NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1499-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY W. JONES,
Defendant-Appellant.
Argued January 9, 2020 – Decided March 17, 2020
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 17-04-0304.
Michael James Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Michael James Confusione, of counsel and on the brief).
Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Meredith L. Balo, of counsel and on the brief). PER CURIAM
A jury convicted defendant Gary W. Jones of first-degree armed robbery,
N.J.S.A. 2C:15-1(a)(1); the lesser-included third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b)(1); second-degree possession of a weapon for unlawful
purpose (handgun), N.J.S.A. 2C:39-4(a)(1); fourth-degree aggravated assault
with a firearm (pointing), N.J.S.A. 2C:12-1(b)(4); and fourth-degree
obstruction, N.J.S.A. 2C:29-1(a). The jury acquitted defendant of third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(A) and 2C:29-2(a)(3)(B). On that same
day, defendant entered a guilty plea to second-degree certain persons, N.J.S.A.
2C:39-7(b)(1), charged in a separate indictment. 1 After merging the possession
of a weapon and pointing convictions with the first-degree robbery, the judge
sentenced defendant to a discretionary persistent offender extended term of fifty
years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. See
also N.J.S.A. 2C:44-3(a) and 2C:43-7(a)(2). When sentenced, defendant was
forty-five years old. We now affirm the convictions, vacate the sentence, and
remand for a new sentence to be imposed.
1 From the sentencing transcript, it appears defendant filed a pro se motion to withdraw that guilty plea prior to sentencing. No further mention is made in any transcripts or the briefs on this appeal regarding the status of that offense. A-1499-18T2 2 The circumstances of the crime, as we describe them, were captured on
surveillance tape operated by the City of Elizabeth Police Department and a
second surveillance tape, belonging to the store in front of which the robbery
occurred. The films, and the stills extracted from them, were shown to the jury.
The victim, and police officers who arrived on the scene immediately after
defendant's commission of the robbery, testified at trial.
The victim was leaving the store at approximately 10:00 p.m. when
defendant, who was armed, approached him and demanded his money. The
victim responded that he had nothing and attempted to enter his vehicle, parked
immediately in front of the establishment. Defendant followed, grabbed the
victim's arm and said, "Oh, you think I'm playing?" The victim replied, "You
really want to do this?"
Defendant shot the victim in the leg. The victim began to run towards the
nearby police station, while defendant gave chase. Elizabeth Police Officer
Jason Luis was driving by when he heard the gunshot. He and his partner, John
Londono, immediately looked towards the sound and saw a man running in their
direction, with another person close behind. The officers immediately pulled
over, and as they left their vehicle heard the man closest to them yell, "He shot
A-1499-18T2 3 me," pointing to his pursuer. The second man's body was slanted sideways to
the officers, his hands at his waistband.
When Luis attempted to stop the second man, the second man began to
run "in a full sprint" until he stumbled. Luis tackled him onto the ground and
realized he had a gun. Luis knocked the gun aside, and along with Londono
wrestled the second man, defendant, until they were able to handcuff him when
other officers arrived. The officers arrested defendant and seized his gun.
The officers then drove defendant to the ambulance where the victim was
being treated. Luis conducted the show-up, and he testified that before he spoke
to the victim, he attempted to recall the identification warnings usually made
prior to a photo array or a lineup. He recorded the identification on his bodycam.
Luis told the victim that there was no certainty that the person he was about to
see was the perpetrator. Before police even removed defendant from the vehicle,
however, the victim called out that defendant shot him.
Without conducting a Rule 104 hearing or engaging in any Rule 404(b)
analysis, the judge permitted the State to move into evidence counterfeit twenty-
dollar bills police found in defendant's wallet when he was processed at the
station after arrest. The basis for admission, the prosecutor argued, was that the
jury should be informed defendant had no money with him, despite being seen
A-1499-18T2 4 on the videos looking into his wallet. The State wanted to establish his lack of
funds as the motive for the robbery.
