June 8, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JOSE SANTOS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-01-0106.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued October 4, 2011
Before Judges Espinosa and Kennedy.
Defendant was convicted by a jury of second-degree eluding, N.J.S.A. 2C:29-2(b), and disorderly persons shoplifting, N.J.S.A. 2C:20-11, and was sentenced as a persistent offender, N.J.S.A. 2C:44-3(a), to an aggregate term of ten-years imprisonment. He appeals from his convictions and sentence. We affirm.
On the afternoon of August 28, 2007, the Lakewood Police Department received a report of a suspicious person at the Home Depot. Officer Obdulio Serrano, Jr. responded to the scene where he found Richard Campolei, the assistant store manager, standing in front of the store, yelling, "there they are, there they are, they stole from my store." Campolei was pointing at defendant and his fifteen-year-old nephew in the parking lot, walking toward a red, two-door Chevy Cavalier.
Serrano proceeded toward the two males. As he approached, he attempted to get defendant's attention but defendant "completely ignored" him. Serrano pulled on the door handle and banged on the window, saying "Lakewood Police, stop the vehicle, stop the vehicle." Defendant responded by putting the car in reverse and backing up. As the car backed up, the side view mirror hit the top clip of Serrano's magazine belt, ripping the clip and his magazine completely out. Serrano jumped back and watched to see where the vehicle was going. The vehicle stopped and Serrano walked to the front of it, held his hands up and yelled again, "stop the vehicle, stop the vehicle."
Defendant continued to ignore Serrano and put the car into drive. However, another car backed out and blocked defendant's exit from the Home Depot. Serrano approached the vehicle again but defendant backed up again and "just squeal[ed] the tires right around" Serrano and the other vehicle. Defendant went through two stop signs without stopping and exited onto Route 70.
Serrano described defendant's driving as careless, and faster than the fifteen miles per hour speed limit in the parking lot. Once defendant drove onto eastbound Route 70, he cut across three lanes to a concrete barrier and made an illegal U-turn to proceed onto the westbound lanes. Serrano radioed to other police officers, informing them of the direction defendant was heading in, a physical description of him and the car, and the license plate of the vehicle.
Serrano returned to the Home Depot, where he obtained information from Campolei and viewed a video surveillance tape. The videotape, which was received in evidence and played for the jury, showed defendant and his nephew pick up a drill in the store and leave the store. Serrano testified that when he first saw defendant and his nephew, he was able to observe that the nephew was carrying an item bearing the label "DeWalt," a brand of drill.
Serrano testified that, upon returning to police headquarters, he learned defendant's name, that his driving privileges were suspended and that there were multiple warrants outstanding for his arrest. A records check was conducted and Serrano learned that the red Chevy Cavalier was registered to Iris D. Montalvo, defendant's mother.
Approximately one hour after the incident at Home Depot, a male, later identified as defendant, called the Lakewood Police Department. Defendant identified himself as "Jose Montalvo[,]" and said that he "just had an incident at Home Depot." He stated that he took his mother's car and
I went in there and I stole something and I had my nephew with me. He didn't have nothing to do with it and I took off and I'm halfway to New York. I stole my mother's car. I dumped it and I'm out. I'm not turning myself in and I went in there and I boosted a f***in' drill and I didn't wanna' get caught and I'm out and I stole my mother's car and everything.
The dispatcher asked where the car was and defendant replied, "I ain't tellin' you nothin'. I'm using it. I'm driving the car right now and when I get where I'm goin', I'm dumpin' it." When the dispatcher asked why he did not return the car so his mother could have it, defendant replied, "No, no. I ain't, I ain't turning myself in there." He repeatedly tried to exculpate his nephew and said once again that he was not going to turn himself in.
Following defendant's conviction, the trial court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3. The court imposed a sentence of ten years on the second-degree eluding charge, a concurrent term of six months on the shoplifting conviction and appropriate fines and penalties.
In his appeal, defendant presents the following issues for our consideration:
THE TRIAL COURT ADMITTED OTHER CRIME EVIDENCE THAT WAS HIGHLY PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL[.]
THERE WAS INSUFFICIENT EVIDENCE OF APPELLANT'S GUILT AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
THE TRIAL JUDGE FAILED TO CHARGE THE APPROPRIATE LESSER INCLUDED OFFENSES AND AS SUCH APPELLANT WAS DENIED A FAIR TRIAL AND HIS CONVICTIONS MUST BE REVERSED.
