NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0968-14T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JULLIAN OREE,
Defendant-Appellant. _________________________
Submitted November 30, 2016 – Decided June 26, 2018
Before Judges Fuentes, Simonelli and Gooden Brown.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-06-0410.
Joseph E. Krakora, Public Defender, attorney for appellant (Peter B. Meadow, Designated Counsel, on the brief).
Michael H. Robertson, Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D. A Somerset County Grand Jury returned Indictment No. 11-06—
0410 against defendant Jullian Oree1, charging him with third
degree burglary, N.J.S.A. 2C:18-2(a) (count one); second degree
theft of movable property2, N.J.S.A. 2C:20-3(a), valued in excess
of $75,000, N.J.S.A. 2C:20-2(b)(1)(a) (count two); third degree
criminal mischief, N.J.S.A. 2C:17-3(a) (count three); and fourth
degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count
four). Defendant was tried before a jury over the course of ten
days and convicted of third degree burglary, N.J.S.A. 2C:18-2(a),
second degree theft of movable property, N.J.S.A. 2C:20-3(a), and
third degree criminal mischief, N.J.S.A. 2C:17-3(a). On January
6, 2014, the trial judge sentenced defendant to an aggregate term
of seven years imprisonment, and ordered him to pay restitution
in the amount of $117,242.02.
In this appeal, defendant claims the trial judge erred in
denying his motion for a judgment of acquittal. We reject
defendant's arguments attacking the legal viability of his
conviction. Defendant also argues that the trial court erred in
1 The Indictment also named Anthony Bostick as a codefendant. However, on the day this case came to trial, Bostick pled guilty to all of the charges. 2 N.J.S.A. 2C:20-1(e) defines "movable property" as "property the location of which can be changed, including things growing on, affixed to, or found in land, and documents, although the rights represented thereby have no physical location."
2 A-0968-14T1 imposing the sentence. We agree and remand this matter for
resentencing. Our analysis of the issues raised by defendant is
informed by the following facts, which we derived from the evidence
presented at trial.
I
This case arises from a burglary that occurred on the night
of November 23, 2010, at a residence located in the Borough of
Watchung. Earlier that day, defendant texted his former paramour,
Nia Weaver, and asked her to rent a car for him. After several
unsuccessful attempts, Weaver told defendant that rental cars were
in short supply due to the Thanksgiving holiday. Using the alias
"Eddie Howell," defendant and another individual rented a Dodge
Charger that afternoon from a car rental agency located in
Englewood. Only the name "Howell" appeared on the rental
agreement.
Sometime between ten and eleven o'clock that evening, Victor
Santos returned to his home on Shady Brook Court in Watchung.
After opening his garage door, Santos noticed that the basement
lights were on and the tools stored in the garage were scattered
on the floor; he also heard noises coming from inside the house.
Santos used his cellphone to call his neighbor, a retired Watchung
police officer. As soon as he arrived, the neighbor noticed "a
lot of damage" when he looked into the basement through the window
3 A-0968-14T1 in the garage. He called the Watchung Police Department to report
a suspected burglary.
Watchung Police Sergeant Gene McAllister was the first to
arrive on the scene. After searching the house to ensure there
was no one else inside, McAllister, the neighbor, and Santos walked
through the house to assess the damage and determine whether
anything had been taken. Officer Kyle Poulsen also responded to
the report of a burglary at the Santos residence. As he pulled
his car onto Shady Brook Court, Poulsen saw a black Dodge Charger
backed into the driveway of a nearby home on the block. Because
the area was not well lit, Poulsen used the spotlight mounted on
his police car to illuminate the driveway where the Charger had
stopped. Poulsen noticed the car's engine was still running and
two individuals were seated in the front seats of the vehicle.
Poulsen parked his police car and began to walk toward the
driveway where the Charger had stopped. As he approached, he
noted the occupants were two African American men; the man seated
on the driver side was wearing a white sweatshirt and the passenger
wore a similar, blue-colored garment. When he was approximately
ten to twelve feet away from the driver of the Charger, Poulsen
yelled, "Officer Poulsen, Watchung Police Department. Roll the
window down." According to Poulsen: "At that point, the vehicle
immediately sped off."
4 A-0968-14T1 Poulsen radioed the Charger's license plate number and
returned to his patrol car to pursue it. Police Officer Jason
Moberly, who was also responding to the burglary report, heard
Poulsen's radio dispatch. Moberly saw the Charger turn right onto
Valley Road, without making any effort to comply with the stop
sign that was posted at that location. Moberly immediately
activated his patrol car's overhead lights and began pursuing the
Charger. He was soon joined by Poulsen, who likewise had activated
his emergency lights and sirens.
