June 14, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RONALD NEWMONES, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-05-1262.
The opinion of the court was delivered by: R. B. Coleman, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2009
Before Judges R. B. Coleman and Graves.
A jury convicted defendant Ronald Newmones of third-degree possession of a controlled dangerous substance (CDS), namely heroin, and fourth-degree obstructing the administration of the law. He was sentenced to an extended eight-year prison term with four years of parole ineligibility. Defendant now asserts essentially two arguments on appeal: (1) that the trial judge's jury charge on flight was reversible error, and (2) that his sentence is excessive. For the reasons that follow, we affirm.
At approximately 6:30 p.m. on May 1, 2007, Atlantic City Police Officer Brian Shapiro was on patrol in a marked vehicle driving on Metropolitan Avenue in Atlantic City in a known high drug, high crime area. The officer observed defendant reaching his hand into a parked black Mercedes through the rear passenger window. When the officer was within five feet of the Mercedes, he exited his patrol vehicle to investigate. When defendant saw Officer Shapiro, he withdrew his hands from the Mercedes' window. The officer observed defendant holding paper currency and small light-colored objects which he believed to be heroin.
Officer Shapiro immediately ordered defendant to keep his hands where he could see them. Defendant did not comply, bringing his hands behind his back and looking around while backing away from the officer. The officer repeated his order for defendant to keep his hands in sight and was walking towards defendant when he heard voices and movement within the Mercedes. Believing a drug transaction was taking place, Officer Shapiro focused his attention on the two occupants of the Mercedes, Larry J. Snow and Timothy Bunch. Officer Shapiro opened the door of the Mercedes, and removed Snow from the vehicle.
As Officer Shapiro was walking Snow to the patrol vehicle, the officer saw defendant discard the two light-colored objects to the ground. Defendant then began to run from the scene. Officer Shapiro ordered him to stop running, but when defendant was not compliant, the officer began chasing him. After only a few feet, the officer was able to grab defendant by the back of his coat; defendant fell to the ground. A struggle ensued, and in spite of the officer's commands for defendant to give him his hands, defendant resisted by trying to push off the ground, and flailing his arms and legs. Officer Shapiro was, nevertheless, able to subdue defendant and place him into custody. The officer then recovered the objects that defendant had discarded. The objects later tested positive for heroin.
On May 30, 2007, an Atlantic County grand jury returned Indictment No. 07-05-1262 against Snow, Bunch and defendant. Defendant was charged with third-degree possession of CDS, heroin, in violation of N.J.S.A. 2C:35-10(a)(1) (count one); and fourth-degree obstructing the administration of the law in violation of N.J.S.A. 2C:29-1 (count two). A jury trial before Judge Albert J. Garofolo, Law Division, Criminal Part, Atlantic County, was held over the course of two days -- April 1, 2, 2008. The jury found defendant guilty on both charges.
The State then filed a motion for an extended term of imprisonment as a persistent offender under N.J.S.A. 2C:44-3(a). On June 13, 2008, the judge heard argument, and subsequently granted the motion for the extended term. Defendant was sentenced to an eight-year term of imprisonment with four years of parole ineligibility on count one, and a concurrent eighteen-month term of imprisonment on count two. Defendant filed his notice of appeal on August 6, 2008.
In his appellate brief, defendant raised the following arguments:
POINT I: THE DEFENDANT WAS FREE TO LEAVE THE SCENE. THEREFORE, THE COURT COMMITTED REVERSIBLE ERROR WHEN IT GAVE THE JURY A FLIGHT INSTRUCTION (NOT FULLY RAISED BELOW).
POINT II: THE COURT COMMITTED REVERSIBLE ERROR BY GIVING A FLIGHT CHARGE AS CONSCIOUSNESS OF GUILT OF POSSESSION OF CDS (NOT FULLY RAISED BELOW).
POINT III: THE DEFENDANT'S SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO CONSIDER THE APPLICABLE MITIGATING FACTORS.
