July 18, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
STEVE MARKS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-02-0422.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 23, 2008
Before Judges Lihotz and Simonelli.
A jury convicted defendant Steve Marks of third degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(3) (count one); second degree eluding police officers Thomas Matthews (Matthews) and/or Corporal Joseph Fiore (Fiore) of the Howell Township Police Department, contrary to N.J.S.A. 2C:29-2b (count two); third degree aggravated assault on Matthews, contrary to N.J.S.A. 2C:12-1b(1), N.J.S.A. 2C:12-1b(5)(a) and N.J.S.A. 2C:12-1b(2) (counts three, five and eight respectively); and second degree aggravated assault on Matthews while eluding, contrary to N.J.S.A. 2C:12-1b(6) (count nine).*fn1 Judge Uhrmacher sentenced defendant to a four-year term of imprisonment on count one, and a concurrent five-year term of imprisonment on count two. The judge merged counts three, five and eight into count nine and sentenced defendant on count nine to a consecutive five-year term of imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and a three-year period of parole supervision. The judge also suspended defendant's driver's license for one year and imposed the appropriate assessments and penalty.
On appeal, defendant raises the following contentions:
DEFENDANT WAS ENTITLED TO A JUDGMENT OF ACQUITTAL BECAUSE THERE WAS NO COMPETENT EVIDENCE THAT THE STEVEN MARKS WHO WAS ARRESTED WAS THE DEFENDANT ON TRIAL. (Partially Raised Below)
DEFENDANT'S CONVICTION FOR ELUDING SHOULD BE MERGED INTO HIS CONVICTION FOR AGGRAVATED ASSAULT BY ELUDING. (Not Raised Below)
DEFENDANT'S SENTENCE SHOULD BE REDUCED
(Not Raised Below)
We reject these contentions and affirm.
The following facts are summarized from the record. On the afternoon of October 24, 2004, Sandra Solly (Solly) was in the front yard of her home on Birdsall Road, Howell Township, when she observed a blue pickup truck pull into her driveway. The passenger stepped out of the truck, approached Solly, and told her he had to see her property because he was installing a fence for a neighbor. Solly and the man began walking toward the back of her house, but Solly had second thoughts and returned to her front yard. The man returned to the truck and left. A few minutes later, Solly observed the truck and the man at the home of a 90-year-old neighbor. Solly yelled to the man. The man then entered the truck and the truck left the area. Solly reported the incident to the police, describing the man as about five-feet, five inches tall, and Hispanic.
The police dispatcher broadcasted over the radio to be on the lookout for two Hispanics in a dark colored pickup truck in the area of Birdsall Road. Fiore, accompanied by another patrol car, observed the truck traveling toward Freehold. The officer in the other patrol car signaled to the truck to stop by turning on the patrol car's lights.
Simultaneously, Matthews arrived in his patrol car, and noticed the truck was heading toward him. He observed two occupants in the truck. Defendant was later identified as the driver. Defendant accelerated the truck into the on-coming lane of traffic. Matthews then activated his lights and siren, and a ten-mile, high-speed chase ensued, at times reaching one hundred miles per hour. Matthews never lost sight of the truck, and observed it exceed the speed limit, disregard stop signs, travel or swerve into the on-coming lane of traffic, at times passing other vehicles and forcing them off the road, and strike another vehicle while attempting to drive in-between two vehicles stopped at a red light.
The truck eventually jumped a curb and went down an embankment into a ravine. Matthews stopped his vehicle and placed it in a position blocking the truck. The truck fishtailed and drove toward Matthews. Matthews observed defendant and his passenger, and observed the truck strike his patrol car, pushing it across the roadway. Matthews injured his knee as a result of the impact, and could not work for approximately four months.
Defendant continued driving. Fiore observed the truck and began following it. He also observed the driver. Fiore lost sight of the truck, but later observed it pull to the side of the road to let the passenger exit. Defendant turned the truck around and sped toward Fiore in the opposite direction of traffic in that lane. Fiore activated his overhead lights, exited his patrol car, drew his weapon, and pointed it at defendant, making eye contact. Defendant swerved to the right and stopped. Fiore ran to the vehicle and pulled defendant out. Although defendant grabbed Fiore and pushed him, Fiore took defendant to the ground and handcuffed him. While on the ground, defendant attempted to roll onto Fiore.
Fiore read defendant his Miranda*fn2 rights. At police headquarters, defendant spoke to Detective Robert Ortenzi. Defendant denied he was the driver, and said that two men were holding a knife to him while he was in the truck. A search of the truck revealed walkie-talkies and two pocketknives, which were folded and tucked into a crevice in the front seat. The truck was registered to David Marks. At police headquarters, Matthews identified a person in a photograph as the passenger, who was David Marks.
