February 19, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AUSTIN K. GENOA, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Axelrad and Espinosa.
Defendant Austin Genoa appeals from his convictions for eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); aggravated assault, N.J.S.A. 2C:12-1(b)(6); two counts of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); and possession of less than 50 grams of marijuana, N.J.S.A. 2C:35-10(a)(4), and his sentence. We affirm.
The charges arise from events that followed a motor vehicle stop in Englishtown by Patrolman Michael MacInnes. After observing a black Ford Explorer driving on the shoulder of the road, Officer MacInnes activated his siren and overhead lights. After the Explorer stopped, Officer MacInnes was able to observe three white males inside the Explorer. The driver was unable to produce a driver's license. He identified himself as Austin Genoa and provided a date of birth that proved to be defendant's date of birth. He did produce a vehicle registration in the name of defendant's mother, Evelyn Genoa. Officer MacInnes wrote the name "Austin K. Genoa" and the birth date given by the driver on the vehicle registration. The two passengers, Matthew Corley and Michael Cannillo, had been friends with defendant since high school and testified at trial.
Officer MacInnes detected the odor of marijuana coming from the vehicle. He ordered defendant, who appeared nervous, to exit the Explorer and sit on the rear bumper of the vehicle.
Patrolman Trevor Martinson arrived at the scene to provide backup support.
When questioned about the odor of marijuana, defendant admitted that the Explorer's occupants "had been smoking a blunt[;]" he stated that it was in the pocket of the front seat passenger, Michael, and offered to retrieve it. The officers told him, "you are not going back into the vehicle." However, when Officer MacInnes approached the passenger side of the vehicle, defendant ran to the driver's side. Despite both officers yelling for him to stop, defendant got into the driver's seat. Officer Martinson reached in through the window and grabbed him by the neck while Officer MacInnes reached in through the passenger window, trying to prevent him from shifting the gear. Defendant overcame the efforts of both officers and sped away as both officers were still holding onto the Explorer.
The two officers jumped from the Explorer and rolled away. Each suffered minor injuries. However, when Cannillo jumped out shortly thereafter, he landed headfirst on the concrete and suffered a fractured skull. Corley remained in the back seat of the Explorer, yelling to defendant to stop.
Officer MacInnes pursued the Explorer in his patrol car while Officer Martinson attended to Cannillo. While in flight, defendant turned off the Explorer's lights for approximately four seconds in an apparent effort to elude detection. However, Officer MacInnes was able to follow the Explorer as it turned off the road and stopped. Defendant then fled on foot. Before he lost sight of defendant, Officer MacInnes observed him carrying a plastic bag as he ran away. Corley testified that, in fact, defendant had reached for something under the passenger seat before fleeing. Corley also ran from the vehicle but eventually surrendered.
A search of the area using a K-9 unit resulted in the recovery of a bag of marijuana in an area where defendant had run but did not lead to defendant's apprehension that night. Searches of the Explorer yielded the recovery of additional marijuana, baggies of cocaine and a stash of steroid pills.
At trial, defendant presented the testimony of two alibi witnesses who stated that he was with them in Staten Island at the time of these events. However, at sentencing, defendant admitted his guilt and apologized for his conduct. At sentencing, the court merged count one (eluding a law enforcement officer) into count two (aggravated assault) and merged counts three (possession of less than 50 grams of marijuana) and five (possession of CDS) into count four (possession of CDS). Defendant was sentenced to seven years imprisonment, with 85% to be served prior to parole subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two and a concurrent term of five years on count four, along with appropriate fines and penalties.
In this appeal, defendant raises the following issues*fn1
THE PROSECUTOR'S CROSS-EXAMINATION OF STEPHEN BARELLA AND JOSH NIEVES CONCERNING WHY THEY DID NOT COME FORWARD EARLIER EXCEEDED THE PERMISSIBLE SCOPE ALLOWED BY STATE V. SILVA AND ELICITED HIGHLY PREJUDICIAL TESTIMONY; CONSEQUENTLY DEFENDANT'S CONVICTIONS MUST BE REVERSED. (NOT RAISED BELOW).
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
This court does not entertain issues raised for the first time on appeal. State v. Robinson, 200 N.J. 1, 20 (2009); Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Therefore, the argument that the prosecutor's cross-examination of defendant's alibi witnesses constituted reversible error is not properly before us. However, the record reflects that the prosecutor laid a sufficient foundation for the questions now challenged pursuant to State v. Silva, 131 N.J. 438, 447-48 (1993). In addition, the evidence that defendant was present and properly identified at the scene of the crime was particularly strong, consisting of the testimony of two friends who had known defendant since high school, his self-identification with birth date and the fact that the vehicle was registered to his mother. It is, therefore, evident that the alleged error in questioning the alibi witnesses was not "clearly capable of producing an unjust result." Rule 1:7-5.
We also find no merit in defendant's challenge to his sentence. Appellate review of a sentence entails the following determinations:
(1) whether the exercise of discretion by the sentencing court was based upon findings of fact grounded in competent, reasonably credible evidence; (2) whether the sentencing court applied the correct legal principles in exercising its discretion; and
(3) whether the application of the facts to the law was such a clear error of judgment that it shocks the conscience. [State v. Megargel, 143 N.J. 484, 493 (1996).]
The standard of review is one of deference. Even if the appellate court would have reached a different result, it must affirm a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." State v. O'Donnell, 117 N.J. 210, 215 (1989). To be accorded such deference, the sentencing court is required to "identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." Ibid.; State v. M.A., 402 N.J. Super. 353, 370 (App. Div. 2008); N.J.S.A. 2C:43-2(e); R. 3:21-4(g).
In stating the reasons for sentence here, the court identified four aggravating factors: the nature of the offense, N.J.S.A. 2C:44-1(a)(1); the likelihood that the defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3); the offense was committed against a police officer acting in the performance of his duties, N.J.S.A. 2C:44-1(a)(8); and the need to deter the defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). Defendant does not dispute that the aggravating factors found by the court were supported by the evidence.
Although the court did not find any mitigating factors designated in N.J.S.A. 2C:44-1(b), it noted defendant's youth. Defendant argues that the court failed to give appropriate weight to his status as a first offender. However, as the court observed, defendant "has a terrible record as a juvenile," including eleven juvenile complaints, four of which were for violating juvenile probation. It was, therefore, not an abuse of discretion for the court to decline to find mitigating factor (7), N.J.S.A. 2C:44-1(b)(7) or to give greater weight to defendant's status as a first offender.