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State of New Jersey

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 15, 2011

STATE OF NEW JERSEY IN THE INTEREST OF D.D.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket Nos. FJ-13-3090-09 and FJ-13-3091-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 10, 2010

Before Judges Fuentes, Gilroy and Ashrafi.

Sixteen-year-old D.D. was adjudicated delinquent by the Family Part based on charges that, if committed by an adult, would have constituted second degree eluding, N.J.S.A. 2C:29-2(b); fourth degree joyriding, N.J.S.A. 2C:20-10(b), as a lesser-included offense of third degree theft of a motor vehicle, N.J.S.A. 2C:20-3; and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1).*fn1 By way of disposition, the court committed D.D. to the custody of the Juvenile Justice Commission for a period of one year, ordered him to participate in the Juvenile Intensive Supervision Program (JISP) for a period of one year, and placed him on probation for a period of two years. The court also imposed mandatory fines and penalties. We affirm.

We gather the following facts from the evidence presented at trial.

I

While on bicycle patrol at approximately 6:15 p.m. on June 21, 2008, Keansburg police officers Tiffanie Dill and Michael Deaney observed a gray Mitsubishi Galant drive through a stop sign without stopping at the corner of Oak Street and Raritan Avenue. Dill estimated the vehicle was traveling about thirty-five miles per hour in a twenty-five mile per hour zone. The driver lost control while attempting to negotiate the turn onto Raritan Avenue, and as a result, drove up approximately twelve feet onto the sidewalk.

The Mitsubishi then accelerated in reverse and crashed into a concrete wall, causing extensive damage to the rear of the vehicle. Approximately twenty to thirty people were standing on the street at the time. The vehicle came within fifteen to twenty feet of striking the group. Dill described the driver of the vehicle as a sixteen-year-old juvenile, whom she knew from previous unrelated interactions.

D.D. exited the vehicle from the driver's side, while another individual, later identified as R.G., came out from the passenger side. R.G. immediately ran away up Oak Street. Dill ordered D.D. "to stay where he was . . . not to go anywhere," before both she and Deaney set off in pursuit of R.G. Dill testified she was "face-to-face" with D.D. when she told him not to go anywhere.

Dill and Deaney chased R.G. for about two blocks before apprehending him. Officer Scott Rongo arrived at the scene of the arrest almost immediately thereafter. Dill then used Rongo's vehicle to return to the original scene of the incident. Rongo activated the lights on the patrol car during the drive back, but did not activate the siren.

As Dill and Rongo approached, D.D., who had been standing next to the Mitsubishi, got back into the car and drove away up Oak Street at a "high rate of speed." Dill and Rongo pursued D.D. in their patrol car with the sirens wailing and overhead lights flashing. Due to traffic conditions, the officers soon lost sight of the vehicle.

Upon returning to police headquarters, Dill received an anonymous message from a "concerned citizen," informing her that D.D. and the Mitsubishi were at a specific address in Keansburg. When Dill and Deaney arrived at this location, they saw the damaged Mitsubishi parked in the driveway. The officers encountered S.H., the owner of the vehicle, who claimed she was unsure whether the juvenile was present. S.H. gave the officers permission to enter the residence to search for the juvenile. Although S.H.'s connection to the residence is unclear, Deaney testified S.H. spoke to the officers from inside the residence and remained inside after the officers entered.

Deaney found D.D. inside a closet in a rear bedroom of the residence. According to Dill, D.D. was "crouching down in the closet with his hands behind his back." Dill testified that both she and Deaney "advised [D.D.] several times to show his hands, and he did not comply with the request." This compelled the officers to use a burst of pepper spray as a means of getting D.D. to show his hands. The officers then physically removed the juvenile from the closet, secured him in handcuffs, and transported him for processing. On cross-examination, Dill testified that even after using the pepper spray the juvenile remained belligerent by "pushing and pulling away." Once at police headquarters, the juvenile received medical attention to treat the effects of the pepper spray.

