September 26, 2012 trial court sentenced defendant to a term of eight years with a four-year period of parole ineligibility. On appeal defendant challenges his conviction and his sentence. For the reasons that follow, we affirm. Police Officer Gary Tremont, a member of the Newark Police Street Crimes Auto Theft Task Force, was on patrol January 6, 2008, in a high crime area of Newark. Tremont and his partner, Officer Costerra, were driving in a white Ford Explorer wearing black Newark Police tactical uniforms with large yellow “Police” lettering and an arm-patch bearing the Newark police logo.Other members of the Task
ForceaccompanyingTremont and Costerra included Detectives Padilla and Costa who were riding in a marked police vehicle and Sergeant Roe who was riding
alone, also in a marked car. The three police vehicles were traveling together in a line with Tremont’s car in the lead. At approximately 1:50 a.m., Tremont was driving south on Eighteenth Street. As he was turning right onto Seventeenth Avenue, he observed a black Cadillac Eldorado traveling in the opposite direction on Seventeenth Avenue. The Cadillac drew Tremont’s attention because it had tinted windows which are
illegal. Tremont’s vehicle and the Cadillac passed within four to five feet of each other.
Tremont radioed to the other officers that he was going to stop the Cadillac and motioned to the driver of the Cadillac to pull over to the curb. He then turned his own car around, activated his grill lights, and pulled up behind the Cadillac which had come to a complete stop. As Tremont got out of his car to approach the Cadillac, the driver sped off, traveling south on Eighteenth Street toward Eighteenth Avenue. The other officers, who were still on Eighteenth Street, activated their lights and pursued the Cadillac. Sergeant Roe attempted to pull
the Cadillac over, but the driver refused to comply. While attempting to turn right onto Eighteenth Avenue, the Cadillac lost control and crashed into a utility pole, shearing the pole off the base. Tremont approached the driver’s side of thevehicle while Costa and Padilla came to the passenger side. Defendant was in
the driver’s seat and Tremont ordered him out and placed him under arrest. Two others were in the car, Shaquan Johnson and Qaiym Ali.
When Officer Padilla opened the passenger door, he observed pills, later confirmed to be Ecstasy, on Johnson’s lap and on the floor in front of him. Johnson was arrested as was Ali when
he refused the officers’ commands to get out of the car.
On October 28, 2008, an Essex County Grand Jury returned an indictment charging all three defendants.Defendant was charged with second-degree eluding, N.J.S.A. 2C:35-10(a) (count one), and third-degree possession of a controlled dangerous substance,
N.J.S.A. 2C:35-10(a) (count two). A jury trial began on January 27, 2010, and concluded the following day. Defendant was found guilty of eluding and not
guilty of the drug charge. He was sentenced to eight-years in prison with a four-year parole disqualifier. On appeal, defendant raises the following issues:
THE DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
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 INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL INSTRUCTION TO THE JURY ON THE LAW OF ATTEMPTED ELUDING (NOT RAISED BELOW)
A. THE TRIAL COURT OMITTED AN INSTRUCTION ON THE LAW OF ATTEMPTED ELUDING EVEN THOUGH ATTEMPTED ELUDING WAS AN ESSENTIAL ELEMENT OF THE OFFENSE
B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPTED ELUDING REQUIRES PURPOSEFUL CONDUCT AND THAT THEY CANNOT FIND THE DEFENDANT KNOWINGLY ATTEMPTED TO ELUDE
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 TRIAL COURT’S FAILURE TO INSTRUCT JURORS ACCURATELY AND COMPLETELY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS AND OMISSIONS (NOT RAISED BELOW)
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 STATE’S FAILURE TO SHOW THAT ITS LAW WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS (NOT RAISED BELOW)
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 TRIAL COURT’S FAILURE TO PROVIDE A LIMITING INSTRUCTION PRECLUDING JURORS FROM INFERRING THAT THE DEFENDANT HAS A PROPENSITY TO VIOLATE LAWS GOVERNING MOTOR VEHICLES (NOT RAISED BELOW)
THE SENTENCE IS EXCESSIVE
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS
B. THE IMPOSITION OF A PERIOD OF PAROLE INELIGIBILITY SHOULD BE VACATED
Under N.J.S.A. 2C:29-2(b), a person is guilty of second-degree eluding if, “while operating a motor vehicle on any street or highway in this State,” the driver “knowingly flees orattempts to elude any police or law enforcement officer after having received any signal from such officer to bring thevehicle . . . to a full stop . . . [and] the flight or attempt to elude creates a risk of death or injury to any person.” Defendant contends the State failed to show that defendant”knew” that the police were attempting to stop his vehicle because (1) the tinted windows made it hard to see the “Police”markings on the officers’ clothes; (2) reasonable people traveling in a very high crime area known for homicides can be expected to flee when unknown persons driving unmarked vehicles want them to stop in the middle of the night; (3) various news
outlets have reported the prevalence of police impersonators out there intending to rob victims in high crime areas; (4) as a result of this phenomena, defendant was correct in eluding the police car since defendant was driving in a high crime area; and, (5) Sergeant Roe’s vehicle was behind an unmarked car, and unless a “marked” vehicle with sirens and lights was directly behind defendant’s car, he would have no way of knowing he was being pursued.
