April 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JERMAR PLEDGER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-12-1489.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 13, 2007
Before Judges Collester and C.S. Fisher.
On December 16, 2004, defendant Jermar Pledger was indicted on the following charges: third-degree possession of cocaine, contrary to N.J.S.A. 2C:35-10(a)(1), (count one); third-degree possession of cocaine with intent to distribute, contrary to N.J.S.A. 2C:35-5(b)(3), (count two); third-degree possession of cocaine with intent to distribute within 1,000 feet of school property, contrary to N.J.S.A. 2C:35-5(a)(1), (count three); third-degree resisting arrest by using or threatening to use force against law enforcement officers, contrary to N.J.S.A. 2C:29-2(a), (count four); fourth-degree resisting arrest by purposely preventing law enforcement officers from effecting an arrest, contrary to N.J.S.A. 2C:29-2(a), (count five); and fourth-degree obstructing the administration of the law, contrary to N.J.S.A. 2C:29-1, (count six).
Tried to a jury, defendant was acquitted on counts one, two, three, and five. The jury found defendant guilty of count four, resisting arrest, and count six, obstructing the administration of the law. On December 10, 2005, Judge John S. Triarsi sentenced defendant to a three-year period of probation conditioned upon serving 364 days in the Union County Jail. Defendant was also assessed the $100 VCCB penalty, a $150 SNSF penalty, and a $30 LEO penalty. Defendant appeals his conviction setting forth the following arguments for our consideration:
POINT I -- DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE PROSECUTION ELICITED FROM DEFENDANT THAT HE HAD A PRIOR CONVICTION FOR ELUDING THE POLICE. (Not Raised Below.)
POINT II -- DEFENDANT'S CONVICTIONS MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL, IN THAT COUNSEL "OPENED THE DOOR" TO THE PROSECUTION'S ELICITING THAT DEFENDANT HAD BEEN CONVICTED OF A SIMILAR CRIME TO THOSE FOR WHICH HE WAS BEING TRIED. (Not Raised Below.)
The relevant facts at trial were as follows. On September 17, 2004, Detective Lawrence W. Smith of the Elizabeth Police Department and Officer Daniel Merten went to the area of Lafayette and Catherine Streets in Elizabeth after receiving information from an informant that narcotics were being sold. The officers arrived at approximately 6 p.m. to conduct surveillance from an unmarked car parked 100 feet away from the corner of Lafayette and Catherine where a group of men were congregated.
After about ten minutes, the officers saw defendant walk across the street to a point within forty or fifty feet from where the officers were parked. The officers observed what they believed to be a drug transaction with a woman who had arrived at the scene. Smith radioed for backup officers to pick up the defendant while he and Merten got out of the undercover car to approach the woman. When the unmarked car arrived, the defendant fled, and Smith and Merten decided to pursue him on foot. Smith yelled, "Police," and ordered defendant to stop. The chase continued for a few blocks until defendant was tackled by one of the officers. Defendant struggled with police until he was subdued, handcuffed, and taken into custody.
Defendant testified on his own behalf at his trial that he did "tussle" with the police during his arrest. He also stated that he did not hear the police announce themselves and that he ran because he was scared when the police pulled up on the wrong side of the street. During the course of his direct examination the following dialogue took place:
Q: Jermar, have you ever been in trouble with the law before?
A: Yes, I have.
Q: What did you do?
A: It was eluding charge.
Q: And when did you get -- pick up -- when were you charged with the eluding charge?
A: I don't know exact dates. I don't know the exact dates but it was awhile back, though.
Q: Were you convicted of that charge?
THE COURT: If you want to lead him, you can, if you have the information. Do you remember when you went before the court?
THE WITNESS: I think -- it was awhile ago.
I'm not good with dates or anything.
THE COURT: All right. You can lead him, if you want.
Q: But you were placed on probation for that charge?
Q: And are you serving your time for that charge?
A: Yes, I am.
Q: And you are reporting as you are required to do and you learned your lesson from that offense --
A: Yes, I have.
Q: -- right? Have you had any other problems with the law?