D.D.'s mother was apprised of the situation at police headquarters. Dill and Patrolman Lopez (the record does not indicate his first name) accompanied D.D. and his mother into an interview room where the officers informed them of the juvenile's rights under Miranda.*fn2 D.D. and his mother agreed to waive those rights. D.D. gave a videotaped statement in which he admitted to driving the Mitsubishi and of having received a direction from Dill to remain at the scene following the collision. The juvenile also stated that he re-entered the vehicle and left the scene because he wanted to return the car to its owner.

II

In addition to the juvenile's video statement, the State's case consisted of the testimony of Officers Dill, Deaney, and Rongo. D.D. called S.H. as a defense witness. S.H. knows D.D. as a long-time friend of one of her sons. According to S.H., on the day of the incident, D.D., R.G., and her three children (two boys and a girl) were all together at her house. At some point during the day, R.G. asked her to borrow her car to pick up some paperwork. She understood this to mean that D.D. and her oldest son J.M. would accompany R.G. in the vehicle.

S.H. testified that she gave all three boys permission to be in the vehicle and denied telling Dill that D.D. had stolen the car. On cross-examination, S.H. specified that she did not give D.D. permission to drive the vehicle. The prosecutor also confronted S.H. with a signed, initialed statement she gave to the police immediately following the D.D.'s arrest which, in response to the question: "At any time did you give [D.D.] permission to take the car?" S.H. answered: "No, absolutely not. I don't even give it to my son." S.H. testified to having no recollection of making such a statement. She also indicated that the statement did not accurately convey the information she provided to the police at the time, and that she "had to sign that because [the officers] threatened they were going to take [her] kids to DYFS."*fn3

The case was tried over a period of five non-sequential days. At the conclusion of the first day of testimony, the court granted defense counsel's application for DYFS to provide transportation to the juvenile's mother to and from the courthouse by way of the closest bus stop. This issue resurfaced on the third trial day, when the juvenile's mother did not arrive at the courthouse on time. This prompted the following application by defense counsel:

[DEFENSE COUNSEL]: We did expect his mother to be here at 9:30 [a.m.]. I did call the house some time ago and spoke with her husband. She did leave early this morning, she caught the bus. She doesn't have a cell phone so I was not able to reach her in route. Either she missed the connection, she has to take three buses to get here, or the buses are just running late.

However, I did speak with [D.D.]. We understand that his mother does have a right to be here. And we request that Your Honor postpone the trial until his mother does arrive. But in speaking with [D.D.], he would like to continue, so we would like to continue with the trial.

I do have fellows in my office just checking every couple of minutes in the hallway, so when his mother does show up that she can be brought immediately into the courtroom.

THE COURT: All right. We'll proceed then.

Based on this evidence, the court found the State had proven, beyond a reasonable doubt, that D.D. committed three acts of delinquency predicated on the offenses of second degree eluding, fourth degree joyriding as a lesser-included offense of theft of a motor vehicle, and the disorderly persons offense of resisting arrest by flight.*fn4

III

D.D. now appeals raising the following arguments:

POINT I

TRIAL COUNSEL DEPRIVED THE JUVENILE OF EFFECTIVE ASSISTANCE OF COUNSEL BY FAILING TO MOVE TO SUPPRESS OR CHALLENGE THE JUVENILE'S CONFESSION, WHICH RESULTED FROM THE ILLEGAL ENTRY INTO THE RESIDENCE [ON A SPECIFIC LOCATION IN KEANSBURG]*fn5

POINT II

THE TRIAL COURT'S FINDINGS OF THE JUVENILE'S GUILT ON THE CHARGES OF ELUDING AND JOYRIDING WERE NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE POINT III THE TRIAL COURT ERRED BY CONTINUING THE TRIAL WITHOUT THE JUVENILE'S MOTHER BEING PRESENT IN COURT.

We reject these arguments and affirm. We first address the claims of ineffective assistance of trial counsel.

D.D. argues the officers' entry into the residence was illegal because they did not have a search or arrest warrant and because S.H. was not properly informed of her right to refuse consent to the officers' entry. He also maintains the officer did not have probable cause to arrest him based on the conflicting testimony of Officers Dill and Rongo regarding him leaving the scene of the initial accident. D.D. argues that this alleged unlawful arrest tainted his subsequent inculpatory statement to police, providing grounds for its suppression. According to D.D., his trial counsel's failure to raise these issues denied him his right to effective assistance of counsel.

