July 16, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL PARSONS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Indictment No. 05-10-0340.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2008
Before Judges A. A. Rodríguez and C. L. Miniman.
Following a jury trial, defendant Daniel Parsons was convicted of third-degree aggravated assault against a police officer acting in the performance of his duties, N.J.S.A. 2C:12-1b(5)(a), and third-degree resisting arrest, N.J.S.A. 2C:29-2a. He was acquitted of a related count of second-degree disarming a police officer, N.J.S.A. 2C:12-11a. The judge granted the State's motion to impose an extended term as a persistent offender, merged the convictions and imposed a ten-year term with a five-year parole disqualifier. Defendant agreed to pay $15,000 restitution to the officer's workers' compensation carriers.
Two witnesses testified at trial, both for the State. Penns Grove Police Officer Jason Spera testified that on August 6, 2005 at 1:00 a.m., he was in uniform on patrol in a marked police vehicle near Penn and Pitman Avenues in Penns Grove, a residential area. He saw two people sitting in a parked car with the lights on. Spera wanted to investigate because there had been "multiple complaints" in the neighborhood of trespassers, drug distribution and/or burglaries. Spera exited his vehicle and walked toward the other vehicle. The other vehicle went in reverse down the street. Spera shouted for them to stop, which they did. As Spera approached the vehicle on the driver's side, he saw that the driver was a female. He recognized defendant as the passenger. He knew that defendant had an open arrest warrant. Defendant opened the passenger door and tried to exit quickly. Spera shouted that defendant was not free to leave. Spera confronted defendant, who threw out his arms and pushed Spera backwards.
Defendant fled. Spera caught up to him within a few feet. Defendant resisted. Spera tripped on the curb, falling backwards and hitting his head. Defendant fell on top of Spera and punched him several times with a closed fist in the face. Spera moved his hand up to protect his face. He felt defendant move his hand toward the officer's waist. Spera then moved his hand down to protect his handgun. Eventually, Spera was able to get on top of defendant.
Penns Grove Police Officer Burt Torres testified that he came on the scene and sprayed defendant in the face with pepper spray. After some difficulty, Torres eventually got sufficient control over defendant to handcuff him. At this point, Spera noticed that his holster was empty. He found his handgun on the ground underneath defendant's chest area. Torres also testified that he saw Spera's handgun on the ground where defendant had been laying. As the result of this incident, Spera sustained: a cut to his upper lip, which needed two stitches; a bite mark on his left bicep; a torn ligament in his pinky finger, which was in a splint for eight weeks; abrasions to the back of his head, his shin and knees; and soft tissue injuries to the lower part of his nose.
On appeal, defendant contends:
THE TRIAL COURT'S REFUSAL TO EXTEND THE TRIAL DATE WAS REVERSIBLE ERROR BECAUSE PARSONS WAS RENDERED INEFFECTIVE ASSISTANCE OF MULTIPLE TRIAL COUNSEL WHO FAILED TO INVESTIGATE THE FACTS UNDERLYING HIS DEFENSE AND WHO FAILED TO FILE TIMELY PRE-TRIAL MOTIONS (1) TO HAVE THE STATE PRODUCE ALL OF OFFICER SPERA'S MEDICAL RECORDS FOR THE BODILY INJURIES THAT HE ALLEGEDLY RECEIVED AS THE RESULT OF THE INCIDENT AND (2) FOR SUPPRESSION OF THE TESTIMONY AS TO EVENTS RESULTING FROM THE ILLEGAL STOP THEREBY NOT BEING READY TO PROCEED AT TRIAL WITH HIS DEFENSE. (U.S. CONST. AMENDS. VI & XIV; N.J. CONST. ART. I, PARAS. 7 & 10).
The contention is based on the fact that defendant had three assigned attorneys prior to trial. According to defendant, the first one did not make a motion that Parsons requested. The second never met with him. The third was assigned approximately four days before the trial. Defendant moved for a continuance because he believed that his attorneys had not properly prepared for trial. Designated trial counsel indicated that he was ready to go. The judge denied the motion.
Defendant wanted trial counsel to request a preliminary probable cause hearing and file a motion to suppress evidence resulting from the stop. We reject these contentions. The decision to deny a motion for an adjournment rests with the sound discretion of the trial judge. State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.), certif. denied, 58 N.J. 335 (1971). This applies to a decision on a request for an adjournment for a criminal defendant to obtain new counsel. State v. McLaughlin, 310 N.J. Super. 242, 259 (App. Div.), certif. denied, 156 N.J. 381 (1998).
