STATE OF NEW JERSEY VS. HASSAN SHOULARS

A jury found defendant Hassan Shoulars guilty of theft of

movable property, burglary, and resisting arrest. The judge

sentenced defendant to an aggregate term of five years of

imprisonment, consecutive to a prison term defendant received for

an unrelated offense. Defendant appeals from his conviction and

the sentence imposed, arguing:

POINT I



DEFENDANT'S CONVICTION FOR THEFT SHOULD BE SET ASIDE BECAUSE THE TRIAL COURT FAILED TO INSTRUCT JURORS ON A LESSER-INCLUDED OFFENSE CLEARLY INDICATED BY THE EVIDENCE.



POINT II



THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S ACCUSATION THAT THE DEFENDANT HEARD TESTIMONY FOR TWO DAYS PRIOR TO TESTIFYING AND THEN "TAILORED" HIS OWN TESTIMONY. (Not Raised Below)



POINT III



THE SENTENCE IS EXCESSIVE: THE TRIAL COURT IMPROPERLY BALANCE[ED] THE AGGRAVATING AND MITIGATING CIRCUMSTANCES.



Following review of the record and applicable law, we reject

defendant's arguments and affirm.

I.

A grand jury indicted defendant on charges of first-degree

robbery, N.J.S.A. 2C:15-1 (count one); first-degree carjacking,

N.J.S.A. 2C:15-2 (count two); second-degree burglary, N.J.S.A.

2C:18-2(a)(1) (count three); second-degree unlawful possession of

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a weapon, N.J.S.A. 2C:39-5(b) (count four); second-degree

possession of a weapon for unlawful purpose, N.J.S.A. 2C:39

4(a)(1) (count five); fourth-degree resisting arrest, N.J.S.A.

2C:29-2(a) (count nine); and fourth-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(4) (count ten).

We discern the following facts from the trial record. The

victim, M.J. (Jensen),1 testified that on October 25, 2012, he

left his BMW 7 series car running outside his father's house in

Elizabeth in order to unpack a case of water, planning to properly

park the car afterwards. While Jensen unloaded the water from his

car, two males in masks approached him from behind, one wearing a

lighter colored hoodie and the other wearing a darker hoodie.

Jensen was unable to see their faces.

According to Jensen, the man in the lighter hoodie, later

identified as defendant, held a gun and demanded Jensen's wallet

and cell phone. Jensen told the men everything they needed was

in the car. The other man, co-defendant Marcus Kelley, told

defendant to shoot Jensen and flashed the butt of his own gun.

The two men then entered the vehicle and drove away. Jensen called

the police and provided a description of his vehicle and the co

defendants' clothes.

1 We use a pseudonym for the victim to protect his privacy.

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The State next presented the testimony of several officers

of the Elizabeth Police Department. Officer Isa McClendon

testified she responded to a reported carjacking incident around

1 a.m. After observing the stolen BMW traveling on Routes 1 and

9 and verifying the car's license plate, she activated her lights

and siren. At this point, the BMW picked up speed, and other

police units joined the pursuit.

Officer McClendon testified the BMW eventually exited Routes

1 and 9 and proceeded down several other streets, traveling

erratically at a high rate of speed and running several red lights

and stop signs. The pursuit eventually ended after the BMW crashed

on a dead-end street in Hillside. The two men inside then fled

the vehicle.

Officer Daniel Rivera testified next, stating he observed the

BMW travelling "at least 95, 100 miles an hour" and saw it make

an illegal left turn on the highway with "ill regard to the

public." He further said the vehicle hit construction cones and

blew through traffic lights and stop signs. Officer Rivera stated

defendant was the passenger of the car. He also observed other

officers arrest defendant, who was discovered hiding underneath a

car in a nearby garage.

After the State's case, defendant testified as to his version

of the events. Defendant said a friend gave him and Kelley a ride

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from Newark to defendant's girlfriend's house in Elizabeth. This

took place around 8:30 to 9:00 p.m., or about four hours before

defendant's eventual arrest. Around midnight, the mother of

defendant's girlfriend came home and made defendant and Kelley

leave. Kelley tried to call the same friend to give them a ride

home, but he did not answer the call. The co-defendants then

called a cab to pick them up, even though defendant only had fifty

five cents on him at the time, and Kelley had no money. After

waiting for the cab for fifteen to thirty minutes, they decided

to walk in the hope of catching a cab on the road.

