STATE OF NEW JERSEY VS. KEVIN A. CARTER (16-10-1840, MONMOUTH COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 22, 2021
• Docket: A-1146-18
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1146-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN A. CARTER,

Defendant-Appellant. _______________________

Submitted on January 6, 2021 – Decided February 22, 2021

Before Judges Sumners and Mitterhoff.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 16-10-1840

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

Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Maura K. Tully, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief. PER CURIAM

A jury found self-represented defendant, Kevin Carter, guilty of various

weapon offenses. Defendant was sentenced to an aggregate extended ten-year

prison term as a persistent offender with a five-year period of parole

ineligibility. Through his counsel, defendant argues:

POINT I

THE [TRIAL COURT] ABUSED [ITS] DISCRETION WHEN [IT] APPOINTED DEFENSE COUNSEL AS STANDBY, AND THEN PROCEEDED WITH THE TRIAL DESPITE THE AMBIGUOUS THREAT [DEFENDANT] WOULD FILE AN ETHICS COMPLAINT AGAINST STANDBY COUNSEL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. 1[,] PARA. 10.

POINT II

THE DISCRETIONARY EXTENDED TERM FOR GUN POSSESSION – TEN YEARS WITH A FIVE- YEAR PAROLE DISQUALIFIER – WAS EXCESSIVE.

Defendant filed a pro se supplemental brief arguing:

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASONS[:]

[A.] THE FIRST FALSITY IN THE AUGUST 17, 2016 POLICE REPORT OF OFFICER GIOVANNE AND FALSITY IN THE TESTIMONY IN THE

A-1146-18 2 SUPPRESSION HEARING ABOUT HIS FIRST STATEMENT AT THE SCENE[.]

[B.] DURING CROSS EXAMINATION AT THE TRIAL THE HEAD CONDUCTOR GIANNA SALVATORE ADMITTED TO ILLEGALLY DETAINING THE DEFENDANT WITHOUT PROBABLE CAUSE BEING THAT HE WAS NOT A POLICE OFFICER OR AUTHORIZED TO DO SO.

THE EXCLUSIVE RELIANCE UPON HEARSAY AND DOUBLE HEARSAY IN THE TRIAL MANDATES THE STATEMENTS SHOULD HAVE BEEN SUPPRESSED AND THE EVIDENCE SEIZED SHOULD HAVE BEEN FRUIT OF THE POISONIOUS TREE IN VIOLATION OF [DEFENDANT'S] FOURTH AMENDMENT RIGHT TO BE LEFT ALONE, FREE FROM ALL RESTRAINT AND FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS UNDER THE NEW JERSEY STATE CONSTITUTION AND RIGHT TO A FAIR TRIAL[.]

[A.] THERE ARE 5 LEGAL ELEMENTS THE STATE MUST PROVE THAT [DEFENDANT] WAS IN POSSESSION OF THE WEAPONS.

POINT III

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASONS[:]

[A.] [TRIAL JUDGE] ALLOWED IN HEARSAY EVIDENCE INTO THIS TRIAL, IDENTIFICATIONS THAT WERE HIGHLY SUGGESTIVE,

A-1146-18 3 PREJUDICIAL, CONFUSING, AND A WASTE OF TIME.

POINT IV

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASON:

[A.] AT THE TRIAL DURING THE EXAMINATION OF THE DEFENSE[] WITNESS KOREN JORDAN, THE JUDGE OBJECTED TO A QUESTION. SHE HAD THE PROSECUTOR AND STANDBY COUNSEL MEET HER AT SIDE BAR THEN OVERRULED ON HER OWN OBJECTION, WHICH IS PLAIN ERROR AND IT IMMEDIATELY PREJUDICED THE DEFENDANT IN VIOLATION OF THE DEFENDANTS RIGHT TO A FAIR TRIAL. STANDARDS OF REVIEW: PLAIN ERROR: JUDICIAL DISCRETION.

