State v. Miller
| Decision Date | 03 April 1997 |
| Citation | 299 N.J.Super. 387,691 A.2d 377 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. David MILLER, aka Pierce Miller, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Raymond W. Hoffman, Assistant Prosecutor, for respondent (Clifford J. Minor, Essex County Prosecutor, attorney; Mr. Hoffman, of counsel and on the brief).
Before Judges BAIME, LEVY and BRAITHWAITE.
The opinion of the court was delivered by
BRAITHWAITE, J.A.D.
Following a jury trial on Essex County indictment 4368-10-91, defendant 1 appeals from his convictions of conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:15-1 (count one); robbery, N.J.S.A. 2C:15-1 (count two); and receiving stolen property, N.J.S.A. 2C:20-7 (count three). He was acquitted of two weapons offenses also contained in the indictment. At sentencing, counts one and three were merged with count two, and defendant was sentenced to a twenty-year prison term with a ten-year period of parole ineligibility that ran consecutively to the sentence he was then serving.
On appeal, defendant's counsel argues:
POINT I
TRIAL COURT ERRED IN NOT DISMISSING THE INDICTMENT UNDER THE INTERSTATE AGREEMENT ON DETAINER ACT.
TRIAL COURT ERRED IN PERMITTING A SEQUESTERED WITNESS TO BE PRESENT DURING THE HEARING.
DEFENDANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
POINT IV
THE SENTENCE WAS EXCESSIVE.
In a pro se brief defendant contends:
POINT I
THE COMPLICITY BETWEEN COUNSEL, THE STATE, AND THE PROSECUTOR VIOLATED DEFENDANT'S DUE PROCESS OF LAW RIGHTS.
We reject all contentions raised by defendant and his counsel and affirm.
On September 24, 1992, while defendant was an inmate in a New York State prison, he made a request for a final disposition of two untried indictments in New Jersey. The first indictment, number 2286-4-91, charged defendant with receiving stolen property N.J.S.A. 2C:20-7; robbery, N.J.S.A. 2C:15-1; and possession of an imitation firearm with an unlawful purpose, N.J.S.A. 2C:39-4e. The second indictment, number 4368-10-91, is the subject of this appeal. Defendant's request for a final disposition was made pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15.
The Essex County Prosecutor's office received defendant's request on October 5, 1992, and the prosecutor accepted temporary custody of defendant pursuant to N.J.S.A. 2A:159A-5. Following the receipt of temporary custody of defendant, the State was required to try both indictments within 180 days of October 5, 1992. See N.J.S.A. 2A:159A-3(a). The State and defendant stipulated that the 180-day period expired after April 5, 1993.
Defendant was tried on indictment 2286-4-91 between March 2, 1993, and March 5, 1993. John Vantuno represented defendant at trial and was scheduled to represent him again at the trial on the second indictment. Defendant was convicted by a jury on all counts in the first indictment and sentenced on March 19, 1993.
Following the trial on indictment 2286-4-91, defendant was dissatisfied with Vantuno's representation. The trial judge found that defendant
The trial on indictment 4368-10-91 was scheduled for April 5, 1993. On March 31, 1993, Vantuno filed a motion to be relieved from representing defendant. The motion was granted, and an order relieving Vantuno was entered on April 7, 1993. Because the status of defendant's representation was not clear on April 5, 1993, the trial was postponed. On April 23, 1993, counsel from the public defender's office, on behalf of defendant, entered into a consent order granting "a necessary and reasonable continuance" pursuant to N.J.S.A. 2A:159A-3(a). Defendant's new counsel filed her formal appearance on April 30, 1993.
Defendant's trial was scheduled and adjourned on May 25, June 4, June 14, and June 21, 1993. The adjournments were occasioned by defendant "asking for new attorneys constantly." Finally, on June 29, 1993, defendant's trial commenced, and the convictions noted above followed.
After defendant filed his appeal, he moved before this court for a temporary remand to determine whether the time period under the IAD had elapsed prior to the time of his trial on indictment 4368-10-91. We granted his motion on February 26, 1996. On remand, the trial judge found that defendant had waived the statutory time frame of the IAD.