As the co-defendants walked down Routes 1 and 9, they noticed

an empty white BMW with the engine running. Defendant further

noticed Jensen and another man were outside, but stated Jensen was

about twenty feet away from the car and walking into a house.

Defendant and Kelley began talking to each other and contemplated

for five minutes about "jumping in" the car. Because nobody was

near the car, defendant and Kelley decided to "jump[] in."

Defendant stated they did not intend to steal the car, but they

were just trying to get home. However, defendant acknowledged he

and Kelley wore masks and hooded sweatshirts to hide their

appearance.

After defendant and Kelley entered the car, Jensen and the

other man ran off. Defendant stated he did not say anything to

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either of the two men and did not threaten them in any way.

Defendant also stated he did not have a handgun nor did he see

Kelley with a handgun. Defendant stated they did not intend to

hurt anyone. Defendant denied making any physical contact with

Jensen.

The co-defendants proceeded onto Routes 1 and 9, with Kelley

driving. Within minutes, the police initiated their pursuit.

Defendant admitted they attempted to elude police and claimed they

got out of the car in Hillside after it ran out of gas (defendant

denied they crashed). After defendant and Kelley exited the car,

they jumped over a fence. Defendant hid in a garage underneath a

car, where police soon discovered him.

Following a joint jury trial, defendant was convicted of

theft of movable property (the lesser-included offense of count

two); third-degree burglary (the lesser-included offense of count

three); and fourth-degree resisting arrest (count nine). The jury

acquitted defendant on the remaining charges.

II.

A.

Defendant first argues the court erred in failing to charge

unlawful taking of means of conveyance, N.J.S.A. 2C:20-10

(commonly referred to as the joyriding statute), as a lesser

included offense of theft of movable property, N.J.S.A. 2C:20

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3(a). Defendant asserts this omission denied the jury the option

of finding he did not intend to permanently deprive Jensen of his

car, but only meant to take it temporarily in order to get home.

Initially, we note defendant does not specify which

subsection of the joyriding statute the judge should have charged.

The joyriding statute contains three subsections pertaining to

motor vehicles. See N.J.S.A. 2C:20-10(b) to (d). We have held

N.J.S.A. 2C:20-10 is a lesser-included offense to theft of movable

property. State v. Dandy, 243 N.J. Super. 62, 64 (App. Div. 1990)

(citing State v. Alexander, 215 N.J. Super. 523, 531 n.3 (App.

Div. 1987)).2 However, subsection (c), third-degree joyriding,

cannot be a lesser-included offense of theft because additional

proofs of risk of harm are necessary. See State v. Roberson, 356

N.J. Super. 332, 339-40 (Law Div. 2002).

We next address subsection (d). A person is guilty under

N.J.S.A. 2C:20-10(d) "if he [or she] enters and rides in a motor

vehicle knowing that the motor vehicle has been taken or is being

operated without the consent of the owner or other person

2 Dandy was decided under the older version of N.J.S.A. 2C:2010, which the legislature amended in June 1993. See L. 1993, c. 134, § 1. However, the elements of the offense defined in subsections (a) and (b) of the older statute are substantially the same as subsections (a), (b), and (d) of the current version. See N.J.S.A. 2C:20-10; see also State v. Jijon, 264 N.J. Super. 405, 406 (App. Div. 1993) (noting N.J.S.A. 2C:20-10 is a lesser included offense of theft of a motor vehicle), aff'd o.b., 135 N.J. 471 (1994).

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authorized to consent." Although defendant rode in the passenger

seat, this section does not apply as it refers to a person entering

a vehicle knowing it "has been taken" without consent. This

describes a situation where a person later enters a vehicle he

knows was taken by another, rather than participating in the

commission of the offense itself. See State v. Moore, 330 N.J.

Super. 535, 544-45 (App. Div.) (applying subsection (d) where the

defendant entered a car knowing it was "probably stolen"), certif.

denied, 165 N.J. 531 (2000).

Finally, turning to subsection (b), a person is guilty under

N.J.S.A. 2C:20-10(b) "if, with purpose to withhold temporarily

from the owner, he takes, operates or exercises control over a

motor vehicle without the consent of the owner or other person

authorized to give consent." Defendant implicitly suggests

subsection (b) applies, arguing in his brief he only "borrowed"

the car, consistent with an intent to take the BMW temporarily.