Contending that he was free to leave the area, defendant objected to the inclusion of a flight charge in the jury instructions. The judge rejected defendant's position, stating that the evidence presented suggested that "[t]his was flight upon seeing a police officer, which in my view is . . . a classic demonstration of . . . consciousness of guilt, which . . . the jury could utilize to infer [defendant's] consciousness of guilt." We perceive no error in the trial court's rejection of defendant's challenge to the jury instruction. State v. Simon, 79 N.J. 191, 206-07 (1979).
"Evidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993). Obviously, flight must be distinguished from mere departure because departure is not probative on the issue of guilt. Ibid. "For departure to take on the legal significance of flight, there must be circumstances present and unexplained which, in conjunction with the leaving, reasonably justify an inference that it was done with a consciousness of guilt and pursuant to an effort to avoid an accusation based on that guilt." Id. at 418-19 (quoting 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)).
A trial judge appropriately administers a flight charge where "[a] jury may infer that a defendant fled from the scene of a crime by finding that he departed with an intent to avoid apprehension for that crime. It is not necessary that he flee from custody . . . ." State v. Wilson, 57 N.J. 39, 49 (1970). Where, as in the present case, a trial judge finds that evidence of flight is admissible, "it must instruct the jury carefully regarding the inferences the jury may draw from that evidence." Mann, supra, 132 N.J. at 420. Adequate instructions require the jury first to determine whether there was a departure, and upon making that finding to determine "a motive for the departure, such as an attempt to avoid apprehension or prosecution, that would turn the departure into flight." Id. at 421. A jury may infer that a defendant fled from the scene of a crime by finding that he fled with the purpose of avoiding apprehension for that crime. Wilson, supra, 57 N.J. at 49.
Here, there was evidence to support a finding of flight with the motive to avoid apprehension by an officer for the possession of heroin. Officer Shapiro testified that he saw defendant first with his hand inside a vehicle. After defendant removed his hand from the vehicle, the officer observed that he was holding paper currency and what appeared at the time, and was later ascertained to be, two small baggies of CDS. In spite of Officer Shapiro's command that defendant keep his hands where he could see them, defendant put his hands behind his back. The officer further testified that defendant then dropped the baggies and ran away from the crime scene.
Defendant contends that Officer Shapiro failed to communicate to him that he was in police custody and that such failure insulates him from being found to have fled. That contention is without merit. "A jury may infer that a defendant fled from the scene of a crime" without his ever being taken into custody. Wilson, supra, 57 N.J. at 49. Moreover, before defendant ran from the crime scene, Officer Shapiro ordered him to keep his hands where he could see them, and the officer began to approach defendant when he did not comply. These events should reasonably have communicated to defendant that he was not free to leave. Plainly, there was evidence of flight presented in this case, and the judge appropriately chose to administer a flight charge to the jury. Mann, supra, 132 N.J. at 420.
Defendant additionally argues that the trial judge's charge should have required the jury to make a finding not only of departure, but also to find the requisite motive for flight. Wilson, supra, 57 N.J. at 49. To his argument, we merely observe that the flight charge given was in accordance with Wilson, supra, 57 N.J. at 49 and Mann, supra, 132 N.J. at 421. The court charged:
Mere departure from a place where a crime has been committed does not constitute flight. If you find that the defendant, fearing that an accusation or arrest would be made against him on the charge involved in the indictment, took refuge and flight for the purpose of evading the accusation or arrest on that charge, then you may consider such flight in connection with all other evidence in the case as an indication or proof of consciousness of guilt. Flight may only be considered as evidence of consciousness of guilt if you should determine that the defendant's purpose in leaving was to evade accusation or arrest for the offense charged in the indictment.
The above flight charge clearly required both a finding of departure and motive.
Our review of a trial court's sentence is guided by the three-factor test of State v. Roth, 95 N.J. 334, 364-65 (1984), which looks to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience.
