February 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RAMON LEONARDO ACOSTA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-09-0349.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2009
Before Judges Baxter and Alvarez.
Defendant Ramon Acosta was found guilty by a jury of third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count one); third-degree conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3 (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count four); second-degree eluding, N.J.S.A. 2C:29-2b (count five); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count six); third-degree hindering prosecution, N.J.S.A. 2C:29-3b (count eight); and fourth-degree hindering the prosecution of another, N.J.S.A. 2C:29-3b (count nine). Defendant was acquitted of count three, a third-degree burglary.
Following merger of the conspiracy to commit theft into the substantive theft count, defendant was sentenced to seven years imprisonment for eluding, a concurrent five-year term on each third-degree offense and a concurrent eighteen-month term on the fourth-degree crime. Additionally, defendant was sentenced on numerous motor vehicle offenses and appropriate penalties and fines were imposed.*fn1
The following facts were developed at trial. On April 21, 2006, New Jersey State Park Police Rangers David M. Wojtach and Robert Pfeil were on patrol in the Worthington State Forest off Route 80, near the Pennsylvania border. Because of many reports over the weeks prior of "lewd behavior" and "car break-ins" in the area, they included the Dunnfield parking lot in their patrol circuit. Both men were uniformed and armed. Wojtach was in the troop car while Pfeil surveilled the lot on foot. At approximately 3:00 p.m., Pfeil sent Wojtach a radio transmission that he had observed an individual involved in suspicious activity in the woods overlooking the Dunnfield parking lot. Wojtach drove into the parking lot within thirty seconds of the radio dispatch and immediately saw an older blue two-door Cadillac. Pfeil had included a description of a blue car in his radio transmission. Wojtach activated his emergency lights and sirens and noticed the individual Pfeil had also described, defendant, getting into the Cadillac's driver's seat. The vehicle nearly struck Wojtach's patrol car as it sped away.
Wojtach followed it out onto Route 80, where the vehicle crossed both lanes even though it was the beginning of rush hour and the roadway was crowded. The Cadillac cut in front of other cars as it traveled at a high speed. The driver was "gunning it" and eventually "shot right across the highway" to take the last exit before the Pennsylvania border. As a result of that maneuver, a tractor-trailer nearly struck Wojtach's patrol car as it avoided a collision with the Cadillac. The Cadillac crashed into a concrete wall at the base of the exit ramp; Wojtach saw smoke pouring out of the vehicle, and defendant and his passenger immediately dove out of the car, running in opposite directions. Wojtach chased defendant, reaching him several times before defendant finally stopped and allowed Wojtach to handcuff him. At that moment, the passenger appeared and ran towards Wojtach, who drew his gun. Upon seeing Wojtach's weapon, the passenger turned and ran. Wojtach cuffed defendant and placed him in the rear of his troop car. The passenger, defendant's co-defendant, was apprehended several hours later while walking on Route 80.
When Wojtach returned to the exit ramp to secure defendant in the rear of his patrol car, he realized that the Cadillac had actually moved from the point of impact because the engine had been left running and the car was in gear. When Wojtach entered the car in order to shut off the engine, he saw a number of suspicious items in plain view, including burglary tools. A bag was located in the rear of the vehicle containing, among other things, a computer and an Ipod belonging to a victim whose car was burglarized earlier in the day while he was hiking the state park trails.
During his testimony, one of the arresting officers, without prompting, said that a background check on defendant's name revealed an outstanding bench warrant. Defense counsel immediately objected, and the judge instructed the jury that the bench warrant was not relevant to the proceedings. Defense counsel then made a motion for a mistrial, which the judge denied.
Defendant testified through an interpreter that he was only vaguely aware that he and his cohort were being chased by police. He said that when the co-defendant ran out of the car, he cried out, "why are you running?" The co-defendant only told him he could not be arrested. Defendant denied running; he claimed that he walked in front of the car while attempting to convince the other man not to run. He testified that Wojtach spoke to him in English, which he did not understand, and that he never ran from or scuffled with any officer. He said, in fact, that the arresting officer struck him, knocked him down and kicked him on the side of his body. He denied breaking into cars, seeing anyone else break into cars, driving the Cadillac, or even being given Miranda*fn2 warnings.
On appeal, defendant raises the following contentions:
POINT I: THE TRIAL COURT'S CHARGE TO THE
JURY REGARDING COUNT V INVOLVING SECOND DEGREE ELUDING WAS FATALLY DEFECTIVE BY FAILING TO EXPLAIN THE REQUISITE ELEMENTS OF THE VARIOUS MOTOR VEHICLE OFFENSES WHICH FORMED THE STATUTORY INFERENCE OF RECKLESSNESS, WARRANTING A REVERSAL. (NOT RAISED BELOW).
POINT II: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION TO SUPPRESS THE WARRANTLESS SEARCH OF THE VEHICLE WHICH THE DEFENDANT WAS DRIVING AND THE SUBSEQUENT SEIZURE OF VARIOUS ITEMS FOUND THEREIN.