POINT V

I ASK THAT YOU GRANT MY MOTION TO APPEAL FOR THE FOLLOWING REASON:

[A.] INEFFECTIVE-ASSISTANCE-OF-COUNSEL

[B.] [TRIAL JUDGE] ALLOWED IN HEARSAY EVIDENCE INTO THIS TRIAL, IDENTIFICATIONS THAT WERE HIGHLY SUGGESTIVE, PREJUDICIAL, CONFUSING, AND A WASTE OF TIME.

Having considered the record and applicable law, we affirm.

I

A-1146-18 4 When a New Jersey Transit (NJT) train ended its route at the Long Branch

train station shortly after midnight on August 17, 2016, head conductor

Salvatore Gianna and assistant conductor Harry Giannuzzi walked through the

train to confirm it was empty before the return trip. Neither conductor saw any

bags left behind by departing passengers.

As the train left the station at 12:08 a.m., Giannuzzi walked down the aisle

collecting tickets. A man later identified as defendant sat at the window seat of

a three-passenger bench, with a woman sitting in the aisle seat. As Giannuzzi

walked past defendant, he noticed two gun barrels protruding from a black

garbage bag under defendant's seat. After Giannuzzi told Gianna about the guns,

Gianna walked down the aisle and also saw the gun barrels sticking out of the

black plastic bag under defendant's seat.

Gianna then asked defendant to accompany him to the train's "vestibule"1

to talk. Defendant complied, and Gianna then asked him if the black plastic

1 According to Wikipedia,

[a] vestibuled train is a passenger train whose cars have enclosed vestibules at their ends, in contrast to the open platforms on early cars. Typically, a vestibule has doorways on either side to allow passenger entry and egress at stations, a door into the body of the car, and,

A-1146-18 5 bag was his. Defendant replied yes, stating it just contained laundry. Gianna

retorted that the bag did not contain laundry, and that he had called the police

and they would be waiting at the next station in Elberon. Defendant then told

Gianna that the bag was not his.

When the train pulled into the next station, NJT Police Officers

Christopher Giovannone and Zachary Kelliher were waiting along with other

NJT officers and Long Branch police officers. Gianna led police to where the

black garbage bag with guns was located, and the bag was removed from the

train. Defendant told Giovannone that the bag was not his, but he was arrested

based on "[t]he totality of the circumstances of everything that happened."

Defendant's denial was contradicted by a video from a Long Branch train

station surveillance camera showing that, prior to the train leaving the station at

12:08, defendant, wearing the same clothing in which he was arrested, carried

the black garbage bag onto the train. No one else was depicted in the

surveillance video boarding the train matching defendant's description or

carrying a black garbage bag.

at the car end, a doorway to allow access to the next car through a flexible gangway connection.

Wikipedia (last visited February 4, 2021, 11:01a.m.), https://en.wikipedia.org/wiki/Vestibuled_train. A-1146-18 6 Defendant was subsequently indicted for second-degree unlawful

possession of an assault firearm, N.J.S.A. 2C:39-5(f); two counts of fourth-

degree unlawful transport of a firearm, N.J.S.A. 2C:39-9(d); two counts of

second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b(1); third-

degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1); and fourth-

degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f).

Months before his trial, defendant filed several motions with differing

results. First, he moved to waive his right to counsel and represent himself. The

trial judge granted the application, determining defendant "freely, knowingly,

and voluntarily . . . is waiving his right to counsel and . . . wants to represent

himself . . . ." The judge also appointed standby counsel to assist defendant.

Second, he moved to suppress his statements to Gianna and to suppress the

search and seizure of the black garbage bag and the guns. The judge denied his

requests. After an evidentiary hearing, the judge found that defendant's

statements were voluntary, the train conductor was not acting as an arm of the

state, and the search and seizure of the weapons were proper under the plain

view doctrine. The judge later denied defendant's reconsideration motion of the

suppression rulings, finding that she considered all probative evidence and

properly applied the law.

