STATE OF NEW JERSEY VS. SHARROD L. STUART (17-08-1003, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: February 19, 2021
• Docket: A-1973-18
• Status: Unpublished

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1973-18

STATE OF NEW JERSEY

Plaintiff-Respondent,

v.

SHARROD L. STUART,

Defendant-Appellant. ________________________

Submitted on December 16, 2020 - Decided February 19, 2021

Before Judges Sumners and Geiger.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. 17-08-1003

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the brief).

Mark Musella, Bergen County Prosecutor, attorney for respondent (Edward F. Ray, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Following a bench trial, defendant was found guilty of third-degree arson

and third-degree aggravated assault and was sentenced to an aggregate eight-

year discretionary extended prison term, with a four-year period of parole

ineligibility. Before us, he argues:

POINT I

THE COURT ERRED IN DENYING [DEFENDANT'S] MOTION TO DISMISS THE INDICTMENT BECAUSE THE PROSECUTOR MISCHARACTERIZED CRITICAL EVIDENCE, OMITTING EXCULPATORY EVIDENCE CONTAINED IN THE COMPAINANT'S STATEMENTS TO THE POLICE AND CASTING DOUBT UPON HER CREDIBILITY AT A PRE- TRIAL HEARING BY MISSTATING HER TESTIMONY.

POINT II

BECAUSE THE JUDGE CONCLUDED THAT [DEFENDANT] HAD NOT KNOWINGLY PLACED THE VICTIM IN DANGER OF INJURY OR DEATH, HE ERRED IN IMPOSING AN EXTENDED-TERM SENTENCE AND A PERIOD OF PAROLE INELIGIBILITY ON THE ARSON CONVICTION.

For the reasons that follow, we affirm.

A-1973-18 2 I

These facts are taken from the record. On May 22, 2017, T.P.1 gave a

statement to Detective Rager2 of the Elmwood Park Police Department regarding

an incident that day at her two-floor garden apartment in the Borough of

Elmwood Park. She reported that she and defendant, her boyfriend, got into a

heated argument and she asked him to leave. She then left to go grocery

shopping. When she returned, defendant was still there. After she took a

shower, defendant started yelling at her, and kicked a garbage can. T.P. went

into her bedroom, and defendant walked towards her "real fast," forced her on

the bed, and put his hands around her neck but did not choke her, and stated, "I

love you, but I just want you to feel the anger that I feel . . . . I want you to feel

the hurt that I feel." Defendant then left the room.

Defendant subsequently told T.P. he was going to his aunt's house. After

he left the apartment, he placed bags 3 containing his belongings by the front

door. Once defendant got outside, T.P. locked the door behind him, and he

kicked her door. To get him to stop kicking the door, she opened the door and

1 We refer to the victim by her initials. Rule 1:38-3(c)(12). 2 The record does not indicate the detective's first name. 3 Backpacks and duffle bags. A-1973-18 3 told him, "look what you did to my door." She then closed and locked the door

and went upstairs.

T.P. told Detective Rager that when she went upstairs, she heard her

window shatter and she called the police. She then heard her neighbor yelling,

and when she went to talk to her, she saw defendant's belongings on fire

blocking the front door. T.P. called the police again to report that defendant lit

a fire at her apartment's front door, and he was getting away.

Six days later at defendant's May 30 pretrial detention hearing, T.P.

recanted portions of her statement to Detective Rager. She testified that

defendant did not apply pressure to her neck; he only had her hands around her

neck because he fell on top of her in self-defense She also testified that she was

shouting at defendant, and he "was [not] really yelling" but there was "shouting

back and forth." When asked why she changed her testimony, she stated,

"[b]ecause I, basically, lied. I, basically, lied and I felt horrible. I felt bad about

it. I lied." She also mentioned that she attempted to amend her statement before

the hearing, but no one was available to speak with her, so she emailed the

Prosecutor's Office stating her desire to change her statement. Defendant was

detained pending his trial.

A-1973-18 4 At the August 3 grand jury hearing, the State only presented one witness,

Bergen County Prosecutor's Office Detective Michael Guzman, who testified

regarding T.P.'s accusations. He acknowledged to the presenting prosecutor that

at the pretrial detention hearing T.P. "largely recanted most of what she said" to

him during his investigation following her calls to the police. When one of the

grand jurors asked the prosecutor why T.P. recanted her testimony, he

responded:

. . . I cannot and nor should you speculate on facts that are not necessarily before you.

I've provided you with both versions of the testimony. . . .

As the grand jury it's your duty to determine based on that evidence whether or not there's probable cause, meaning whether it's more likely than not that [defendant] has committed the crimes of aggravated arson, arson, and aggravated assault . . . on the domestic violence victim.

Defendant was indicted for second-degree aggravated arson, N.J.S.A. 2C:17-

1(a)(1), third-degree arson, N.J.S.A. 2C:17-1(b), and third-degree aggravated

assault on a domestic-violence victim, N.J.S.A. 2C:12-1(b)(12).