A. FACTUAL INTRODUCTION.
B. THE TRIAL COURT ERRED IN CONCLUDING THE SEARCH AND SEIZURE WAS JUSTIFIED PURSUANT TO THE AUTOMOBILE EXCEPTION TO THE SEARCH WARRANT REQUIREMENT.
POINT III: THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL ARISING OUT OF TESTIMONY GRATUITOUSLY VOLUNTEERED BY A POLICE OFFICER REFERENCING AN ACTIVE BENCH WARRANT FOR THE DEFENDANT.
POINT IV: THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
By way of supplemental submission, defendant pro se asserts the following:
JUDGE GROSSLY PREJUDICED THE DEFENDANT PRIOR TO TRIAL AT SUPPRESSION HEARING AND THEREFORE, COULD NOT BE UNBIASED AND IMPARTIAL AT TRIAL.
Defendant's first contention is that the court erred in the jury instruction as to the statutory elements of eluding. Specifically, defendant claims that the court's failure to define each and every motor vehicle offense mentioned in the charge was fatally prejudicial. The disputed portion of the jury instruction is as follows:
If you find [that] the six elements [of eluding] are satisfied beyond a reasonable doubt, you must then go to the seventh element; (7) that the flight or attempt to elude created a risk of death or injury to any person.
Injury means physical pain, illness or other impairment of physical condition. In order for you to find this element, you must determine that there was at least one person put at risk by the defendant's conduct, which could include the defendant himself or any person along the chase, any police officer in a chasing vehicle, or anyone in the eluding vehicle.
You may infer risk of death or injury to any person if the defendant's conduct in fleeing or attempting to elude the officer involved a violation of the motor vehicle laws of this State. Talking about all the tickets issued. It is alleged that the defendant's conduct involved violation of the motor vehicle laws. Specifically, it is alleged that the defendant was: Traveling [at] excessive speeds; was tailgating a car on Route 80; was driving while his license was suspended; made unsafe lane changes from [the] right lane and back; improper passing; driving without a license; improper passing was the allegation that he passed a truck on the right; failure to comply [with] an officer's direction to stop; reckless driving. That means driving without due care and circumspect[ion] for other drivers on the road. Failure to yield.
Whether Mr. Acosta is guilty of these offenses will be determined by an appropriate Court, not by you. In other words, it is not your job to decide whether he is guilty or not guilty of the motor vehicle offenses. However, you may consider the evidence that he committed motor vehicle offenses in deciding whether he created a risk of death or injury. You may consider that. You don't decide the issue, you may consider it.
At trial, defendant made no objection to the language, which was virtually identical to the Model Jury Charge for second-degree eluding. Model Jury Charge (Criminal), "Eluding an Officer [Second and Third Degree]" (2009). Given the fact that no objection was made, the jury instructions are subject to review pursuant to the plain error standard. R. 2:10-2. The purported error will be considered a basis for reversal only if "it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. A conviction based on improper jury instructions will only be reversed if the impropriety "is of such a nature as to have been clearly capable of producing an unjust result." Ibid. See also State v. Savage, 172 N.J. 374, 387 (2002).
Third-degree eluding requires flight from police after a driver is signaled to stop. N.J.S.A. 2C:29-2b. The crime becomes one "of the second degree if the flight or attempt to elude creates a risk of death or injury to any person." Ibid. The statute creates a permissive inference that the conduct created a risk of death or injury if the driver's operation involved motor vehicle violations contained in Chapter 4 of Title 39. Ibid. Thus, the State has the option to prove, beyond a reasonable doubt, either that a defendant's attempt to elude law enforcement created a risk of death or injury to any person or that a defendant committed enumerated motor vehicle offenses while driving.
The trial judge did not define the moving violations pending against defendant; rather, he only read to the jury the list of offenses. His instruction even included a reference to a non-moving violation, namely, driving while suspended.
Ordinarily, the failure to define the motor vehicle charges for the jury's benefit would be fatal. In this case, however, the judge also instructed the jury regarding the statutory definition of the phrase "risk of death or injury." So long as a trial court does so, it is not necessary that the motor vehicle violations be defined as well. State v. Dorko, 298 N.J. Super. 54, 58-60 (App. Div.), certif. denied, 150 N.J. 28 (1997). By explaining to the jury that the State could prove its case by establishing that the conduct created a risk of death or injury to any other person, and by defining injury, the judge fulfilled his obligation to explain the statutory elements of the offense. See State v. Wallace, 158 N.J. 552, 558 (1999). Failure to charge the elements of motor vehicle offenses referred to in the charge is error. See Dorko, supra, 298 N.J. Super. at 58-60. Where the jury is told, however, what is meant by the term "injury," and that the flight must pose a risk of death or injury, this too satisfies the statutory requirements. See State v. Wallace, supra, 158 N.J. at 558. Therefore, the court properly instructed the jury, and no error occurred.