At the plea cutoff hearing, Judge Uhrmacher advised defendant of the trial date. Defendant signed the notice of trial, and acknowledged that if he failed to appear, the trial would proceed in his absence. Defendant failed to appear for trial, and was tried in absentia. At trial, Matthews identified an exhibit as a photograph of the driver of the truck; Fiore identified the same exhibit as a photograph of the person he saw driving the truck, and the person he arrested; and Ortenzi identified the same photograph as the person to whom he spoke at police headquarters.
After the close of the State's case, defendant made a motion for judgment of acquittal based on the insufficient identification of him as the driver. Relying on State v. Reyes, 50 N.J. 454, 458-59 (1967), Judge Uhrmacher denied the motion.
Defendant first contends the judge erred in denying his motion and should have entered a judgment of acquittal on all counts, including those involving Fiore. Defendant concedes the State produced competent evidence to prove that the individual identified as Steven Marks, who was arrested at the scene, was the perpetrator of the crime. However, he contends that the State failed to prove that the Steven Marks who was arrested at the scene was the same person who was on trial because no in court identification was made. This contention lacks merit.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal. State v. Johnson, 287 N.J. Super. 247, 268 (App. Div.) (citing State v. Moffa, 42 N.J. 258, 263 (1964)), certif. denied, 144 N.J. 587 (1996); State v. Tarver, 272 N.J. Super. 414, 425 (App. Div. 1994). We must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony, as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." Reyes, supra, 50 N.J. at 459 (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), certif. denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962)); see also State v. Spivey, 179 N.J. 229, 236 (2004); State v. Josephs, 174 N.J. 44, 81 (2002); R. 3:18-1.
"A defendant may not 'take advantage of his own wrong' and turn the proceedings into a 'solemn farce' by absenting himself from his own trial and thereby frustrate the legal process of justice." State v. Givens, 353 N.J. Super. 280, 285 (App. Div. 2002) (quoting Diaz v. United States, 233 U.S. 442, 458, 32 S.Ct. 250, 255, 56 L.Ed. 500, 506 (1912)). Here, defendant voluntarily chose to absent himself from the trial, thus requiring the State to utilize photographs to identify him as driver of the truck. Accordingly, those photographs were properly admissible. State v. Lynch, 177 N.J. Super. 107, 116 (App. Div.), certif. denied, 87 N.J. 347 (1981). Defendant was positively identified by three witnesses as the person in the photograph who was the driver of the truck. The judge properly denied the motion.
Defendant next contends, for purposes or sentencing, that the judge should have merged conviction for second degree eluding, contrary to N.J.S.A. 2C:29-2b (count two), into his conviction for second degree aggravated assault while eluding, contrary to N.J.S.A. 2C:12-1b(6) (count nine), because the eluding is a lesser-included offense of aggravated assault. We disagree.
A defendant may not be convicted of more than one offense if one offense is included in the other. N.J.S.A. 2C:1-8a; State v. Miller, 108 N.J. 112, 116 (1987). An offense is considered included in another if the first offense is established by proof of the same or less than all the facts required to establish the commission of the second offense. N.J.S.A. 2C:1-8d(1); State v. Battle, 256 N.J. Super. 268, 283 (App. Div.), certif. denied, 130 N.J. 393 (1992).
A person commits a third degree violation of N.J.S.A. 2C:29-2b if, "while operating a motor vehicle on any street or highway . . . [he or she] knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from the officer to bring the vehicle to a full stop[.]" The violation is a second degree crime "if the flight or attempt to elude creates a risk of death or injury to any person." N.J.S.A. 2C:29-2b. A person commits a violation of N.J.S.A. 2C:12-1b(6) if he or she "[c]auses bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of N.J.S.A. 2C:29-2[.]"
Here, defendant was charged with second degree eluding Matthews and/or Fiore, creating a risk of death or injury to both of them. He was also convicted of second degree aggravated assault of Matthews for causing bodily injury to the officer while fleeing. These charges required different proofs, and the evidence was sufficient for the jury to create an inference, not rebutted by defendant, that defendant committed second degree eluding while fleeing either of the officers. Proof of defendant's eluding Fiore was not part of the proof of the aggravated assault on Matthews. Thus, it cannot be said that defendant's conviction for eluding is based on the same facts as his conviction for aggravated assault.
We also reject defendant's contentions that all of his sentences should be concurrent because the objective of all of his crimes was to flee the police, and because the crimes were all part of a single period of aberrant behavior; and that the judge should have ordered the sentence on count nine to be served first.
We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated; determine that findings on aggravating and mitigating factors are based on the evidence; and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. State v. Natale, 184 N.J. 458, 489 (2005); Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.
Based upon our careful review of the record, we discern no occasion to disturb defendant's sentence. A consecutive sentence was supported by the evidence; the judge properly explained the reasons for the sentence; the sentence meets the requirements of State v. Yarbough, 100 N.J. 627, 630 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986); and there was no abuse of discretion in ordering defendant to serve the sentence on count nine after serving the sentence on count one and two.