The standard applied when determining the sufficiency of the State’s evidence is “whether, after viewing the evidence in light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99
S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); State v. Wilder, 193 N.J. 398, 406 (2008); State v. Spivey, 179 N.J. 229, 236 (2004); State v. Brown, 80 N.J. 587, 591-2 (1979); State v. Reyes, 50 N.J. 454, 459 (1967). In Reyes, the Court stated:
[T]he question the trial judge must determine is whether, viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable [trier of fact] could find guilt of the charge beyond a reasonable doubt.
The record strongly supports the findings of the jury. Based on the evidence presented, the jury could make a reasonable inference that defendant knew that it was a police officer and not an impersonator who ordered him to pull his vehicle over. Tremont testified that his vehicle passed within five feet of defendant’s Cadillac, with both cars positioned”driver window to driver window,” when he motioned to defendant to stop. Tremont’s vehicle, although unmarked, activated flashing lights mounted in the front grill. The fact that the defendant initially stopped indicates that he saw and understood Tremont’s direction to pull over. As soon as defendant sped away, he was followed by the two marked police cars with lights flashing. Finally, the officers were outfitted in clothing that clearly identified them as police officers. Therefore, the jury verdict is fully supported by the evidence and defendant was properly found guilty of violating N.J.S.A. 2C:29-2(b).
The arguments advanced in Points II through V in defendant’s brief were not raised below and are subject to review for plain error. R. 2:10-2.Defendant claims the trial court should have given an instruction on the law of attempted eluding and that this failure meets the “plain error” standard as the omissions from the trial court’s instructions were “clearly capable of producing an unjust result.” Defendant reasons that the jury really found defendant guilty of attempted eluding, not eluding, and, and as a result, the trial court’s charge should have included an instruction as to N.J.S.A. 2C:5-1.
Defendant’s argument, taken to its logical conclusion, would preclude the conviction of any person who attempts to escape from police, unless the attempt was successful; that is, the subject actually escapes from the police.
We specifically considered and rejected the same argument in State v. Mendez, 345 N.J. Super. 498 (App. Div. 2001), aff’d on other grounds, 175 N.J. 201 (2002). In Mendez, we explained that eluding is a substantive offense and not an attempt to commit another substantive offense. Id. at 506. “Eluding does not involve an attempt to commit any other substantive offense.” Ibid. In Point III, defendant contends that the trial court should have included an instruction on prior inconsistent statements. He notes that at trial, Tremont testified he
motioned with his finger for defendant to stop the Cadillac but his police report contains no mention of this.1 Defendant claims this was an inconsistent statement and the jury should have been instructed on that point. We disagree. Defendant’s trial counsel requested a “false-in-one, false-in-all,” charge, which was given:
As judges of the facts, you are to determine the credibility of the witnesses. And in determining whether a witness is worthy of belief and therefore credible, you may take into consideration the appearance and demeanor of the witness; the manner in which he may have testified; the witness’ interest in the outcome of the trial, if any; whether the witness testified with intent to deceive you; the means of the 1 We were not provided a copy of the incident report and glean details of it from the record.
witness of obtaining knowledge of the facts; the witness’ power of discernment-meaning their judgment [sic], understanding; the ability of the witness to reason, observe, recollect and relate; the possible bias, if any, in favor of the side for whom the witness testified; the extent to which, if at all, each witness is either corroborated, contradicted, supported or discredited by other evidence; whether the witness made any inconsistent or contradictory statement.
