State v. Bates

• Decision Date: 10 June 2019
• Docket Number: DOCKET NO. A-0373-17T3
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. RODNEY F. BATES, a/k/a RODNEY F. BATES, JR., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. RODNEY F. BATES, a/k/a RODNEY F. BATES, JR., Defendant-Appellant.

DOCKET NO. A-0373-17T3

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted December 19, 2018

June 10, 2019

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

Before Judges Nugent and Reisner.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 15-12-3508.

Joseph E. Krakora, Public Defender, attorney for appellant (Tamar Y. Lerer, Assistant Deputy Public Defender, of counsel and on the brief).

Mary Eva Colalillo, Camden County Prosecutor, attorney for respondent (Jason Magid, Assistant Prosecutor, of counsel and on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from his conviction of the second-degree burglary of his sister's home and the third-degree aggravated assault of his niece. He also appeals his aggregate sentence of ten years in prison, eighty-five percent of which is to be served without parole eligibility, a requirement of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He presents the following arguments for our consideration:

POINT I

THE AMENDMENT OF THE INDICTMENT, THE MORNING TRIAL BEGAN AND OVER DEFENDANT'S OBJECTION, CHARGING DEFENDANT WITH A MORE SERIOUS OFFENSE THAN THAT FOUND BY THE GRAND JURY CONTRAVENED HIS RIGHT TO INDICTMENT BY THE GRAND JURY AND DEPRIVED HIM OF NOTICE OF THE PENAL CONSEQUENCES OF THE CHARGES.

POINT II

THE JURY INSTRUCTION ON BURGLARY LEFT OPEN THE POSSIBILITY OF A NON-UNANIMOUS VERDICT AND WAS NOT SUFFICIENTLY TAILORED TO THE FACTS OF THE CASE. FOR BOTH REASONS, THE BURGLARY CONVICTION MUST BE REVERSED. (NOT RAISED BELOW)

A. The Jury Charge In This Case Was Insufficient To Ensure a Unanimous Verdict.

B. The Jury Instruction on Burglary WasInsufficient To Ensure That Defendant Was Properly Convicted Of Burglary.

POINT III

THE TRIAL COURT'S REFUSAL TO SANITIZE THE 9-1-1 CALL ALLOWED THE BACKDOOR ADMISSION OF THE OTHER-BAD-ACT EVIDENCE THAT THE COURT HAD RULED WAS INADMISSIBLE AT TRIAL. THE RESULTING PREJUDICE NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT IV

THE TRIAL COURT FAILED TO ACCOUNT FOR DEFENDANT'S AGE AND PHYSICAL INFIRMITIES WHEN SENTENCING DEFENDANT, RESULTING IN AN EXCESSIVE SENTENCE. THEREFORE, THE SENTENCE MUST BE VACATED AND THE CASE REMANDED FOR RESENTENCING.

In addition, in a pro se supplemental brief that has no point headings, defendant argues there was insufficient evidence that he did not have permission to enter his sister's home to visit his mother. He also argues: he did not receive discovery; the prosecutor withheld exculpatory evidence; the attorney who represented him before trial did not seek discovery of a police report containing exculpatory evidence; his attorney did not call as a witness the police officer who wrote the report containing the exculpatory evidence; and his original attorney was replaced by an inexperienced attorney who did not seek to obtain important discovery and exculpatory evidence.

Finding merit in defendant's first point, we remand for correction of the Judgment of Conviction to reflect that on the first count defendant was convicted on the offense charged in the indictment - third-degree burglary - and for resentencing on that count. Finding no merit in the remaining points, we reject defendant's request for a new trial. Concluding that the only possibly meritorious points in defendant's pro se brief are, in essence, allegations that the attorneys who represented him did so ineffectively, we decline to consider them; they are better suited for disposition in the context of a petition for post-conviction relief.

I.

A.

A Camden County grand jury charged defendant in a four-count indictment with the following offenses: second-degree burglary, N.J.S.A. 2C:18-2(a)(1) (count one); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count four).

The Indictment's first count provided in pertinent part:

The Grand Jurors of the State of New Jersey, for the County of Camden, upon their oaths present that, on or about the 10th day of September, 2015, in the Boroughof Somerdale, County of Camden, aforesaid, and within the jurisdiction of this Court,

RODNEY F BATES

did unlawfully enter the structure of [his niece] at [her address] with the purpose to commit an offense therein;

contrary to the provisions of N.J.S. 2C:18-2a(1), and against the peace of this State, the Government and dignity of the same.

