State v. Jones

180 A.3d 288, 232 N.J. 308
Supreme Court of New Jersey·Decided March 22, 2018·No. A–53 September Term 2016; 078793·Published·Cited by 108 cases

Opinion

JUSTICE LaVECCHIA delivered the opinion of the Court.

**310Defendant Donnell Jones asserts that an infringement of his right to allocute and present mitigating information occurred when, after he addressed the sentencing court, he did not have an **311opportunity to respond to the State's final comments before the court imposed its sentence. We granted certification to consider defendant's arguments about his sentencing, and we now conclude that they are unavailing.

In our judicial system, the trial court controls the flow of proceedings in the courtroom. As a reviewing court, we apply the abuse of discretion standard when examining the trial court's exercise of that control. That review standard pertains in this appeal.

We conclude, as did the Appellate Division, that the sentencing court did not abuse its discretion during defendant's sentencing proceedings. Defendant made an allocution, speaking to the court and continuing until he stated he was through. Then, during the State's final statement prior to sentencing, the court acted appropriately when it prevented defendant from interrupting the prosecutor's remarks. At the conclusion of the prosecutor's comments, defendant made no further request of the court. Nor did his attorney. We are unpersuaded that the court's conduct of these proceedings infringed defendant's allocution right in any way.

*290To promote some best practices, we identify factors for a court to consider when deciding what to allow when hearing final statements from the parties prior to sentencing. In addition, this matter underscores the importance of a properly developed record when a defendant claims infringement, not denial, of the right of allocution.

I.

On June 14, 2012, defendant and a female accomplice committed an armed robbery against a woman and her young daughter in a New Brunswick park. On August 29, 2012, a Middlesex County grand jury issued an indictment against defendant. The indictment charged defendant with first-degree armed robbery, N.J.S.A. 2C:15-1 ; second-degree possession of a weapon for unlawful purposes, N.J.S.A. 2C:39-4(a) ; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) ; fourth-degree unlawful possession of **312a large-capacity ammunition magazine, N.J.S.A. 2C:39-3(j) ; fourth-degree prohibited weapons and devices, N.J.S.A. 2C:39-3(f) ; third-degree receiving stolen property, N.J.S.A. 2C:20-7 ; and third-degree terroristic threats, N.J.S.A. 2C:12-3(a). On the same date, a separate indictment charged defendant with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b).

Defendant pleaded guilty to the first-degree armed robbery and second-degree certain persons not to have weapons charges. In exchange, the State agreed to dismiss the other charges. The State further agreed to recommend a sentence of fifteen years' imprisonment on the armed-robbery charge, subject to an eighty-five percent parole disqualifier and five years' parole supervision. That sentence would run concurrently with a seven-year sentence, subject to five years of parole ineligibility, on the certain-persons charge.

Defendant and the State appeared for a sentencing proceeding on May 10, 2013. The critical events for this appeal took place during that proceeding.

First, defense counsel acknowledged that he reviewed the pre-sentence report with defendant and requested a correction: defendant had said that the gun was not loaded at the time of the robbery. The court noted the correction. Defense counsel then concluded his remarks by asking the court to honor the plea agreement when determining defendant's sentence.

Next, the court asked defendant whether he wanted to say anything. The following exchange occurred:

DEFENDANT: First of all, I am guilty of-of my crime, a hundred percent guilty. Am I sorry for what I did? No. I'm not.
THE COURT: You're not sorry?
DEFENDANT: 'Cause it-it was not supposed to even happen to her. That was not-she was not the-the target that this was happening to. You know-
THE COURT: Please, close the door. Close the door, please. I'm on the record.
Go ahead.
DEFENDANT: This was-you know, me-it's hard out there for me finding a job. Okay. With my record, it was-that-that's one of the reasons why I did what I **313did. I needed money and I needed it fast. Okay. Like I said, I'm sorry it happened to her. It was not supposed to happen to her.
THE COURT: What do you mean it wasn't supposed to happen to her?
DEFENDANT: She-
THE COURT: You did it to her.
*291DEFENDANT: Right. It was-she was not the target. She-this was-this was not supposed to happen to her. It really was not.
THE COURT: Okay.
DEFENDANT: Other than that, then that's it.

The court then turned its attention to the State, allowing the prosecutor to make her final remarks before sentencing defendant:

THE COURT: Prosecutor?
[PROSECUTOR]: Judge, that's unbelievable to me because he and Ms. Drew picked the target. They sat in a park and picked the target. Originally-he did say in his statement originally he was going to rob a business, a convenience store or some type of business. He switched targets.
THE COURT: Yes.
[PROSECUTOR]: He-she is the intended target once she-he changes his mind in the park.
DEFENDANT: Can I say something?
THE COURT: No.
[PROSECUTOR]: But be that as it may, this was an intentional act. He brandished a gun. Although he didn't say he pointed it at her. He said he just took it out and just showed it to her. He pointed it at her, according to the victim's statement. She's there and a three-year-old-her three-year-old daughter is on the swing set with her and she was afraid. And at gunpoint, he takes-well, he and Ms. Drew. I think Ms. Drew actually got the money and the ring, the woman's wedding ring. And then Ms. Drew flushed it down the toilet. He demanded the money, according to his statement, and it was given to Ms. Drew. And they walked away. And-
THE COURT: They took money and her wedding ring?
[PROSECUTOR]: Yeah.
THE COURT: Yes. Right.
[PROSECUTOR]: Um-hum. Twenty dollars and her wedding ring, Your Honor.
THE COURT: Right.
[PROSECUTOR]: And there was a little girl sitting there on the swing set. This is a serious act. And as far as we're concerned, there was really more than one victim, the three-year-old and the mother-

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State v. Jones, 180 A.3d 288, 232 N.J. 308 (N.J. 2018).

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