When the question was posed to the officer about the counterfeit bills,
defense counsel objected. The judge said, in overruling the objection:
[I]t goes to the motive that we mentioned in opening. I mean, typically, the property collected from a defendant isn't going to be moved into evidence, but the witness testified to why that was distinguished here and why it was part of the evidence bagged, materials, and it cuts to the . . . issue of - - of motive.
Unfortunately, we cannot locate any discussion of the admissibility of the
evidence in the record prior to the above.
The prosecutor argued in closing that despite defendant being depicted on
the film as looking at his wallet, which appeared to have bills inside, the money
was counterfeit and he only had two cents on him. We address defendant's
sentence proceeding more fully in the relevant section of the opinion.
On appeal, defendant raises the following points for our consideration:
Point 1 The 50 year extended term sentence is clearly excessive and not sufficiently justified by the record.
Point 2 The trial court erred in denying defendant's motion for acquittal.
A-1499-18T2 5 Point 3 Improper other wrongs and crimes evidence was placed before the jury that caused an unfair trial on the charges at issue.
I.
We first address defendant's second claim of error, which requires only
brief discussion. At the close of the State's case, defendant made a motion for
the entry of a judgment of acquittal pursuant to Rule 3:18-1. Applying the same
standards used by the trial court to deny the motion, it is clear that the State's
overwhelming proofs meant that a reasonable jury could readily find that
defendant committed the armed robbery beyond a reasonable doubt. See State
v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011).
Defendant contends the standard set forth in State v. Reyes, 50 N.J. 454,
458-59 (1967), was not met because the videos do not show defendant actually
holding a gun while attempting to rob the victim.
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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-1499-18T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GARY W. JONES,
Defendant-Appellant.
Argued January 9, 2020 – Decided March 17, 2020
Before Judges Alvarez and Nugent.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 17-04-0304.
Michael James Confusione argued the cause for appellant (Hegge & Confusione, LLC, attorneys; Michael James Confusione, of counsel and on the brief).
Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Lyndsay V. Ruotolo, Acting Union County Prosecutor, attorney; Meredith L. Balo, of counsel and on the brief). PER CURIAM
A jury convicted defendant Gary W. Jones of first-degree armed robbery,
N.J.S.A. 2C:15-1(a)(1); the lesser-included third-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(2); second-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b)(1); second-degree possession of a weapon for unlawful
purpose (handgun), N.J.S.A. 2C:39-4(a)(1); fourth-degree aggravated assault
with a firearm (pointing), N.J.S.A. 2C:12-1(b)(4); and fourth-degree
obstruction, N.J.S.A. 2C:29-1(a). The jury acquitted defendant of third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3)(A) and 2C:29-2(a)(3)(B). On that same
day, defendant entered a guilty plea to second-degree certain persons, N.J.S.A.
2C:39-7(b)(1), charged in a separate indictment. 1 After merging the possession
of a weapon and pointing convictions with the first-degree robbery, the judge
sentenced defendant to a discretionary persistent offender extended term of fifty
years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. See
also N.J.S.A. 2C:44-3(a) and 2C:43-7(a)(2). When sentenced, defendant was
forty-five years old. We now affirm the convictions, vacate the sentence, and
remand for a new sentence to be imposed.
1 From the sentencing transcript, it appears defendant filed a pro se motion to withdraw that guilty plea prior to sentencing. No further mention is made in any transcripts or the briefs on this appeal regarding the status of that offense. A-1499-18T2 2 The circumstances of the crime, as we describe them, were captured on
surveillance tape operated by the City of Elizabeth Police Department and a
second surveillance tape, belonging to the store in front of which the robbery
occurred. The films, and the stills extracted from them, were shown to the jury.
The victim, and police officers who arrived on the scene immediately after
defendant's commission of the robbery, testified at trial.