The Charger continued eastbound on Valley Road and ran through
a red light. Moberly shined his light on the Charger's rear window
while in pursuit and noticed that there were actually four
occupants in the car, all African American men. Moberly also
testified that while pursing the Charger, he "observed sparks on
the right hand side of the vehicle . . . ." The pursuit continued
past the residence of Debra Krienke, who observed the Charger and
heard "something clang at the end of [her] driveway." The
following day, she found a "yellow crowbar" at the end of her
driveway.
The pursuit ended in the parking lot of a Watchung museum.
The Charger entered the parking lot, hit a dip, spun out, and
eventually ended up facing the opposite direction. As Moberly
entered the parking lot, the Charger was facing the patrol car;
5 A-0968-14T1 the Charger accelerated and collided with the patrol car head-on.
Immediately thereafter, all four of the Charger's doors opened and
its four occupants fled. The two men seated on the right side of
the vehicle fled southeast; the two men seated on the drivers'
side ran southwest.
Moberly ran after the two who had fled from the passenger's
side, shouting for them to stop. While in pursuit, Moberly noticed
that the individual directly in front of him was approximately six
feet tall, was wearing a dark sweatshirt and dark blue pants, and
threw something up into the air. The area was dark and heavily-
wooded. At one point, Moberly tripped over a tree root and fell
to the ground. He lost track of the suspect by the time he got
back on his feet.
Watchung Police Sergeant Andrew Hart was off duty when he
heard of the pursuit and proceeded to the museum parking lot.
Moberly told Hart that the fleeing individual, later identified
as defendant, had discarded an object in the course of the foot
pursuit. A ski cap was discovered in the area and turned over to
Detective Kenneth Boyle. A canine (k-9) team, consisting of a
police officer and his canine partner, responded to the scene and
located codefendant Bostick, who was taken into custody.
After going through the house, Santos and Sergeant McAllister
found damage in an area of the basement where a safe was located
6 A-0968-14T1 with its wheels anchored to the floor. The sheetrock walls of the
closet in which the safe was kept had been torn down and there
were pieces of sheetrock and sheetrock dust on the floor. An
inspection of the safe revealed pry marks and paint marks on the
back. There were several footprints on the pieces of broken
sheetrock and on the safe; several other pieces of sheetrock had
tool marks with a distinct "waffle pattern."
In the master bedroom upstairs, various dresser drawers and
other items had been scattered across the room. Pillow cases from
the bed and several expensive watches were also missing. The
police found one of the pillow cases in the basement on the floor.
In it, the officers found fifteen watches, cuff links, and tie-
clips, worth approximately $68,000 in total. Officers also
recovered as evidence two hammers with waffle-type patterns on the
heads, a machete with a bent tip, two screwdrivers, pieces of
broken sheetrock and carpet, both with footprints, and the pillow
case found in the basement.
On the exterior of the home, the police discovered that the
wires for the telephone, cable, and alarm system had been cut;
the back door appeared as if it had been "shouldered" opened by
force. In the utility closet, a burglar alarm panel had been
ripped off the wall.
7 A-0968-14T1 Approximately ninety minutes after the pursuit that ended in
the museum parking lot, State Trooper Marcan Kolodziej responded
to a report of a man found walking in the area of mile-marker
forty-seven along Route 78. This individual was later identified
as defendant. Despite the cold weather, defendant was only wearing
dark pants and a white t-shirt. Defendant was detained and
transported to the Watchung police station.
Moberly recognized defendant as one of the men who fled from
the Charger. During the foot chase, Moberly particularly noticed
the "discoloration" on his neck, which matched the tattoo on
defendant's neck. The thorny burrs defendant had on his pants
also matched those Moberly had on his clothing following the foot
chase through the woods. Detective Anderle also noticed that the
pattern on the soles of defendant's shoes matched those left in
the sheetrock dust at the crime scene; defendant's shoes had the
same sheetrock dust on the soles.3
Before asking defendant any questions concerning these
crimes, the police officers read to defendant his rights under
Miranda v. Arizona, 384 U.S. 436 (1966). Defendant thereafter
3 While at the police station, defendant asked Moberly for a drink of water. Moberly gave defendant a Styrofoam cup from which he drank the water. After defendant threw the cup in the garbage, another officer recovered it for a potential DNA analysis.
8 A-0968-14T1 verbally and in writing agreed to waive his rights and answer the
police officers' questions. The police officers video recorded
both the waiver and the interrogation. Defendant stated that
earlier on November 23, 2010, he had gone to Allentown4 with his
girlfriend Nia Weaver. On their way back, they started "beefin"
(which we infer to mean argue), causing Weaver to pull over and
demand that defendant get out of her car. Defendant claimed he
was left stranded on the side of the road. He tried to call his
mother on his cellphone and tried to find a gas station. Several
minutes later, State Trooper Kolodziej picked him up. Defendant
denied any involvement with the burglary of Santos's home.