Defendant next contends that the court erred by denying his motion to suppress the stolen items found in the vehicle at the time of his arrest. We do not agree. In this case, events evolved at breakneck speed and included a foot chase, a perpetrator who was missing for hours, and an abandoned car. "[T]he United States Constitution and the New Jersey Constitution guarantee the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches or seizures." State v. Pena-Flores, 198 N.J. 6, 18 (2009) (citations omitted). "Warrantless searches are presumptively unreasonable," and the fruits from such searches are suppressed, unless the conduct falls "within a recognized exception." Ibid.
The State responds that the search of defendant's vehicle was entirely proper based on the automobile exception of the warrant requirement. The exception makes the warrantless search of a motor vehicle permissible where the stop is unanticipated, there is probable cause that the car "contains contraband or evidence of a crime," and "exigent circumstances exist" which make procuring a warrant impractical. Id. at 28. The determination of exigency is fact-sensitive, and is made on a "case-by-case basis." Ibid. The totality of the circumstances must be considered, including issues involving officer safety and the preservation of evidence. Id. at 28-29.
The initial entry into the car requires little discussion. An officer is not expected to stand idly by while a vehicle, engine running, moves from spot to spot after being abandoned by the driver. Once lawfully in the car, having seen instrumentalities of crime and stolen merchandise in the vehicle, probable cause was amply established for the search. The several officers at the scene, however, were focused on attempting to locate the second suspect through parklands in an area adjoining Pennsylvania. Darkness was approaching. Any delay would make it less likely the second suspect would be apprehended. We therefore find that under these circumstances, that the requisite exigency was well-established, and that it amply justified the warrantless search.
Defendant, who had a prior criminal history, testified at trial. The court gave the appropriate instruction, in accord with defendant's request, that the jury should not conclude from his prior conviction history that he had a propensity to commit crimes; rather, they were to use those convictions only in their assessment of his credibility. See Model Jury Charge (Criminal), "Credibility Prior Convictions of a Defendant" (2009).
Under these circumstances, we do not consider the officer's fleeting reference to defendant's outstanding bench warrant to have prejudiced defendant. The judge immediately instructed the jury to ignore the comment. In light of defendant's admitted criminal history, the presence of an outstanding bench warrant is minor. Just as the jury was expected to assume that an actual conviction did not establish propensity to commit crimes, certainly they could be assumed to understand that a mere bench warrant would not establish propensity either. We find the decision to deny the request for a mistrial based on the officer's unsolicited statement to be a reasonable exercise of discretion. Such decisions are overturned only if there is an abuse of discretion. State v. Thompson, 405 N.J. Super. 76, 83 (App. Div. 2009) (quoting State v. Harvey, 151 N.J. 117 (1997)). That is not the case here; no abuse of discretion occurred.
Defendant also contends the sentence imposed was excessive. Our review of sentencing decisions is deferential. Sentences will be modified only when the trial court's "application of the facts to the law is such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984) (quoting State v. Whitaker, 79 N.J. 503, 512 (1979)). See also State v. Dalziel, 182 N.J. 494, 501 (2005) (citation omitted). We must also determine whether the aggravating and mitigating factors found by the judge were based on credible evidence in the record. State v. Dalziel, supra, 182 N.J. at 504-05. We do not second-guess a trial court's finding of facts that support an aggravating or mitigating factor so long as substantial credible evidence supports the conclusion. State v. Cassady, 198 N.J. 165, 180-81 (2009). The trial court found as specific aggravating factors "[t]he risk that the defendant will" reoffend, N.J.S.A. 2C:44-1a(3), "[t]he extent of [his] prior criminal" history, N.J.S.A. 2C:44-1a(6), and the need to deter him and others from criminal activity, N.J.S.A. 2C:44-1a(9). He found no factors in mitigation.
Defendant's arrest history went back to 1999; his convictions included five indictable offenses as well as several disorderly persons matters. In light of defendant's criminal history, we are satisfied that the judge did not err when he found that the aggravating factors had substantial weight. Furthermore, the lengthiest sentence imposed on defendant, seven years for eluding, was not at the top of the sentencing range, despite the presence of three aggravating factors and the absence of mitigating factors.
Defendant contends that mitigating factor eleven, N.J.S.A. 2C:44-1b(11), should have been found because he had a family in the Dominican Republic who depended on him for child support. The mere assertion of the existence of a financially dependent family, without a scintilla of corroboration, is not a sufficient basis for a sentencing court to conclude that defendant's imprisonment would entail excessive hardship to himself or his family. We are satisfied that the sentence was simply not excessive.
Lastly, defendant contends in his pro se supplemental brief that because the trial judge denied defendant's motion to suppress, he was not "unbiased and impartial." We do not consider that contention to warrant discussion in a written opinion. R. 2:11-3(e)(2).