A-1146-18 7 Defendant's trial was bifurcated to enable the jury to separately determine

the predicate facts required to support the certain person charges. As the trial

was about to begin but before the jury had been sworn, defendant asked the court

clerk if there was a "grievance procedure" to complain about an "ex parte

communication" between his standby counsel and the prosecutor. Defendant

claimed standby counsel asked him a question in front of the prosecutor which

would have had him reveal his trial strategy. After excusing defendant from the

courtroom, the judge spoke with standby counsel and the prosecutor. The judge

then stated:

I felt that I had to speak to counsel separately without [defendant] present, but this will be a record of what is going to be said. I am now very, very concerned, given what [defendant] has said, because it seems that he's going to or want to file some type of ethics grievance against [standby counsel] and if that's correct, then [standby counsel], in my opinion, is in a conflict situation with [defendant] and, therefore, [he] cannot be standby counsel and I have to now declare a mistrial.

Standby counsel responded that he was "not concerned that there's going

to be any outcome vis-[à]-vis my license or my conduct in representing

[defendant], or anyone else for that matter . . . we're all subject to ethics

complaints." The judge eventually brought defendant back into the courtroom

and decided there was no conflict between defendant and standby counsel, and

A-1146-18 8 that neither she nor her staff would be permitted to give defendant legal advice

about filing a grievance against standby counsel.

The jury found defendant guilty of second-degree unlawful possession of

an assault firearm, third-degree unlawful possession of a weapon, and fourth-

degree possession of a prohibited weapon (hollow nose bullets). At the second

trial, the same jury found defendant guilty of the two certain persons charges.

However, a different trial judge later granted defendant's motion for a new trial

on the certain persons offenses because the judgment of conviction (JOC) that

the State submitted had redacted his conviction; therefore, it could not prove

that defendant had been convicted of an offense specifically enumerated in the

certain persons statute.

Defendant was sentenced on the remaining convictions by the judge who

granted his motion for a new trial on the certain persons convictions. The judge

granted the State's motion under N.J.S.A. 2C:44-3(a), for a discretionary

extended term because of defendant's prior record. On the second-degree

unlawful possession of an assault firearm conviction, defendant was sentenced

to a ten-year prison term with a five-year period of parole ineligibility,

concurrent with a four-year prison term with forty-two months parole

ineligibility on the third-degree unlawful possession of a weapon charge, and an

A-1146-18 9 eighteen-months prison term for fourth-degree possession of a prohibited

weapon.

II

Defendant argues the trial judge abused her discretion and erred in

appointing former defense counsel to serve as standby counsel and in allowing

the trial to proceed without providing him a new standby attorney when he

claimed that he wanted to file a grievance against standby counsel. He admits

that he did not ask the judge for either form of relief. However, he argues that

given his mistrust of defense counsel, the judge's initial appointment of standby

counsel and failure to remove standby counsel impaired his ability to adequately

represent himself because his subsequent distrust impaired their communication.

McKaskle v. Wiggins, 465 U.S. 168, 178-79 (1984); Faretta v. California, 422

U.S. 806, 819 (1975). We are unpersuaded.

We agree with the State that because defendant never requested the

appointment of different standby counsel at any stage of the proceedings, nor sought

declaration of a mistrial, the "plain error" standard applies. Thus, we would only

overturn defendant's conviction if the error were "clearly capable of producing an

unjust result." R. 2:10-2; State v. Burns, 192 N.J. 312, 341 (2007).

A-1146-18 10 In Faretta, the United States Supreme Court recognized that "the trial

judge may terminate self-representation by a defendant who deliberately

engages in serious and obstructionist misconduct." 422 U.S. at 834 n.46. "[A]

State may -- even over objection by the accused -- appoint a 'standby counsel' to

aid the [defendant] if and when the [defendant] requests help, and to be available

to represent the [defendant] in the event that termination of the defendant's self-

representation is necessary." Ibid. "Standby counsel may be appointed to

provide the defendant with advice and assistance and to facilitate

communications with the court[,]" but there are constitutional limits. State v.

