November 19, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
TERRENCE JACK, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0309.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Parrillo and Lihotz.
Tried by a jury, Terrence Jack was convicted of fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.*fn1 On the latter, defendant was sentenced, as a persistent offender, N.J.S.A. 2C:44-3a, to a discretionary extended term of fifteen years with a seven-and-one-half period of parole ineligibility. He also received concurrent terms of five years on the weapons offense and eighteen months on the resisting arrest conviction.*fn2 Defendant appeals, and we affirm.
According to the State's proofs, on December 10, 2006, at around 10:50 p.m., Wendall Harris drove his daughter's white Mitsubishi Galant to haul garbage to a refuse collection area about three blocks from his Jersey City residence. After placing the garbage in a bin, he turned around and was confronted by a man who stuck a .45 caliber handgun in Harris' chest, demanding that Harris get on his knees. When Harris refused, his assailant ordered him to turn around, which Harris did. Reaching into Harris' pockets, the assailant withdrew a small amount of cash and the keys to the Mitsubishi. After the assailant left the scene in Harris' car, Harris ran back to his home and called the police to report the carjacking.
Two Jersey City plain clothes police detectives arrived at Harris' home within fifteen minutes. Harris recounted the incident, identifying the stolen vehicle as a 1999 Mitsubishi Galant. However, because of poor lighting near the garbage bins, he was only able to give a general description of the assailant as a black male between 5'9" and 6' tall, wearing brown or black sleeves. One of the detectives, Christopher Monahan, immediately broadcast a radio transmission with a description of both the suspect and the vehicle.
About ten minutes later, Monahan received a radio transmission from police headquarters that the department's closed circuit television unit - responsible for monitoring about seventy closed circuit television cameras throughout Jersey City - had spotted a white Mitsubishi Galant making a right turn onto Bayview Avenue from Ocean Avenue. Responding to the area, Monahan found the vehicle, and confirmed it was Harris' once he got close enough to read the license plate. Monahan also saw a black male, later identified as defendant, "fitting the description of the person that [they] were looking for . . . standing outside of the car talking to a female." As Monahan and his partner exited their unmarked car, exhibiting police identification in the form of a silver badge, defendant fled the scene on foot, and the officers gave chase. During the foot chase, Monahan saw defendant discard a handgun from his waistband, which was later recovered by the police. The chase continued, and eventually Monahan, with the assistance of three other police officers, subdued defendant in the backyard of a nearby residence, handcuffed, and placed him under arrest.
On appeal, defendant raises the following issues:
I. THE COURT ERRED IN ALLOWING THE STATE TO ARGUE FLIGHT AS CONSCIOUSNESS OF GUILT DESPITE THE COURT'S DETERMINATION THAT A FLIGHT JURY CHARGE WAS INAPPROPRIATE, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. Amend. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
A. Flight Instruction Was Not Appropriate.
B. Even If A Flight Instruction Were Factually Supported, The Protections of the Model Charge Were Not Given.
II. DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR A JUDGMENT OF ACQUITTAL AS TO THE RESISTING ARREST CHARGE BECAUSE THERE WAS NO EVIDENCE TO SUPPORT THE ESSENTIAL ELEMENT THAT DEFENDANT KNEW HE WAS BEING ARRESTED.
III. THE DEFENDANT'S DISCRETIONARY EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:44-3(a), OF A 15 YEAR BASE TERM WITH A 71/2 YEAR PERIOD OF PAROLE INELIGIBILITY, IS MANIFESTLY EXCESSIVE AND REQUIRES REDUCTION.
We have considered each of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that none of them is of sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.
Pursuant to defendant's objection, the court declined to charge the jury on flight as consciousness of guilt, but allowed the prosecutor to comment on defendant's conduct upon the officers' approach, and its import. As a result, in summation, the prosecutor twice mentioned defendant's "flight." First, he argued:
Ladies and gentlemen, the conduct of [defendant] is something you can consider . . . you can consider the circumstances of the case.
Why did Jack run? What did he have to hide?
That's something you need to consider when you go back and deliberate. The State submits to you he knew what he was in for if he was apprehended. He knew the serious charges he faced if he was caught and he ultimate[ly] was caught and now he's here for you today.
The second reference was made in the context of the charge of unlawful possession of a weapon:
And one thing you'll need to consider is whether or not he had a permit to carry this gun. I mean, you can consider that based on the circumstances and you're allowed to make an inference if you choose to do so as to whether or not Mr. Jack had a permit to carry this gun and if he were to have ran, if he did, in fact, have a permit then this gun cannot be used a few minutes earlier to commit a carjacking.