Therefore, we proceed with our analysis considering only

subsection (b).

Because defendant did not raise this issue before the trial

court, we restrict our review to determining whether plain error

exists, meaning error "clearly capable of producing an unjust

result." R. 2:10-2. Absent plain error, "no party may urge as

error any portion of the charge to the jury or omissions therefrom

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unless objections are made thereto before the jury retires to

consider its verdict." R. 1:7-2.

Generally, "a trial court has an independent obligation to

instruct on lesser-included charges when the facts adduced at

trial clearly indicate that a jury could convict on the lesser

while acquitting on the greater offense." State v. Jenkins, 178

N.J. 347, 361 (2004) (citations omitted); see also N.J.S.A. 2C:1

8(e) (stating the jury shall not be charged with a lesser offense

absent a "rational basis" for a conviction of such offense).

However, "courts are required to instruct the jury on lesser

included offenses only if counsel requests such a charge and there

is a rational basis in the record for doing so or, in the absence

of a request, if the record clearly indicates a charge is

warranted," meaning circumstances where "the evidence is jumping

off the page." State v. Denofa, 187 N.J. 24, 42 (2006) (second

emphasis added) (citations omitted). "[W]hen the defendant fails

to ask for a charge on lesser-included offenses, the court is not

obliged to sift meticulously through the record in search of any

combination of facts supporting a lesser-included charge." Ibid.

(citations omitted). Trial judges have "no duty to instruct the

jury sua sponte . . . [where] the evidence did not clearly indicate

or warrant such a charge." State v. Savage, 172 N.J. 374, 401

(2002).

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Here, in addition to charges of first-degree and second

degree robbery and carjacking, the judge instructed the jury on

theft of movable property. Contrary to defendant's claim, we find

no facts mandating the inclusion of joyriding, as the evidence of

defendant's intent to "withhold temporarily from the owner,"

N.J.S.A. 2C:20-10(b), does not "jump[] off the page." Denofa,

supra, 187 N.J. at 42.

Indeed, although defendant stated he did not intend to steal

the car, and only took the car in order to get home, there was no

indication he intended to return the car to Jensen or relinquish

his possession after arriving home. In Dandy, supra, 243 N.J.

Super. at 63-65, we reversed a trial court on the failure to charge

joyriding where the defendant clearly stated to police he intended

to return the car to the owner. Such evidence was missing here.

See also State v. Richardson, 208 N.J. Super. 399, 405 (App. Div.)

(finding no rational basis for a lesser-included joyriding charge

where the evidence did not suggest "that defendant only intended

to drive the car for pleasure"), certif. denied, 105 N.J. 552

(1986).

We also reject defendant's contention his counsel's theory

of the case was based upon joyriding rather than theft. In support

of this proposition, defendant points to counsel's statement at

closing, describing defendant and Kelley's actions as "two silly

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little boys hopped into a car that was running and took off in

it." Shortly after making this argument, however, defendant's

counsel asserted defendant did the right thing when he admitted

during his testimony, "I did something wrong. I stole a car."

This statement and the rest of the record show defendant's theory

of the case was not premised upon defendant committing joyriding,

rather than theft. Instead, the defense presented to the jury was

that defendant committed a nonviolent theft without a weapon rather

than an armed robbery and carjacking.

Therefore, any alleged error resulting from omission of the

joyriding charge did not produce an unjust result, as defendant

clearly admitting to participating in the theft of the car, with

no credible evidence of a plan to return it. We therefore find

no plain error.

B.

Defendant next argues the prosecutor committed reversible

error during the State's closing by improperly accusing him of

tailoring his testimony, thereby violating his due process rights

under the United States and New Jersey Constitutions.

Criminal prosecutors are expected "to make a vigorous and

forceful closing argument to the jury." State v. Harris, 141 N.J.

525, 559 (1995). The task of the prosecutor, however, is not only

to obtain victory for the State, but to ensure "justice is served."

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State v. Reddish, 181 N.J. 553, 641 (2004) (citing State v. Smith,

167 N.J. 158, 177 (2001)). Prosecutorial misconduct will warrant

reversing a conviction where it "was so egregious that it deprived

the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83

(1999) (citations omitted). Where defense counsel does not object

to the prosecutor's statements, we generally consider the remarks

to be non-prejudicial. Id. at 83-84 (citation omitted).

