On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 06-01-0018.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman and Lihotz.
Following a jury trial, defendant Jorge Vargas was convicted of fourth-degree aggravated assault and resisting arrest and was sentenced to fourteen months incarceration. On appeal, defendant argues:
IMPROPER ADMISSION OF OTHER BAD ACTS EVIDENCE PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL.
THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL (PARTIALLY RAISED BELOW).
PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL.
A. THE PROSECUTOR'S COMMENTS DURING SUMMATION WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT HAD A BURDEN OF PROOF VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
B. THE PROSECUTOR'S COMMENTS DURING SUMMATION THAT THE DEFENDANT WAS NO LONGER TO BE PRESUMED INNOCENT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL (RAISED BELOW).
C. THE PROSECUTOR'S MISSTATEMENT OF THE ELEMENTS OF THE CRIME OF RESISTING ARREST BY FLIGHT VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW).
Initially, we note defendant was released from custody on September 29, 2007. Neither party reported that development to this court. Our information is derived from an internet posting by the New Jersey Department of Corrections. Based on this fact, the arguments presented in Point V are moot. Following our review of the remaining arguments, in light of the record and applicable legal standards, we affirm defendant's conviction.
On October 4, 2005, uniformed Bridgeton Police Officer Jeffrey Parvin, while on foot patrol in the Maplewood Garden Housing Complex with his partner Brian McGuigan, heard a two-stroke dirt bike being operated with the throttle open. To Parvin, it sounded as if the bike operator was "revving the engine," suggesting he intended to run at a high rate of speed. Young children were in the area, so police exited the building toward the sound, approaching the area from different directions.
Parvin saw the dirt bike enter the complex, "doing wheelies, and just driving very recklessly, high speeds, low speeds[.]" Parvin described the rider as "showboating." He noted the operator wore a white, long-sleeved shirt, blue pants and a helmet with a mouth guard that was open around his eyes and nose. The helmet did not have a face shield, giving Parvin a partial view of the driver's face. Parvin noted the driver's distinctive shoulder-length braids that hung below his helmet. Although Parvin could not readily identify the driver, he "had a[n] idea that it was a Vargas." Over the four years Parvin had been employed by the Bridgeton Police, he had encountered the Vargas brothers who lived in the community. Parvin was aware the Vargases rode dirt bikes and had similar hair styles.
To stop the dirt bike, Parvin stepped into the middle of the roadway, put his hands up and told the rider of the bike to stop. The driver continued toward him then, when he was within five feet of the officer, made a hard right turn. After making the turn, the driver "attempt[ed] to turn back around, [but] he hit a curb that runs along Birch Street, a sidewalk, and then a fence line." As a result, the bike's operator was "pinned against the fence."
Parvin attempted to grab him, but his efforts were impeded by the bike's front tire. A struggle ensued between Parvin and the dirt bike operator, who attempted to get back on the vehicle. Parvin used his pepper spray, but the driver turned his head so a "majority of the pepper spray" bounced off his helmet and into Parvin's face. As a result, Parvin's left eye was strongly affected, and the rider hopped on the bike and drove away. The bike's back tire kicked into Parvin's left leg and right ankle, causing pain.
McGuigan arrived on the scene and yelled for the driver to stop, but the driver continued traveling at a high rate of speed. Parvin radioed for assistance and provided a description of the bike's driver, including what he was wearing and his belief that he was "one of the Vargas boys."
Bridgeton Police Sergeant Michael Pastirko responded to Parvin's radio call. Within two minutes of arriving at the Maplewood Garden Housing Complex, Pastirko spotted a dirt bike driver matching Parvin's description and three to four police officers attempted to stop him. Pastirko exited his vehicle and told the driver to stop. Instead of stopping, the driver again headed straight toward the officer, "turned the bike sideways and went between the police cars and got away[.]" Pastirko was within ten feet of the driver with nothing obstructing his view. He was able to see the driver's face, including his "pretty distinctive nose," his eyes and some hair coming out the back of his helmet. Based on his four to five second observation, Pastirko recognized the rider as defendant, testifying he was "100-percent" certain, as he knew defendant for "pretty much" all of his ten-year career. Following this encounter, Pastirko radioed to other officers that the rider was Jorge "Pasuel" Vargas.
An indictment issued charging defendant with fourth degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) (count I), and fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count II). A jury trial was held, and defendant moved for acquittal at the conclusion the State's case, R. 3:18-1, which the judge denied. Following his conviction, defendant moved for a new trial or judgment notwithstanding the verdict. That motion was also denied. Thereafter, sentence was imposed. We examine defendant's challenges to his conviction.
Defendant first argues the court erred in admitting "other bad acts" evidence, prejudicing his right to a fair trial. Identifying Parvin's testimony regarding prior contact with the Vargas brothers, defendant contends the officer "improperly injected propensity evidence into the trial and corrupted the jury's deliberations."
Prior to trial, defendant sought to limit any testimony that he was known to police as a result of prior arrests. During trial, defendant cites this colloquy as violating N.J.R.E. 404(b):
[Defense counsel]. [H]ad you ever had occasion to come into contact with any one of the Jorge Vargas brothers?
[Officer Parvin]. Yes, sir.
Q: Okay. And, can you please tell the jury what your understanding is of who they are, the names, anything else you know about them? ...