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State v. Black

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 25, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAREN BLACK, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-07-1757.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 1, 2008

Before Judges R. B. Coleman and Simonelli.

A jury convicted defendant of second-degree eluding, N.J.S.A. 2C:29-2b. The trial judge sentenced defendant to a discretionary extended twelve-year term of imprisonment. The judge also imposed the appropriate assessments and penalty.

On appeal, defendant raises the following contentions:

POINT I THE TRIAL COURT ERRED IN REFUSING TO HOLD A HEARING AS TO THE DEFENDANT'S CHALLENGE TO THE COMPOSITION OF THE JURY PANEL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PAR. 9.

POINT II THE CONVICTION WAS AGAINST THE WEIGHT OF THE CREDIBLE EVIDENCE, NECESSITATING REVERSAL. U.S. CONST., AMEND XIV; N.J. CONST. (1947), ART I, PAR. 10. (NOT RAISED BELOW).

POINT II THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE NECESSITATING REDUCTION.

We reject these contentions and affirm.

The following facts are relevant to this appeal. While on patrol in an unmarked police vehicle on the evening of March 30-31, 2005, Detective Rashawn Johnson of the East Orange Police Department attempted to stop a dark-colored Ford Taurus with dark tinted windows in the Springdale-North Clinton residential area. The driver, later identified as defendant and the owner of the Taurus, did not stop. Instead, defendant continued driving, ignoring a stop sign at Prospect and Edgerton Streets and driving toward Newark via Park Avenue.

Johnson pursued the Taurus, joined by three to five other police vehicles with lights and sirens activated. The officer followed the Taurus onto Norfolk Street and Springfield Avenue in Newark, at which point Detective John Olivera of the East Orange Police Department joined the pursuit. Johnson was two car lengths from the Taurus and never lost sight of it. He observed defendant driving in a careless manner on the wrong side of a residential street at 50 to 60 m.p.h. in a 25 m.p.h. zone.

The Taurus turned around and sped onto Route 280 east, where Olivera became the lead vehicle joined by eight other police vehicles with lights and sirens activated, including Johnson. Driving between 80 to 110 m.p.h., defendant exited Route 280 and continued on the Newark Turnpike, through Harrison and South Kearny, then over a bridge into Jersey City. Police vehicles from the Port Authority joined the pursuit with sirens and lights activated.

Defendant continued on Route 1&9 toward Newark, at one point driving around a Port Authority police vehicle stopped in the road with its lights activated. The Port Authority police then took the lead, with Olivera next in line followed by Johnson and other police vehicles. Olivera saw defendant go over a sidewalk underneath the Pulaski Skyway, strike a civilian vehicle stopped at the red light, and run the red light. Defendant continued south on Route 1&9. He attempted to make an illegal U-turn at a high rate of speed, but lost control and crashed into a divider in the well-lit area of the Hudson County Correctional Facility.

Olivera pulled alongside the Taurus' driver-side door and saw defendant jump from it. Johnson also saw defendant exit the driver-side door. Neither of the two passengers in the Taurus exited the driver-side door.

Defendant ran into nearby woods, followed by Olivera and Johnson. The officers arrested defendant after chasing him approximately 50 yards. In addition to the eluding charge, defendant was issued summonses from East Orange for careless driving, failure to stop or yield to pursuing law enforcement and failure to stop at a stop sign.

Defendant first contends that the trial judge erred in failing to hold a hearing on his challenge to the integrity of the jury selection process based upon the unexplained absence of missing veniremen. Jury selection began on January 30, 2007. Of the fifty-eight prospective jurors sent from jury control, twelve did not appear. The next day, defense counsel stated to the judge, "We're obviously quite concerned about [the missing veniremen] because of the randomness of the panel and the possible implications as to the racial make-up of the array that was sent to us." Counsel asked that the judge have someone from jury control explain what happened to the twelve veniremen, alleging that once a panel of jurors is sent to the courtroom it is improper for jury control to excuse them. Counsel was unable to respond to the judge's request for authority supporting her request. Nevertheless, the judge permitted counsel to submit authority supporting her claim that it is improper for jury control to excuse veniremen and that her client was prejudiced. Defense counsel submitted nothing. Jury selection proceeded with no further challenge.

