January 29, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
GREGORY L. BANKS, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-08-0918.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Rodríguez and Payne.
Following a jury trial, defendant Gregory L. Banks was convicted of second-degree eluding a police officer, N.J.S.A. 2C:29-2(b) and fourth-degree resisting arrest, N.J.S.A. 2C:29- 2(a). The judge imposed concurrent terms aggregating eight years. At a simultaneous bench trial, the judge found defendant guilty of the following traffic offenses: fictitious plates, N.J.S.A. 39:3-33; failure to wear a seat belt, N.J.S.A. 39:3-76.2(f); reckless driving, N.J.S.A. 39:4-96; unregistered vehicle, N.J.S.A. 39:3-4; uninsured vehicle, N.J.S.A. 39:6b-2; and unlicensed driver, N.J.S.A. 39:3-10, resulting in the imposition of a total of $600 in fines, a driver's license suspension of twelve months, a $100 VCCB penalty, and a $150 SNSF penalty. We affirm.
Only one witness testified at trial, Fanwood Police Officer Kenneth Zwirko. The State's proofs can be summarized as follows. On May 28, 2005, at approximately 10:43 p.m., Zwirko was on patrol on Terrill Road near Midway Avenue in his marked vehicle. The road conditions were wet. Zwirko saw a black 1986 BMW and conducted a random license plate check. The check revealed that the license plate belonged to a 1988 black Saab, which was unregistered. It was eventually determined that the license plates on the BMW belonged to a deceased person. Zwirko activated his lights and sirens in an attempt to stop the BMW. The driver of the BMW, later identified as defendant, immediately made a left turn onto McCrea Road and accelerated his speed. Zwirko was approximately 150 to 200 feet from the BMW. The vehicle traveled westbound on McCrea, at a fast rate. Then it slowed down, but ran a stop sign, and made a sharp right turn onto Wiley Road, which is in Plainfield.
The BMW traveled north on Wiley and again ran a stop sign causing another vehicle to stop in order to avoid being hit. The BMW swerved around a second vehicle and made a sharp right turn onto Alden Road, attempting to brake on the wet road. However, the BMW spun out of control, struck a curb and came to a complete stop. According to Zwirko, he never lost sight of the BMW. However, he was able to see only the silhouette of the driver.
After the BMW stopped, Zwirko saw defendant get out of the car and run northeast through the yards of residences on Alden Road. Zwirko pursued defendant, yelling, "stop police. Stop, police." Eventually, Zwirko caught defendant, who "immediately put his hands up and he pretty much laid down on the ground . . . ."
On appeal, defendant contends:
THE COURT ERRED IN NOT CHARGING THE JURY WITH THE UNDERLYING MOTOR VEHICLE OFFENSES AND THE PERMISSIBLE INFERENCE IN ORDER TO SUSTAIN A SECOND-DEGREE ELUDING CONVICTION.
Because this issue is raised for the first time on appeal, it must be decided by the plain error standard. To rise to plain error, it must be "clearly capable of producing an unjust result" such that it is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Defendant argues that the proofs were insufficient to support a finding that defendant's conduct created a risk of death or injury to any person. He also argues that the judge erred by not instructing the jury on the elements of the traffic offenses and inference to be drawn from such offense. The inference is found at N.J.S.A. 2C:29-2(b). In relevant part that section provides:
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. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 . . . . [N.J.S.A. 2C:29-2(b) (emphasis added).]
If the State relies on the permissive inference then the jury must be instructed on the elements of the applicable Title 39 offenses. State v. Dorko, 298 N.J. Super. 54, 59-60 (App. Div.), certif. denied, 150 N.J. 28 (1997). However, the State is not required to rely on the inference. Id. at 60-61. In that case, "the State [instead] would be required to prove affirmatively that there was at least one person put at risk within the zone of danger created by defendant's conduct . . . ." Ibid. The eluding statute includes the protection of "the police officers occupying the chasing vehicle and any persons in the eluding vehicle, as well as any people who could potentially be exposed to injury or death along the chase route." State v. Wallace, 158 N.J. 552, 560 (1999). The Court subsequently interpreted the language from Wallace and concluded that "any person" as found in the eluding statute was intended to encompass "all natural persons, including the eluding defendant." State v. Bunch, 180 N.J. 534, 547 (2004). Therefore, beyond a permissive inference, a second-degree attempt to elude can be found as long as it is affirmatively proven that any member of the public, a police officer, or defendant himself could have been injured or killed by defendant's attempt to elude. Ibid.; Wallace, supra, 158 N.J. at 560.
Judged against that standard, we note that the proofs showed that defendant ran a stop sign twice, swerved around other vehicles, causing one to stop suddenly, and lost control of the BMW, spinning out and striking a curb. Therefore, Zwirko, defendant and other motorists were at risk of death or injury due to defendant's conduct. Therefore, we reject the contention that the proofs were insufficient to support the eluding charge.
Defendant's next contention, that "the verdict was against the weight of the evidence," is procedurally barred. A claim that a jury verdict was against the weight of the evidence may be reviewed only if appellant first moved for a new trial on that basis. R. 2:10-1. See State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974).
Although we may refuse to consider such issue on appeal in the absence of a new trial motion, here we choose to proceed on the merits in the interest of justice. R. 2:10-2. See State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993); State v. Pickett, 241 N.J. Super. 259, 266 (App. Div. 1990).
