State v. Leeper

• Court: New Jersey Superior Court — Appellate Division
• Writing for the Court: PER CURIAM
• Decision Date: 03 September 2020
• Docket Number: DOCKET NO. A-4004-17T1,DOCKET NO. A-3430-17T1
• Citation: State v. Leeper, DOCKET NO. A-3430-17T1, DOCKET NO. A-4004-17T1 (N.J. Super. App. Div. Sep 03, 2020)
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY LEEPER, a/k/a JOJO, TOJO, JOE JOE LEEPER, and TROY CREEPER, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEONARDO J. GRAULAU, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. TROY LEEPER, a/k/a JOJO, TOJO, JOE JOE LEEPER, and TROY CREEPER, Defendant-Appellant.

STATE OF NEW JERSEY, Plaintiff-Respondent, v. LEONARDO J. GRAULAU, Defendant-Appellant.

DOCKET NO. A-3430-17T1

DOCKET NO. A-4004-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Submitted March 30, 2020

September 3, 2020

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Ostrer, Vernoia, and Susswein.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment Nos. 17-03-0709, 17-07-1914, and 17-07-2060.

Richard Sparaco, attorney for appellant Troy Leeper.

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

Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Nancy Philion Scharff, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief in A-3430-17; Maura Murphy Sullivan, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief in A-4004-17).

PER CURIAM

Defendants Troy Leeper and Leonardo J. Graulau were tried together before a jury and both were found guilty of aggravated assault and conspiracy to commit robbery. They separately appeal from their convictions and the sentences that were thereafter imposed by the judge who presided over the trial. We consolidate their back-to-back appeals for purposes of this opinion.

Each defendant raises several issues on appeal. Both challenge the trial court's decision to deny their motions for directed verdicts of acquittal at the close of the State's case-in-chief. After reviewing the record in view of thearguments of counsel and the legal principles that apply, we affirm the trial court's decision to deny those motions. The State adduced ample evidence, including surveillance video of the assault, to support defendants' convictions for aggravated assault and conspiracy to commit robbery.

Defendant Leeper also claims for the first time on appeal that the trial court erred by allowing the State to introduce hearsay evidence. He also challenges the extended term of imprisonment that was imposed based on his status as a persistent offender. We reject those contentions. The admission of the hearsay evidence was not capable of producing an unjust result and therefore does not rise to the level of plain error. Nor did the trial court abuse its discretion when it sentenced Leeper to a fifteen-year term of imprisonment after finding that defendant was a persistent offender pursuant to N.J.S.A. 2C:44-3(a).

Defendant Graulau also claims the trial court erred (1) in denying his motion to suppress the incriminating statement he gave to police during a custodial interrogation, (2) in allowing a detective to testify as to a portion of the statement codefendant Leeper gave to police, and (3) in failing to account for Graulau's young age when determining the length of the prison term to impose. We reject those contentions as well. The record shows that Graulau voluntarily and knowingly waived his right to remain silent and to consult withan attorney before answering questions. The portion of codefendant Leeper's statement that was communicated to the jury through the detective's testimony did not expressly incriminate Graulau and linked him to the criminal attack only though other evidence in the case. Accordingly, the admission of this testimony did not violate Graulau's right to confront the witnesses against him. Finally, the trial court did not abuse its sentencing discretion or impose a prison term that shocks the judicial conscience considering the brutality of Graulau's assault upon the victim and his history of juvenile adjudications of delinquency. We therefore affirm the convictions and sentences of both defendants.

I.

A Camden County grand jury returned a three-count indictment charging Leeper and Graulau with (1) first-degree robbery, N.J.S.A. 2C:15-1(a)(1); (2) second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and (3) second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and 2C:15-1(a)(1).

Graulau filed a Miranda¹ motion to suppress the statement he gave to police. After convening a hearing, the trial court held that the statement was voluntary and admissible.

Leeper and Graulau were tried together before a jury over the course of two days. After the State presented its case-in-chief, both defendants moved for a judgment of acquittal. The court denied the motion with respect to both defendants and all charges. The jury thereafter convicted both defendants of aggravated assault and conspiracy to commit robbery. The jury acquitted both defendants of the substantive robbery charge. The jury also acquitted both defendants of the lesser-included offense of theft.

Leeper was sentenced on the aggravated assault conviction to an extended term of imprisonment as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). The trial judge imposed a state prison term of fifteen years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. On the conspiracy to commit robbery conviction, the court sentenced Leeper to a concurrent state prison term of eight years subject to NERA.

Graulau was sentenced on the aggravated assault conviction to nine years in prison subject to NERA. On the conspiracy to commit robbery conviction, the court sentenced Graulau to a concurrent state prison term of seven years subject to NERA.