THE TRIAL JUDGE ABUSED HIS DISCRETION IN FINDING APPELLANT TO BE A PERSISTENT OFFENDER AND BY IMPOSING A TEN (10) YEAR SENTENCE.
A. THE TRIAL COURT ABUSED ITS DISCRETION BY GRANTING THE STATE'S APPLICATION TO CLASSIFY APPELLANT AS A PERSISTENT OFFENDER PURSUANT TO 2C:44-3a[.]
B. THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING A TEN
(10) YEAR SENTENCE[.]
After carefully reviewing the record, briefs and arguments of counsel in light of the applicable legal principles, we are satisfied that none of the arguments has merit.
I As a preliminary matter and to provide the appropriate context for our consideration of the remaining issues, we note that the evidence of defendant's guilt was compelling.
Defendant was convicted of eluding, a violation of N.J.S.A. 2C:29-2(b), which states in pertinent part:
Any person, while operating a motor vehicle on any street or highway in this State . . ., who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes.
Defendant argues that the State's proofs fail because there is no evidence that he knowingly fled "while operating a motor vehicle on any street or highway in this State[.]" The proofs show otherwise.
In this case, Serrano testified that he identified himself as a police officer, held up his hands in a gesture commonly understood to be a command to stop and repeatedly yelled at defendant to stop the vehicle. As defendant admitted in his telephone call, he knew that he had stolen a drill from Home Depot immediately prior to this confrontation. Yet, as Serrano testified, defendant backed the car up, ripping Serrano's magazine clip from his belt. After "squealing" past the car that blocked him and Serrano, defendant sped away, failed to stop at two stop signs and made an illegal U-turn on Route 70.
The evidence plainly demonstrates that defendant knew he had committed a crime, knew that the police officer was there to arrest him for that crime and knew that the officer put up his hands to command him to stop. He therefore had the necessary mens rea in driving his vehicle to avoid arrest. State v. Mendez, 345 N.J. Super. 498, 507 (App. Div. 2001), aff'd, 175 N.J. 201 (2002). The State is not required to prove that defendant knowingly created a risk of death or injury to any person to sustain a second-degree conviction. Proof that defendant's conduct created such a risk when he knowingly fled from Serrano's effort to arrest him is sufficient, State v. Dixon, 346 N.J. Super. 126, 136 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), and a permissive inference of such risk arises when the defendant commits a motor vehicle offense. N.J.S.A. 2C:29-2(b). Defendant's near-miss of Serrano as he backed up and multiple motor vehicle offenses in attempting to flee provide ample evidence that defendant created a risk of harm to both himself and to others.
Defendant's argument that his actions escape criminal liability because a parking lot does not qualify as a street or highway is entirely lacking in merit since his flight continued onto a public highway where Serrano observed him driving carelessly and making an illegal u-turn, evidence which alone supports a conviction for second-degree eluding. See State v. Green, 318 N.J. Super. 361, 378 (App. Div. 1999), aff'd, 163 N.J. 140 (2000).
We next turn to defendant's argument that the trial court committed reversible error in admitting "other crimes" evidence that his driving privileges were suspended and there were multiple outstanding warrants for his arrest.
We review the court's decision in admitting this evidence with great deference. State v. Barden, 195 N.J. 375, 390 (2008); State v. Lykes, 192 N.J. 519, 534 (2007). The determination whether such evidence is properly admissible is guided by the four-part test set forth in State v. Cofield, 127 N.J. 328, 338 (1992), and we recognize that the trial court's "'intimate knowledge of the case'" places it "'in the best position to engage in this balancing process.'" State v. Covell, 157 N.J. 554, 564 (1999) (quoting State v. Ramseur, 106 N.J. 123, 266 (1987)). The trial court's decision is to be disturbed only where there is a clear error of judgment in the balancing of the Cofield factors. State v. Marrero, 148 N.J. 469, 483 (1997). Reversal is only appropriate when the trial judge's ruling was "so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982); Board of Educ. v. Zoning Bd. of Adjustment, 409 N.J. Super. 389, 430 (App. Div. 2009).
Pursuant to N.J.R.E. 404(b), evidence of other crimes and wrongs is not admissible to prove the disposition of the defendant to commit a crime but "may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." In Cofield, the Supreme Court set forth "a rule of general application," identifying a four-part test for determining whether such evidence is admissible:
1. The evidence of the other crime must be admissible as relevant to a material issue;
2. It must be similar in kind and reasonably close in time to the offense charged;
3. The evidence of the other crime must be clear and convincing; and
4. The probative value of the evidence must not be outweighed by its apparent prejudice.
[Cofield, supra, 127 N.J. at 338.]