The victim was leaving the store at approximately 10:00 p.m. when
defendant, who was armed, approached him and demanded his money. The
victim responded that he had nothing and attempted to enter his vehicle, parked
immediately in front of the establishment. Defendant followed, grabbed the
victim's arm and said, "Oh, you think I'm playing?" The victim replied, "You
really want to do this?"
Defendant shot the victim in the leg. The victim began to run towards the
nearby police station, while defendant gave chase. Elizabeth Police Officer
Jason Luis was driving by when he heard the gunshot. He and his partner, John
Londono, immediately looked towards the sound and saw a man running in their
direction, with another person close behind. The officers immediately pulled
over, and as they left their vehicle heard the man closest to them yell, "He shot
A-1499-18T2 3 me," pointing to his pursuer. The second man's body was slanted sideways to
the officers, his hands at his waistband.
When Luis attempted to stop the second man, the second man began to
run "in a full sprint" until he stumbled. Luis tackled him onto the ground and
realized he had a gun. Luis knocked the gun aside, and along with Londono
wrestled the second man, defendant, until they were able to handcuff him when
other officers arrived. The officers arrested defendant and seized his gun.
The officers then drove defendant to the ambulance where the victim was
being treated. Luis conducted the show-up, and he testified that before he spoke
to the victim, he attempted to recall the identification warnings usually made
prior to a photo array or a lineup. He recorded the identification on his bodycam.
Luis told the victim that there was no certainty that the person he was about to
see was the perpetrator. Before police even removed defendant from the vehicle,
however, the victim called out that defendant shot him.
Without conducting a Rule 104 hearing or engaging in any Rule 404(b)
analysis, the judge permitted the State to move into evidence counterfeit twenty-
dollar bills police found in defendant's wallet when he was processed at the
station after arrest. The basis for admission, the prosecutor argued, was that the
jury should be informed defendant had no money with him, despite being seen
A-1499-18T2 4 on the videos looking into his wallet. The State wanted to establish his lack of
funds as the motive for the robbery.
When the question was posed to the officer about the counterfeit bills,
defense counsel objected. The judge said, in overruling the objection:
[I]t goes to the motive that we mentioned in opening. I mean, typically, the property collected from a defendant isn't going to be moved into evidence, but the witness testified to why that was distinguished here and why it was part of the evidence bagged, materials, and it cuts to the . . . issue of - - of motive.
Unfortunately, we cannot locate any discussion of the admissibility of the
evidence in the record prior to the above.
The prosecutor argued in closing that despite defendant being depicted on
the film as looking at his wallet, which appeared to have bills inside, the money
was counterfeit and he only had two cents on him. We address defendant's
sentence proceeding more fully in the relevant section of the opinion.
On appeal, defendant raises the following points for our consideration:
Point 1 The 50 year extended term sentence is clearly excessive and not sufficiently justified by the record.
Point 2 The trial court erred in denying defendant's motion for acquittal.
A-1499-18T2 5 Point 3 Improper other wrongs and crimes evidence was placed before the jury that caused an unfair trial on the charges at issue.
I.
We first address defendant's second claim of error, which requires only
brief discussion. At the close of the State's case, defendant made a motion for
the entry of a judgment of acquittal pursuant to Rule 3:18-1. Applying the same
standards used by the trial court to deny the motion, it is clear that the State's
overwhelming proofs meant that a reasonable jury could readily find that
defendant committed the armed robbery beyond a reasonable doubt. See State
v. Tindell, 417 N.J. Super. 530, 549 (App. Div. 2011).
Defendant contends the standard set forth in State v. Reyes, 50 N.J. 454,
458-59 (1967), was not met because the videos do not show defendant actually
holding a gun while attempting to rob the victim. Furthermore, defendant called
as a witness one of the responding officers, who testified he conducted a separate
search for the gun. Defendant argues this casts reasonable doubt on Luis's
testimony that he recovered the weapon immediately upon arresting defendant.
