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N.J.S.A. 2C:15-1(a)(2) (counts one and ten); first-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 and N.J.S.A.
2C:15-1(a)(1) (counts two and eleven); third-degree theft, N.J.S.A. 2C:20-3 (counts three and twelve); fourth-degree
aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts four and thirteen); second-degree possession of a weapon for an
unlawful purpose, N.J.S.A. 2C:39-4(a) (counts five and fourteen); third-degree unlawful possession of a weapon,
N.J.S.A. 2C:39-5(b) (counts six and fifteen); second-degree kidnapping, N.J.S.A. 2C:13-1(b)(1)(count seven); first-
degree carjacking, N.J.S.A. 2C:15-2(a)(2) (count eight); first-degree conspiracy to commit carjacking, N.J.S.A. 2C:5-2,
N.J.S.A. 2C:15-2(a)(2) (count nine); and third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count sixteen). Defendant
and Usher-Swift were tried separately. Defendant was tried to a jury on May 17, 18, and 19, 2005. At the end of the
State's case, the trial judge granted the prosecutor's motion to dismiss counts six, fifteen and sixteen. The jury
acquitted defendant on counts four and five, convicted him of second-degree robbery on count one and on all
remaining counts as charged. ">
The status of this decision is unpublished
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(NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6473-04T46473-04T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAYSON P. THOMPSON,
Defendant-Appellant.
Submitted March 11, 2008 - Decided
Before Judges Skillman and LeWinn.
On appeal from the Superior Court of New Jersey, Law Division, Morris County,
Indictment No. 04-06-0766.
Yvonne Smith Segars, Public Defender, Attorney for appellant (Amira Scurato, Assistant
Deputy Public Defender, of counsel and on the brief).
Robert A. Bianchi, Morris County Prosecutor, attorney for respondent (Erin Smith
Wisloff, Assistant Prosecutor, on the brief).
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PER CURIAM
On July 8, 2004, defendant Jayson P. Thompson was indicted along with co-defendant Ryne Usher-Swift on the
following charges: first-degree robbery, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3 (counts three and twelve); fourth-degree
aggravated assault, N.J.S.A. 2C:5-2, N.J.S.A. 2C:43-7.2C (Not Raised Below).
POINT V
DEFENDANT'S OVERALL SENTENCE IS EXCESSIVE AND VIOLATIVE OF FUNDAMENTAL
FAIRNESS UNDER STATE V. MILLER (Partially Raised Below).
POINT VI
DEFENDANT'S SENTENCE SHOULD BE REMANDED PURSUANT TO STATE V. NATALE (Not
Raised Below).
For the reasons that follow, we affirm defendant's convictions, merge certain counts, and remand for re-sentencing.
I.
On August 20, 2003, at approximately 11:00 p.m., Sheldon Levy exited the Pit Stop Pub in Roxbury Township. As
Levy approached his van parked in a nearby lot, he observed two men run towards his vehicle. Levy described the
men as black or tanned with broken accents; one was wearing a bandana. When Levy opened the door to his van,
one of the men pointed a handgun at him and informed him it was a "stick up." Levy tossed his wallet, keys and cell
phone out the window. The assailants picked up his belongings and fled. Levy then contacted the police.
Approximately three hours after Levy was robbed, Katherine Thomas left her boyfriend's house in the Flanders
section of Roxbury Township. As she drove toward an intersection, she observed two men standing on a nearby
island. One of them jumped in front of her vehicle, causing her to come to a stop. Thomas then heard one of the
individuals tapping on her window and saw a gun pointed at her. The assailant holding the gun opened the door,
entered the vehicle and sat next to Thomas. The other man, whom Thomas identified as co-defendant Usher-Swift,
entered the vehicle and sat behind her. Thomas testified that the man sitting beside her was wearing a bandana to
cover his face. She also testified that the men referred to one another as "Jit and Juve or Juva" and spoke "some sort
of Creole language."
The men demanded that Thomas drive them to East Orange. During the ride, the men ordered Thomas to stop and
withdraw twenty dollars from an ATM; they also took her cell phone and $100 from her wallet. The two men finally
exited Thomas's car at a gas station, threatened to kill her if she informed the police and walked away. Thomas then
drove home, woke her parents and contacted the police.
