November 2, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
YAKIM ABDUL ALI, A/K/A HAYWOOD FORESTER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 06-06-0499 and 06-08-0785.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 19, 2009
Before Judges Baxter and Alvarez.
Defendant Yakim Abdul Ali appeals from his February 23, 2007 convictions on two indictments, one which resulted from a jury trial, Indictment No. 06-06-0499, and the other, Indictment No. 06-08-0785, from a negotiated plea of guilty. At trial, defendant was convicted of second-degree eluding police, N.J.S.A. 2C:29-2b (count one); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a (count five).*fn1 On Indictment No. 06-08-0785, defendant pled guilty to one count of third-degree theft by deception, N.J.S.A. 2C:20-4, for presenting a forged check to a bank for payment, knowing that the circumstances did not entitle him to the proceeds. On Indictment No. 06-06-0499, the judge sentenced defendant on count one to a sixteen-year term of imprisonment, subject to a six-year parole ineligibility term. The judge imposed a four-year concurrent term on count two, and merged count five with count one. On Indictment No. 06-08-0785, the judge imposed a three-year term of imprisonment, to be served concurrently with the sentence imposed on the other indictment.
On the conviction resulting from the jury trial, we reject defendant's claim that the judge erred by denying his motion to suppress, permitting the State to impeach his credibility with prior convictions, denying his motion for a judgment of acquittal on count five, and imposing an excessive sentence. We also reject his contention that trial counsel's failure to move for a new trial constituted ineffective assistance. On Indictment No. 06-08-0785, we reject defendant's claim, never asserted in the Law Division, that he should have been permitted to withdraw his guilty plea as it was not supported by an adequate factual basis. We affirm.
A. Indictment No. 06-06-0499
These are the most relevant facts adduced at the hearing on defendant's motion to suppress and at trial on Indictment No. 06-06-0499. On the morning of January 23, 2006, the owner of a black 1997 Honda Accord discovered that her car had been stolen from the driveway of her home in Glen Ridge. She immediately notified police.
Slightly less than a month later, on the night of February 21, 2006, officers Christopher McMahon and Brian McDonough of the Elizabeth Police Department were on routine patrol in uniform and in a marked patrol vehicle. While stopped in traffic on Catherine Street at its intersection with East Grand Street, they observed an oncoming vehicle make a left turn from Catherine Street onto East Grand Street without signaling. Pulling behind the vehicle, they activated their lights and sirens.
According to McMahon's testimony at the suppression hearing, the vehicle came to a stop. The officers checked the Honda's license plate and discovered that it did not match the vehicle to which it was affixed. During this time, defendant, the driver of the vehicle, was sitting in the car with his hands raised over his head.
As Officer McMahon exited the patrol vehicle after checking the license plate, defendant suddenly sped off, heading east on East Grand Street. McMahon jumped into the patrol vehicle, and the officers began to pursue the fleeing Honda. Once the chase resumed, the officers immediately reactivated the siren; the overhead lights had never been turned off.
During the chase, defendant ignored two red lights and one stop sign, traveling at a speed of seventy miles per hour in a twenty-five mile per hour zone and constantly passing other vehicles on the road. A second patrol vehicle joined the chase. The Honda finally came to a stop on a loading ramp on Trumbull Street. The officers pulled to the left of the Honda and observed defendant exit the vehicle and throw a dark-colored object to the ground. Defendant then ran along the fence of the loading ramp, laid on the railing and rolled over it, falling approximately twenty-five feet to the ground below. The officers ran down the loading ramp to where defendant was bloodied and lying face down. They arrested him, and secured him in handcuffs. Officer McMahon searched the area where defendant had tossed the dark-colored object, and found a handgun and its magazine, which contained seven live rounds.
A check of the vehicle identification number of the black Honda driven by defendant revealed it was the vehicle that had been reported stolen from the driveway in Glen Ridge on January 23, 2006. The license plates attached to the vehicle on the night of defendant's arrest had been reported stolen earlier that same day.
After crediting the testimony offered by McMahon and McDonough at the hearing on defendant's motion to suppress, Judge Heimlich denied the motion. The judge reasoned that defendant's left-hand turn, made without signaling, authorized both the stop and the ensuing pursuit of defendant. Next, the judge concluded that defendant forfeited any expectation of privacy in the gun when he abandoned it by throwing it to the ground after the lawful stop.