While patrolling the area where the pursuit occurred on Coles
Avenue, Officer Poulsen found a blue and yellow pry bar. When the
police officers returned to Santos's home during the daylight to
survey the damage, they noticed several outdoor landscaping lights
had been smashed and no longer pointed in the direction of the
home. The police also impounded and photographed the Charger.
After securing a warrant, Sergeant Kelly and Detective Anderle
searched the interior of the car and found a plastic Coke bottle,
a New York Yankees baseball cap, an empty chip bag, small pieces
4 The record is not clear whether defendant was referring to Allentown, Pennsylvania or Allentown, New Jersey.
9 A-0968-14T1 of sheetrock, a fingernail clipping, four pry bars, and the car
rental paperwork.
On December 2, 2010, the Styrofoam cup defendant used to
drink water at the police station and the evidence recovered from
the Charger were sent to the State Police Laboratory for forensic
analysis. Samples were taken from the black knit cap, the Yankees
hat, the Coke bottle, the Styrofoam cup, and the fingernail
clipping. The Laboratory's DNA Unit Forensic Scientist, Mary E.
Kite, conducted a DNA analysis of these items. Kite testified
that there was a mixture of DNA on the Styrofoam cup and there was
one source of DNA on the fingernail.
On August 26, 2011, the police obtained two buccal swabs from
defendant in order to compare the results to a profile. Kite
conducted an analysis and testified that defendant was the major
contributor to both the cup and the fingernail. There were three
contributors to the black knit cap and at least two contributors
were found on the Coke bottle. Defendant did not contribute any
DNA material to these items. Finally, no DNA was recovered from
the sample taken from the Yankees hat.
The police sent the various burglar tools recovered,
including the pry and crowbars, hammers, and screwdrivers to the
FBI Laboratory in Quantico, Virginia. An analysis of the paint
residue on both revealed that there was "no difference" between
10 A-0968-14T1 the samples on the two pry bars recovered. The FBI also determined
that the paint transfer marks discovered on the safe and on the
carpet could have come from the same two pry bars. A forensic
footwear and tire examiner from the FBI Laboratory conducted a
comparison of the sole marks found on the dry wall debris and
defendant's shoes. He concluded that defendant's shoes could have
made the impressions found on five pieces of sheetrock and one
board.
Santos attested at trial as to the value of the items, which
were in excess of $75,000. Defendant did not testify and did not
present any witnesses. After the State rested, the trial judge
denied defendant's motion for a judgment of acquittal under Rule
3:18-1. The judge also denied defendant's motion for a new trial
under Rule 3:18-2. The judge held a restitution hearing and found
the victim was entitled to $117,242.02.
II
Against this factual backdrop, defendant raises the following
arguments:
POINT ONE
THE TRIAL COURT ERRED IN (A) DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE AND (B) DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.
POINT TWO
11 A-0968-14T1 THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR A "MERE PRESENCE" JURY INSTRUCTION.
POINT THREE
DEFENDANT'S SENTENCE WAS EXCESSIVE AND UNDULY PUNITIVE, AND THE COURT IMPROPERLY APPLIED AGGRAVATING AND MITIGATING FACTORS.
This court utilizes the same standard used by the trial judge
in reviewing a motion for judgment of acquittal. State v. Bunch,
180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "is not concerned with the worth,
nature or extent (beyond a scintilla) of the evidence, but only
with its existence, viewed most favorably to the State." State
v. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977). "If the
evidence satisfies that standard, the motion must be denied."
State v. Spivey, 179 N.J. 229, 236 (2004).
Here, the record shows the State satisfied this burden of
proof. The record we have described at length here speaks for
itself in this respect. We reach the same conclusion with respect
12 A-0968-14T1 to defendant's motion for a new trial under Rule 3:18-2. "[A]
motion for a new trial is addressed to the sound discretion of the
trial judge, and the exercise of that discretion will not be
interfered with on appeal unless a clear abuse has been shown."
State v. Russo, 333 N.J. Super. 119, 137 (App. Div. 2000). An
abuse of discretion only arises on demonstration of "manifest
error and injustice[,]" State v. Torres, 183 N.J. 554, 572 (2005),
and occurs when the trial judge's "decision is 'made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis.'" Milne v.
Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting
Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
Here, the record again shows that the evidence presented by
the State supports the jury's verdict. There is thus no indication
that the trial judge abused his discretion in denying defendant's
motion for a new trial. This same approach leads us to reject
defendant's claim of error in the judge's decision not to charge
the jury with the "mere presence" model charge. Defense counsel
requested a "mere presence" charge as follows:
Mere presence at or near the scene does not make one a participant in the crime nor does the failure of a spectator to interfere make him or her a participant in the crime. It is, however, a circumstance to be considered with the other evidence in determining whether he or she was present as an accomplice. Presence
13 A-0968-14T1 is not in itself conclusive evidence of that. Whether presence has any probative value depends upon the total circumstances.