On May 14, 2018, the trial judge denied defendant's motion to dismiss his

indictment. The judge rejected defendant's argument that the State failed to

establish the proofs necessary to sustain the elements of aggravated arson, and

A-1973-18 5 that there was prosecutorial misconduct by failing to present exculpatory

evidence that T.P. recanted her allegation of assault and that the gasoline can

was found in T.P.'s possession.

During the four-day bench trial in October 2018, defendant represented

himself with the assistance of standby counsel. At the trial's conclusion, the

judge determined the State's witnesses were credible, including T.P., "although

she attempted to minimize defendant's action." The judge acquitted defendant

of second-degree aggravated arson and found him guilty of third-degree arson

and third-degree aggravated assault.

II

We first address defendant's contention that the trial judge erred in

denying his motion to dismiss the indictment based upon prosecutorial

misconduct, which denied him fundamental fairness and due process, and

infringed upon his State constitutional right to an impartial grand jury. Because

the judge, acting as factfinder, and found defendant guilty, any alleged

procedural deficiencies in the grand jury hearing were rendered harmless. See

U.S. v. Mechanik, 475 U.S. 66, 70 (1986); State v. Simon, 421 N.J. Super. 547,

551 (App. Div. 2011) ("[A] guilty verdict is universally considered to render

error in the grand jury process harmless."); State v. Cook, 330 N.J. Super 395,

A-1973-18 6 411 (App. Div. 2000) (holding prosecutor's failure to present exculpatory

evidence to the grand jury was rendered harmless by guilty verdict).

In examining the record, we detect, as did the judge, no prosecutorial

misconduct before the grand jury. The judge stated:

I don't find that [the Assistant Prosecutor] or the State's conduct in any way interfered with the grand jury's decision making capabilities in providing his comments to the grand jury or providing whatever information was provided. I, also, don't find that any evidence which the defense alleges was not provided to the grand jury would be clearly exculpatory, either on the arson grounds or on the aggravated assault issue.

The record indicates that the grand jury was given an accurate account of

T.P.'s police statement and pre-trial detention hearing testimony. There was no

indication the State argued that T.P.'s recantation testimony was not credible.

The State did not fail to present any exculpatory evidence. See State v. Hogan,

144 N.J. 216, 236 (1996) ("[T]he State may not deceive the grand jury or present

its evidence in a way that is tantamount to telling the grand jury a 'half-truth.'").

Defendant admitted he started the fire, and the neighbor said she saw him start

it.

The State informed the grand jury that T.P. recanted her initial statement

that defendant choked her and did not try to dissuade the jury from believing her

recantation. Considering the grand jury was provided T.P.'s statement regarding

A-1973-18 7 defendant's mere placement of his hands around her neck, the grand jury's

decision-making process regarding the element of causing significant bodily

injury and the aggravated assault charge was not tainted by the State's

characterization of the assault as a "strangulation." There was no prosecutorial

misconduct that affected the grand jurors' ability to make an informed decision

as to whether to indict. See Hogan, 144 N.J. at 229 (citing State v. Murphy, 110

N.J. 20, 35 (1988)) (noting indictment may be dismissed if misconduct infringes

on grand jury's decision-making function). Accordingly, the judge did not abuse

his discretion and there is no basis to reverse the denial of defendant's motion to

dismiss the indictment. See State v. Zembreski, 445 N.J. Super. 412, 424 (App.

Div. 2016).

III

Defendant asserts that his sentence was excessive. He contends the trial

judge failed to apply the correct legal standard in sentencing him to an extended

term by relying on State v. Dunbar, 108 N.J. 80 (1987), instead of State v. Pierce,

188 N.J. 155 (2006), which revised the Dunbar standards. He argues that in

Pierce, our Supreme Court held that under the Sixth Amendment, a defendant's

eligibility for a discretionary extended term must not be based upon anything

other than the fact of prior convictions. Pierce, 188 N.J. at 158, 167-68. Yet,

A-1973-18 8 he maintains that although Dunbar's four-factor analysis no longer applies, its

considerations are still applicable in fashioning a sentence. Defendant contends

the judge, however, misapplied Dunbar by stating that the second factor for

determining the propriety of an extended term is to consider "whether it's a

deterrent to impose an extended term." The judge should have instead

considered whether an enhanced sentence was necessary to protect the public.

Dunbar, 108 N.J. at 90. Defendant also asserts the judge double-counted

aggravating factor nine, the need to deter, by including it in the calculations

leading to an extended term and when he imposed "a sentence higher than the

midpoint of the range and in imposing a [four-year] period of parole

ineligibility." We are unpersuaded.