Before the trial began, the judge conducted a Sands hearing*fn2 to determine whether, if defendant elected to testify, the State should be permitted to impeach his credibility by confronting him with any of the six convictions he incurred between 1992 and 1997.*fn3 Those convictions were: two separate 1992 convictions for third-degree unlawful possession of a weapon; a 1993 conviction for third-degree distribution of a controlled dangerous substance (CDS); a 1996 conviction for unlawful possession of a weapon; a 1996 conviction for third-degree receiving stolen property; and a 1997 New York conviction for which defendant was sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility. Defendant was not released from his New York conviction until 2003.
Judge Heimlich observed that all six crimes, with the exception of the charge of receiving stolen property, had resulted in prison terms, with defendant not released on parole from the last of the six until 2003. As a result, he concluded that the earlier of the six crimes were not as remote as would otherwise be the case because defendant was imprisoned almost continuously from 1992 through 2003. He held that, once sanitized pursuant to State v. Brunson,*fn4 the probative value of the six prior convictions for impeachment purposes was not outweighed by the resulting prejudice.
After the State rested its case, defendant moved, pursuant to Rule 3:18-1, for a judgment of acquittal on count five, the resisting arrest count, arguing that because "police did not inform [him] that he was under arrest prior to him falling off the loading ramp," the State had not established that defendant knew he was under arrest at the time he ostensibly resisted such arrest by flight. Judge Heimlich denied defendant's motion, reasoning that "with two police cars with sirens blaring, and [overhead] lights on," and defendant driving at an excessive rate of speed for two miles to avoid capture, the State's proofs were more than sufficient to withstand defendant's Rule 3:18-1 motion for acquittal on count five.
B. Indictment No. 06-08-0785
During the plea colloquy on January 16, 2007, defendant was asked the following question by the judge:
On the 6th day of September, and the 7th day of September, 2005, in Rahway and Roselle, did you commit a theft of over $500 by purposely obtaining money of [L.D. and D.D.] or Commerce Bank by deception, creating or [reinforcing] a false impression that check number 251 through 253 on account of [L.D. and D.D.] at Commerce Bank were made payable to Yakim Ali,[and] were signed by [L.D.] when, in fact, you knew those checks were not signed by [L.D.], is that true?
Defendant answered yes. He also said he understood that such conduct made him guilty of theft by deception because he knew that the person who gave him the checks "did not have the authority to have [him] cash them."
On appeal, defendant raises the following claims:
I. SINCE THE POLICE DID NOT HAVE PROBABLE CAUSE TO STOP THE DEFENDANT'S VEHICLE, THE EVIDENCE OBTAINED AS A RESULT OF HIS UNLAWFUL SEIZURE SHOULD HAVE BEEN SUPPRESSED. (U.S. CONST. 4TH AMEND. ART I PAR. 7)
II. THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS COULD BE USED TO IMPEACH HIS CREDIBILITY THEREBY DEPRIVING DEFENDANT OF A FAIR TRIAL. (U.S. CONST. AMEND. V, VI AND XIV; N.J. CONSTI. (1947) ART. I, PARS 9 AND 10
III. THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL BECAUSE THE STATE DID NOT ESTABLISH A PRIMA FACIE CASE WITH RESPECT TO THE RESISTING ARREST COUNT.
IV. THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND CONSTITUTED PLAIN ERROR. (NOT RAISED BELOW)
V. THE FAILURE OF TRIAL COUNSEL TO MOVE FOR A NEW TRIAL AMOUNTED TO INEFFECTIVE ASSISTANCE OF COUNSEL.
VI. THE DEFENDANT SHOULD HAVE BEEN ALLOWED TO WITHDRAW HIS GUILTY PLEA AS IT WAS NOT SUPPORTED BY AN ADEQUATE FACTUAL BASIS. (NOT RAISED BELOW)
VII. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE TRIAL COURT'S DISCRETION AS THE TRIAL JUDGE FAILED TO SUBSTANTIATE HIS DECISION TO IMPOSE AN EXTENDED TERM AND FAILED TO PROPERLY BALANCE AGGRAVATING VERSUS MITIGATING FACTORS, THEREFORE THE SENTENCE MUST BE MODIFIED BY THE REVIEWING COURT.
We turn now to Point I, in which defendant argues that the court erred at the suppression hearing when it found the stop of the Honda lawful and admitted all of the evidence obtained as a result. Defendant contends:
The police version [of events] is not a credible version. The police would have us believe that the defendant was stopped at a red light, committing no other motor vehicle violations, directly facing the officer's vehicle which is stopped at the red light directly across the intersection, blatantly made a left turn in front of a marked police unit. Additionally, the defendant pulled over immediately, further evidencing that he did not violate the law.
Defendant characterizes his pursuit by police as an "illegal seizure" which caused him to discard the dark-colored object under duress, and not to freely abandon it, as the trial court found.