During the trial on indictment 4368-10-91, the State produced the following evidence. Bayyinah Curl testified that on December 4, 1990, she drove home to Newark after classes at Rutgers University in New Brunswick with her four-year old niece, Shamika Allen. They arrived at Curl's house between 7 p.m. and 7:30 p.m. Curl parked her car, and she and the child exited the vehicle.
Curl went into the back seat of the car to get her bookbag when she heard a male voice saying, "[m]iss, your baby is going to run into the street." Curl responded that the child was not going to run into the street, and as she got out of the car, she was approached by defendant's co-defendant. Co-defendant told Curl to give him her money. She told him that she did not have any. He then reached into her jacket pockets, without permission, and took three dollars. Defendant, who was standing on the other side of her car, told her to give co-defendant her car keys. Curl had not seen defendant before co-defendant took the money from her pockets. Defendant then pulled the child closer to him, as if the child was a hostage.
Curl gave co-defendant her house keys, trying to stall for time and hoping that someone would come along to witness the incident. Co-defendant tried to start up the car and discovered that the key would not fit. Defendant then said, "[i]f you don't give him the car keys, I'm going to blow her fucking head off," referring to the child. Curl noticed that defendant had a black object in his hand. She assumed that the object was a gun based on what defendant had said. Defendant then pointed the object at the child's head. Curl gave co-defendant her car keys, and he got into the car and started it. Defendant then released the child and entered the car.
At that point, Curl ran to the passenger's side of the car and held the door open in an effort to keep defendant and co-defendant from leaving the scene. Co-defendant was fumbling with the gears and could not get the car to operate properly. Meanwhile, defendant was trying to pull the door closed. The car went into reverse, and, because of the force generated, Curl had to let go of the door. The entire incident took about five minutes. Curl then went to her house, told her mother what had happened, and called the police. Two police officers arrived at Curl's house. She went down to the police precinct with the officers to try to identify the perpetrators, but she was unable to do so.
Four days after the incident, Curl was driving a friend's car in Newark at around 10 p.m. or 10:30 p.m. Curl saw her car and observed defendant and co-defendant inside the vehicle. Curl noticed that there were new license plates on the car, and she went home and called the detective to whom she had previously spoken, Anthony Ambrose, and gave him the new license plate number. Ambrose located Curl's car stopped at a red light at about 4:30 a.m. Ambrose and his partner approached the car and arrested defendant and co-defendant who were still inside.
Defendant, contrary to his attorney's advice, testified and corroborated the majority of Curl's account. He testified that he watched Curl drive into the parking lot. He stated that the man with him that night was a Puerto Rican man named Victor Lopez. Defendant admitted that he held the child around the neck but that he did not have a weapon in his hand; he had a "hanger, like an umbrella type." Defendant, however, denied telling Curl that he was going to blow Allen's head off; he only said that he was going to hurt Allen. He did call Curl a "bitch" and told her to give them the car keys after she had provided them with the house keys. Defendant admitted that he changed the license plates on Curl's car after the incident.
Defendant argues in his first point that the indictment should have been dismissed because he was tried beyond the 180-day period set forth in N.J.S.A. 2A:159A-3(a). The resolution of this issue requires a brief review of the events that caused defendant's trial to commence after the statutory deadline.
On March 5, 1993, defendant told the trial judge that he did not want Vantuno to represent him in his upcoming trial on the second indictment. On March 31, 1993, Vantuno moved to be relieved because defendant wanted new counsel following his conviction on the first indictment. On April 5, 1993, the date on which his trial was to commence, the status of defendant's legal representation was unclear. Although the order relieving Vantuno was not signed until April 7, 1993, defendant had notice of counsel's application to be relieved no later than March 31, 1993, and expressed his dissatisfaction with Vantuno's representation as early as March 5, 1993. Defendant did not oppose Vantuno's application because he wanted new counsel. Defendant essentially discharged his prior counsel but was not "going to proceed [to trial] without an attorney."
The Public Defender's office assigned defendant new counsel prior to or on April 23, 1993, shortly after Vantuno was relieved. On April 23, 1993, his new counsel consented to a continuance pursuant to N.J.S.A. 2A:159A-3(a). On June 29, 1993, the first day of trial on the second indictment, defense ...
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