                                NOT FOR PUBLICATION WITHOUT THE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-3662-16T1

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

MICHAEL A. JACKSON,

          Defendant-Appellant.


                    Argued January 29, 2019 – Decided March 4, 2019

                    Before Judges Rothstadt and Gilson.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Indictment No. 15-02-0154.

                    Peter T. Blum, Assistant Deputy Public Defender,
                    argued the cause for appellant (Joseph E. Krakora,
                    Public Defender, attorney; Peter T. Blum, of counsel
                    and on the brief).

                    Milton S. Leibowitz, Special Deputy Attorney
                    General/Acting Assistant Prosecutor, argued the cause
                    for respondent (Michael A. Monahan, Acting Union
                    County Prosecutor, attorney; James C. Brady, Special
                    Deputy Attorney General/Acting Assistant Prosecutor,
                    of counsel and on the brief).
PER CURIAM

        A jury found defendant Michael A. Jackson guilty of third-degree

conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2. He was

sentenced to an extended term of seven years in prison.                He appeals his

conviction arguing that his trial counsel was restricted in cross-examining a co-

conspirator who testified against him. We discern no reversible error and affirm.

                                           I.

        The facts at trial establish that on November 6, 2014, the home of L.G.,

who lived in Rahway, was burglarized. 1 A television, laptop, and PlayStation

were taken. L.G. testified that on the morning of the robbery, he was called

several times by his former girlfriend, co-defendant Tiffany Taylor. Taylor

asked him whether he was available for a visit and requested to borrow money.

L.G. told Taylor that he had somewhere he had to go. Shortly thereafter, L.G.

was standing on his porch when he saw a vehicle that he believed to be Taylor's

car drive by his home.

        L.G. thereafter left his home in his car to give a ride to a friend. He was

gone only a few minutes, and as he was driving back to his home, he again saw

a car that he believed to be Taylor's vehicle. As he was driving up to his house,


1
    We use initials for the victim to protect his privacy interests.
                                                                              A-3662-16T1
                                           2
L.G. saw a man exit his home carrying his television. That man was later

identified as Javon Clarke. L.G. drove his car on to the sidewalk in an apparent

effort to stop Clarke, but Clarke ran away. L.G. telephoned the police and gave

a description of Clarke, Taylor, and her vehicle. L.G. then went into his home,

found the back door broken, and noted that his television, laptop, and

PlayStation equipment were missing.

      Meanwhile, defendant's vehicle, with defendant and Clarke in it, was

stopped by police in the neighboring town of Linden.         Shortly thereafter,

Rahway police arrived at the scene of the stop. A police officer arranged to have

L.G. driven to the scene of the stop, where L.G. identified Clarke as the

individual he saw exiting his home. L.G. also recognized defendant as an ex-

boyfriend of Taylor.

      Clarke was taken into custody and later he provided a statement to the

police. During his statement, Clarke admitted that he had participated in the

burglary and explained that he had committed the burglary with defendant and

Taylor.

      The State offered Clarke a plea deal under which he would serve three

years in prison in exchange for pleading guilty to burglary and providing

"truthful" testimony implicating defendant and Taylor in the burglary. The plea


                                                                         A-3662-16T1
                                       3
agreement was discussed with a judge, and the judge explained that he might

sentence Clarke to 180 days in jail, plus probation, if Clarke provided truthful

testimony. Subsequently, Clarke pled guilty to burglary and during his plea he

testified that defendant and Taylor participated in the burglary.

      Defendant and Taylor were indicted for third-degree burglary, N.J.S.A.

2C:18-2; third-degree theft of property with value in excess of $500, N.J.S.A.

2C:20-3; and third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and

N.J.S.A. 2C:18-2. Taylor and defendant were tried together before a jury.

      Clarke testified at trial that defendant participated in the burglary of L.G.'s

home. According to Clarke, defendant had called him on the morning of the

burglary and, later, defendant had picked up Clarke in defendant's vehicle.