Essentially, defendant argues that we should ignore the credibility findings made by Judge Heimlich -- who had the opportunity to hear and see McMahon and McDonough while they testified -- and substitute our own credibility findings for the judge's, based on nothing other than defendant's claim that the officers' testimony was not credible. We decline that invitation.
While "[a] trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference," Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), its credibility determinations are. State v. Locurto, 157 N.J. 463, 470-71 (1999). A reviewing court should "give deference to those findings of the trial judge which are substantially influenced by [the judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Johnson, 42 N.J. 146, 161 (1964).
Defendant asks us to deny Judge Heimlich's credibility findings the deference that Locurto and Johnson require only because, he argues, no reasonable person would make a left turn without signaling in plain view of a marked police car. Merely because defendant's failure to signal, while in front of a marked police vehicle, was irrational does not negate the testimony of the two officers who witnessed it. Many drivers make unwise maneuvers. Moreover, there is no assurance that defendant even saw the police vehicle, because the stop occurred at night and the police vehicle was not directly opposite him, but was instead stopped second in line on the other side of the intersection.
Even if, for the sake of argument, we might have made a credibility determination different from the one made by Judge Heimlich, such reason is an insufficient basis for doing so. Id. at 161. So long as the judge's findings are supported by evidence in the record, we must accept them. Id. at 162.
We now analyze the validity of the stop. Once McMahon and McDonough observed defendant's motor vehicle infraction,*fn5 they were authorized to order him to stop. State v. Smith, 306 N.J. Super. 370, 380 (App. Div. 1997); State v. Murphy, 238 N.J. Super. 546, 554 (App. Div. 1990). Moreover, when defendant drove off again after initially coming to a stop, his conduct in eluding police provided probable cause for arrest on that charge. See State v. Novembrino, 105 N.J. 95, 105-29 (1987) (defining probable cause). A defendant is obliged to submit to an officer's command even if he believes the stop is unlawful. State v. Crawley, 187 N.J. 440, 454 (2006). Thus, the initial stop of defendant, and the seizure of defendant that followed, were well within the parameters of the Fourth Amendment, which prohibits unreasonable searches and seizures.
We likewise reject defendant's claim that the object he discarded, the gun, was surrendered only as a result of unlawful police compulsion and therefore the judge erred in denying his motion to suppress. If a stop is lawful, which this one was, the contraband a defendant discards while fleeing from police is deemed abandoned, and may be lawfully seized by police. State v. Farinich, 179 N.J. Super. 1, 5-6 (App. Div. 1981), affirmed o.b., 89 N.J. 378 (1982). We thus reject as meritless the claim defendant advances in Point I.
In Point II, defendant argues that the judge abused his discretion by permitting the State to impeach his credibility with evidence of the six convictions we have already described. He maintains that his six convictions, spanning the period from 1992 to 1997, should have been excluded from the jury's consideration on the basis of remoteness. He points out that none of his convictions were for crimes involving dishonesty, fraud, or lack of veracity, and submits that "the trial judge did not balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweigh[ed] the prejudicial effect to the defendant." Defendant also maintains that the judge failed to make detailed findings explaining why the probative value of each conviction outweighed its prejudicial effect. Finally, defendant claims that the convictions were not sanitized properly because the prosecutor was permitted to elicit from defendant how much time he had served in prison on each offense; this latter claim was not raised in the Law Division.
We review a trial judge's decision to admit evidence of a defendant's prior convictions for an abuse of discretion. Sands, supra, 76 N.J. at 144. A judge's discretion on this issue is "broad," and "the burden of proof to justify exclusion [of such evidence] rests on the defendant." Ibid. "The key to exclusion is remoteness, [but] [r]emoteness cannot ordinarily be determined by the passage of time alone." Ibid. The more serious the crimes for which a defendant was convicted, the less problematic a lapse of time will become. Ibid.
Similarly, when a defendant has sustained a number of intervening prior convictions, a conviction that might otherwise be considered remote, will no longer be so viewed. Id. at 145. As the Court held, "[w]hen a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence." Ibid. Thus, if a defendant "has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible." Ibid. Consequently, defendant's claims that the convictions were too remote, and violated the principles of Sands, is meritless.
Defendant's alternative argument, that his convictions were not properly sanitized, likewise lacks merit. Consistent with defense counsel's request and with the court's instruction, the prosecutor made no mention of the nature of defendant's prior crimes. There is no proscription in Brunson against eliciting, on cross-examination, the length of the sentence served as a basis for impeaching a defendant's credibility. Brunson, supra, 132 N.J. at 391-92. Defendant's arguments on this issue are unpersuasive and warrant no further discussion.