The trial judge granted the State's motion to impose an extended term

sentence, N.J.S.A. 2C:44-3(a), on the arson charge because defendant was a

persistent offender. The judge applied aggravating factors: one, "the nature and

circumstances of the offense"; three, "[t]he risk that the defendant will commit

another offense"; six, "[t]he extent of the defendant's prior criminal record and

the seriousness of the offenses of which he has been convicted"; and nine, "the

need for deterring the defendant and others from violating the law." N.J.S.A.

2C:44-1(a)(1), -1(a)(3), -1(a)(6), -1(a)(9). The judge applied mitigating factors:

A-1973-18 9 eight, "conduct was the result of circumstances unlikely to occur[,]" and nine,

"unlikely to commit another offense." N.J.S.A. 2C:44-1(b)(8), -1(b)(9). The

judge found the aggravating factors were determined to substantially outweigh

the mitigating factors. Accordingly, defendant was sentenced to an extended

prison term of eight years with four years of parole ineligibility.

As for the aggravated assault conviction, the judge also applied

aggravating factors one, three, six, and nine. He found that only mitigating

factor nine applied. The aggravating factors were determined to outweigh the

mitigating factors. The judge imposed a four-year prison term concurrent to the

arson conviction.

There is no merit to defendant's assertion that the trial judge failed to apply

the correct legal standard to sentence him to an extended term as a persistent

offender. Defendant is eligible for a discretionary extended term as a persistent

offender based on his eight prior convictions for: first-degree carjacking; fourth-

degree aggravated assault with a firearm; second-degree possession of a firearm

for an unlawful purpose; fourth-degree unlawful possession of a firearm;

second-degree resisting arrest/eluding motor vehicle operation-risk of

death/injury to another person; and third-degree burglary.4 See N.J.S.A. 2C:44-

4 Defendant was convicted three times for third-degree burglary. A-1973-18 10 3(a). While the State acknowledges the judge may have misinterpreted Dunbar's

second step, the extended term comported with Pierce. The judge did not abuse

his discretion as the eight-year sentence was within the extended range and his

weighing of the sentencing factors was reasonable and supported by credible

evidence in the record. See Pierce, 188 N.J. at 169.

Furthermore, there was no impermissible double-counting of aggravating

factor nine as defendant argues. A sentencing court must avoid "double-

counting" facts that establish the elements of the relevant offense in making that

determination. State v. Fuentes, 217 N.J. 57, 74-75 (2014). Aggravating factor

nine is intended to deter the public and the defendant. Id. at 70. Defendant's

act of setting fire in front of the only ingress/egress of T.P.'s apartment was

properly considered by the judge in imposing an extended term sentence.

We also reject defendant's contention that the judge erred in imposing a

four-year parole bar because the prosecutor requested a flat sentence and a

parole bar was not mandatory for a discretionary extended term. We agree with

the State that in accordance with State v. Hess, 207 N.J. 123, 151 (2011), the

judge has the discretion to impose a sentence within our sentencing guidelines

and is not bound by the State's recommendation. There was no abuse of

discretion in the judge's determination that based upon the nature of the offense

A-1973-18 11 and defendant's criminal record, the aggravating factors substantially

outweighed the mitigating factors to warrant a period of parole ineligibility. See

Fuentes 217 N.J. at 73; Dunbar, 109 N.J. at 92-93.

Lastly, defendant argues the trial judge improperly weighed aggravating

factor one, as he found that he was not guilty of aggravated arson on the basis

that he did not purposely or knowingly place T.P. in danger of injury or death

but rather he had acted recklessly with regard to the consequences of starting a

fire. Defendant maintains aggravating factor one only applies when a

defendant's actions reveal an "extraordinary brutality," and his actions did not

rise to the level of calculated intent necessary to inflict an injury. See Fuentes,

217 N.J. 57, 75 (2014); State v. O'Donnell, 117 N.J. 210, 217-18 (1989); State

v. Carey, 168 N.J. 413, 425-26 (2001); State v. McGuire, 419 N.J. Super 88, 159

(App. Div. 2011). Defendant also contends, despite finding T.P. provoked him

by pouring gasoline on his clothing, the judge failed to weigh mitigating factor

three, "acted under a strong provocation[,]" N.J.S.A. 2C:44-1(b)(3), which

caused the judge to find that the aggravating factors outweighed the mitigating

ones. State v. Dalziel, 182 N.J. 494, 504-05 (2005) (holding that where

mitigating factors are supported by the record, they "must be part of the

deliberative process"). We are unpersuaded.

A-1973-18 12 The judge's factual findings and consideration of the sentencing factors

are based on credible evidence in the record. See State v. Bolvito, 217 N.J. 221,

228 (2014). Although T.P. poured gasoline on defendant's belongings and may

have been the initial aggressor after breaking up with defendant, it was

defendant who intentionally set the fire creating a serious threat to the safety of

T.P. and residents of the apartment complex, as well as to property damage.

Under these circumstances, defendant's extended term sentence and parole bar

do not shock the judicial conscience. See ibid.

Affirmed.

A-1973-18 13