Gallagher, 274 N.J. Super. 285, 296 (App. Div. 1994). "First, the pro se

defendant is entitled to preserve actual control over the case he chooses to

present, and second, participation by standby counsel should not be allowed to

destroy the jury's perception that the accused is representing himself." Id. at

297 (citing McKaskle v. Wiggins, 465 U.S. 168, 178 (1984)). "In determining

whether a defendant's Faretta rights have been respected, the primary focus must

be on whether the defendant had a fair chance to present his case in his own

way." McKaskle, 465 U.S. at 177.

There is nothing in the record remotely suggesting that defendant's Faretta

rights were denied and thereby produced an unjust result in his conviction.

A-1146-18 11 Defendant's claim that there should have been a mistrial after he asserted standby

counsel partook in an "ex parte communication" with the prosecutor lacks any

support in the record. An "ex parte communication" is defined as a comment made

"between counsel or a party and the court when opposing counsel or party [was] not

present." Communication, Black's Law Dictionary (11th ed. 2019). The alleged

communication was between defendant and his standby counsel, not between

opposing counsel and the judge. While defendant arguably meant that standby

counsel shared a privileged communication with the prosecutor, the judge correctly

decided this was a non-issue when defendant admitted that there was only a

possibility that the prosecutor might have overheard the conversation. Moreover,

a mistrial would have been inappropriate because the jury had not been sworn, and

the trial had not commenced. State v. Veney, 409 N.J. Super. 368, 379-80 (App.

Div. 2009).

Last, defendant fails to point out any time before or during the trial where his

"distrust" of standby counsel affected his ability to represent himself and to have a

fair trial. Thus, there was no reason for the judge to appoint new standby counsel.

III

Defendant argues the discretionary extended term imposed on him was

excessive. Specifically, he asserts his sentence must be reversed because the judge

A-1146-18 12 failed to consider the full sentencing range required by State v. Pierce, 188 N.J. 155

(2006), and placed too much emphasis on aggravating factor six, "[t]he extent of the

defendant's prior criminal record and the seriousness of the offenses of which he has

been convicted[,]" N.J.S.A. 2C:44-1(a)(6), without adequately taking into account

how "mild" the offense was. Defendant argues that because state law focuses

primarily on the gravity of the offense, and not on the perceived risk that the offender

presents, State v. Roth, 95 N.J. 334, 354-55 (1984), the judge should have sentenced

him within the ordinary term range even though he meets the statutory requirements

for an extended sentence under N.J.S.A. 2C:44-3(a). He further argues the judge

erred in not considering mitigating factor four, "substantial grounds tending to

excuse or justify the defendant's conduct, though failing to establish a defense[,]"

N.J.S.A. 44-1(b)(4), because he suffers from depression and the incident on the train

could have been related to his illness. We are unpersuaded.

We defer to the trial judge's sentencing determination, State v. Fuentes,

217 N.J. 57, 70 (2014), and do not substitute our judgment for the trial court's

judgment simply because we would have reached a different result, State v.

Lawless, 214 N.J. 594, 606 (2013). There is no dispute that defendant was

eligible for a discretionary extended term as a persistent offender under N.J.S.A.

2C:44-3. The judge properly applied his discretion to impose an extended term

A-1146-18 13 sentence. Pierce, 188 N.J. at 161. The judge's factual findings and consideration

of the sentencing factors were based on credible evidence in the record, and the

sentence does not shock our judicial conscience. See State v. Bolvito, 217 N.J.

221, 228 (2014).

IV

As for the arguments raised in defendant's pro se supplemental brief,

considering the record and relevant law, we conclude that they are "without

sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). We

do add, however, that defendant's ineffective-assistance claim is more

appropriately raised on a petition for post-conviction relief instead of direct

appeal. State v. McQuaid, 147 N.J. 464, 484 (1997). See also State v. Preciose,

129 N.J. 451, 460 (1992) (recognizing a general policy against entertaining

ineffective-assistance-of-counsel claims on direct appeal because they generally

require examination of evidence outside the trial record). Accordingly, we do

not address the merits of defendant's claim of ineffective assistance of counsel

raised in this appeal.

Affirmed.

A-1146-18 14