The trial court then instructed the jury on discrepancies
Remember inconsistencies or discrepancies in the testimony of a witness or between the testimonies of different witnesses may or may not cause you to discredit such testimony. Two or more persons witnessing an incident may see or hear it differently. An innocent misrecollection, like failure of recollection, is not an uncommon experience. In weighing the effect of a discrepancy, consider whether it pertains to a matter of importance or an unimportant detail, and whether the discrepancy results from an innocent error or willful falsehood. You may also consider the reasonableness or unreasonableness of the testimony the witness has given, and any and all other matters in the evidence which serve to support or discredit his testimony. Through this analysis as the judges of the facts, you should decide whether you believe all or any part of what each witness had to say and how important that testimony was in light of all the other evidence.
If you believe that any witness or party willfully or knowingly testified falsely to any material facts in the case with intent to deceive you, you may give
such weight to his testimony as you may deem it is entitled. You may believe some of it or you may in your discretion disregard all of it.Defendant raised no objection to either instruction.
The initial question is whether the alleged out-of-court prior inconsistent statement had substantive exculpatory value or simply went to the issue of credibility. In State v. Hammond, 338 N.J. Super. 330 (App. Div.), certif. denied, 169 N.J. 609 (2011), defendant was found guilty of murder,
possession of a weapon for an unlawful purpose, armed robbery, and aggravated assault. Id. at 332. The State presented evidence in support of its theory that defendant shot and killed
Paul Robinson in retaliation for an assault upon him by Robinson and others. Id. at 332-33. At trial, Skylyn Hagins testified that he saw defendant shoot the victim. Id. at 335. Hagins initially told the police that he had not been present at the time of the shooting and did not know anything about it. Ibid. Gregory Ingram also testified as an eyewitness to the shooting.
Ibid. However, previously Ingram told the police that he was home and in bed on the night in question. Id. at 335-36. The trial judge provided the jury with a general credibility charge but did not instruct the jury on the use of prior inconsistent statements. Id. at 342-43.
We held that the absence of the instruction did not deny defendant his right to a fair trial as Hagins and Ingram initially told the police that they knew nothing of the shooting “rather than an alternative version of the crime scenario.” Id.
at 343. Thus, “the import of the out-of-court prior inconsistent statements went solely to the issue of credibility and they had no substantive exculpatory value of their own[.]”
Ibid. We stated that “the jury, as instructed on credibility by the court, and as informed by its common sense and relevant life experience, was fully qualified to determine the credibility or
lack of credibility of both eyewitness versions.” Ibid. While Tremont’s testimony at trial presented far more detail of the incident than his report, there was nothing of an
exculpatory nature in the report and no inconsistencies that would have warranted a specific jury instruction. We are convinced that the general credibility charge given by the trial
judge was sufficient to guide the jury in its consideration of the evidence and the trial judge’s failure to instruct the jury on the use of prior inconsistent statements was not error, let alone plain error, and did not deny defendant his right to a fair trial.
Defendant argues that Tremont’s testimony that he issued defendant a summons for reckless driving, constitutes an improper lay opinion. We disagree.
In State v. McLean, 205 N.J. 438 (2011), the Court discussed the issue of lay opinion and identified a clear boundary between permissible factual testimony that can be given
by a police officer and expert opinion testimony. Id. at 453, 460. In McLean, the defendant was convicted of third-degree possession of a controlled dangerous substance, possession with
intent to distribute, and possession with intent to distribute in a school zone. Id. at 447. Over the objection of the defendant, the trial court permitted a police officer to testify that he observed the defendant engage in what he thought to be a
hand-to-hand drug transaction. Id. at 445.
The Court reversed, holding that the proffer of the police officer’s lay opinion invaded the fact-finding function of the jury. Id. at 455-56. The Court held that even if the police
officer had been qualified as an expert, he still would have been barred from testifying as to what he thought he saw, if his
deductions would have been within the common understanding of the jury. Id. at 462. Court concluded that because the police officer’s testimony was elicited through a question referring to the
witness’s training, education and experience, it was an impermissible expert opinion. McLean, supra, 205 N.J. at 463. To the extent that the testimony may have been offered as a lay
opinion, the Court held its proffer to be impermissible on the grounds that “it was an expression of a belief in defendant’s
guilt and because it presumed to give an opinion on matters that were not beyond the understanding of the jury.” Ibid. The Court reaffirmed the principle that under N.J.R.E. 701, such
testimony “can only be admitted if it falls within the narrow bounds of testimony that is based on the perception of the witness and that will assist the jury in performing its function.” Id. at 456. In the present matter, Tremont observed defendant’s driving
as he pursued him. He testified defendant “sped off” after the initial police stop and “attempted to make a right turn on
Eighteenth Avenue.” He also described the damage he observed when he arrived at the scene of the accident: “It looked like he
had knocked down a utility pole with a light attached to it and there were wires hanging in the street.” When asked to estimate the speed defendant was driving prior to the crash, Tremont said
he could not. There is nothing in the record to support a finding that
Tremont’s testimony about his observations of defendant’s
driving usurped the function of the fact-finder as to whether defendant was driving recklessly. Instead, his observations both during his pursuit of defendant and at the accident scene,
explained why he charged defendant with reckless driving. Defendant contends the jury should have been given a limiting instruction because testimony that defendant drove
without a license was “propensity evidence” and the jury “could have concluded that the defendant is more likely to violate the laws governing vehicles since he had done so previously.”