Defendant and Clarke drove to Taylor's home where she was waiting in her car.

Defendant and Clarke then drove to L.G.'s home and Taylor drove separately in

her own car.

      Clarke went on to testify that when he and defendant pulled up near L.G.'s

house, they saw two people standing on the porch. Once those people left,

defendant and Clarke walked to the rear of the house where defendant broke the

back-door window to gain entry to the house. Once inside, Clarke took the

television, and he testified that defendant took the PlayStation and laptop.


                                                                             A-3662-16T1
                                         4
Clarke exited through the front door where he saw L.G. returning home. Clarke

dropped the television and ran to defendant's vehicle. Defendant also arrived at

his vehicle and he and Clarke then drove towards Taylor's home. On their way,

they were stopped by police officers.

      During defense counsel's cross-examination of Clarke, the following

exchange took place:

            [DEFENSE COUNSEL:]              Okay. Now, when you
            gave the plea it was a plea bargain as you understood it,
            correct?

            [CLARKE:]          Yes.

            [DEFENSE COUNSEL:]             And        you        were
            represented by an attorney, correct?

            [CLARKE:]          Yes.

            [DEFENSE COUNSEL:]             And     your      attorney
            explained to you that you were facing three to five years
            for a third-degree burglary, correct?

            [CLARKE:]          Yes.

            [STATE:] Your Honor, the State objects and believes
            it's inappropriate to talk about the term that a defendant
            is going to be subject to.

      At a sidebar conference, Taylor's defense counsel argued that Clarke's

knowledge of the sentencing range was necessary to show Clarke's state of mind

when accepting the plea deal. The State argued that evidence of the sentencing

                                                                         A-3662-16T1
                                        5
range apprised the jury of defendant's potential exposure to prison time. The

trial judge ruled as follows:

            THE COURT:        Well, I don't have an issue with you
            guys talking about what the offer was that the State put
            on the table. But I want to stay away from the ranges
            because indirectly that implicates what a jury might be
            exposed to think if your clients are charged with the
            same crime (indiscernible).

            So I don't want them prejudiced at all in this case. If
            you want to talk about the scope of what the State was
            offering and didn't . . . offer you, you know like a five
            flat or something like that. And ultimately to just settle
            on this I don't have a problem with that.

The judge then issued the following instruction to the jury:

            THE COURT:         Ladies and gentlemen, I'm going to
            strike the last question and any comment thereto. I'm
            going to allow it to be rephrased. But I want to give
            you a limited or a curative instruction that what may
            have been discussed or what may come out as to what
            this individual that's testifying may have discussed in
            terms of his involvement is separate and apart. It has
            nothing to do with the defendants that are on trial.

            So his bargaining or discussion is separate and apart
            and it is no way implicated or inferred upon the other
            defendants. So you can't look at what was said or done
            with this defendant as to the other defendants. You're
            just here as finders of the fact.




                                                                         A-3662-16T1
                                        6
Ultimately, on cross-examination, defense counsel was able to establish that

Clarke avoided state prison and received 180 days in jail as a part of his plea

deal, which involved him giving testimony at defendant's trial.

      As part of its case, the State also called an assistant prosecutor who had

participated in negotiating the plea deal with Clarke. On cross-examination of

the assistant prosecutor, defense counsel asked the following questions:

            [DEFENSE COUNSEL:]              So the three flat – now
            the three flat was the lower end of the spectrum of what
            Mr. [Javon] Clarke was facing, correct?

            [ASSISTANT PROSECUTOR:]              It was – yeah.
            Because it would be three to five years if –

            [DEFENSE COUNSEL:]               Right.

            [ASSISTANT PROSECUTOR:]               Yeah.

Later in the cross-examination, the following exchange took place:

            [DEFENSE COUNSEL:]            Right. And so your deal
            was a three flat which was considerably low, there's
            only – the lowest spectrum, correct?

