The opinion
NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3084-14T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CARLTON L. BAILEY a/k/a
KARLTON L. BAILEY,
Defendant—Appellant.
_______________________________________________
Submitted November 2, 2016 – Decided December 4, 2017
Before Judges Fuentes and Gooden Brown.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
14-10-1112.
Joseph E. Krakora, Public Defender, attorney
for appellant (Michele A. Adubato, Designated
Counsel, on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Following a jury trial, defendant was convicted of third-
degree attempted escape, N.J.S.A. 2C:5-1 and 2C:29-5; third-degree
possession of escape implements, N.J.S.A. 2C:29-6; and fourth-
degree unlawful possession of a weapon, namely, a screw, N.J.S.A.
2C:39-5(d).1 He was acquitted of third-degree possession of a
weapon for unlawful purposes, N.J.S.A. 2C:39-4(d). Defendant was
sentenced as a persistent offender, N.J.S.A. 2C:43-7 and 2C:44-
3(a), to an aggregate extended term of seven years' imprisonment,
with a two-year period of parole ineligibility, to run
consecutively to a seventeen-year sentence with a five-year period
of parole ineligibility for an unrelated conviction.
On appeal, defendant raises the following contentions:
POINT I
THE PROSECUTOR'S IMPEACHMENT OF DEFENSE
WITNESSES BY THE USE OF UNSANITIZED PRIOR
CONVICTIONS IN THIS CASE WAS GROSSLY IMPROPER
AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT
RAISED BELOW).
1
The indictment alleged that defendant employed "a screw and/or
a shank" in the commission of the crimes, elevating the attempted
escape and the possession of escape implements offenses to second-
degree crimes. However, at the close of the State's case, the
trial court granted defendant's motion for a judgment of acquittal,
R. 3:18-1, and amended the indictment accordingly because the
State failed to establish any connection between defendant and "a
shank[.]" As a result, the charges submitted to the jury made no
mention of a shank. The jury found defendant guilty of the crimes,
but did not find that defendant used "a deadly weapon or dangerous
instrumentality to effect the attempted escape" or "possessed
. . . a deadly weapon[,]" resulting in third-degree convictions
for both crimes. See N.J.S.A. 2C:29-5(e) and N.J.S.A. 2C:29-6(a).
2 A-3084-14T3
POINT II
THE EXTENDED TERM SENTENCE IMPOSED UPON
[DEFENDANT] OF [SEVEN] YEARS WITH [TWO] YEARS
OF PAROLE INELIGIBILITY[,] CONSECUTIVE TO
ANOTHER SENTENCE[,] WAS EXCESSIVE AND MUST BE
MODIFIED AND REDUCED. (NOT RAISED BELOW).
After considering the arguments presented in light of the record
and applicable law, we affirm.
We summarize the pertinent facts from the trial record. The
State’s proofs at trial demonstrated that defendant was involved
with three other inmates in a plot to escape from the Middlesex
County Jail, where he was awaiting sentencing. The plot also
involved inmate Steven Devine, along with his cellmate, Scott
Hornick, and defendant's cellmate, Eugene Hollins.
On May 3, 2013, Devine informed authorities about the plot,
in hopes of obtaining leniency. According to Devine, the plot was
Hornick's idea, and defendant "was the muscle" of the operation.
Following Devine's disclosure, a team of corrections officers
searched the inmates and the unit. In one of defendant's socks,
officers found a screw with "masking tape wrapped around the
top[.]" Inmates were not allowed to have screws in the jail
because they could be used as weapons.
In addition, in defendant's cell, the officers discovered
that the "window frame had been partially cut through[,]" and
3 A-3084-14T3
there was a gouge "right in the middle of it" that went "almost
completely through the metal." A piece of masking tape was placed
over the gouge and painted with blue paint to match the rest of
the windowsill. Under the desk in defendant's cell, the officers
found "some tape" and a "[m]ilk of [m]agnesia bottle full of blue
paint" that matched the window frame. Around that time, the jail
was being painted for an inspection, and certain inmates were
helping with the painting.
When the officers compared the screw found in defendant's
sock "to the gouge in the window[,]" they discovered that the
gouge was "the same depth and width of the screw," and that the
screw "fit right into the groove." It was later determined that
the screw "came from the back plate that was holding one of the
phones in the unit to the wall." The phone was located "a couple
of doors away" from defendant's cell.
Four inmates testified on defendant's behalf: Devine,
Hollins, Frank Ferraro, and Michael Barcalow. Devine admitted
informing the authorities about the escape plot in exchange for a
lesser sentence on his then pending charges for armed robbery,
burglary, drug possession, and resisting arrest. Devine was
ultimately sentenced to Drug Court instead of prison. Devine
described the plot in detail, including their plan to carjack cars
once they escaped the jail. According to Devine, both Hornick and
4 A-3084-14T3
defendant had screws; Hornick did some of the "etching . . . at
the window" in defendant's cell while he (Devine) and defendant
played cards.
