On appeal from the Superior Court of New Jersey, Law Division, Essex County, 05-01-0053-I, 05-04-0750-I, 05-06-0520-A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein and Yannotti.
An Essex County Grand Jury indicted defendant Ali Patterson, Indictment No. 05-01-0053, charging him with second-degree aggravated assault, N.J.S.A. 2C:12-1b(6) (count one); fourth-degree unlawful possession of a weapon (an automobile), N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon (an automobile) for an unlawful purpose, N.J.S.A. 2C:39-4d (count three); second-degree aggravated assault while fleeing, N.J.S.A. 2C:12-1b(6) (count four); fourth-degree unlawful possession of a weapon (an automobile), N.J.S.A. 2C:39-5d (count five); third-degree possession of a weapon (an automobile) for an unlawful purpose, N.J.S.A. 2C:39-4 (count six); second-degree eluding police, N.J.S.A. 2C:29-2b (count seven); fourth-degree knowingly leaving the scene of an accident, N.J.S.A. 2C:12-1.1 (count eight); and fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1 (count nine).
Prior to trial, count five was dismissed. The jury acquitted defendant of count eight, knowingly leaving the scene of an accident, and convicted him of the remaining charges. At sentencing, after some initial confusion about the charges for which defendant was convicted, the court imposed sentence on the correct convictions. The judge merged count three, possession of a weapon for an unlawful purpose, with count one, aggravated assault while fleeing; and count six, possession of a weapon for an unlawful purpose, with count four, aggravated assault. On count one, a second-degree offense, the court imposed an eight-year prison term with an eighty-five percent period of parole ineligibility. On count two, a fourth-degree offense, the court imposed a concurrent eighteen-month prison term. On count four, a second-degree offense, the court imposed a concurrent eight-year term with an eighty-five percent period of parole ineligibility. On count seven, a second-degree offense, the court imposed a concurrent eight-year term, with an eighty-five percent period of parole ineligibility. Finally, on count nine, a fourth-degree offense, the court imposed a concurrent eighteen-month prison term.*fn1
Defendant had also entered guilty pleas to an additional indictment, No. 05-04-0750, and an accusation, No. 05-06-0520.
On the indictment, defendant entered a guilty plea to third-degree possession of heroin. For that offense, the court imposed a four-year prison term. Under the accusation, defendant entered a guilty plea to third-degree unlawful possession of a weapon, a handgun, and fourth-degree resisting arrest. The court imposed a four-year prison term for the third-degree offense, and an eighteen-month prison term for the fourth-degree offense. The judge made those sentences concurrent with each other and with the sentences under Indictment No. 05-01-0053.
On appeal, defendant raises three legal arguments, all related to his trial under Indictment No. 05-01-0053:
THE ADMISSION OF HEARSAY AND INCLUDED HEARSAY TESTIMONY VIOLATED THE DEFENDANT'S RIGHTS OF CONFRONTATION UNDER THE UNITED STATES AND NEW JERSEY CONSTITUTIONS. U.S. Const., Amend. VI; N.J. Const., Art. I, ¶ 10. (Partially Raised Below).
DEFENSE COUNSEL'S FAILURE TO PROMPTLY OBJECT TO INADMISSIBLE HEARSAY CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below).
INTENTIONALLY ELICITING HEARSAY TESTIMONY IN LIEU OF COMPETENT EVIDENCE ON CRITICAL FACTUAL ISSUES CONSTITUTED PROSECUTORIAL MISCONDUCT. (Not Raised Below).
The trial testimony reveals that around 9:50 p.m. on June 20, 2004, Detective Lisa Rodriguez of the Newark Police Department was off-duty, driving her personal vehicle, with then-police recruit Angel Romero as a passenger. She was driving southbound on North 6th Street, when she noticed a white or tan Hyundai Sonata in her rearview mirror. The driver of the Sonata, who she subsequently identified as defendant, was "flickering" his high beams on constantly, "so people would pull to the side or move out of the way." Rodriguez observed the Sonata hit three cars. She pulled to the side of the street and stopped, after which the Sonata twice struck her vehicle.
Rodriguez approached the driver and identified herself as a police officer. The interior light of the Sonata was on, and she observed that the driver had long "dreds" and a "lazy eye." As she approached, the driver of the Sonata put the car in reverse and drove away. Rodriguez followed the car, and found it in the driveway of a fast-food restaurant. After Romero wrote down the Sonata's plate number, Rodriguez drove off to make a report of the incident.
