January 26, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CORBETT A. WARREN A/K/A ARCENOS WARREN, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-05-0350.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2011 - Decided January 26, 2011
Before Judges Fuentes, Gilroy and Nugent.
On January 9, 2008, a jury found defendant Corbett Warren guilty of second-degree eluding, N.J.S.A. 2C:29-2b, and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3). The trial judge, sitting as the fact-finder, also found defendant guilty of the following motor vehicle violations: careless driving, N.J.S.A. 39:4-97; driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; driving while suspended, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; failure to keep right, N.J.S.A. 39:4-82; failure to yield to an emergency vehicle, N.J.S.A. 39:4-91; failure to stop for an emergency vehicle, N.J.S.A. 39:4-92; and unsafe lane change, N.J.S.A. 39:4-88b.
On February 29, 2008, the trial court sentenced defendant on count one to a ten-year term of imprisonment with a five-year period of parole ineligibility; and on count two, to a five-year term of imprisonment, to run concurrent with the sentence imposed on count one. After the court merged the motor vehicle violations for failure to yield to an emergency vehicle and failure to stop for an emergency vehicle with the conviction of second-degree eluding, the court imposed appropriate fines, penalties and license suspensions on the remaining motor vehicle convictions.
On appeal, defendant argues:
POINT I. PROSECUTOR MISCONDUCT R. 3:13 VIOLATION.
PROSECUTOR WITHHELD [EXCULPATORY] EVIDENCE. WITHHOLDING "TANGIBLE OBJECTS IN POSSESSIONS OF THE PROSECUTOR" IS A WILLFUL VIOLATION OF THE ABOVE [STATUTE]. DISCOVERY VIOLATIONS INVOLVING EXCULPATORY EVIDENCE WHERE [BRADY*fn2 ]
OBLIGATIONS ARE PRESENT CONSTITUTE A VIOLATION OF THE ABOVE [STATUTE]. PROSECUTOR KNEW OF THE LOST OR DESTROY-EVIDENCE.
POINT II. PROSECUTOR MISCONDUCT R. 3:10 VIOLATION.
WHILE KNOWING OF THE LOST AND DESTR[OYED] EVIDENCE AND WITHHOLDING THAT INFORMATION FROM THE GRAND JURY, THE PROSECUTOR SOUGHT TO TRY A CASE AROUND THE MISSING EVIDENCE. WILLFUL VIOLATION OF ABOVE RULE DUE TO THE [INDICTMENT] BEING [PALPABLY] INSUFFICIENT. INSTRUCTING THE GRAND JURY ON WHAT THEY WERE TO CONSIDER AS EVIDENCE, AND FAILING TO INSTRUCT THE GRAND JURY ON POSSIBLE DEFENSES. COMMENTS TO THE JURY WERE [INAPPROPRIATE], REMOVED THE BURDEN OF PROOF FROM THE STATE AND PLACED IT ON THE DEFENSE.
POINT III. PERJURY.
SUPPRESSED DISCOVERY BY THE STATE ALLOWED THE USE OF PATENTLY TAILORED TESTIMONY BY THE OFFICERS WHICH THE STATE KNEW AND KNOWINGLY USED THIS TESTIMONY TO OBTAIN AN UNJUST CONVICTION DENYING ME MY RIGHTS TO A FAIR TRIAL.
POINT IV. INSUFFICIENT EVIDENCE.
SUPPRESSION OF ENDING PART OF MIDDLESEX DVD WAS CLEARLY PREJUDICIAL, AS WELL AS THE EXCLUSION OF THE NEW JERSEY POLICE VEHICLE PURSUIT POLICY. A VIOLATION OF THIS POLICY CREATES A HAZARDOUS SITUATION TO THE PUBLIC.
ALSO SHOWS THAT NO ALLEGED ELUDING TOOK PLACE. VIOLATION OF THE SOMERVILLE & MIDDLESEX MVR POLICY ALLOWED FOR THE ALLEGED RESISTING ARREST TO NEVER BE RECORDED. THE STILL PHOTO FROM (STATE EXHIBIT S-2) WAS NEVER AUTHENTICATED. DAMAGE TO BOUND BROOK CRUISER WAS UNFOUNDED. THE TITLE 39 TICKETS ARE [FICTITIOUS] DUE TO THE LACK OF EVIDENCE THAT EITHER I OR OFFICER GELARDI WAS EVER IN SOMERVILLE ON 04/09/2006 @ 1:31 AM.
POINT V. INEFFECTIVE ASSISTANCE OF COUNSEL.
DEFENDANT HAS THE RIGHT TO EFFECTIVE REPRESENTATION BY COURT APPOINTED COUNSEL. COUNSEL IS AT NO TIME TO JEOPARDIZE THE ATTORNEY/CLIENT PRIVILEGE BY MAKING CONCESSIONS WITHOUT CLIENT'S CONSENT, AND ALL LEADS THAT THE CLIENTS PROVE TO BE FRUITFUL SHOULD BE ADDRESSED, AS WELL AS ADEQUATE MOTIONS FILED IN THEIR CLIENT[']S DEFENSE.
POINT VI. 6TH AMENDMENT VIOLATION ([FARETTA*fn3 ]
RIGHTS OF DUE PROCESS WERE VIOLATED BY THE COURTS IN THEIR DENIAL OF SELF[-] REPRESENTATION FOR TRIAL WHEN A PRO SE MOTION WAS FILED FOR SELF/HYBRID REPRESENTATION AS WELL AS DEFENSE COUNSEL'S REQUEST BEFORE TRIAL WAS DENIED. YET FOR SENTENCING AND APPEAL I'VE BEEN GIVEN THE [FARETTA] HEARING.
POINT VII. EXTENDED TERM.
DEFENDANT'S LAST KNOWN PRIOR CRIME IS OUT OF THE SCOPE OF THE 10 YEAR PERIOD TO BE CONSIDERED ELIGIBLE FOR THE DISCRETIONARY EXTENDED TERM.
POINT VIII. SENTENCING.
DEFENDANT HAS THE RIGHT TO MAINTAIN HIS INNOCENCE FOR POST TRIAL RELIEF AND NON ADMITTANCE OF GUILT TO THE SAID CRIME SHOULD NOT ALLOW THE TRIAL JUDGE TO SENTENCE DEFENDANT TO THE [MAXIMUM TERM] FOR THE ABOVE SAID CHARGE.
We have considered defendant's arguments in light of the record and applicable law. We conclude that none of them are of sufficient merit to warrant a discussion in a written opinion.
R. 2:11-3(e)(2). Nevertheless, we add the following comment.
On February 29, 2008, the court sentenced defendant on the second-degree eluding conviction to a ten-year term of imprisonment with a five-year period of parole ineligibility.
Although the court determined that defendant was extended-term eligible pursuant to the persistent offender statute, N.J.S.A. 2C:44-3a, the court declined to sentence defendant to an extended term, but rather sentenced him to a ten-year term of imprisonment, the maximum term within the ordinary range for a second-degree crime. N.J.S.A. 2C:43-6a(2). Nonetheless, contrary to the court's statement at the sentencing hearing that it was not imposing an extended-term sentence, the judgment of conviction incorrectly indicates that the court imposed an extended-term sentence. Accordingly, we remand to enter a corrected judgment of conviction to delete any reference that defendant was sentenced to an extended-term sentence.
Affirmed and remanded to enter an amended judgment of conviction.