Hollins denied being involved in the escape plot and denied
seeing defendant "messing with the window in [their] cell[.]"
Ferraro, who was housed in the adjacent cell, testified that,
although his cell shared a window with defendant's, he never heard
any noises coming from that window or noticed the window moving.
The trial court qualified Barcalow, an inmate at a different
facility, as an expert on tattooing in jail.2 He testified that
"a screw[,]" like the one seized from defendant's sock, could be
used for tattooing. Both Hollins and Ferraro acknowledged seeing
defendant tattoo other inmates. Hollins testified that defendant
had "darkened [his] tattoo for [him]" using "a tack" or "something
like a nail."
Following the guilty verdict, the trial court granted the
State's motion for an extended term, treated defendant as a
persistent offender pursuant to N.J.S.A. 2C:44-3(a), and sentenced
defendant to a term of seven years with a two-year period of parole
ineligibility for the attempted escape conviction, to run
consecutively to the sentence defendant was then serving. The
2
Barcalow admitted that tattooing in jail was a disciplinary
infraction. See N.J.A.C. 10A:4-4.1, .653.
5 A-3084-14T3
court imposed a concurrent eighteen-month term for the unlawful
possession of a weapon conviction and merged the possession of
escape implements conviction into the attempted escape conviction.
A memorializing judgment of conviction was entered on February 11,
2015, and this appeal followed.
Defendant argues for the first time on appeal that the court
erred in admitting without sanitization the prior convictions of
the three inmates who testified on his behalf. Defendant argues
"[t]he nature of the prior convictions was not[] relevant nor
material[] to the credibility issue[,]" and the prosecutor's sole
purpose "was to show each witness as a 'bad person' and prejudice
the defendant."
Because defendant did not raise this objection before the
trial court, we review his argument under the "plain error"
standard, which mandates reversal only for errors "of such a nature
as to have been clearly capable of producing an unjust result[.]"
R. 2:10-2; see also State v. Maloney, 216 N.J. 91, 104 (2013).
The test is whether the possibility of injustice is "sufficient
to raise a reasonable doubt as to whether the error led the jury
to a result it otherwise might not have reached." State v. Macon,
57 N.J. 325, 336 (1971).
N.J.R.E. 609 provides that "[f]or the purpose of affecting
the credibility of any witness, the witness's conviction of a
6 A-3084-14T3
crime, subject to [N.J.R.E.] 403, must be admitted unless excluded
by the judge" as remote or for other causes. Whether to admit
evidence of a prior conviction "rests within the sound discretion
of the trial judge[,]" State v. Sands, 76 N.J. 127, 144 (1978),
and we should not reverse the decision absent an abuse of
discretion reflecting clear error of judgment. State v. Harris,
209 N.J. 431, 439 (2012).
Sanitization of prior convictions is appropriate when "a
testifying defendant previously has been convicted of a crime that
is the same or similar to the offense charged[.]" State v.
Brunson, 132 N.J. 377, 391 (1993). The Supreme Court expanded the
Brunson rule for prior similar convictions in State v. Hamilton,
193 N.J. 255, 269 (2008). The Court held that trial courts have
"discretion to consider sanitization of prior[-]conviction
evidence in any other circumstance that pose[s] a risk of undue
prejudice to a defendant." Id. at 269. In such circumstances,
sanitization limits the prosecutor to mentioning the date, degree
of the prior conviction, and sentence, "but excluding any evidence
of the specific crime of which defendant was convicted." Brunson,
supra, 132 N.J. at 391; see also N.J.R.E. 609.
Here, without objection, the prosecutor cross-examined
Hollins on three 2013 convictions, consisting of one second-degree
witness tampering offense and two third-degree drug offenses, for
7 A-3084-14T3
which he received an aggregate seven-year sentence. As to Ferraro
and Barcalow, the court conducted a Sands hearing to determine the
admissibility of their prior convictions.
Ferraro had seven prior convictions, spanning 1995 to 2013.
Without objection from defense counsel, the court permitted cross-
examination only on the 2013 convictions, third-degree criminal
restraint and second-degree possession of a firearm for an unlawful
purpose, for which Ferraro received an aggregate seven-year
sentence. Weighing the N.J.R.E. 609 factors, the court determined
that the convictions "beyond the ten[-]year mark" were
"presumptively remote" and unduly prejudicial.
Barcalow had seventeen prior convictions, with the earliest
occurring in 1996 and the latest in 2005. The court permitted
cross-examination on eleven of Barcalow's prior convictions.