We review claims of ineffective assistance of counsel by applying the two-prong test articulated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42 (1987). We must determine: (1) whether counsel's performance "fell below an objective standard of reasonableness," Strickland, supra, 466 U.S. at 688, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; and (2) whether these acts or omissions had a prejudicial effect on the final judgment. Fritz, supra, 105 N.J. at 58. See also State v. Harris, 181 N.J. 391, 430-32 (2004).

The first prong of the test is satisfied by showing, in light of the case in its entirety, that counsel's acts or omissions fell "outside the wide range of professionally competent assistance." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. "[R]eviewing courts [are] to be 'highly deferential'" in this analysis. Harris, supra, 181 N.J. at 431 (citing Strickland, supra, 466 U.S. at 689, 104 S. Ct. at 2065, 80 L. Ed. 2d at 694). See also State v. Baker, 270 N.J. Super. 55, 64 (App. Div. 1994), aff'd o.b., 138 N.J. 89 (1994). The court "must judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of the counsel's conduct." Strickland, supra, 466 U.S. at 690, 104 S. Ct. at 2066, 80 L. Ed. 2d at 695. Strategic miscalculations or trial mistakes are not sufficient to warrant reversal "except in those rare instances where they are of such magnitude as to thwart the fundamental guarantee of fair trial." State v. Buonadonna, 122 N.J. 22, 42 (1991) (quoting State v. Dennis, 43 N.J. 418, 428 (1964)).

The second prong requires the juvenile to show that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, supra, 466 U.S. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. The alleged error must be so serious as to undermine the court's confidence in the result reached. Ibid.

In applying this test, our courts "have expressed a general policy against entertaining ineffective assistance of counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record." State v. Castagna, 187 N.J. 293, 313 (2006) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). When a claim of ineffective assistance involves contentions that lie outside the record, it is more properly raised via an application for post-conviction relief (PCR). State v. Homdziuk, 369 N.J. Super. 279, 288 (App. Div. 2004). However, "when the trial itself provides an adequately developed record upon which to evaluate defendant's claims, appellate courts may consider the issue [of ineffective assistance] on direct appeal." State v. O'Neal, 190 N.J. 601, 634 (2007) (quoting Castagna, supra, 187 N.J. at 313).

Our courts have held that, "[i]n certain contexts, such as the '[a]ctual or constructive denial of the assistance of counsel altogether,' prejudice is presumed." State v. Goodwin, 173 N.J. 583, 597 (2002) (second alteration in original) (quoting Strickland, supra, 466 U.S. at 692, 164 S. Ct. at 2067, 80 L. Ed. 2d at 696. However, "[f]ailure to file a suppression motion . . . is not one of those circumstances." Ibid.

(quoting State v. Fisher, 156 N.J. 494, 501 (1998)). That being said, the juvenile may have information outside the trial record that may establish grounds for such a claim. We thus reject D.D.'s argument without prejudice to his right to file a timely PCR petition on this or any other cognizable ground under Rule 3:22-1 to -13.

On this record, we discern no legal basis to conclude D.D.'s defense counsel was ineffective. The police had probable cause to arrest D.D. once he drove the damaged vehicle away from the scene of the crash in defiance of the officers' clear directions otherwise. The subsequent high speed pursuit with overhead lights flashing and sirens wailing provided independent grounds for the juvenile's arrest. There is also no basis on this record to exclude the juvenile's inculpatory statement based on unsupported and self-serving allegations concerning his physical or emotional state after being exposed to pepper spray.

The argument raised in Point II concerning the sufficiency of the evidence lacks "sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). As to argument Point III, the record shows the juvenile, through counsel, waived his right to have his mother present during certain parts of the trial. Based on the totality of the circumstances revealed to us in this record, there is no evidence to suggest this was not informed and voluntary decision made by D.D. after having had the opportunity to discuss this matter with counsel. See State v. Presha, 163 N.J. 304 (2000). Affirmed.


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