Defendant’s claim is without merit. Under N.J.R.E. 404(b), “evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person
in order to show that such person acted in conformity therewith.” Evidence is admissible to show “other purposes, such as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.” N.J.R.E. 404(b). In State v. Cofield, 127 N.J. 328, 338 (1982) the Court
set forth a four-pronged test to limit admission of “bad
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
Defendant concedes that the jury could have concluded that defendant’s driving without a license was a motive for eluding
the police However, defendant argues the evidence could have led the jury to conclude that he had a propensity to violate the traffic laws. During summation, defendant’s trial counsel
acknowledged that defendant was driving without a license, but argued that was a de minimis violation and therefore is not proof of motive to elude the police. All four Cofield factors
were satisfied here and the admission of the evidence that defendant was driving without a license was proper. There was no error, much less plain error, in failing to give the jury a
limiting instruction. See R. 2:10-2. Finally, defendant argues his eight-year sentence with a four-year parole disqualifier is excessive and argues that the parole disqualifier must be vacated because the court failed to
make separate findings of fact. When sentencing a defendant, the “trial court must determine whether incarceration is appropriate, . . . decide on the appropriate sentence, . . . [and] decide whether a period of
The court must place its reasons on the record for the sentence imposed and determine the aggravating and mitigating factors.
State v. Natale, 184 N.J. 458, 488 (2005). The court must also balance the relevant factors and explain how it arrived at the
sentence. State v. Bieniek, 200 N.J. 601, 608 (2010). Our review of a sentence is deferential, and we will only disturb a sentence where there is sufficient evidence to demonstrate “such a clear error of judgment that it shocks the
judicial conscience.” Roth, supra, 95 N.J. at 364. Sentences should not be reduced on appeal unless there was a clear abuse of discretion. State v. Thomas, 195 N.J. 431, 437 (2008); State
v. Pierce, 188 N.J. 155, 166 (2006); State v. Kromphold, 162 N.J. 345, 355 (2000). “If a trial court follows the sentencing guidelines, an appellate court ought not second-guess the sentencing court’s
decision. An appellate court ‘does not sit to substitute its judgment for that of the trial court.'” State v. Jabbour, 118 N.J. 1, 5-6 (1990). The trial judge usually sentences a defendant “within the statutory range after identifying and weighing the applicable mitigating and aggravating factors.”
State v. Natale II, 184 N.J. 458, 466 (2005). The Code provides for a “strong judicial role” in sentencing. Id. at 486, citing Roth, supra, 95 N.J. at 354, 357-60.
The Natale II Court observed that courts will balance the aggravating and mitigating factors reasonably and pick a middle sentencing range. Natale II, supra, 184 N.J. at 488.
The trial court sentenced defendant slightly above the middle range. Because of defendant’s prior record this sentence was justified. Defendant had been arrested seven times as an
adult and convicted five times by age twenty-two. The sentence was based primarily on three aggravating factors: Aggravating factor three, the risk defendant will commit another offense;
factor six, the extent of defendant’s prior record, which the court found “very extensive;” and factor nine, the need for deterrence. The court noted that, as a juvenile, defendant had
the benefit of probation and went to a juvenile correction facility, which did not deter him. Moreover, defendant had ten petitions against him as a
juvenile which resulted in eight adjudications. At the time of the sentencing, defendant pled guilty to two drug charges and resisting arrest. Pursuant to his plea agreement, the State
recommended a concurrent five-year prison term and two-year parole disqualifier. There was a maximum of ten years that the trial court could have sentenced defendant, which was available
in light of the negative factors in defendant’s history. As a result, the trial court properly found the aggravating factors to outweigh the mitigating factors.