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On September 17, 2003, approximately one month after the crimes, based upon information received from Usher-
Swift, the police found Levy's wallet and keys near the Roxbury train station. Latent fingerprints found on Levy's van
were confirmed to be defendant's. On September 18, 2003, the police executed a search warrant at defendant's
residence and found a blue bandana in defendant's bedroom.
Defendant testified at trial. He stated that Usher-Swift is his cousin. On the night of August 20, 2003, the two men
went to Roxbury to meet a young lady. While defendant was trying to make telephone contact with her, he
observed Usher-Swift approach an individual in a van, holding a handgun which defendant saw then for the first
time. Defendant saw the individual hand his keys to Usher-Swift. Defendant tried to leave the scene; however,
Usher-Swift stopped him and told him: "[I]f you ever try and leave or run,. . . you're going to get it too."
Defendant testified that he tried to run away from Usher-Swift into the bushes at the train station; however, Usher-
Swift came up right behind him. Defendant stated that he made no further efforts to run because, "at that point, . . .
I felt like I didn't have a choice, . . . because after all he . . . pointed the gun at me . . . so I'm like . . . feel like I had no
choice. I was threatened at that point, felt like I was threatened at that point."
While they were hiding in the bushes, a police car drove into the parking lot. Usher-Swift told defendant to "just stay
quiet[.]" Defendant knew Usher-Swift had a gun, and complied.
After the police car left the parking lot, defendant and Usher-Swift left the area and walked along a roadway.
Thomas's car approached, slowing at the traffic light. Usher-Swift went in front of the car. Defendant made no effort
to run away because he did not know what Usher-Swift was planning to do.
When Usher-Swift entered Thomas's car, he motioned for defendant to do the same. Defendant entered the front
passenger seat. He observed that Thomas was "scared" and told her he would not let Usher-Swift hurt her.
Defendant testified that he entered Thomas's car because he felt "forced to get in" by Usher-Swift. Defendant
testified that he felt threatened by Usher-Swift "from the very beginning" when Usher-Swift pointed his gun at
defendant.
On cross examination, the following colloquy occurred between defendant and the prosecutor, which forms the
basis of defendant's first appellate issue:
Q Well, you just . . . testified on direct that you didn't really hang out with your cousin
much and that he didn't come over a whole lot, you said between April and August
maybe five times, right?
A Maybe five times.
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Q Now, all of a sudden, he's hanging out with you all the time?
A In case I had to -- I had to -- I was staying at my auntie's house.
Q How about in September?
A In September? September -- oh, in September, yeah, one time, one time. That's when I
got off, you know, work and then I had got paid that same day, you know, and I went to
the gas station. I had the day off.
Q Well, you continued to hang out with your cousin Ryne?
A I did not continue hanging out with Ryne.
Q You weren't with Ryne in September?
A I was with Ryne but, you know, I did not like hang out with him, like go anywhere with
him.
Q So, from August through, you never told anyone about what happened that night in
Roxbury?
A I feel like you know, I was already threatened already and my arm -- and he hit me,
you know, after you didn't make me finish what I was --
Q I'm sorry?
A I said you didn't make me finish when I was, you know, telling you about what my
auntie asked about that day and afterwards, nothing happened of it but Ryne, you
know, approached me like what you tell auntie, you know. I didn't tell her nothing, you
know, and I don't know if my auntie brought the medical report but, you know, we got
into, you know, a conflict, you know, and then he moved the bed, you know, and he
was like, you know, next time, you know, you going to know -- you'll know better, you
know.
Q You never went to the police?
A No, because I felt threatened, you know. He told me not to go and, you know, I don't
know what kind of ties he got now.
Q But even though you felt threatened by him, don't you think if you told your auntie,
hey, Ryne's out of control, he's doing these crimes, he's threatening me, we have to do
something?
A Right.
Q Wouldn't you go to your aunts or your uncles, somebody to help protect you?
A I could have always went to my aunts and uncles but look what happened. He
thought I -- he thought I told my auntie something.
