State v. JefimowiczState v. Jefimowicz
Following a trial by jury, defendant Leonid Jefimowicz was convicted of armed robbery,
On appeal defendant argues that he was denied effective assistance of counsel by reason of his trial attorney‘s failure to move for a severance of the charge of receiving stolen property
In sum, we have concluded, based on our review of this record in the light of the applicable law and the argument of counsel thereon, that the two issues defendant has raised are without merit.
The charges against defendant arose out of an incident which occurred early in the evening of September 28, 1986. The victim, William Zielenbach, then 16 years old and a high school student, was working at his part-time job pumping gas at a service station in Marlboro Township. He was alone there at the time. Defendant, driving a van, pulled into the station, stopping close to the booth where the cash drawer was kept. He asked William for $10 worth of gas. While he was pumping the gas, William recalled that he had left the cash drawer in the booth open, and he watched defendant looking at the visibly open cash drawer and back to him. When William finished pumping the gas, he went to the driver‘s window and as he approached it, he testified, defendant
took a gun from underneath his flannel jacket and went like this, pointed it straight into my face, clicked the hammer back twice. On the second click, I jumped behind a door and I was running across the highway.
William further testified that he knew the gun was loaded because he could see “the bullets sticking out like the head of the bullets.” No words, however, were spoken. Terrified, William ran across the highway to the home of a friend directly across from the gas station, and the friend‘s mother, seeing him in a hysterical state, called the police. Defendant, based on William‘s description, was apprehended in the van shortly thereafter. A consent search of the vehicle revealed the gun. It appears that when William fled, defendant simply drove away, leaving the cash drawer untouched. Nor, of course, had he paid for the gas.
Defendant, despite his prior criminal record, of which we will have more to say hereafter, testified in his own behalf. He said that he had bought the gun from a stranger in a bar for $50 two days earlier, thinking that it was probably stolen. On the day in question, he was looking for a bar in which he could sell the gun and had simply pulled into the service station for gas. When he stopped the van, he said, the gun slid out from where he had placed it under a rug onto the metal floor of the van. His explanation for what he was doing with the gun in his hand when William came to collect the money for the gas was that
Well I can hear the sound of thing going into the tank nozzle. Glance back at him, you know I looked, make sure he‘s back there. Pulled up the gun in my right hand. I put my left hand through the spoke of the steering wheel, pulled the hammer back. I was turning the cylinder on the gun. I blew some of the dust out of it. The moment I looked up I seen through the side vision, I looked up and he‘s standing right there. All of a sudden he just runs and me — I got the gun and the kid is running. I‘m not suppose to have a gun.
He also testified that he had never noticed the cash drawer and never had any intention of committing a robbery.
As to the charge of receiving stolen property, the State adduced proof that on the same day on which defendant claimed to have bought the gun in the bar, a home had been burglarized and a firearm stolen whose registration number matched that of the gun found in defendant‘s van. Although
With respect to the claim of ineffective assistance of counsel based on counsel‘s failure to move for a severance of the receiving charge, we are satisfied that defendant has failed to meet the two-prong test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). That test requires defendant to demonstrate that the alleged deficiency resulted in performance below the standard of reasonable competence and that it had a calculable effect on the outcome. We conclude that joinder of the receiving count was sufficiently justified so as to render the prospect of a grant of the severance motion, had it been made, unlikely. In brief,
We come now to the sentencing and address first the procedure by which sentence was imposed. As we have noted, the sentence here imposed was a mandatory Graves Act extended term pursuant to
A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.
Prior to the date set for sentencing, the State, pursuant to
1. A conviction dated January 30, 1984, entered on a plea of guilty as an accomplice to aggravated assault contrary to
N.J.S.A. 2C:12-1b(4) and2C:2-6b(3) .
2. A conviction dated January 30, 1984, on a plea of guilty to receiving stolen property contrary to N.J.S.A. 2C:20-7 .3. A conviction dated July 9, 1984, on a plea of guilty to uttering a forged instrument contrary to
N.J.S.A. 2C:21-1a(3) .
The first of these was the only conviction triggering the mandatory extended term under
As defendant has been previously convicted of an offense with a firearm, Accusation No. 0267-10-83, the defendant falls within the purview of
N.J.S.A. 2C:43-6c . Therefore the State requests that this Court impose the mandatory extended term sentence authorized by that statute.
It thus appears from the manner in which the motion and supporting affidavit were structured that the State was seeking an extended term on alternative grounds: either a mandatory extended term under
At the ensuing sentencing proceeding, the trial judge concluded that he was obliged to impose an extended term pursuant to the Graves Act. No hearing was conducted with respect to the prior Graves Act conviction although defendant, exercising his right of allocution just prior to imposition of the sentence, did refer to the conviction, which was entered on his plea of guilty to being an accomplice to a fourth-degree aggravated assault, the gravamen of which is pointing a firearm under circumstances manifesting extreme indifference to the value of human life.
