State v. White

688 A.2d 142, 297 N.J. Super. 376, 1997 N.J. Super. LEXIS 61
CourtNew Jersey Superior Court Appellate Division
DecidedFebruary 11, 1997
StatusPublished
Cited by4 cases

This text of 688 A.2d 142 (State v. White) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. White, 688 A.2d 142, 297 N.J. Super. 376, 1997 N.J. Super. LEXIS 61 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

D’ANNUNZIO, J.A.D.

Tried to a jury under Essex County Indictment No. 2352-6-93, defendant was convicted of three counts of first degree robbery, one count of endangering the welfare of a child, and one count of possession of a weapon for an unlawful purpose. The jury acquit[378]*378ted defendant of possession of a handgun without a permit. The court sentenced defendant to fifteen years’ imprisonment with five years of parole ineligibility on the first robbery count. The other two robbery counts and the possession of a weapon for an unlawful purpose were merged into the first robbery count. Regarding the endangering the welfare of a child, the court sentenced defendant to four years imprisonment to be served consecutively to the sentence imposed on the first robbery count. Thus, defendant’s aggregate term is nineteen years imprisonment with five years of parole ineligibility.

Defendant appeals and makes the following contentions:

POINT I
DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE TRIAL JUDGE ALLOWED THE PROSECUTOR TO CROSS-EXAMINE DEFENDANT AND THEN COMMENT IN SUMMATION ON IRRELEVANT AND PREJUDICIAL INFORMATION CONCERNING DEFENDANT’S LACK OF EMPLOYMENT AND THE NUMBER OF GIRLFRIENDS HE HAD ON THE DATE THAT THE ROBBERIES WERE COMMITTED.
POINT II
THE TRIAL JUDGE ERRED BY REFUSING TO SANITIZE DEFENDANT’S PRIOR CONVICTION FOR RECEIVING STOLEN PROPERTY THAT WAS USED TO IMPEACH HIS CREDIBILITY WHEN HE TOOK THE STAND. POINT III
SINCE THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT [A.J.] WAS THE VICTIM OF A THEFT, THE CONVICTION ON COUNT THREE OF THE INDICTMENT MUST BE VACATED (Not raised below.)
POINT TV
DEFENDANT’S CONVICTION AND SENTENCE FOR ENDANGERING THE WELFARE OF A CHILD (COUNT FOUR) MUST BE MERGED INTO HIS CONVICTION AND SENTENCE FOR ARMED ROBBERY (COUNT ONE). IN THE ALTERNATIVE, DEFENDANT’S CONSECUTIVE SENTENCE ON COUNT FOUR MUST BE VACATED AND A CONCURRENT SENTENCE IMPOSED. (Partially raised below.)
POINT V
DEFENDANT’S SENTENCE IS MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE.

We conclude that defendant’s second contention has merit and, therefore, we reverse the convictions and remand for a new trial.

[379]*379On December 18, 1992, at approximately 2:00 p.m., Daneka Claiborne, her cousin, Tasheila Ward, and a five-year-old girl, were walking down 14th Avenue in Newark between 14th and 15th Streets. A grey Pontiac containing three black males and one white male stopped across the street and slightly in front of them. Claiborne and Ward claimed that they made eye contact with and recognized the black male in the passenger seat as someone they knew as “Smalls.” They identified defendant in court as “Smalls.” After defendant saw them, he allegedly passed a handgun to the driver of the car, a “tall dark skinned skinny guy” later identified as Daniel Magnum.

After receiving the gun, Magnum walked over to the three girls and demanded that they give him their jewelry. When they refused, he pointed the gun at A.J.’s head and threatened to shoot her if they did not comply. Claiborne and Ward then handed their jewelry to Magnum. Magnum then proceeded to the car and entered the back seat, which was driven from the scene by the white male who had taken the driver’s position. Defendant, “Smalls,” was sitting stooped down in the passenger seat during the robbery.

Claiborne and Ward were interviewed by Officer Michael Krayanski after the robbery and by Detective Frank Huff three days later. Claiborne told them that one of the robbers was “Smalls” and later was able to tell Detective Huff where she thought “Smalls” lived.

Huff learned that defendant’s nickname was “Smalls” after Magnum was arrested and identified by Claiborne as the robber. On April 7, 1993, Huff showed Claiborne a six photograph array which included defendant’s picture. Claiborne identified defendant as “someone else in the car” and signed the picture. Defendant was arrested two weeks later. Claiborne and Ward both identified defendant in court as the person who passed the gun.

Defendant, who admitted that he was known in the neighborhood as “Smalls,” took the stand on his own behalf and denied having had anything to do with the robbery of the three girls. He [380]*380testified that on the date and time in question he had stopped at a store on 14th Avenue and 16th Street while walking from his girlfriend’s house on 19th Street. While in the store, Daniel Magnum and a Puerto Rican male named “Frank” offered to drive defendant to Newton Street, where his other girlfriend lived. As he was entering the car, he saw three girls on the comer of 15th Street and waved to one of them after he thought he heard her say “hey, Smalls.” He admitted knowing Daneka Claiborne “from the street” but did not know if she was one of the three girls on the comer. He testified that Claiborne was once his girlfriend in 1990, but that they broke up when Claiborne discovered that he had impregnated one of her friends. After he got in the car, he was driven directly to Newton Street.

Prior to trial, the prosecutor informed the court that defendant previously had been convicted of third degree receiving stolen property. N.J.S.A 2C:20-7a. The court ruled that the conviction would be admissible under State v. Sands, 76 N.J. 127, 386 A.2d 378 (1978), and N.J.S.A 2A:81-12 to impeach defendant if he testified. The court rejected defense counsel’s contention that the conviction, if admitted into evidence, would have to be sanitized as required in State v. Brunson, 132 N.J. 377, 625 A.2d 1085 (1993). When defendant testified, the jury was informed that defendant previously had been convicted of receiving stolen property.

In Brunson, the Court refined its ruling in State v. Sands, supra. Brunson recognized that the introduction into evidence of defendant’s prior conviction of a crime similar to a crime for which defendant is being tried “is doubtless highly prejudicial, and that prejudice is unlikely to be cured by a limiting instruction.” 132 N.J. at 391, 625 A.2d 1085.

To minimize the prejudice, but effect the ■ legislative policy behind N.J.S.A. 2A:81-12, the Court in Brunson announced this compromise:

[I]n those eases in which a testifying defendant previously has been convicted of a crime that is the same or similar to the offense charged, the State may introduce evidence of the defendant’s prior conviction limited to the degree of the crime and the date of the offense but excluding any evidence of the specific crime of which the [381]*381defendant was convicted. That method of impeachment will insure that a prior offender does not appear to the jury as a citizen of unassailable veracity and simultaneously will protect a defendant against the risk of impermissible use by the jury of prior-conviction evidence.
[Id.

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Bluebook (online)
688 A.2d 142, 297 N.J. Super. 376, 1997 N.J. Super. LEXIS 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-white-njsuperctappdiv-1997.