"Although appellate courts possess original jurisdiction over sentencing, the exercise of that jurisdiction 'should not occur regularly or routinely; in the face of a deficient sentence, a remand to the trial court for resentencing is strongly . . . preferred.'" State v. Kromphold, 162 N.J. 345, 355 (2000) (quoting State v. Jarbath, 114 N.J. 394, 410-11 (1989)). We modify sentences "sparingly and only upon a 'clear showing of abuse of discretion.'" State v. Whitaker, 79 N.J. 503, 512 (1979) (quoting State v. Velazquez, 54 N.J. 493, 495 (1969)).
In sentencing defendant, the judge weighed the applicable aggravating and mitigating factors as required under N.J.S.A. 2C:44-1. The judge found applicable aggravating factors three, six and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), and no mitigating factors. Having granted the State's motion for an extended term of imprisonment as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), the judge sentenced defendant to a term of eight years imprisonment with a four-year period of parole ineligibility on count one, and a concurrent term of eighteen months imprisonment on count two.
While we may not substitute our judgment for that of the sentencing court, State v. Cassady, 198 N.J. 165, 180 (2009), "[c]onsideration of an inappropriate aggravating factor violates the guidelines and thus is grounds for vacating sentence." State v. Pineda, 119 N.J. 621, 628 (1990). Likewise, "where the . . . facts found by the judge are not supported by the record, it is not for us to agree or disagree with the sentence; it is for the judge to resentence, applying the correct sentencing guidelines to the facts of record." State v. Dalziel, 182 N.J. 494, 501-02 (2005).
Defendant contests neither the judge's finding of aggravating factors three, six and nine, nor his granting of the State's motion to sentence defendant as a persistent offender. Rather, defendant argues solely that the defendant's eight-year sentence under count one was excessive and that the judge should have applied mitigating factors one and two, N.J.S.A. 2C:44-1(b)(1), (2).
Under N.J.S.A. 2C:43-6, "in a case of a crime of the third degree," such as defendant's violation of N.J.S.A. 2C:35-10(a)(1), a sentence shall be fixed "for a specific term of years which shall be fixed by the court and shall be between three and five years." Here, in light of defendant's extensive criminal record including four prior state prison terms, three parole violations, and two violations of probation, the State's motion to sentence defendant as a persistent offender was granted pursuant to N.J.S.A. 2C:44-3(a). Where a defendant is sentenced as a persistent offender for a third-degree crime, the range of sentence available for imposition starts at the minimum of the ordinary-term range (three years) and ends at the maximum of the extended range (ten years). State v. Pierce, 188 N.J. 155, 169 (2006). As such, the judge's sentence of eight years imprisonment with four years of parole ineligibility as to count one, is within the range for persistent offenders guilty of a third-degree crime.
Moreover, the judge was only required to find mitigating factors that were clearly supported by the record. Dalziel, supra, 182 N.J. at 505. It was not required, "however, that the trial court explicitly reject each and every mitigating factor argued by defendant." State v. Bieniek, 200 N.J. 601, 609 (2010). See also State v. Pillot, 115 N.J. 558, 565-66 (1989) (although trial judge could have more clearly delineated reasons for imposing a sentence, it was "possible in the context of this record to extrapolate without great difficulty the court's reasoning"). Here, no mitigating factors were argued by defendant at sentencing.
Since, no mitigating factors were argued by defendant, and no mitigating factors were supported by the record, we find that the judge properly exercised his sound discretion and weighed the aggravating and mitigating factors in the case. Dalziel, supra, 182 N.J. at 505; Bieniek, supra, 200 N.J. at 609. We perceive no abuse of discretion as the eight-year sentence with a four-year parole disqualifier complies with the guidelines for sentencing persistent offenders. We are satisfied that defendant's sentence is not excessive. N.J.S.A. 2C:44-3(a); N.J.S.A. 2C:43-7.
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