Defendant now challenges these two comments as prejudicial, which the court failed to temper "by a fair exposition of the law on flight." We disagree.
In the first place, defendant objected at trial to a flight instruction. Secondly, the prosecutor's remarks constituted fair comment on the evidence presented. See State v. Frost, 158 N.J. 76, 82 (1999); State v. Harris, 141 N.J. 525, 559 (1995). It is undisputed that defendant fled as soon as he saw the two plain clothes officers exit from their unmarked vehicle. Although defendant claims otherwise, there is proof that Monahan exhibited his silver police badge while exiting the vehicle and that, according to the detective, defendant knew "who we were." Thus, given proof that defendant was aware he was being apprehended by police officers in the presence of the very vehicle reported stolen only minutes earlier and in possession of a handgun, it was entirely reasonable for the prosecutor to suggest to the jury that defendant's purpose in leaving the scene was to avoid accusation or apprehension, State v. Sullivan, 43 N.J. 209, 238-39 (1964), cert. denied, 382 U.S. 990, 86 S.Ct. 564, 15 L.Ed. 2d 477 (1966), and that his flight evidenced a consciousness of guilt. State v. Mann, 132 N.J. 410, 420-21 (1993). The fact that the court did not follow up with a flight charge detracts neither from the reasonableness nor propriety of the prosecutor's remarks. The issue of what defendant knew when approached by the plain clothes detectives was squarely before the jury. In this regard, the judge clearly instructed the jury on how to consider and weigh circumstantial evidence and further that comments on summation constitute argument only, which the jury is free to reject if it finds otherwise. We fail to discern, under these circumstances, any undue prejudice to defendant from the court's failure to add a charge on flight, to which defendant objected at trial.
Defendant next claims his counsel was ineffective for failing to move for a judgment of acquittal on the resisting arrest charge for want of any evidence he knew he was being arrested. We disagree.
It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show both the particular manner in which counsel's performance was deficient and that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). It is equally clear that such claims are usually reserved for post-conviction relief because dependent on evidence dehors the record. State v. Preciose, 129 N.J. 451, 460 (1992). Here, however, we view the claim as justiciable on direct appeal and conclude that counsel's alleged deficiency clearly fails to meet either the performance or prejudice prong of the Strickland test.
The question to be determined on a motion for judgment of acquittal is: 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. [State v. Reyes, 50 N.J. 454, 459 (1967).]
Measured against this standard, a motion for judgment of acquittal on the resisting arrest charge would have been unsuccessful, therefore counsel is not ineffective for failing to raise it and, correspondingly, defendant was not prejudiced thereby.
A person is guilty of the fourth-degree crime of resisting arrest "if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest."
N.J.S.A. 2C:29-2a(2). Of course, the defendant must know he is being arrested. State v. Branch, 301 N.J. Super. 307, 321 (App. Div. 1997), rev'd in part on other grounds, 155 N.J. 317 (1998).
Here, the evidence supports the requisite elements of the crime. As soon as he saw the two plain clothes officers exit their vehicle and display a badge, defendant ran off and attempted to hide. A chase ensued and when eventually found, defendant continued resisting the police officers' attempt to handcuff him, requiring the assistance of three other officers before being subdued, and arrested. Thus, granting the State the benefit of all favorable inferences, defendant would not be entitled to a grant of a motion for judgment of acquittal, as a reasonable jury could find guilt of the resisting arrest charge beyond a reasonable doubt. Consequently, counsel was not ineffective for failing to move for such relief and defendant was not prejudiced by counsel's omission.
Lastly, defendant claims excessiveness of sentence. We disagree.
It is undisputed that defendant qualified as a persistent offender, N.J.S.A. 2C:44-3a, and thus his sentencing exposure on the second-degree conviction ranged from five to twenty years. In imposing a fifteen-year term with a seven-and-one-half parole ineligibility bar, the judge found as aggravating factors, the risk of reoffense, N.J.S.A. 2C:44-1a(3); defendant's prior criminal record, N.J.S.A. 2C:44-1a(6); and the need to deter, N.J.S.A. 2C:44-1a(9). These factors are amply supported in the record proofs, including most notably defendant's prior convictions. Although used to impose an extended term, defendant's extensive criminal history includes convictions beyond those making him eligible for persistent offender status, and involving terroristic threats, larceny and other property offenses. Defendant's extensive criminal history also includes a weapons offense in 2002 that served as the predicate for the instant second-degree crime of certain persons not to have weapons. Coupled with the absence of any mitigating circumstances, the sheer weight of aggravating factors present here well supports the sentence imposed. We, therefore, find no warrant for our interference.