January 11, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AHMAD JONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 04-12-2798.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 18, 2007
Before Judges Skillman and Yannotti.
Defendant Ahmad D. Jones was charged under Monmouth County Indictment No. 04-12-2798 with second-degree eluding, contrary to N.J.S.A. 2C:29-2b. Defendant was tried to a jury and found guilty. He appeals from the conviction and the sentence imposed. For the reasons that follow, we affirm.
At trial, the State presented testimony from Officer Steven Adams of the Red Bank police department. Adams stated that on October 4, 2004, he was working the shift from 2:45 p.m. to 12:00 a.m. At around 5:45 p.m., Adams was traveling south on Leighton Avenue and he observed an older model Nissan Pathfinder with an expired inspection sticker traveling northbound. Adams activated the lights on his police vehicle and made a U-turn. Adams followed the Pathfinder but the vehicle did not pull over and increased its speed.
Adams activated his siren. He testified that the area of Leighton Avenue is a residential area, where houses are close together, and parking is allowed on both sides of the street. Adams stated that along that street, people are constantly getting into and out of their cars, and there are people on bicycles. He said when he was pursuing the Pathfinder, there were people on the sidewalk.
Adams testified that the speed limit on Leighton Avenue is twenty-five miles per hour and the Pathfinder was traveling at least sixty-five miles per hour. The vehicles rapidly approached a "T" intersection where Leighton meets Locust Avenue. There is a stop sign at the intersection and the vehicles must turn right or left. According to Adams, the Pathfinder was traveling at a high rate of speed, and turned left onto Locust Avenue, where the driver temporarily lost control of the vehicle, and drove up on the curb, onto the sidewalk, and back down into the street. Adams continued in pursuit. He made the left turn onto Locust and caught up to the Pathfinder.
Adams stated that the Pathfinder slowed significantly and the driver started to open the side door of the vehicle. Adams also slowed down. Adams said that he was going to exit his vehicle when the door of the Pathfinder closed and continued along Locust Avenue. Adams noted that that part of Locust Avenue is a residential area, although it is not as crowded as Leighton Avenue. There are two large apartment complexes in the area. The Pathfinder pulled into the complex at 105 Locust. Adams' lights and siren were still on.
According to Adams, the Pathfinder stopped abruptly. Adams positioned his vehicle about seven to ten feet behind the Pathfinder. He ordered the driver to exit the vehicle and show him his hands. The driver did not comply. Adams said that he opened the door of the Pathfinder and put the driver "into a hold to get him out of the vehicle." The driver stated that he would not go to jail for Adams or anyone else. Adams gained control of the driver and placed him on the ground. Adams ascertained that the driver was defendant, Ahmad Jones. He identified him in court as the person who was driving the Pathfinder on October 4, 2004.
Defendant did not testify at trial but called Joshua Meekings as a witness in his defense. Meekins testified that he has known defendant for about seven years and he considers him a friend. Meekins said that on October 4, 2004, he was exiting a liquor store on the corner of Leighton and Catherine Avenues. He saw defendant drive by in his vehicle. Defendant was traveling "pretty fast." Meekins saw defendant's vehicle pass over a speed bump and he heard "a loud sound."
Meekins stated that the police officer made a U-turn on Leonard Street and sped off in the same direction as defendant. Defendant and the officer headed towards Locust Avenue, where defendant turned left. Meekins said that the police car did not have its lights on. Meekins also stated that he did not hear a siren. He did not see the vehicles after they turned left onto Locust Avenue.
On this appeal, defendant raises the following contentions:
THE DEFENADNT'S CONVICTIONS MUST BE REVERSED AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (Not raised below).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We first consider defendant's contention that the jury's verdict is against the weight of the evidence. Defendant argues that the evidence supporting the charge was insufficient because the State relied entirely upon Adams' testimony. Defendant contends that Adams' testimony was uncorroborated and the officer's credibility was undermined by Meekins' testimony. Defendant maintains that reasonable doubt "clearly existed" as to his guilt. He therefore argues that the verdict should be set aside and a new trial ordered.
We note initially that defendant did not move before the trial court for a new trial. Because that motion was not made, the issue of whether the verdict is against the weight of the evidence is not properly before us. R. 2:10-1. Nevertheless, in the interest of justice, we have decided to consider defendant's argument. State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div. 1993).
Rule 3:20-1 provides that a jury verdict will not be set aside "as against the weight of the evidence unless, having due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." In determining whether a defendant is entitled to a new trial under that standard, "[w]e must sift through the evidence 'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Smith, supra, 262 N.J. Super. at 512 (quoting State v. Carter, 91 N.J. 86, 96 (1982)). Furthermore, "[w]here the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." Ibid. (citing State v. Haines, 20 N.J. 438, 446-47 (1956)).
Here, defendant was charged with second-degree eluding. The Code of Criminal Justice provides in pertinent part that:
Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. . . . [N.J.S.A. 2C:29-2b.]
We are satisfied that the State presented sufficient evidence to support defendant's conviction of second-degree eluding. As we pointed out previously, Adams and Meekins testified that defendant was driving his vehicle at a high rate of speed. Adams stated that he activated the lights and siren on his police vehicle. Adams also said that defendant did not bring his vehicle to a stop but continued to drive away from the police car at speeds of up to sixty-five miles per hour. In addition, Adams testified that during the chase, members of the public were at risk of injury. Adams said that, while he was pursuing the Pathfinder, he observed pedestrians entering or exiting their vehicles, walking on the sidewalk, and riding bicycles.
Although defendant maintains that Adams' testimony was not credible, that was an issue for the jury. See Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 494 (1956) (noting that credibility is a jury question when people "of reason and fairness may entertain differing views as to the truth of testimony"); State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001) (holding that the jury may accept or reject any testimony on credibility grounds). We are satisfied that the jury in this case had the discretion to accept Adams' testimony and his testimony provided a rational basis for the jury's verdict finding defendant guilty of second-degree eluding.
Defendant additionally argues that his sentence is excessive and was not imposed in conformity with the Code of Criminal Justice. At sentencing, the judge found aggravating factors under N.J.S.A. 2C:44-1a(3) (risk that defendant will commit another offense), and N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge found no mitigating factors. The judgment of conviction expressly states that the judge was convinced that the aggravating factors substantially outweighed the mitigating factors. Defendant was sentenced to nine years of incarceration, with a three-year period of parole ineligibility. The judge ordered that the sentence would be served concurrently with the sentences imposed on Indictment No. 06-03-0527 and Accusation No. 06-05-1079A.*fn1
Defendant argues that an appropriate sentence in this case should have been the minimum second-degree sentence of five years or, at most, a mid-range sentence of seven-and-one-half years. Defendant further argues that the judge erred by failing to provide adequate reasons for imposing a three-year period of parole ineligibility.
We disagree with these contentions. We are satisfied that judge provided ample justification for the sentence and the period of parole ineligibility. We also are satisfied that the sentence is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).