Giving the State the benefit of all reasonable testimony, however, it is
clear that the officer who was called by defendant as a witness did not cast doubt
on the credibility of his colleagues. It was no doubt a chaotic crime scene—
A-1499-18T2 6 approximately six officers arrived within minutes of the robbery while an
injured victim was placed in an ambulance, and several officers struggled to
subdue the suspect. It is not surprising that one officer not engaged in
defendant's immediate arrest or the victim's care would have heard that a gun
was involved, and on that information engaged in a quick search.
The victim testified unequivocally that the perpetrator was defendant. The
videos clearly established defendant's presence at the scene and movements
corroborating the victim's narrative. Luis and Londono saw defendant chasing
the victim, and Luis never lost sight of him. When Luis was finally able to
subdue defendant, Luis slapped the gun away. No further discussion of the point
is necessary. See R. 2:11-3(e)(2).
II.
We turn to defendant's third point. The impecunious condition of a person
who commits a theft-type crime is generally inadmissible. "Undoubtedly a lack
of money is logically connected with a crime involving financial gain. The
trouble is that it would prove too much against too many." State v. Mathis, 47
N.J. 455, 471 (1966). There are a few exceptions to the general rule; none come
to mind here. In fact, the distance between the cameras and the contents of
defendant's wallet mean no detail was visible. The wallet could have been filled
A-1499-18T2 7 with anything, thus there was no need to prove "motive" by informing the jury
of defendant's commission of an unrelated crime—the possession of counterfeit
bills.
Trial judges have broad discretion regarding the admissibility of evidence,
certainly as to the logical connection between evidence and a consequential
issue in the case. State v. Nelson, 173 N.J. 417, 470 (2002). Such decisions are
overturned only where there is a palpable abuse of discretion, a decision so wide
of the mark that a manifest denial of justice occurred. State v. Cole, 229 N.J.
430, 449, 453 (2017).
In this case, the standard of review is different. The judge should not have
ruled until he conducted a Rule 404(b) hearing outside the presence of the jury.
See State v. Cofield, 127 N.J. 328, 338 (1992). Since the alleged error relates
to other crimes evidence—or in this case, of even greater import, a concurrent
crime—and no Cofield analysis took place—review is de novo. See State v.
Goodman, 415 N.J. Super. 210, 228 (App. Div. 2010). The judge appears not
to have addressed the issue at all until defense counsel objected to the admission,
and he simply overruled the objection.
In addition to being inadmissible as motive evidence, absent some specific
exception, defendant's possession of counterfeit money does not pass the Cofield
A-1499-18T2 8 test for admissibility as other crimes evidence. In order to establish that the
evidence meets the Cofield test for inclusion, the State must demonstrate that it
is relevant to a material issue, similar in kind and time to the offense charged,
clear and convincing, and the probative value must not be outweighed by the
apparent prejudice. 127 N.J. at 338.
As to prong one, relevance to a material fact, the connection between
defendant's possession of counterfeit bills and a motive to rob is tenuous at best.
The counterfeit bills did not have a tendency in reason to prove or disprove any
fact of consequence. See State v. Darby, 174 N.J. 509, 519 (2002).
The fourth prong of the test is not satisfied either. Given the at best
tenuous connection between the counterfeit bills and the robbery, the probative
value of the evidence is not outweighed by the apparent prejudice.
Had the judge engaged in a Cofield analysis, he would no doubt have
concluded, as we do, that the evidence was inadmissible. Compounding the
error, the judge did not instruct the jury as to the limited use of the evidence
when the arresting officer testified about the counterfeit bills, or in the final
charge. Such instructions are essential. See State v. Garrison, 228 N.J. 182,
200-01 (2017).
A-1499-18T2 9 In the final analysis, however, the admission of the counterfeit money was
harmless error; it was not "clearly capable of producing an unjust result." R.