We turn to Point III, in which defendant argues that the denial of his motion for a judgment of acquittal on the resisting arrest count was error. At sentencing, the judge merged defendant's conviction on this count with the conviction on the eluding police count, which was count one. Thus, even if the judge's denial of defendant's Rule 3:18-1 motion for judgment of acquittal on count five was error, any such error had no impact on defendant's conviction or on his sentence.
Moreover, there was ample evidence to support the conclusion that when defendant ran from police on foot and propelled himself off the railing onto a cement surface twenty-five feet below, he knew he was under arrest. Two police cars, with sirens wailing and lights flashing, pursued him while he drove at excessive speeds before bolting from his car and throwing himself onto the railing. Defendant argues that such evidence -- even when viewed in a light that gave the State the benefit of all favorable inferences*fn6 -- was insufficient to establish he knew he was under arrest. Such argument strains credulity, and we reject it.
We analyze defendant's next two arguments in tandem because they are intertwined. In Point IV, defendant argues that the jury verdict was against the weight of the evidence, and the trial judge committed plain error, by failing to set aside the guilty verdicts on counts one, two and five. Recognizing that trial counsel did not move for a new trial and did not argue that the guilty verdicts were against the weight of the evidence, he nonetheless maintains that pursuant to Rule 2:10-2, the issue of insufficient evidence is nonetheless cognizable on appeal if the error was "clearly capable of producing an unjust result." See also State v. State v. Macon, 57 N.J. 325, 333 (1971). Defendant recognizes, as he must, that a claim that the verdict was against the weight of the evidence will not be considered on appeal unless a motion for a new trial was made to the trial court based upon that ground. See R. 2:10-1. For that reason, he argues in Point V that trial counsel was ineffective because, by failing to move for a new trial, counsel failed to preserve the issue for appellate review.
Relying upon State v. Brown, 325 N.J. Super. 447, 456 (App. Div. 1999), certif. denied, 163 N.J. 76 (2000), the State urges us to decline to consider the argument defendant advances in Point IV because defendant failed to move for a new trial in the Law Division. While such an approach is unquestionably justified by both Rule 2:10-1 and the relevant case law, we deem it preferable to squarely address this claim rather than preserve it for post-conviction review. Thus, we must determine whether, as defendant claims, he is entitled to a new trial because the evidence was insufficient and the State failed to prove his guilt beyond a reasonable doubt.
A defendant is not entitled to a new trial, and the jury's verdict will not be disregarded, unless it clearly and convincingly appears there was a miscarriage of justice under the law. R. 2:10-1; State v. LaBrutto, 114 N.J. 187, 207 (1989). Great deference must be paid to the verdict rendered by a jury because "[f]aith in the ability of a jury to examine the evidence critically and to apply the law impartially serves as a cornerstone of our system of criminal justice." State v. Afanador, 134 N.J. 162, 178 (1993). Hence, a reviewing court must not disturb a jury's findings merely because it might have found otherwise upon the same evidence. Ibid.
Here, the jury heard two versions of the events of February 21, 2006. The State presented evidence that defendant was taken into custody after fleeing from police while driving a stolen black Honda with fictitious license plates. The State's proofs, if believed by the jury, provided ample evidence to support the inference that defendant eluded police because he knew the car was stolen. Defendant presented a different version. He testified that he borrowed the Honda from a friend, had no idea it had been stolen and tried to avoid apprehension only because he was afraid of police. The jury had the opportunity to consider the State's proofs and to evaluate defendant's credibility. By its verdict, the jury obviously rejected defendant's claim of innocence, and demonstrated its acceptance of the State's proofs as credible and sufficient to establish defendant's guilt. That determination was theirs to make.
Merely because defendant claims his version was the more credible of the two is not a basis for disturbing the jury's verdict. Ibid. We thus reject the claim that defendant advances in Point IV.
Having determined that the verdict was based on sufficient evidence, and that a motion for a new trial was doomed to fail had such motion been made, we cannot fault trial counsel for failing to make such a motion. A trial attorney's performance will not be deemed deficient and a violation of a defendant's Sixth Amendment right to the effective assistance of counsel unless the defendant demonstrates that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068, 80 L.Ed. 2d 674, 698. (1984). Defendant's proofs fall woefully short of satisfying the demanding standard set by Strickland. We thus reject the claim defendant advances in Point V.