While Rodriguez's vehicle was stopped at a traffic light, the Sonata again bumped it from behind. Defendant got out of his car. As Rodriguez and Romero approached the Sonata, defendant recognized Rodriguez and attempted to re-enter his car. Rodriguez grabbed the Sonata's door and a struggle ensued.
Defendant pushed her away, put the Sonata in reverse and again drove off, dragging both Rodriguez and Romero fifteen to twenty feet.
Officer Romero presented substantially similar testimony to that of Rodriguez. Both officers identified defendant in court as the driver of the Sonata.
Yolanda Thornton, a former police officer and an employee of the New Jersey Department of Corrections, testified that she witnessed the second confrontation between the officers and defendant. She followed defendant's car to get the license plate number. She had a clear view of the driver of the car as the driver's window was down, or if not down, it was clear, without tint. She identified defendant in court as the driver of the Sonata.
Newark Detective Vincent Consenzo testified that following the incident, he ran a check on the Sonata's license plate; it was registered to Enterprise Rent-A-Car. Consenzo was told by the rental company that Maulaine Noel-Jeune of Union, New Jersey, had rented the Sonata. He located Noel-Jeune at her place of employment and arrested her for outstanding warrants.
While in custody at the police precinct, Noel-Jeune called both her brother and a person named "Naseer." Following Noel-Jeune's telephone conversation with Naseer, she provided information to Consenzo "of who was driving the vehicle when the assault took place." She told him it was defendant. The detective then obtained a photograph of defendant from the county jail where he was being held on other charges. Another officer placed the photograph in a photographic lineup with five other pictures. Detective Rodriguez selected photograph number four, which was defendant's picture.
Noel-Jeune was out of town on the day of the incident. She testified for the State at trial. She testified that she had rented the Sonata and had given it "right away" to a friend, Naseer Jacobs. After Enterprise informed her that the rental car had been in an accident, she and Jacobs retrieved the car and returned it to the rental company. Jacobs had told her that he lent the car to his cousin, "Ra-Ra." During her phone conversation at the police precinct, Jacobs told her that Ra-Ra had passed the car along to an "Ali," who was "locked up" at the time.
Defendant testified. He denied driving the Sonata on the night in question and claimed that he did not know Jacobs, Noel-Jeune, or anyone named Ra-Ra. He also testified that his older brother, Yusef Patterson, had previously used the name Ali. He said his brother's height, complexion, and hair-styling were similar to his.
On rebuttal, Scott Williams, a probation officer, confirmed that defendant's brother had used "Ali Patterson" as an alias; but, he had been incarcerated on the day of the incident.
Defendant's primary defense at trial was misidentification.
He claims he was not the driver of the Sonata. On appeal, he claims the hearsay testimony of Noel-Jeune and Detective Consenzo that related directly to the identification of the Sonata's driver deprived him of a fair trial.
Without doubt, the parties elicited hearsay testimony from Noel-Jeune and Consenzo during the trial. We begin with the testimony of Noel-Jeune, who was called as a witness by the State. When questioned by the assistant prosecutor about whether she was involved in the motor vehicle incident, the transcript reflects the following:
Q: And, were you involved in a motor vehicle accident with that car?
Q: Was Naseer involved in a motor vehicle accident with that car?
A: From what he told me, no, he didn't.
Q: And, when were you advised that you would be responsible for the damage [to the car]?
On cross-examination, defense counsel questioned Noel-Jeune extensively about her conversations with Naseer.
Q: Prior to you returning the vehicle, . . . did you inquire of Naseer if he was involved in any type of motor vehicle accident?
Q: And, what did Mr. Jacobs say?
A: I asked him over the phone after I got the phone call.
Q: He denied any accident?
Q: Did he--did you make any further inquiry as to whether he was always operating this vehicle or the sole operator of this vehicle?
Q: What did Mr. Jacobs inform you?
A: He informed me that his license is not straight. That his cousin Ra-Ra drives it, I think. I'm not sure.
Q: Now, it would be fair to say, since you realized that you were going to be held responsible for any damage to the car that you rented that you probed Mr. Jacobs as to any other drivers of the vehicle that could have been involved in a ...