2:10-2. The State's proofs were so overwhelming that the error does not raise a
reasonable doubt that it might have led the jury to a result it otherwis e would
not have reached. See State v. Prall, 231 N.J. 567, 581 (2018) (quoting State v.
Daniels, 182 N.J. 80, 95 (2004)). Placed in the context of the videos and
eyewitness testimony, it is not a basis for reversal.
III.
Finally, we address defendant's contention that his fifty-year NERA
extended-term sentence was excessive. In State v. Liepe, 239 N.J. 359 (2019),
the Court reiterated that in reviewing a sentence, we do not ordinarily substitute
our judgment for that of the sentencing court. Id. at 370-71. If we find an error
in sentencing, it "must amount to more than a difference of opinion or individual
sentencing philosophy. The sentencing objectives are spelled out in the [New
Jersey Code of Criminal Justice]. It is deviation from those objectives, in view
of the standards and criteria therein set forth, which constitute error." State v.
Roth, 95 N.J. 334, 365 (1984).
Our review of a sentence is limited to consideration of:
(1) whether guidelines for sentencing established by the Legislature or by the courts were violated; (2) whether
A-1499-18T2 10 the aggravating and mitigating factors found by the sentencing court were based on competent credible evidence in the record; and (3) whether the sentence was nevertheless "clearly unreasonable so as to shock the judicial conscience."
[Liepe, 239 N.J. at 371 (quoting State v. McGuire, 419 N.J. Super. 88, 158 (App. Div. 2011)).]
In sentencing defendant, this judge praised the attorneys—and demeaned
the defendant over the course of a lengthy hearing. He told defendant that his
family "love[s] you so much that they buy into anything that you say – sir, get a
clue[,]" and that they wasted their time coming to court to support him. He
referenced two songs while sentencing defendant: "When Will They Ever
Learn?" and "Puff the Magic Dragon." The judge acknowledged the sentence
he imposed at the State's request of fifty years subject to NERA, was "a lifetime
sentence." After that comment, he returned to the musical theme, asking
rhetorically "When will they ever learn?"
The judge told defendant:
You had your eyes on him. You waited for him. You calculated. You picked him. You chose him.
You talked to your buddies or whoever the morons were that were standing around outside and did not a goddamn thing to help except run when this happens.
The judge discussed the victim's $27,000 in unpaid medical bills and said:
A-1499-18T2 11 Nobody thinks about it. It's magic. The State pays for it. The hospital absorbs it. Nobody gets charged money when the team of experts come in and save his life. You think that's free? How do you think those doctors pay down their student loans, except they've got to charge? You don't care. You don't think. I don't know that you don't care. You didn't concern yourself with it. Callous, that's not the thing on your hands only. That means how your heart is. It's got callouses on it, if you have one.
[The victim's] got one. Doctors saved his life. I don't know if you have one. You chase him after you shot a bullet through his leg. You don't rescue him. You don't say, oh, my god, what did I do? Someone call 9-1-1. Let me wrap my shirt around your leg. Please stop running. I'm not running after you. I'm running to help you. I threw the gun. Sir, I'm saying I'm sorry. Let me help you. Please, I didn't mean it. Not a chance is that happening. You're running after him and he knew it. Full force he's running, barely, thinking about her. It's nice to meet you, ma'am. [A reference to the victim's wife who had spoken in support of her husband.] I'm sorry for the circumstances.
The judge then repeated, "When will they ever learn?" and "When -- when will
you ever learn?" A few minutes later, the judge also repeated that defendant
was "callous"—"an antonym of heinous, cruel and depraved[.] You have a
callous heart."