Again, the court determined that "everything else" would be too
"remote" and "too prejudicial[.]" At trial, Barcalow was cross-
examined on four contempt convictions, two harassment convictions,
and two stalking convictions for which he received ten years in
prison in 2005. He was also cross-examined on a 2005 fourth-
degree resisting arrest conviction, a 2002 third-degree drug
possession conviction, and a 2001 second-degree eluding conviction
for which he received a five-year prison sentence.
8 A-3084-14T3
We discern no abuse of discretion by the court in making
these evidentiary rulings. Moreover, because defendant did not
object to the use of the un-sanitized convictions, we are satisfied
that there was no error, much less plain error.
Next, defendant challenges his sentence as excessive, arguing
the "[c]ourt failed to do a separate analysis of the aggravating
and mitigating factors as required by law before imposing the
extended term and consecutive sentence." We disagree.
"Appellate review of the length of a sentence is limited."
State v. Miller, 205 N.J. 109, 127 (2011). We will
[A]ffirm the sentence unless (1) the
sentencing guidelines were violated; (2) the
aggravating and mitigating factors found by
the sentencing court were not based upon
competent and credible evidence in the record;
or (3) "the application of the guidelines to
the facts of [the] case makes the sentence
clearly unreasonable so as to shock the
judicial conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014)
(quoting State v. Roth, 95 N.J. 334, 364-65
(1984)).]
When evaluating whether to impose an extended custodial term
and, if appropriate, the length of that term, sentencing courts
follow a four-step process: (1) determine whether the minimum
statutory predicates are met; (2) decide whether to impose an
extended term; (3) weigh aggravating and mitigating factors to
determine the base term of the extended sentence; and (4) determine
9 A-3084-14T3
whether to impose a parole ineligibility period. See State v.
Pierce, 188 N.J. 155, 164 (2006). "Choosing whether to impose the
extended term requires consideration of the need for public
protection." State v. Dunbar, 108 N.J. 80, 95 (1987). Further,
though the conduct underlying the current offense is of primary
importance in determining the length of the extended term, "other
aspects of the defendant's record, which are not among the minimal
conditions for determining persistent offender status, such as a
juvenile record, parole or probation records, and overall response
to prior attempts at rehabilitation, will be relevant factors in
adjusting the base extended term." Id. at 92.
"[T]he decision to impose consecutive or concurrent sentences
rests in the first instance with the trial court." Miller, supra,
205 N.J. at 130; see also N.J.S.A. 2C:44-5(a). Our Supreme Court
has set forth "general sentencing guidelines for concurrent or
consecutive-sentencing decisions (including any parole
ineligibility feature) when [a] sentence is pronounced on one
occasion on an offender who has engaged in a pattern of behavior
constituting a series of separate offenses or committed multiple
offenses in separate, unrelated episodes." State v. Yarbough, 100
N.J. 627, 644 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct.
1193, 89 L. Ed. 2d 308 (1986).
10 A-3084-14T3
Here, the court correctly determined that "[defendant]
qualifie[d] to be sentenced as a persistent offender" based upon
his record of twelve prior indictable convictions. Defendant does
not appear to dispute that determination. The court then
appropriately pointed out several important considerations bearing
on its sentencing analysis and its conclusion that aggravating
factors three, six, and nine applied. N.J.S.A. 2C:44-1(a)(3);
N.J.S.A. 2C:44-1(a)(6); N.J.S.A. 2C:44-1(a)(9). Specifically, the
court noted the "substantial risk that [defendant] will commit
another offense[,]" given defendant's lengthy juvenile and adult
criminal history and unsuccessful prior attempts at
rehabilitation; "the seriousness of the offenses," including prior
first-degree and weapons-related convictions; and the need "to
strongly discourage" attempted escapes from penal institutions,
as these "implicitly" pose "the threat of harm."
The court found no mitigating factors, specifically rejecting
defendant's arguments regarding mitigating factors one, N.J.S.A.
2C:44-1(b)(1); two, N.J.S.A. 2C:44-1(b)(2); and eight, N.J.S.A.
2C:44-1(b)(8). The court found that "attempting to escape from a
penal institution implicitly threatens serious harm" and "goes
against the good order and discipline of the penal institution."
Further, because defendant's motive for the crime was to avoid a
11 A-3084-14T3
"long sentence[,]" the incentive to re-offend would be "even
greater" now with the further extension of his sentence.
The court concluded that the need for deterrence "was one of
the primary reasons why the [c]ourt [found] that a persistent
offender extended term sentence [was] appropriate in this case."
Further, the fact that defendant "was seeking to escape a penal
institution after having previously been convicted of several
serious charges that, at the time, [were] going to result in a
substantial sentence" justified a consecutive sentence under the
criteria articulated in Yarbough, supra. As the court followed
the sentencing guidelines, made findings that are supported by the
record, and did not impose a sentence that shocks the judicial
conscience, we decline to disturb it.
Affirmed.
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