Q You could have went to the police.
A I could have went to the police but then all the police would have did was, you know,
question --
Q Arrest him?
THE COURT: I'm sorry, Mr. Connell, [for] interrupting. May I see you here at sidebar,
please?
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(Sidebar)
THE COURT: If you continue to ask him about not going to the police you're going to
start to get into issues regarding his ability to go and if you continue with articulating
this particular answer, you get into a lot of problems.
MR. O'CONNELL: All right, I'm going to wrap it up in a moment.
In his summation, the prosecutor made the following comments regarding defendant's conduct immediately after
the Levy robbery:
They sat there, they waited until the police left. He could have yelled out if he was
under duress, there was a dog there. These police officers were all armed. They're right
there. He sees them. Hey, help me, you won't believe what's going on. Why didn't he?
Because he was an active participant, ladies and gentlemen.
Defendant raised no objection to these remarks.
II.
Defendant contends that the prosecutor's cross-examination and summation comments constituted impermissible
commentary on his right to remain silent. He further criticizes the trial judge's failure to give the jury a limiting
instruction regarding this cross-examination.
We conclude, however, that the prosecutor's questions and summation were addressed to the credibility of the
duress defense that defendant proffered at trial. Neither the prosecutor's cross-examination nor his summation
comments were directed to defendant's silence "at or near the time of his arrest[.]" State v. Deatore, 70 N.J. 100, 108
(1976). Such questions and comments would be improper. Ibid. As our Supreme Court has noted:
[E]vidence of pre-arrest silence, particularly in the absence of official interrogation,
does not violate any right of the defendant involving self-incrimination. . .
We now hold that pre-arrest silence may be admitted for impeachment purposes
provided no governmental compulsion is involved. In determining admissibility, the
probative worth of pre-arrest silence as bearing on credibility must be assessed in light
of all the surrounding circumstances. If it can be inferred by the fact-finder that a
reasonable person situated as the defendant, prior to arrest, would naturally have
come forward and mentioned his or her involvement in the criminal episode,
particularly when this is assessed against the defendant's apparent exculpatory
testimony, then the failure to have done so has sufficient probative worth bearing on
defendant's credibility for purposes of impeachment.
[State v. Brown, 118 N.J. 595, 613-14 (1990)(emphasis added).]
The Supreme Court recently reaffirmed this holding in State v. Taffaro, 195 N.J. 442 (2008).
Defendant's reliance upon State v. Elkwisni, 190 N.J. 169, 180 (2007), is misplaced. In that case, the Supreme Court
expressed "some reservation . . . concerning the prosecutor's cross-examination of defendant with regard to his
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silence at the time the police arrived and placed him under arrest." (Emphasis added). In Elkwisni, the police arrived
at the scene of the crime and "immediately grabbed defendant, placed him in handcuffs, and removed him to a
police car." Id. at 174.
By contrast, when the police arrived in the parking lot where defendant was hiding, no arrest occurred. Defendant
was not arrested until one month later, during which time he made no effort to advise either the police or anyone
else that he had participated in these offenses only under duress. It was this one-month period of silence that was
the subject of the prosecutor's cross-examination and summation comments. Those questions and comments
"focused on defendant's actions [a month] before his arrest and did not involve police interrogation or any
governmental compulsion." Taffaro, supra, 195 N.J. at 455.
"[I]n circumstances not involving official interrogation or a custodial setting, silence significantly preceding arrest is
admissible if 'it generates an inference of consciousness of guilt that bears on the credibility of the defendant when
measured against the defendant's apparent exculpatory testimony.'" State v. Muhammad, 182 N.J. 551, 572 (2005)
(quoting Brown, supra, 118 N.J. at 615).
Defendant has raised this point as plain error. As such, defendant must convince us that this error "is of such a
nature as to have been clearly capable of producing an unjust result[.]" R. 2:10-2. As the challenged questions and
comments were addressed to the credibility of defendant's duress defense, and not to defendant's silence "at or
near" the time of his arrest, we conclude that defendant has failed to demonstrate any error, let alone plain error.
III.
