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State v. Evans

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 9, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
AKRAM EVANS, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 04-11-03481.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 6, 2006

Before Judges A. A. Rodríguez and Sabatino.

After causing a fatal accident while intoxicated, defendant Akram Evans pleaded guilty on October 27, 2005 to first-degree vehicular homicide committed while driving with a suspended license, in violation of N.J.S.A. 2C:11-5b(3)(a), and second-degree assault by motor vehicle while intoxicated near a school zone, in violation of N.J.S.A. 2C:12-1c(3). At the same proceeding, defendant also pleaded guilty to several counts of two separate accusations involving crimes that occurred on dates different from the fatal accident: third-degree conspiracy to distribute cocaine, a controlled dangerous substance (CDS), in violation of N.J.S.A. 2C:35-5; second-degree distribution of CDS within a school zone, in violation of N.J.S.A. 2C:35-7; and fourth-degree resisting arrest, in violation of N.J.S.A. 2C:29-2a.

The indictment for vehicular homicide arose out of defendant's operation of a car on June 23, 2003 after reportedly ingesting large quantities of gin. He crashed the car into a police vehicle, killing a patrolman who was a passenger inside. After the fatal accident, testing showed that defendant had a blood alcohol concentration of .181, well over the legal limits, and also had cocaine in his system. The separate accusations were based upon defendant's possession and distribution of narcotics on March 14, 2005 and again on September 10, 2005.

Defendant's guilty pleas were entered in accordance with a plea agreement, in which the State agreed to dismiss additional charges in the indictment arising out of the vehicular homicide, as well as other counts in the separate accusations charging defendant with other drug offenses and burglary. In the written plea form he signed on October 24, 2005, defendant acknowledged that the State had agreed to recommend a fifteen-year sentence, with an eighty-five percent period of parole ineligibility, on the first-degree crime in the indictment. The plea form also noted the State's recommendation for each of the convictions on concurrent terms of five years and of three years on the separate accusations, with those terms to run consecutively to the fifteen-year term recommended on the indictment. The form also indicated that in the absence of a plea agreement, defendant could have faced an aggregate of over forty-one years in prison. All of this was reaffirmed at the plea proceeding.

The Law Division sentenced defendant on January 6, 2006. Consistent with the prosecutor's recommendations in the plea agreement, the sentencing judge imposed an aggregate term of twenty years. With respect to the indictment, the sentence consisted of a fifteen-year term on the first-degree vehicular homicide offense, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2a, plus a concurrent seven-year term on the resisting arrest offense. With respect to the CDS-related accusations, the judge imposed an aggregate five-year sentence, to run consecutively to the fifteen-year sentence on the indictment. Appropriate fines and penalties were also levied.

During the interval between the entry of defendant's plea and the sentencing, the court received from defendant what were purported to be certain medical documents. The documents, based upon information gleaned from other sources, proved to be falsified. Defendant then moved to recuse the judge who had accepted defendant's guilty pleas, because the judge had seen the documents and had learned they were falsified. The judge denied the recusal motion.

On appeal, defendant solely challenges the terms of his sentence. We find his arguments to be without merit.

As a threshold matter, defendant argues that the sentencing judge wrongfully failed to recuse himself after learning about the falsified arguments. Defendant portrays the judge as the victim of a crime, who should not have been thereafter permitted to impose sentence upon defendant for other offenses. We disagree.

Rule 1:12-1(f) provides for the disqualification of a judge for reasons "which might preclude a fair and unbiased hearing and judgment, or which reasonably might lead counsel or the parties to believe so." See also N.J.S.A. 2A:15-49; State v. Horton, 199 N.J. Super. 368, 377 (App. Div. 1985). A fundamental basis for a judge's disqualification is the existence of a "'personal interest in the case or the manifestation of malice or ill will towards the accused.'" Mackler v. Bd. of Educ., 16 N.J. 362, 368 (1954), quoting Freudenreich v. Mayor and Counsel of Borough of Fainview, 114 N.J.L. 290, 293 (E. & A. 1935). It is generally within the judge's sound discretion whether he should disqualify himself. State v. Flowers, 109 N.J. Super. 309, 311-12 (App. Div. 1970).

Applying these well-established standards, we discern no misapplication of discretion in the judge's denial of the recusal motion. The falsified medical documents supplied to the court played no role in defendant's sentencing, and were neither discussed nor relied upon. The sentence was entirely consistent with the negotiated terms of the plea agreement. There are simply no objective indicia of personal ill will or malice. The judge patiently and conscientiously listened to statements made by defendant's parents, sister, and the mother and grandmother of his child, along with speakers related to the victim. The judge also considered the allocution by defendant himself, without interruption or denigration. There is not a whiff in the record of personal animosity from the judge arising out of defendant's ill-considered submission of falsified documents.

Defendant analogizes the circumstances here to those in State v. Muraski, 6 N.J. Super. 36, 37-38 (App. Div. 1949), in which a magistrate was obligated to recuse himself because a litigant had nearly run him over in his vehicle, causing the magistrate to swear out a complaint against that individual. The present case is distinguishable. Unlike in Muraski, the sentencing judge here was not the personal victim of defendant's wrongful conduct. If we were to accept defendant's argument that recusal is mandated just because a litigant sent a judge a letter containing misrepresentations, such a rule would encourage unwholesome forum-shopping, as litigants in the future might try to transmit such communications with a strategic design to remove the judges assigned to their cases. We thus decline to adopt defendant's request to extend Muraski to this case.

Defendant separately argues that his sentence was manifestly excessive. We disagree. The judge cited numerous valid aggravating factors to support the sentence, including but not limited to defendant's two prior adult convictions in 1995 and 2002. Given the severity of defendant's present wrongdoing, which led to the death of a uniformed officer, we have no hesitation in affirming the judge's sentence, one that was totally consistent with defendant's plea agreement. State v. Roth, 95 N.J. 334, 363-64 (1984). The consecutive term imposed for the drug offenses committed on other dates also was reasonable and is justified under the precepts of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d. 308 (1986). Lastly, we perceive no unconstitutionality in the sentence under State v. Natale, 184 N.J. 458 (2005), as the sentences did not exceed any former statutory presumptive terms.

Affirmed.

20070709

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