Here, we find no abuse of discretion. The third trial counsel indicated that he was ready to proceed. The judge relied on that representation and properly rejected defendant's assessment that counsel was not ready.
With respect to the allegations that counsel did not request a probable cause hearing, we note this request came after defendant was indicted. Because the Grand Jury returns an indictment upon a finding of probable cause, a probable cause hearing would have been duplicative. See State v. Mitchell, 164 N.J. Super. 198, 201-02 (App. Div. 1978).
The claim that counsel was ineffective for not filing a motion challenging the automobile stop is preserved should defendant file a petition for post-conviction relief (PCR).
Defendant also contends:
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
We are not persuaded. First, we note that our review is limited to the plain error standard because there was no objection at trial to Officer Spera's testimony regarding his injuries. See R. 2:10-2. Moreover, "bodily injury" is an element of assault. See N.J.S.A. 2C:12-1. Therefore, the testimony was probative and relevant to the issue at trial. We perceive no error, let alone plain error, in its admission. See State v. Douglas, 204 N.J. Super. 265, 273 (App. Div.), certif. denied, 102 N.J. 378 (1985) and 102 N.J. 393 (1986).
Defendant also contends that:
SPERA'S TESTIMONY THAT UPON RECOGNIZING PARSONS, HE KNEW THAT PARSONS HAD AN OPEN ARREST WARRANT SHOULD HAVE BEEN EXCLUDED (1) UNDER N.J.R.E. 404(b) AND (2) BECAUSE THE TRIAL COURT FAILED TO GIVE A LIMITING INSTRUCTION IN ITS FINAL CHARGE TO THE JURY AND BECAUSE THE INSTRUCTION THAT IT GAVE TO THE JURY WHEN THAT TESTIMONY WAS INTRODUCED WAS INSUFFICIENTLY DETAILED TO IDENTIFY THE LIMITED PURPOSE FOR WHICH THAT TESTIMONY WAS TO BE CONSIDERED BY THE JURY. (U.S. CONST. AMENDS. VI & XIV; N.J. CONST. (1947) ART. I, PARA. 10).
We disagree. First, we note that the judge did give a limiting instruction at the time the testimony was received. The judge instructed:
Ladies and gentlemen, the instruction that I've been asked to give is simply the officer has just mentioned that there was an active warrant for [defendant]. As you probably know, warrants -- warrants for arrest can -- or warrants for non-payment of child support, warrants for non-payment of traffic tickets, warrants for all sorts of things, my point in interrupting here is just to suggest to you that you should not draw any adverse inferences that [defendant] is somehow a fugitive, a criminal or something of that sort.
A warrant for someone could arise out of a lot of things, some serious, yes, but also some very minor and benign events as well, so don't draw any inference from the fact that there was a warrant outstanding for [defendant]. That's not what he's here for today as you well know.
We note that defense counsel did not request a similar instruction at the end of the case.
Second, the fact that Spera knew that there was a warrant for defendant's arrest is part of the overall interaction between the officer and defendant. It explained why Spera went over to inspect the parked vehicle in which defendant was sitting. We find it admissible and the limiting instruction wholly proper under the circumstances.
Finally, defendant challenges his sentence, contending:
PARSONS' EXTENDED MAXIMUM TEN-YEAR PRISON TERM WITH FIVE YEARS OF PAROLE INELIGIBILITY SHOULD BE REVERSED AS ILLEGAL.
We strongly disagree. Defendant was thirty-six-years old at the time of the offense. He has a history of ten convictions for indictable offenses, twenty-two disorderly persons convictions and a substantial number of juvenile delinquency adjudications.
The judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk that defendant will commit another offense; (6) the extent and seriousness of defendant's prior criminal record; and (9) the need for specific and general deterrence from violating the law. The judge found none of the mitigating factors listed in N.J.S.A. 2C:44-1b and imposed concurrent terms aggregating ten years and a five-year parole disqualifier.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. O'Donnell, 117 N.J. 210, 215-16 (1989). The aggravating factors preponderate and justify imposition of a maximum period of parole ineligibility. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. Ibid. The sentence does not shock our judicial conscience.
We also conclude that the sentences comply with the mandates of State v. Pierce, 188 N.J. 155, 167-69 (2006), where the Court held that: (1) the judge's fact-finding regarding prior convictions pursuant to the persistent offender statute did not violate defendant's right to a trial by jury; and (2) the top of the sentencing range is the top of the extended-term range.
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