Jury selection is governed by N.J.S.A. 2B:20-1 to -18. There must be a public and random drawing and assignment of selected names to panels representing a cross-section of the community. N.J.S.A. 2B:20-4; State v. Rochester, 54 N.J. 85, 88 (1969); State v. Anderson, 198 N.J. Super. 340, 357 (App. Div.), certif. denied, 101 N.J. 283 (1985). A person may only be excused from jury service by the assignment judge of the county in which the person was summoned, or by his or her designee. N.J.S.A. 2B:20-9. Any person who fails to appear, without reasonable excuse, or refuses service, is subject to a fine or contempt of court. N.J.S.A. 2B:20-14.

We acknowledge that the assignment judge's procedures were not followed here. We also recognize that the defendant need not show prejudice. State v. Wagner, 180 N.J. Super. 564, 567 (App. Div. 1981). However, a defendant challenging the jury selection process must show by a preponderance of the evidence that the procedure used resulted in substantial under-representation of a cognizable group and underminded the randomness and objectivity of the selection process. State v. Dixon, 125 N.J. 223, 238 (1991); State v. Long, 119 N.J. 439, 468 (1990); State v. Ramseur, 106 N.J. 123, 233 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). There must be evidence that the panel as composed did not represent the community. Long, supra, 119 N.J. at 469; State v. Gerald, 113 N.J. 40, 131 (1988).

Here, there is no evidence that jury selection was anything other than purely random or that the panel as composed did not represent the community. There also is no evidence that the panel was in any way biased or prejudiced, tainted or unduly influenced. To be sure, defense counsel did not challenge the panel as composed.

Defendant next contends that his conviction was against the weight of the evidence. Because defendant did not seek a new trial, he is precluded from raising this issue on appeal. State v. Johnson, 203 N.J. Super. 127, 133 (App. Div.), certif. denied, 102 N.J. 312 (1985) (citing R. 2:10-1; State v. McNair, 60 N.J. 8, 9 (1972); State v. Kyles, 132 N.J. Super. 397, 410 (App. Div. 1975)); see also R. 2:10-1; R. 3:20-1.

Nevertheless, defendant has not clearly and convincingly shown that there was a miscarriage of justice under the law. State v. Sims, 65 N.J. 359 (1974), 373-74 (citing Dolson v. Anastasia, 55 N.J. 2, 6-8 (1969)); Johnson, supra, 203 N.J. Super. at 134. Based upon our review of the record, we are satisfied that the evidence amply supports the guilty verdict. Two eyewitness police officers testified that defendant was the driver of the Taurus. Giving the State all favorable inferences from this evidence, a reasonable jury could find defendant guilty of eluding beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 459 (1967); R. 3:18-1.

Defendant also contends that his sentence is excessive. He concedes that he is eligible for an extended-term sentence and that the judge appears to have followed the procedures in State v. Pierce, 188 N.J. 155 (2006). He also does not dispute the judge's finding of aggravating factor three (the risk that he will commit another offense), N.J.S.A. 2C:44-1a(3); six (the extent of his prior criminal record and the seriousness of the offense of which he has been convicted), N.J.S.A. 2C:44-1a(6); nine (the need to deter defendant and others from violating the law), N.J.S.A. 2C:44-1a(9); and mitigating factor one (defendant's conduct neither caused nor threatened serious harm), N.J.S.A. 2C:44-1b(1). Rather, defendant argues that the aggravating factors derive from his prior record, which formed the basis for his eligibility for an extended-term sentence, and that the judge should have given diminished weight to them. He also argues that the judge should have given significant weight to the sole mitigating factor and should have considered his age (twenty-five) as an additional mitigating factor. He seeks a sentence "reduced to at most the maximum ordinary term of ten years." We disagree.

Defendant has an extensive juvenile record, dating from age thirteen. He also has an extensive adult criminal record, including three prior indictable convictions. He received probation five times, and he had pending criminal charges, an outstanding bench warrant, several motor vehicle violations, a failure to appear in court, several disorderly persons, and a domestic violence complaint. There is nothing in the record indicating that defendant's age mitigated his conduct in any way.

Based upon our careful review of the record, we discern no reason to disturb defendant's sentence. The judge's findings of aggravating and mitigating factors are amply supported by the evidence. The extended-term sentence is near the bottom of the range for a second degree offense.

Affirmed.

20090225

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