2C:18-2a(1) Burglary - Second Degree¹

Defendant's jury trial took place in March 2017. On the morning testimony was to begin, after giving the impaneled jury preliminary instructions but before the attorneys gave opening statements, the court heard defendant's motion to dismiss the indictment's first count. The court listened to a recording of the grand jury presentment and then heard the attorneys' arguments. During argument, after implicitly acknowledging that count one as drafted did not state the elements of a second-degree offense, the prosecutor "move[d] to amend the body to support or reflect exactly what was said in the grand jury proceedings."

The court granted the prosecutor's motion. In granting the prosecutor's oral motion to amend the indictment, the court noted:

In the body of the indictment on count one it does not have the language that bumps it to a second-degree, which would mean that in the course of committing the offense the actor - - and I'm citing from [N.J.S.A. 2C:18-2(b)(1) and (2)] - - "purposely, knowingly or recklessly inflicts, attempts to inflict, or threatens to inflict bodily injury on anyone or is armed with or displays what appears to be explosives or a deadly weapon."

The court nonetheless determined the testimony the State elicited from a police officer before the grand jury "fits the definition, at least a prima facie definition of a prima facie case, of second-degree." The court reiterated the officer's testimony "sets forth a prima facie case and enough evidence to formally charge the defendant with second-degree." In addition, the court noted that the prosecutor, when asking the grand jury "to rule on or make a vote on what the indictment would be, . . . said 'that's actually a second-degree offense.'"

The court disposed of three other motions, none of which are at issue on this appeal. The jury convicted defendant on the indictment's first two counts and acquitted him of the third and fourth counts. At sentencing, the judgemerged the third-degree assault into the second-degree burglary and sentenced defendant to a ten-year prison term subject to NERA.²

B.

The parties presented the following proofs at trial. Defendant's elderly mother lived in Somerdale with her daughter, who was defendant's sister; and her granddaughter, who was defendant's niece. Defendant's mother had deeded the home to defendant's sister in July 2004. His sister and niece cared for his mother. Defendant was not permitted to enter the home unless his sister was present.

His sister was not at home on September 10, 2015. She was working a twelve-hour shift. Defendant's niece was caring for his mother that day. His niece testified that she had moved into the Somerdale home to help her mother care for her grandmother, who had fallen ill. She described defendant as, among other things, "a little bit of a bully to everybody in the family including [his mother]."

Defendant's niece explained that defendant was not permitted to come to the house unless he first made an appointment. He was allowed to use thedetached garage, where he stored some of his belongings. Defendant's niece also testified that defendant never came to the home when she was alone with her grandmother, because she felt uncomfortable around him.

Defendant's niece was up early on September 10, 2015. She was alone with her grandmother in the home when she heard the trash trucks and realized she had forgotten to take out the trash. She ran out to take out the trash, and while doing so, defendant pulled up in her grandmother's Cadillac and began to ridicule her. He got out of the car and began "gunning" for the door. She pleaded with him not to go in, saying he was not allowed, her grandmother was not well, and her grandmother was sleeping.

According to defendant's niece, defendant entered the home. She ran behind him and grabbed the door knob. He reached for the slide lock and she "ripped" open the door and was able to stand in front of the door, her body between the door and defendant, so that he would not lock her out of the house. He pushed his body into hers, and hers in turn was propelled against the door and shattered the glass. Defendant picked up a piece of triangular-shaped glass and held it near his niece.

Defendant's niece testified that she and defendant struggled. During the struggle, he managed to get a fistful of her hair at the top of her head. As thestruggle continued, defendant's niece fell to the ground and he jumped on top of her and pinned her down with his hands. She cried and screamed, and she eventually stood up. She was able to re-enter the house, grab her cell phone, and call 9-1-1. Defendant went to her grandmother's room.

Defendant's niece heard defendant talking to her grandmother and attempting to blame her for the broken door. He came out while she was speaking to the dispatcher, grabbed her by the neck, pinned her against the wall, and punched her in the face twice. Her grandmother came out with her walker. Defendant's niece called 9-1-1 again, having been disconnected during the first call. Defendant left.

Recordings of the two 9-1-1...