In Point VI, defendant maintains that the judge sua sponte should have permitted him to withdraw his guilty plea on Indictment No. 06-08-0785 because he did not provide a sufficient factual basis to support his guilty plea on the charge of theft by deception. Rule 3:9-2 prohibits a judge from accepting a defendant's guilty plea unless the judge addresses the defendant personally and determines that the plea is made voluntarily, with an understanding of the charge and the consequences of pleading guilty, and with a sufficient factual basis to support the guilty plea entered. Challenges to a trial court's acceptance of a guilty plea are considered tantamount to a request to withdraw a plea after sentencing, see R. 3:21-1, requiring a showing of "manifest injustice." See also State v. Slater, 198 N.J. 145, 157-58 (2009) (holding that a defendant must assert a "colorable claim of innocence" and a valid basis for withdrawal of a guilty plea before such motion will be entertained).
Having reviewed the record, we are satisfied that defendant's guilty plea to the charge of theft by deception amply satisfies the requirements of Rule 3:9-2. Defendant acknowledged that at the time he presented the checks for payment, he knew that the checks had not, in fact, been signed by the purported payor, and that he did not have the authority to cash the checks, but did so nonetheless after deceiving Commerce Bank into believing that the checks were valid. Such a factual statement more than satisfies the requirements of N.J.S.A. 2C:20-4.*fn7 We thus reject the claim defendant advances in Point VI.
Last, in Point VII, defendant argues the sentence imposed was "manifestly excessive and an abuse of the trial court's discretion as the trial judge failed to substantiate his decision to impose an extended term, and failed to properly balance aggravating versus mitigating factors[.]" The State disagrees, arguing that the extended term sentence imposed for second-degree eluding, which consisted of a sixteen-year term of imprisonment with a six-year period of parole ineligibility, was manifestly appropriate and satisfied all statutory prerequisites.
To sentence a defendant to a discretionary extended term sentence as a persistent offender, the judge must find that the defendant is at least twenty-one years old, is being sentenced for a first-, second-, or third-degree crime, and has sustained at least two prior convictions, the most recent of which was within ten years of the crime for which the defendant is being sentenced. N.J.S.A. 2C:44-3(a). Once the court finds that the defendant satisfies those statutory criteria, the court is authorized to impose a sentence ranging from the bottom of the ordinary-term range to the top of the extended-term range. State v. Pierce, 188 N.J. 155, 169 (2006). To determine where within that range the appropriate sentence lies, the judge must weigh the aggravating and mitigating factors, and consider whether the defendant's prior record and his character create the need to protect the public by imposing an extended term sentence. Ibid. On appeal, we will not disturb such a sentence absent an abuse of discretion. Id. at 169-70.
Here, defendant meets all of the statutory prerequisites established by N.J.S.A. 2C:44-3(a). He was forty-one years old at the time of the commission of the crime on February 21, 2006; his prior record included eleven indictable convictions;*fn8 and the most recent was incurred on January 22, 1999, which was within ten years of the crime for which he was being sentenced.
The judge found the existence of three aggravating factors, the risk defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior record and the seriousness of the offenses for which he had been convicted, N.J.S.A. 2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge determined defendant's record created a need to protect the public, and found no mitigating factors. Judge Heimlich was satisfied that the aggravating factors "clearly and substantially outweigh[ed] the mitigating factors," thereby justifying a mandatory term of parole ineligibility pursuant to N.J.S.A. 2C:43-6(b), and that an extended term sentence was justified pursuant to N.J.S.A. 2C:44-3(a), and State v. Pierce.
Defendant argues that the judge erred by failing to find the existence of mitigating factor three, that defendant acted under strong provocation, N.J.S.A. 2C:44-1(b)(3), and mitigating factor four, there were substantial grounds tending to excuse or justify defendant's conduct, though failing to establish a defense, N.J.S.A. 2C:44-1(b)(4). These claims merit little discussion. We are satisfied that the conduct of police officers in activating their overhead lights and sirens to pursue a driver who made a left turn without signaling, and then fled at speeds of seventy miles per hour, does not constitute "strong provocation." Nor does defendant's purported fear of police in any way "tend to excuse or justify" his conduct. Unquestionably, Judge Heimlich did not err when he failed to find these two mitigating factors which, we note, were not raised at sentencing.
We will not interfere with a judge's broad sentencing discretion unless the sentence imposed "shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984). We are satisfied that defendant's extensive prior record, which consists of eleven indictable convictions, amply justified the sentence that was imposed. The judge's conclusion that the aggravating factors clearly and substantially outweighed the mitigating factors and that an extended term sentence was necessary for the protection of the public were thoroughly grounded in the facts before him and represented a proper exercise of his sentencing discretion. That being so, we have no cause to disturb the judge's decision. We reject the claim defendant advances in Point VII.