We concur with defendant's argument that count fourteen of the indictment charging him with possession of a
weapon for an unlawful purpose should merge with his convictions for the substantive offenses against Thomas.
Defendant was not charged with, and the record contains no evidence of, any unlawful purpose in his possession of
the gun other than to commit those offenses.
In State v. Diaz, 144 N.J. 628, 639 (1996), the Supreme Court adopted the following test for merger of the offense of
possession of a weapon for an unlawful purpose as set forth in State v. Williams, 213 N.J. Super. 30, 36 (App. Div.
1986), certif. denied, 107 N.J. 104 (1987):
To avoid merger of possession of a weapon for an unlawful purpose, four factors must
be present: (1) the defendant must have been charged in the indictment with
possession of the weapon with a broader unlawful purpose, either generally or
specifically, than using the weapon to kill or assault the victim of the greater offense, (2)
the evidence must support a finding that the defendant had a broader unlawful
purpose, (3) the judge must have instructed the jury of the difference between
possession with the specific unlawful purpose of using the weapon against the victim
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of the greater offense and a broader unlawful purpose and (4) the verdict must express
the jury's conclusion that the defendant had a broader unlawful purpose. There may be
cases where merger is necessary despite the presence of these four factors.
Count fourteen of the indictment charged defendant with possession of a firearm with the intent to use it "against
the person or property of Katherine Thomas[.]" The judge charged the jury that the State must prove that:
. . . defendant had the purpose to use the firearm in a manner prohibited by law . . . This
element means you have to find the State proves beyond a reasonable doubt that the
defendant possessed a firearm with the conscious objective[,] design or intent to use it
against a person or property in an unlawful manner, as charged here, which the State
contends was to get a car. . .                                                                                            . You have to decide whether the State proved that . . .
unlawful purpose[.]"
We conclude that none of the four factors identified in Williams, supra, has been met here. Count fourteen charged
defendant with possession of a weapon for the specific purpose of using it against Thomas; the evidence did not
"support a finding that the defendant had a broader purpose[.]" 213 N.J. Super. at 36. The trial judge instructed the
jury that the "unlawful purpose" element of the offense related to "get[ting] a car or to threaten Mr. Levy or to rob
him." Thus, the verdict expressed the jury's conclusion that defendant had possessed the gun with no "broader
unlawful purpose," ibid., than to commit the offenses against Thomas.
"Under those circumstances, the use of the firearm to commit the substantive offense . . . provides the factual
underpinning for drawing an inference that the firearm was possessed for an unlawful purpose." Diaz, supra, 144
N.J. at 636. Therefore, merger of these counts of the indictment is appropriate.
IV.
We next address defendant's sentencing arguments. The State concedes that the trial court's application of
aggravating factor thirteen was improper. 184 N.J. 458 (2005), because his sentence was imposed before the
Supreme Court's decision in that case. In Natale, the Supreme Court eliminated the presumptive terms as set forth
in 382 N.J. Super. 469, 486-87 (App. Div. 2006), aff'd in relevant part, rev'd in part, 190 N.J. 197 (2007). Therefore,
defendant's sentence for that crime does not "require resentencing under Natale." Id. at 487.
In the absence of a presumptive sentence, "trial courts must look to the alternative elements of carjacking to
guide their sentencing discretion, in conjunction with the aggravating and mitigating factors applicable to all
sentencing decisions." State v. Zadoyan, 290 N.J. Super. 280, 291 (App. Div. 1996). Those elements include:
(1) inflict[ing] bodily injury or us[ing] force upon an occupant or person in
possession or control of a motor vehicle;
(2) threaten[ing] an occupant or person in control with, or purposely or knowing
put[ting] an occupant or person in control of the motor vehicle in fear of, immediate
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bodily injury;
(3) commit[ting] or threaten[ing] immediately to commit any crime of the first or
second degree; or
(4) operat[ing] or caus[ing] said vehicle to be operated with the person who was
in possession or control or was an occupant of the motor vehicle at the time of the
taking remaining in the vehicle.
[108 N.J. 112, 122 (1987). Therefore, the court should consider the aggregate term that
will result from the imposition of consecutive sentences in determining the length of
each component sentence.