Defense counsel did not object to the prosecutor's tailoring

remarks during closing. We therefore review the issue pursuant

to the plain error standard. State v. Daniels, 182 N.J. 80, 95

(2004). We will not reverse the trial court's decision based on

that error unless it was "sufficient to raise a reasonable doubt

as to whether [it] led the jury to a result it otherwise might not

have reached." Ibid. (alteration in original) (quoting State v.

Macon, 57 N.J. 325, 336 (1971)).

Our Supreme Court addressed the issue of tailoring in Daniels,

holding prosecutorial accusations that a defendant "tailored his

testimony to meet the facts testified to by other witnesses"

generally violates the defendant's constitutional rights. Id. at

85, 97-98. However, the Court divided tailoring accusations into

two categories: generic and specific. Id. at 98. Generic

accusations occur when the prosecutor makes an accusation despite

no evidentiary basis, and are strictly prohibited. Ibid. Specific

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accusations are permitted when there is evidence of tailoring

beyond the simple fact defendant was present at trial and heard

other witnesses testify. Id. at 98-99. However, in such cases

the prosecutor still must not "refer explicitly to the fact that

the defendant was in the courtroom or that he heard the testimony

of other witnesses." Id. at 99.

The Court proceeded to analyze the record in Daniels, finding

the evidence suggested the defendant did tailor his testimony, and

therefore the prosecutor's remarks fell into the specific

accusation category. Id. at 100. However, the Court took issue

with the prosecutor's statement, "[T]he defendant sits with

counsel, listens to the entire case and he listens to each one of

the State's witness[es], he knows what facts he can't get

past. . . . But he can choose to craft his version to accommodate

those facts." Id. at 101. The Court remanded for a new trial,

holding these statements impermissibly "highlighted the fact that

defendant was able to 'sit' in the courtroom during trial, enabling

him to 'listen[]' to other witnesses testify." Ibid. (alterations

in original).

The Court revisited this issue in State v. Feal, 194 N.J. 293

(2008), applying plain error because the defendant did not object

at trial. Id. at 312. In Feal, the prosecutor also suggested the

defendant tailored his testimony based on his ability to hear the

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other witnesses, thereby violating the rule set forth in Daniels.

Feal, supra, 194 N.J. at 303, 313. Unlike in Daniels, however,

the Court in Feal found the defendant did not alter his trial

testimony to fit the other witnesses, but instead "back-peddle[d]"

his earlier pretrial statements. Feal, supra, 194 N.J. at 313.

The Court thus declined to reverse, finding the prosecutor's

comments did not prejudice the defendant as they could not have

"led the jury to a result it otherwise would not have reached"

under the plain error standard. Ibid.

Here, we find the prosecutor's following remarks during

summation raise a Daniels issue:

Now, during the first part of this trial, during the testimony of Mr. Jimenez, the testimony of the officers, Rivera and Lozada, the defense was talking consistently about the fact that there were identification problems. Remember? They didn't know if there were two black hoodies. They were trying to make that aspect of it. There was nothing found in the car. You gave the wrong identification.



And then Mr. Shoulars gets on the stand and he admits after two days of testimony that oh, yeah, I was in the car. Me and Mr. Kelley. Oh, yeah, I had the ski masks on. Yeah, I had the gloves on. Yeah, we were in the white BMW. Yes, we ran red lights. There's a total inaccuracy even in the presentation of their own case.



The prosecutor also explicitly used the term "tailoring" twice,

remarking, "[T]he State contends [defendant] tailored his

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testimony," and "[t]he State contends the defendant tailors his

testimony to his advantage."

The State argues these remarks were proper since they were

based on the evidence in the record, thereby falling under the

specific accusation category of the Daniels framework. We reject

this argument, concluding the comments were still improper because

they directly highlighted how defendant was present and listening

to other witnesses testify, which is not permitted under Daniels,

supra, 182 N.J. at 101, even if the evidence shows tailoring

occurred.

Despite this Daniels error, however, pursuant to the Court's

ruling in Feal, supra, 194 N.J. at 313, we decline to reverse the

trial court and find the prosecutor's remarks did not rise to

plain error.