The sentencing proceeding here took place on April 3, 1987. Eleven months later the Supreme Court filed its opinion in State v. Martin, 110 N.J. 10 (1988), in which the Chief Justice made clear the right of a defendant facing a mandatory extended Graves Act term not only to notice of that susceptibility but
We are satisfied that defendant was entitled to but did not receive the mandated hearing on the prior Graves Act offense. He must consequently be accorded that hearing now. We are also satisfied that at that hearing defendant may collaterally attack the validity of the prior Graves Act conviction. It is well settled that a prior conviction relied on as the basis of an enhanced penalty on a subsequent conviction may be challenged collaterally on the ground that it was uncounselled. See Baldasar v. Illinois, 446 U.S. 222, 100 S.Ct. 1585, 64 L.Ed.2d 169 (1980), reh. den. 447 U.S. 930, 100 S.Ct. 3030, 65 L.Ed.2d 1125 (1980); United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); U.S. v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954); State v. Miscavage, 62 N.J. 294 (1973). We are satisfied that implementation of Martin requires as well that a defendant be permitted to collaterally attack his apparent prior Graves Act conviction in order to support a claim that he is not presently subject to a mandatory extended term.
If the judge should determine following the hearing that there is no basis for imposing a mandatory extended term Graves Act penalty, he should consider whether or not to impose a discretionary extended term pursuant to
We are of the view that under all of the circumstances here, the life term subject to a parole ineligibility period of 25 years for the conviction here shocks the judicial conscience. See State v. Roth, 95 N.J. 334, 364-365 (1984). It is never a simple task to articulate the reasons for being shocked — there is a degree of visceral reaction involved which defies precise verbalization. Nevertheless, the overwhelming reason for our conclusion is that the nature and circumstances of the crime here, even in view of defendant‘s criminal history, simply do not
In Martin, supra, the Chief Justice pointed out the gross disparity in sentencing consequences between an ordinary and an extended term. This case is a rare illustration of that disparity. The ordinary term for a first-degree robbery committed with a firearm is 10 to 20 years.
It is axiomatic that one of the purposes of the Code was to correct sentence disparity. That end is obviously difficult to accomplish by a sentencing scheme whose minimum and maximum vary so dramatically. We are therefore convinced that in extended term sentencing and particularly extended term sentencing for first-degree crimes, there must be most careful and
Those guidelines require “primary focus ... on the conduct that occasions the sentence.” 108 N.J. at 92. The crime here was found by the jury to be a first-degree armed robbery. Unquestionably, the 16-year-old victim was reasonably terrified and feared for his life. But there are armed robberies and armed robberies, and without intending to deprecate the seriousness of this crime, we believe it, on a scale of opprobriousness, not to have weighed in at the highest end. Dunbar also instructs that the defendant‘s prior record is an appropriate consideration, provided not used to “double count,” that is, the same record justifying the extended term may not also be regarded as an aggravating factor in fixing the quantum of the extended term.
This defendant is no model citizen, no paradigm of law-abidingness and civic virtue. The record, however, of this then 38-year-old defendant, while lengthy, is not characterized by serious crimes in which physical harm was inflicted. According to the presentence report, his adult criminal history (he appears to have no juvenile record) started in 1969 with a fine for possession of alcohol. In 1973 he was sentenced to a fine and probation by a municipal court for possession of a starter pistol. The same year he was convicted of two disorderly persons offenses. Thereafter followed a violation of probation, shoplifting, and an attempted breaking and entering in Florida, resulting in his being charged as a fugitive when he left that jurisdiction. In 1975 he was convicted of a group of charges apparently involving the passing of a forged check; in 1979, he was convicted of an escape from Florida, and in 1980 and 1981
Defendant, as we understand this record, is generally hard-working and gainfully employed. It appears that his primary problem is alcoholism and, despite the leit motif of the presentence report that he obtain rehabilitative treatment, he has apparently been unable or unwilling to overcome the root cause of his difficulty which, it appears, surfaced after a 12-year career service in the United States Marines which ended in a dishonorable discharge.
Defendant‘s record is not enviable. It does not, however, bespeak a sociopath who has done physical harm to others and whose likelihood of redemption and return to productive society is remote. Nor indeed was the prior Graves Act offense particularly serious — it was that Code anomaly of a fourth-degree aggravated assault, undoubtedly the least serious offense, calculated by grading, which qualifies for Graves Act sentencing.
We have belabored these facts to illustrate that while defendant‘s crime clearly requires punishment in the form of a prison term and a mandatory ineligibility period, it does not justify, in the circumstances, the absolute maximum term the law allows for the most depraved of crimes. Should an extended term be reimposed, we trust the trial judge will carefully consider Dunbar and reweigh his alternatives.
We affirm the verdict of guilt. We remand to the trial court for new sentencing proceedings as herein directed and consequent modification of the judgment of conviction.