[State v. Usher-Swift, supra, slip op. at 9.]
V.
Finally, we address defendant's argument that the imposition of consecutive periods of parole supervision violates
NERA. N.J.S.A. 2C:43-7.2(c) provides:
Notwithstanding any other provision of law to the contrary and in addition to any
other sentence imposed, a court imposing a minimum period of parole ineligibility of
85 percent of the sentence pursuant to this section shall also impose a five-year term of
parole supervision if the defendant is being sentenced for a crime of the first-degree, or
a three-year term of parole supervision if the defendant is being sentenced for a crime
of the second degree. The term of parole supervision shall commence . . . immediately
upon the defendant's release from incarceration. During the term of parole supervision
the defendant shall remain in release status in the community in the legal custody of
the Commissioner of the Department of Corrections and shall be supervised by the
State Parole Board as if on parole . . .
The statute does not directly address the situation presented here, namely whether a defendant who receives two
consecutive NERA terms, each of which carries a period of parole supervision, should be subject to consecutive
parole supervision terms.
Defendant received a five-year period of parole supervision on the first-degree carjacking conviction in count eight;
he received a consecutive three-year period of parole supervision on the second-degree robbery conviction under
count one. The effect of these sentences is to extend his post-release parole supervision from five to eight years.
During this period defendant would remain vulnerable to re-incarceration upon any violation of parole conditions.
In State v. Freudenberger, 358 N.J. Super. 162, 169-70 (App. Div. 2003), we noted that NERA's imposition of
parole supervision beyond the term of the imposed sentence is itself a significant penal
consequence. More significant is the possibility that upon a parole violation a
defendant could be required to serve additional time after expiration of the specified
sentence.
In State v. Johnson, 182 N.J. 232, 241 (2005), the Supreme Court expressly held that "being subject to NERA's
mandatory period of parole supervision constitute[s] a direct, penal consequence of defendant's [conviction] . . .      ."
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It is axiomatic that "penal statutes must be strictly construed. . .                                                     . 'The rule . . . has at its heart the requirement of due
process.'" State v. Valentin, 105 N.J. 14, 17 (1987)(citation omitted). Where, as here, "the language is ambiguous --
and the ambiguity is not manufactured by the defendant -- the construction must be drawn against the state." Id. at
18; see State v. Carbone, 38 N.J. 19, 23-24 (1962).
Applying these principles to the imposition of parole supervision periods under NERA, we conclude that, where a
defendant is sentenced to consecutive NERA-based sentences, the periods of parole supervision must nonetheless
run concurrent to each other. A defendant who is sentenced to twenty years on a first-degree offense, with an
eighty-five percent parole ineligibility period, will serve seventeen years and, upon release, will face five years of
parole supervision. Were that defendant to violate his post-release parole, he would be vulnerable to a return to
prison for the remainder of his five-year supervision term. Such a defendant could, thus, serve a term in excess of
the twenty-year maximum for the first-degree offense on which he was originally sentenced. By imposing
consecutive parole supervision terms, a court exposes a defendant to a possible term of incarceration that even
further exceeds the maximum terms for the offenses of which he was convicted.
Furthermore, we note that when co-defendant Usher-Swift was resentenced pursuant to the remand in our decision
of March 21, 2006, the trial judge imposed concurrent terms of parole supervision, citing State v. Johnson, supra,
and, opining further that the result is "supported frankly by the language of the statute[.]" Therefore,
notwithstanding the consecutive NERA custodial terms imposed on co-defendant on counts one and eight, he
received concurrent parole supervision terms on those counts.
We conclude that the same result should appertain in this case. Therefore, in sentencing defendant on remand, the
trial judge shall impose concurrent parole supervision terms.
Accordingly, we affirm defendant's convictions but vacate his sentence and remand for resentencing in conformity
with this opinion.
Usher-Swift was convicted on counts one, two, three, seven through twelve and sixteen of the indictment. On April
29, 2005, he was sentenced to an aggregate term of thirty-five years subject to the 85% parole ineligibility period
mandated by the No Early Release Act (NERA), wvWare/wvWare version 1.0.3
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