The judge found aggravating factors one, three, six, and nine, and no
factors in mitigation. See N.J.S.A. 2C:44-1(a)(1), (3), (6), (9). Defendant's
A-1499-18T2 12 criminal history is lengthy and includes juvenile adjudications. 2 He has been
sentenced on ten different occasions between 1991 and 2013 for twelve
indictable offenses and served prison and probation terms. Defendant has
violated both probation and parole. He has also been convicted in municipal
court of several offenses. In discussing defendant's prior prison sentences, the
judge said about defendant: "Going to jail all the times that he has, seven times,
he can close his eyes and tell you where the bathrooms and showers and . . . fun
area is because he's been there seven times." After making those findings, he
admonished defendant that "an appropriate member of society looks to law
enforcement as someone who is there to assist you not someone who is there to
chase you."
In discussing deterrence, the judge said that factor might keep some
people from breaking the law:
And society feeling good that this flag and these books aren't a bunch of crap that we just kill trees and put up to collect dust, they mean something -- they mean something so society can say, oh, turn on the TV, only seven people shot in Elizabeth and Newark today. Isn't that great?
2 Our discussion of the details of defendant's criminal history is drawn from the presentence report contained in the confidential appendix, not from the sentencing transcript. A-1499-18T2 13 There is no doubt that a judge has broad discretion to control his
courtroom. D.G. ex rel J.G. v. N. Plainfield Bd. of Educ., 400 N.J. Super. 1, 26
(App. Div. 2008). But Rule 3.5 of the Code of Judicial Conduct requires a judge
to be "patient, dignified, and courteous to litigants, jurors, witnesses, lawyers,
and others with whom the judge deals in an official capacity. . . ." "A judge
must conduct a trial in a fair and impartial manner, refraining from remarks that
might prejudice a party . . . ." Mercer v. Weyerhaeuser, 324 N.J. Super. 290,
297-98 (App. Div. 1999).
The judge was imposing a legislatively mandated sentence on a convicted
person, not passing judgment on him as a human being. His only task was to
fashion a term of imprisonment in accordance with the Criminal Code and do so
with patience, dignity, and courtesy.
The judge's commentary calls into question his weighing of aggravating
factors one, three, six, and nine, resulting in a fifty-year NERA sentence on a
forty-five-year-old man, effectively a life sentence. This was certainly a heinous
crime in that after shooting the victim in the leg during the robbery, defendant
chased the victim. And defendant's prior criminal history made him eligible for
extended-term sentencing.
A-1499-18T2 14 By granting the State's application to impose a discretionary extended
sentence on defendant, however, the judge substituted the ordinary first-degree
NERA term of between ten years and twenty years, N.J.S.A. 2C:43-6(a)(1), with
a NERA twenty years to life imprisonment. That was, obviously, a significant
increase in the permissible base term of years.
Unquestionably, a defendant's criminal history can be used to support both
the extended term decision and the weight accorded factor six. State v. Tillery,
238 N.J. 293, 327-28 (2019). But the real-time consequence of the first-degree
NERA extended term required a particularly measured and impartial discussion
of the "competent, credible evidence in the record" supporting the relevant
aggravating and mitigating factors. "[W]e must . . . be mindful of the real-time
consequences of NERA and the role that it customarily plays in the fashioning
of an appropriate sentence." State v. Marinez, 370 N.J. Super. 49, 58 (App. Div.
2004). Absent from the record was any explanation of the reason a real-time
term of incarceration of approximately forty-two and one-half years was the
"appropriate" sentence.
Canon 3, Rule 3.5 states: "A judge . . . shall not . . . display impatience
or discourtesy or . . . detract from the dignity of the court." As the Court said
in a different context, judges "are held to the very highest standards of
A-1499-18T2 15 performance in this state, [although] not infallible." In re Alvino, 100 N.J. 92,
96 (1985). No matter the level of frustration the judge experienced, the judge's
weaving of his views regarding the person standing before him into the
sentencing calculus did not add to the dignity of the court.
We vacate the sentence and remand. In light of the judge's comments, it
would be best for another judge to impose sentence.
Affirmed, except reversed and remanded as to the sentence.
A-1499-18T2 16