            [ASSISTANT PROSECUTOR:]               I would disagree
            it's low. It was State Prison, sir.

            [DEFENSE COUNSEL:]             Right.      But he was
            facing, as you said, from three to five, correct?

            [ASSISTANT PROSECUTOR:]               Sure.



                                                                           A-3662-16T1
                                         7
      The State objected, and at sidebar, the parties iterated their arguments

concerning the significance of the sentencing range. The judge directed defense

to "stay away from the range," but ruled that he would allow defense counsel to

elicit testimony regarding the plea deal of three years and the later plea deal of

180 days.

      In an attempt to establish that the three-year plea deal was at the low end

of the sentencing range, defense counsel asked the assistant prosecutor the

following:

             [DEFENSE COUNSEL:]           So as part of the plea
             deal instead of getting the maximum he was at the
             lowest end possible of the spectrum considering the
             crime, correct?

             [ASSISTANT PROSECUTOR:]           No.   No.   The
             lowest end possible would have been more probation
             without any custody.

      After the assistant prosecutor finished testifying, the judge gave another

limiting instruction to the jury that Clarke's plea deal was "separate and apart"

and had "no bearing on the two individuals that are on trial before you today."

In addition, Clarke's plea transcript was admitted into evidence with the

maximum sentence exposure redacted.

      At summation, the State made the following argument regarding Clarke's

plea deal:

                                                                          A-3662-16T1
                                        8
            And he was never offered the lowest sentence. On that
            type of crime, [the assistant prosecutor] testified, that
            he could have been given straight probation. Straight
            probation. And he was offered, by the state, three years
            in state prison. The state didn't take that back and give
            him 180 days. The judge did it on his fourth page.

            So you're not talking about the state just coming in and
            lying on the floor, like, please, testify against your two
            co-defendants. Pretty please. No. That's not what they
            did. Three years in state prison is no picnic. And that's
            what we offered because we thought the crime was
            serious enough and he had a couple prior convictions.
            And the judge gave him the 180 days. So we weren't
            trying to be more lenient. The judge did. The judge
            has a right to do that. The judge did it. He served his
            time.

      The jury found defendant and Taylor not guilty of burglary or theft, but

guilty of third-degree conspiracy to commit burglary. Defendant now appeals

his conviction.

                                       II.

      Defendant makes one argument, contending that the trial court limited the

cross-examination of Clarke and that limitation deprived defendant of his

constitutional right to confront a key witness who testified against him.

Specifically, defendant articulates his argument as follows:

            DEFENDANT WAS DEPRIVED OF HIS RIGHT TO
            CONFRONTATION WHEN THE COURT BLOCKED
            CROSS-EXAMINATION OF A COOPERATING
            WITNESS ON THE SENTENCING EXPOSURE

                                                                         A-3662-16T1
                                        9
            THAT HE HAD AVOIDED THROUGH A PLEA
            DEAL. U.S. CONST. AMEND. VI, XIV; N.J. CONST.
            ART. I, PARA. 10.

Defendant also argues that the limitation was "exacerbated" when the State was

allowed to use the low end of the sentencing range—that is, "straight

probation"—to argue that Clarke had not received such a good deal.

      We review evidentiary rulings, such as the scope of questioning witnesses,

under an abuse of discretion standard. State v. Nantambu, 221 N.J. 390, 402

(2015) (quoting State v. Harris, 209 N.J. 431, 439 (2012)). Such determinations

"are subject to limited appellate scrutiny," and should not be overturned without

a showing of a "clear error of judgment" by the trial court. Harris, 209 N.J. at

439 (first quoting State v. Buda, 195 N.J. 278, 294 (2008); then quoting State v.

Brown, 170 N.J. 138, 147 (2001)).