Defendant argues plain error, asserting because of the

prosecutor's tailoring accusations, the jury did not find him

credible. Defendant contends if the jury had found him credible,

they would have acquitted him of the theft charge, finding he only

took the car because he wanted to get home, and had no intent to

permanently deprive Jensen of his vehicle.

Defendant's argument lacks merit. In his brief, defendant

admits the jury accepted his version of events, finding him guilty

of burglary and theft rather than robbery and carjacking. It

16 A-1669-14T4





would have been impossible to convict defendant of these lesser

non-violent offenses had the jury not found his testimony credible.

During his testimony, defendant clearly stated he and Kelley

entered a stranger's running car and drove off, with no plans to

return it to Jensen. Defendant fails to demonstrate how the

accusation of tailored testimony "led the jury to a result it

otherwise would not have reached" under the plain error standard.

Feal, supra, 194 N.J. at 313.

C.

Defendant further argues he received an excessive sentence,

contending the sentencing judge improperly imposed the aggravating

factors and disregarded the mitigating factors. Defense counsel

did not explicitly identify any mitigating factors during the

sentencing hearing, but asked for defendant's release on time

served, arguing although defendant's initial charges were serious,

he was ultimately not convicted of a violent crime. Defense

counsel also noted defendant has a young daughter "that he's been

away from for two years" as a result of his incarceration. Before

imposing the sentence, the judge found aggravating factors three,

N.J.S.A. 2C:44-1(a)(3) (risk defendant will re-offend), and nine,

N.J.S.A. 2C:44-1(a)(9) (need for deterrence). The judge found no

mitigating factors.

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Our review of sentencing decisions is "governed by an abuse

of discretion standard." State v. Blackmon, 202 N.J. 283, 297

(2010). Our role is to ensure the aggravating and mitigating

factors applied by the sentencing judge "were based upon competent

credible evidence in the record." State v. Miller, 205 N.J. 109,

127 (2011) (quoting State v. Bieniek, 200 N.J. 601, 608 (2010)).

We will modify a sentence only where the judgment of the court is

such that it "shocks the judicial conscience." State v. Roth, 95

N.J. 334, 364 (1984) (citing State v. Whitaker, 79 N.J. 503, 512

(1979)). We will affirm the sentence so long as the judge properly

identifies and balances the aggravating and mitigating factors,

and their existence is supported by sufficient credible evidence

in the record. State v. Cassady, 198 N.J. 165, 180-81 (2009)

(citations omitted). Remand may be required if we determine the

sentencing judge failed to find mitigating factors that "clearly

were supported by the record." Bieniek, supra, 200 N.J. at 608

(citing State v. Dalziel, 182 N.J. 494, 505 (2005)).

First, we find the sentencing judge appropriately applied

aggravating factors three and nine. The judge stated he found

these factors based on defendant's prior criminal history, which

included juvenile offenses. Defendant had been adjudicated

delinquent eight times and was facing his second adult indictable

conviction. In Miller, supra, 205 N.J. at 117, 128, the Court

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upheld finding aggravating factors three and nine where the

defendant had an extensive juvenile criminal history. We conclude

the sentencing judge here did not err in applying these factors.

Defendant argues the judge should have applied mitigating

factors one, N.J.S.A. 2C:44-1(b)(1) (no serious harm); two,

N.J.S.A. 2C:44-1(b)(2) (no contemplation of serious harm); and

eleven, N.J.S.A. 2C:44-1(b)(11) (excessive hardship to

dependents). Defendant argues factors one and two apply because

the jury found defendant had no intent to cause harm, and because

there was no ultimate harm as the car was recovered. Defendant

argues factor eleven should apply because defendant has a young

child.

We find the judge appropriately concluded these factors did

not apply, as they were not supported by evidence in the trial

record. Dalziel, supra, 182 N.J. at 504-05. Although the jury

found defendant lacked violent intent with regard to the theft of

the car, the evidence in the record of defendant and Kelley's

efforts to elude police, most notably the reckless driving, is

sufficient to support a finding defendant threatened and

understood his conduct would threaten serious harm. N.J.S.A.

2C:44-1(b)(1), (2). Stealing a car is also a serious harm by

itself, even if no violence occurred and the car was recovered.

Therefore, the record did not support finding mitigating factors

one and two.