigating factors. He
highlighted at sentencing, and repeats before us, that he cooperated with police
by retrieving several items. The court addressed the argument, but concluded
that defendant's efforts were a self-serving attempt to secure a favorable
disposition in a case in which the State had compelling DNA evidence against
him. The court duly acknowledged defendant's cooperation, but was not
compelled under the circumstances to grant the mitigating factor any weight.
See State v. Dalziel, 182 N.J. 494, 504-05 (2005) (stating a judge was required
to acknowledge defendant's cooperation, but was not required to give it weight).
Defendant also contends the court should have considered mitigating
factor ten – amenability to probation, specifically, drug court probation. See
N.J.S.A. 2C:44-1(b)(10). However, another judge had already found special
probation inappropriate. Absent a "serious injustice," mitigating factor ten does
not apply to a sentence for a crime – such as second-degree theft – with a
presumption of incarceration. See State v. Sene, 443 N.J. Super. 134, 144-45
(App. Div. 2015) (quoting State v. Evers, 175 N.J. 355, 388 (2003)).
A-1868-16T3 17 Defendant also raises for the first time on appeal, that the court should
have found mitigating factors eight, defendant's conduct resulted from
circumstances unlikely to recur, and eleven, hardship to dependents. N.J.S.A.
2C:44-1(b)(8), (11). We discern no plain error. A mitigating factor eight
finding would have been inconsistent with the court's aggravating factor three
finding. And there was no compelling evidence that incarceration would cause
an excessive hardship to defendant's dependents.
Finally, we reject defendant's argument that the sentence should be set
aside because of its disparity with the sentence of his co-defendant, who
received probation conditioned on 364 days in jail. We recognize that
uniformity in sentencing is a major objective of the criminal justice system.
State v. Roach, 146 N.J. 208, 231-32 (1996). But, not all divergent sentences
are unfair or unjust. Ibid. "The question . . . is whether the disparity is justifiable
or unjustifiable." Id. at 232-33. A court must consider whether the individuals
receiving disparate sentences were similarly situated. State v. Case, 220 N.J.
49, 63 (2014). The sentencing judge did not abuse his discretion in imposing
disparate sentences. As the judge noted, the co-defendant was charged with few
crimes; and he faced the likelihood of additional incarceration as a result of other
pending charges. Furthermore, the co-defendant entered a plea and defendant
A-1868-16T3 18 did not. See State v. Gonzalez, 223 N.J. Super. 377, 393 (App. Div. 1988)
(justifying disparate sentence where co-defendants cooperated with law
enforcement authorities).
Affirmed.
A-1868-16T3 19