The assistant prosecutor began cross-examination of defendant as follows:
Q: Jermar, you were convicted of eluding?
A: Yes, I was.
Q: And that's a felony, correct?
Q: And was this a third degree felony?
A: Yes, it was.
Q: That makes you a convicted felon, correct?
Q: And for that you pled guilty to these charges?
A: Yes, I plead guilty because I was guilty for these charges.
Q: And you got three years probation when you pled guilty?
A: Two years probation.
Q: Two years probation?
Q: For eluding the police?
Subsequently, in the charge to the jury Judge Triarsi stated the following:
Now, we heard the defendant testify that he was previously convicted of a criminal offense. This evidence may only be used by you in determining his credibility or believability as a witness before you. You may not conclude that because he committed the crime and he admitted to the eluding we heard about that he is more likely to commit the crime before us because he has a propensity to commit the crime because he had a prior criminal conviction.
Our scope of review in the absence of objection to the testimony or charge of the court is the "plain error" standard of whether the alleged error was "clearly capable of producing an unjust result." R. 2:10-2; R. 1:7-2.
Defendant argues that he was denied a fair trial by the failure of the trial judge to "sanitize" his prior conviction for eluding as required by State v. Brunson, 132 N.J. 377, 384- 88 (1993). In that case, the Supreme Court held that when a testifying defendant has previously been convicted of a crime that is the same or similar to the crime for which he or she is being prosecuted, the State may introduce evidence of the prior conviction only as to the degree of the crime and the date of the offense and not of the specific crime for which defendant was convicted. Id. at 391.
The State acknowledges that the defendant's prior conviction for eluding the police was similar to the trial charges of resisting arrest and obstructing the administration of the law. However, the State argues that the Brunson requirement of "sanitizing" the earlier conviction is inapplicable because the evidence was adduced by the defense during defendant's direct examination.
We have previously held that if the defendant or defendant's counsel is responsible for trial error, we will reverse under the plain error standard only if it "cut(s) mortally into the substantive rights of the defendant." State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974). In the instant case, it was defendant's counsel who first inquired as to whether defendant had been convicted of a crime, and it was defendant himself who stated that the prior offense was "eluding." The obvious purpose of the testimony was to illustrate defendant's good character as permitted by N.J.R.E. 404(a)(1), since defendant testified that he admitted his guilt to the prior offense because he was guilty, that he was complying with the requirements of his probation, and that he had "learned his lesson" from the prior offense. Since defendant admitted to the conviction, he "opened the door" to cross-examination about the factual components of the prior offense or offenses. State v. Thomas, 76 N.J. 344, 361 (1978); State v. Buffa, 51 N.J. Super. 218, 233 (App. Div. 1958),aff'd, 31 N.J. 378, cert. denied, 364 U.S. 916, 81 S.Ct. 279, 5 L.Ed. 2d 288 (1960); State v. Witcher, 58 N.J. Super. 464, 469 (App. Div. 1959); see also State v. Ernst, 32 N.J. 567, 583 (1960), cert. denied, 364 U.S. 943, 81 S.Ct. 464, 5 L.Ed. 2d 374 (1961) (in which our Supreme Court termed "frivolous" the defense assertion that a jury cannot draw negative conclusions about credibility from a defendant's prior convictions if they are raised on direct examination). Accordingly, in the case at bar we find that defendant's argument as to "sanitizing" his prior conviction under Brunson is without merit. R. 2:11-3(e)(2).
Defendant also argues that his convictions must be reversed due to ineffective assistance of trial counsel under the standards of Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 2064, 80 L.Ed. 2d 674, 692-93 (1984), and State v. Fritz, 105 N.J. 42, 58 (1987). We decline to reach this issue since, as a matter of general policy, claims of ineffective assistance of counsel are better suited for post-conviction review because at that time a record may be developed in which counsel may explain the reasons for his conduct so that the reviewing judge can properly address the issue. State v. Preciose, 129 N.J. 451, 460-61 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991). Therefore, we do not address the issue on direct appeal except to acknowledge that defendant has the right to raise the question of ineffective assistance of counsel in a petition for post-conviction relief pursuant R. 3:22-1 to -12.
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