II.

Defendant Leeper presents the following contentions for our consideration:

POINT I

THE TRIAL COURT ERRED IN FAILING TO GRANT THE DEFENDANT'S MOTION FOR A DIRECTED FINDING OF NOT GUILTY OF CONSPIRACY AND/OR AGGRAVATED ASSAULT AT THE CONCLUSION OF THE STATE'S CASE-IN-CHIEF.

POINT II

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO REPEATED ERRORS IN ALLOWING HEARSAY TESTIMONY TO BOLSTER THE TESTIMONY OF THE VICTIM AND THEREBY UNDULY PREJUDICING THE DEFENDANT.

POINT III

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL DUE TO THE ERROR IN ALLOWING INTO EVIDENCE OUT-OF-COURT PHOTOGRAPHIC IDENTIFICATION OF DEFENDANT THAT IMPROPERLY BOLSTERED THE VICTIM'S TESTIMONY WHILE HAVING NO PROBATIVE VALUE.

POINT IV

DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE DETECTIVE WAS

PERMITTED TO MAKE AN IN-COURT IDENTIFICATION OF THE DEFENDANT AS THE PERSON IN THE ONE PHOTOGRAPH THAT WAS SHOWN TO THE VICTIM AND WHOM THE VICTIM IDENTIFIED AS HIS ASSAILANT.

POINT V

THE COURT ABUSED ITS DISCRETION IN GRANTING THE STATE'S MOTION FOR AN EXTENDED TERM SENTENCE.

POINT VI

THE SENTENCE OF FIFTEEN YEARS WAS EXCESSIVE—THE COURT ERRED IN EVALUATING THE MITIGATING AND AGGRAVATING FACTORS.

Defendant Graulau presents the following contentions for our consideration:

POINT I

BECAUSE THE STATE DID NOT DEMONSTRATE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT UNDERSTOOD WHAT IT MEANT TO WAIVE HIS RIGHTS, THE SUBSEQUENT STATEMENT MUST BE SUPPRESSED.

POINT II

BECAUSE THE STATE PRESENTED NO EVIDENCE OF AN AGREEMENT TO ROB THE VICTIM, THE JUDGMENT OF ACQUITTAL

SHOULD HAVE BEEN GRANTED ON CONSPIRACY TO COMMIT ROBBERY.

POINT III

THE ADMISSION OF THE NON-TESTIFYING CO-DEFENDANT'S STATEMENT WAS UNLAWFUL AND NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT IV

THE TRIAL COURT'S FAILURE TO PROPERLY TAKE INTO ACCOUNT DEFENDANT'S YOUNG AGE RESULTED IN AN EXCESSIVE SENTENCE.

III.

Because both defendants appeal from the denial of a motion for acquittal, we recount the evidence adduced by the State at trial in some detail. The victim testified that he was confronted by Leeper as he exited a convenience store in the City of Camden. The victim was familiar with Leeper and knew him by the name "Jo-Jo." The two were discussing a prior verbal altercation between them when other members of Leeper's "crew"² approached.

The victim identified Graulau as one of the members of the group that accosted him. Leeper, Graulau, and the others formed a circle around the victimto prevent him from escaping. Graulau told the victim, "[I]f you run or you move, I'm gonna knock you the fuck out." The group then walked to Division Street. The victim testified he was being led by Leeper, who was holding him by the neck.

At one point, Leeper asked one of the members of the group, "[is] this the guy right here?" He then asked the victim, "tell me what you said?" The victim responded, "I ain't say nothing." The victim was then struck in the head from behind, causing him to collapse. The group stomped, kicked, and punched the victim in the head while screaming at him, "you lying, you lying, you lying."

Leeper pulled the victim up from the pavement and led him by the neck into an alleyway. The victim testified that Graulau and a "third guy" were also in the alley.³ The victim testified that Graulau said, "run [the victim's] pockets." The victim testified they stole $160, his bicycle, and his cell phone. The victim testified Leeper was the person who took the money from his pockets. The next thing the victim remembered was encountering a police officer on the street. Much of the victim's account concerning the initial confrontation was corroborated by surveillance video that was played to the jury.

Officers Sean Hunter and Daniel Fiori were dispatched to Division Street in response to a 911 call reporting a fight in the area. Officer Fiori located the victim a block away in the area of 7th and Spruce streets. The officer's attention was drawn to a large contusion on the victim's head. The jury was shown footage taken from Officer Fiori's body-worn camera that shows the swelling and laceration. Officer Fiori testified that the victim was staggering and kept looking over his shoulder towards the alley. Officer Hunter next arrived on the scene and observed the...