After some discussion with counsel, the judge ultimately
declined to include the charge. The judge provided the following
explanation for his ruling:
I don't think he is entitled to a mere presence charge. This is not a case which the mere presence charge should be contemplated. The mere presence is where you have either a perpetrator or a bystander to the event. [Defendant] is either a perpetrator or he's nothing. He's certainly not a bystander. He's certainly not someone present at the scene whose presence involves or implicates acquiescence, failure to intervene, or any of the other bystander-type indicia.
We discern no legal basis to disagree with the judge's
ultimate conclusion. The mere presence charge is inapplicable
here.
We will now address the sentence imposed by the court.
Defendant was thirty-two years old at the time he appeared before
the court for sentencing. This was his first and only involvement
with the criminal justice system. He has no criminal record as
an adult or any history of delinquency as a juvenile. He graduated
high school, attended two years of college, and had been employed
by the Xerox Corporation as a technician for the past thirteen
years. Defendant owns his own home. He has two daughters who,
at the time of sentencing, were five-years-old and five-months-
14 A-0968-14T1 old. The older child resided with her mother in North Carolina;
the younger child resided with her mother in New York City.
Defendant financially supports both of his daughters.
After reviewing this record, the trial judge found the
following aggravating factors: the risk that defendant will commit
another offense, N.J.S.A. 2C:44-1(a)(3), and the need to deter
defendant and others like him from violating the law, N.J.S.A.
2C:44-1(a)(9). The judge did not find any mitigating factors.
The judge provided the following explanation for this decision:
Although defendant has no prior criminal record, this court finds based upon the activity obviously engaged in, in preparation for this crime, the precision and professionalism with which it was conducted, the selection of this particular house, as might be characterized as a high-valued target, there being allegedly some $143,000 in property taken -- allegedly taken, as I recollect.
It is the determination of this court that aggravating factor three applies.
Certainly, aggravating factor nine applies, the need for deterring defendant and others from violating the law.
No mitigating factors are substantially supported by the circumstances here and, thus, none are found to apply.
[(Emphasis added).]
In determining what sentence to impose, the judge "must
identify any relevant aggravating and mitigating factors set forth
15 A-0968-14T1 in N.J.S.A. 2C:44-1(a) and (b) that apply to the case" and "[t]he
finding of any factor must be supported by competent, credible
evidence in the record." State v. Case, 220 N.J. 49, 64 (2014)
(citations omitted). As Justice Albin emphasized in Case:
"Speculation and suspicion must not infect the sentencing process;
simply put, the finding of aggravating or mitigating factors must
be based on evidence." Ibid. Thus,
[t]he "structured discretion" established by the Code of Criminal Justice compels the sentencing court to explain on the record its analysis of the statutory aggravating and mitigating factors "with care and precision" so as "[t]o avoid disparity in sentencing as the Legislature intended, to facilitate fair and effective appellate review, and to ensure that the defendant, the State and the public understand the reasons for the sentence."
[State v. McFarlane, 224 N.J. 458, 466 (2016) (quoting State v. Fuentes, 217 N.J. 57, 81 (2014)).]
Here, the judge did not give any consideration to defendant's
lack of prior involvement with the criminal justice system, his
educational background, his lengthy history of employment with a
major technology corporation, his commitment to support his
children, or his obligation to pay restitution to the victim of
his crime. Under these circumstances, defendant's criminal
behavior stands in sharp contrast to the law abiding, socially
responsible life he had lived up to this point. The judge's
16 A-0968-14T1 finding of aggravating factor N.J.S.A. 2C:44-1(a)(3) is not
supported by the record and his conclusory statement in support
of this aggravating factor does not comply with the requirements
of Rule 3:21-4(g).
Finally, we discern no legal or factual basis for the judge's
failure to find any mitigating factors. Under these circumstances,
there is ample evidential support for the court to have found the
following mitigating factors: defendant has compensated or will
compensate the victim of his conduct for the damage or injury that
he sustained, N.J.S.A. 2C:44-1(b)(6); defendant has no history of
prior delinquency or criminal activity, N.J.S.A. 2C:44-1(b)(7);
and defendant's character and attitude indicate that he is unlikely
to commit another offense, N.J.S.A. 2C:44-1(b)(9). These
suggested mitigating factors are not to be considered by the trial
court or the parties as a conclusive or exhaustive list of the
mitigating factors that may be applicable here.
We affirm defendant's conviction and remand for the trial
court to resentence defendant without consideration of aggravating
factor N.J.S.A. 2C:44-1(a)(3), and after giving due consideration
to the mitigating factors we have identified here, as well as any
other mitigating factors the court finds are supported by the
record. We do not retain jurisdiction.
17 A-0968-14T1