A trial judge's ruling on a new trial motion shall not be reversed "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. See State v. Perez, 177 N.J. 540, 555 (2003). This review standard is essentially the same as that controlling the trial judge. Dolson v. Anastasia, 55 N.J. 2, 7 (1969). In other words, our review is not limited to the determination of whether the trial judge acted within his or her discretion. Ibid. Instead, we make our own determination as to whether there was a miscarriage of justice and defer to the trial judge only as to those aspects such as "credibility, 'demeanor,' 'feel of the case,' or other criteria which are not transmitted by the written record . . . ." Ibid.
Here, Zwirko's testimony that: defendant failed to stop at stop signs, and twice almost struck other vehicles with one of the vehicles having to use defensive maneuvers to avoid a collision, and the acceleration and sharp turns with wet road conditions, was ample proof that defendant was guilty of second-degree eluding. The jury obviously credited Zwirko's testimony. Thus, the verdict stands because there has been no "miscarriage of justice under the law." R. 2:10-1. See Perez, supra, 177 N.J. at 555.
The next contention is that:
DEFENDANT'S TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL.
Defendant argues that trial counsel rendered ineffective assistance by failing to conduct any type of meaningful defense either by way of proper cross-examination or on summation. The record belies that contention.
The general policy of the New Jersey courts has been not to entertain an ineffective assistance of counsel claim on direct appeal if the allegations and evidence are outside of the trial record. State v. Preciose, 129 N.J. 451, 460 (1992). See also State v. Jenewicz, 193 N.J. 440, 467 n. 8 (2008).
Here, there is no dispute of fact regarding matters not of record. Preciose, supra, 129 N.J. at 462. Therefore, an evidentiary hearing is not required.
Defendant argues that trial counsel asked only approximately twelve questions, which were focused on Zwirko's ability to observe and identify defendant on the night in question. Defendant now states that the record clearly reflected Zwirko's ability to observe defendant and thus counsel should not have focused on a misidentification theory but rather focused on rebutting the State's claim that defendant's conduct created a risk of death or injury to any person.
From our careful review of the record, we conclude that defendant has failed to establish a prima facie claim of ineffective assistance of counsel. Ibid. To establish a prima facie claim of ineffective assistance of counsel, "a defendant must demonstrate the reasonable likelihood of succeeding under the test set forth in Strickland . . . ."*fn1 Id. at 463. Strickland's two-prong standard was adopted by the New Jersey Supreme Court. State v. Fritz, 105 N.J. 42 (1987).
The first prong of the Strickland/Fritz standard requires defendant to demonstrate that counsel's performance was deficient, i.e. counsel's conduct fell below an objective standard of reasonableness. Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. The second prong requires defendant to show that the deficient performance was prejudicial to the extent that defendant was deprived of a fair trial. Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693.
Here, we conclude that defendant has not shown that trial counsel was deficient in his performance. We must be mindful that "the distorting effects of hindsight" must be eliminated. Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L. Ed. 2d at 694-95. We must look at counsel's decisions at the time of trial and not after the fact when the results of such decisions are known. See Ibid. Counsel is also presumed to have exercised "reasonable professional judgment." Strickland, supra, 466 U.S. at 690, 104 S.Ct. at 2066, 80 L.Ed. 2d at 695.
We also conclude that if to the extent that counsel's failure to focus on the risk of injury or death created by defendant's conduct is deficient, there is nonetheless no prejudice shown. See Strickland, supra, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed. 2d at 693. Defendant has not shown that the result of the proceeding would have been different if counsel had questioned Zwirko on the risk of injury rather then focusing solely on the misidentification theory.
The final contention is that defendant's sentence was excessive. Defendant argues that the sentence imposed was excessive because the trial court improperly relied on State v. Natale, 184 N.J. 458 (2005) (Natale II), to conclude that it was required to start at a midpoint of seven years between five and ten years when arriving at an appropriate sentence for defendant. Defendant's premise is erroneous.
Natale brought New Jersey's Code under the constitutional framework of the Sixth Amendment by eliminating presumptive terms, making the top of the sentencing range for the crime charged the "statutory maximum" authorized by the jury verdict or the facts admitted by a defendant at his guilty plea. Natale II, supra, 184 N.J. at 487. In all other respects the sentencing process remained unaffected. Ibid. Judges are just no longer required to make such determinations from a statutory presumptive. Id. at 488. However, the Court went on to say that: many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence.
That would be one reasonable approach, but it is not compelled. [Ibid.]
Here, the judge found three of the aggravating factors enumerated in N.J.S.A. 2C:44-1a, i.e., (3) the risk the defendant will commit another offense; (6) defendant's prior criminal record, which includes convictions for possession of drugs, trespassing and receiving stolen property; and (9) the need to deter the defendant and others. The judge found no mitigating factors and imposed an eight-year term on the most serious charge.
From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. State v. Johnson, 42 N.J. 146, 161 (1964). The aggravating factors preponderate and justify imposition of an eight-year term. The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364- 65 (1984). We also conclude that the sentences comply with the mandates of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004); State v. Abdullah, 184 N.J. 497 (2005); and Natale II, supra, 184 N.J. at 458. Moreover, the sentencing judge found aggravating factors (3) (6) and (9), which raise no Blakely concern. See Abdullah, supra, 184 N.J. at 506 n.2.