      "The Confrontation Clause permits a defendant to explore, in cross-

examination, a prosecution witness's alleged bias." State v. Bass, 224 N.J. 285,

301 (2016). Both the United States Supreme Court and our Supreme Court have

recognized that "the exposure of a witness' motivation in testifying is a proper

and important function of the constitutionally protected right of cross -

examination." Ibid. (quoting Delaware v. Van Arsdall, 475 U.S. 673, 678-79

(1986)). Accordingly, "a charge against a witness that has been resolved by


                                                                         A-3662-16T1
                                      10
dismissal or sentencing before the witness testifies may be an appropriate

subject for cross-examination." Id. at 304.

      While "[t]he nature of the witness's alleged offense, and the sentencing

exposure that he or she confronts by virtue of that offense, is a significan t

factor[,]" id. at 305, "a defendant's confrontation rights do not entitle counsel 'to

roam at will under the guise of impeaching the witness.'" Id. at 302 (quoting

State v. Pontery, 19 N.J. 457, 473 (1955)). Consequently, "[a] trial judge may

bar inquiry into a witness's potential bias, without offending the Confrontation

Clause, because of concerns about 'harassment, prejudice, confusion of the

issues, the witness' safety, or interrogation that is repetitive or only marginally

relevant.'" Id. at 303 (quoting Van Arsdall, 475 U.S. at 679).

      In this case, the judge excluded any reference to the sentencing ranges for

Clarke's crime because defendant was charged with the same crime. The judge

reasoned that such information could improperly prejudice the jury by allowing

the jurors to consider defendant's potential sentencing exposure. In New Jersey,

"juries do not consider the punishments attendant to offenses in deciding guilt

or innocence." State v. Short, 131 N.J. 47, 59 (1993). That rule is based on the

idea that such information might cause the jury to be influenced by "what will

be the result of its verdict" or might divert the jury from its "chief function";


                                                                             A-3662-16T1
                                        11
which is, "decid[ing] the issue of defendant's guilt or innocence." State v. Bell,

102 N.J. Super. 70, 75-76 (App. Div. 1968).

      Here, we must balance defendant's right to confront Clarke with the full

exposure of his potential sentence, against the trial court's appropriate concern

that the jury not apply that information to defendant and Taylor. Read in full

context, we discern no reversible error. Defendant's main goal was to undercut

Clarke's credibility by demonstrating that he had negotiated a good plea deal

and that was the motivation for his testimony. The record amply demonstrates

that defense counsel clearly made that point.

      The curative instructions given by the trial judge directed the jury not to

consider the potential sentencing exposure faced by Clarke in determining the

guilt or innocence of defendant and Taylor. Significantly, the jury heard that

Clarke's sentence exposure was in the range of three to five years. Indeed,

Clarke acknowledged that in cross-examination, and the assistant prosecutor

who negotiated the plea deal with Clarke also identified that sentencing range.

While the trial judge struck Clarke's testimony, the court did not strike the

testimony by the assistant prosecutor.

      Just as significantly, the trial judge allowed defense counsel to fully

explore that Clarke had faced the potential of a sentence of years in prison, but


                                                                          A-3662-16T1
                                         12
he was able to ultimately negotiate a plea agreement where he would only be

exposed to 180 days in jail and probation. In summary, when the full scope of

cross-examination of Clarke and the assistant prosecutor is considered,

defendant's constitutional right to confront and challenge Clarke's motivation

for testifying as a State witness was not unduly restricted.

      We also discern no error in allowing the jury to hear the State's argument

that Clarke could have been sentenced to probation with no jail time. Counsel

for defendant and co-defendant Taylor both zealously challenged Clarke's

credibility and motivation.    The jury heard several times that Clarke was

exposed to at least three years in prison if he did not negotiate a favorable plea

arrangement. There was nothing wrong with the State pointing out that Clarke

also could have been sentenced to probation even if he had not negotiated a plea

agreement to testify against defendant.

      Affirmed.




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                                       13