As the trial court noted in applying the Cofield test,*fn1 defendant's intent was a genuinely disputed material fact in this case. Evidence that defendant's driving privileges were suspended and that he had outstanding warrants for his arrest was "relevant to demonstrate why the defendant fled from the police, satisfying the first prong."
The Supreme Court has observed that "Cofield's second prong need not receive universal application in Rule 404(b) disputes." State v. Williams, 190 N.J. 114, 131 (2007). When, as here, the evidence is offered to prove motive, "similarity between the alleged other act and the one for which defendant is currently on trial is not a requirement for admissibility." State v. Collier, 316 N.J. Super. 181, 194 (App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999); see also State v. Castagna, 400 N.J. Super. 164, 179 (App. Div. 2008). Both the suspension of driving privileges and the existence of warrants were in effect at the time defendant fled the scene, plainly satisfying the requirement that the wrongs be "reasonably close in time" to the crime charged. See Cofield, supra, 127 N.J. at 338.
As the trial court observed, defendant's driving abstract provided clear and convincing evidence that his driving privileges were suspended before the date of his flight and remained so on that date. The court also noted that prior judges had found sufficient probable cause to issue arrest warrants for him. The evidence therefore supports the trial court's finding that the third prong was satisfied.
The fourth prong requires a determination that "[t]he probative value of the evidence must not be outweighed by its apparent prejudice." Ibid. Without question, there is an inherent prejudice in the introduction of evidence that defendant had failed to comply with the law, resulting in the suspension of his driving privileges, and, in particular, evidence that there were several outstanding warrants for his arrest. However, none of the "other wrongs" attributed to defendant were themselves inherently heinous or inflammatory. The trial court noted the guidance provided by the Supreme Court that "evidence claimed to be unduly prejudicial can be excluded only where its probative value 'is so significantly outweighed by [its] inherently inflammatory potential as to have a probable capacity to divert the minds of the jurors from a reasonable and fair evaluation' of the basic issues of the case." Covell, supra, 157 N.J. at 568 (quoting State v. Thompson, 59 N.J. 396, 421 (1971)). Like the trial court, we are satisfied that the evidence here did not have such a capacity to divert the minds of the jurors from fairly deciding the case, and conclude that the court did not abuse its discretion in admitting the "other crimes" evidence.
Defendant challenges the trial court's decision to grant the State's application to classify him as a persistent offender pursuant to N.J.S.A. 2C:44-3(a). As applied to the facts here, that statute authorizes a court to sentence a person convicted of a second-degree offense to an extended term of imprisonment if it finds [t]he defendant has been convicted of a crime of the first, second or third degree and is a persistent offender. A persistent offender is a person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, if the latest in time of these crimes or the date of the defendant's last release from confinement, whichever is later, is within 10 years of the date of the crime for which the defendant is being sentenced.
Defendant argues that he did not qualify as a persistent offender because his two prior indictable convictions were too "remote." He states that his first conviction, for a third-degree offense, was in 1995; his second conviction, for second-degree robbery was in 1996; and it is unclear when he was released regarding the latter conviction. However, the State presented a letter from the New Jersey State Parole Board which reported that defendant's parole was revoked in December 1997 and that he remained in custody until February 28, 1998.
Therefore, defendant's last release from confinement was within ten years of August 28, 2007, the date of the crime for which he was sentenced, providing the factual basis for his classification as a persistent offender.
Defendant's argument that his sentence was excessive lacks sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(2).
Defendant also argues that the court erred in failing to sua sponte provide the jury with an instruction on resisting arrest, N.J.S.A. 2C:29-2(a), which defendant contends was an appropriate lesser-included offense here. "The jurisdiction of appellate courts rightly is bounded by the proofs and objections critically explored on the record before the trial court by the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). Because this issue is raised for the first time on appeal, our review is limited to "a search for plain error, Rule 2:10-2[.]" State v. Nesbitt, 185 N.J. 504, 516 (2006).
N.J.S.A. 2C:1-8(e) prohibits a trial court from charging "the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense." To satisfy this condition, the evidence must present a rational basis for a jury to acquit on the greater charge but convict on the lesser-included charge. See State v. Jenkins, 178 N.J. 347, 361-364 (2004). The trial court is not required to provide an instruction on a lesser-included charge sua sponte unless the evidence clearly indicates such a charge. State v. Thomas, 187 N.J. 119, 132 (1994).
Defendant argues that there are common elements required to satisfy both resisting arrest, N.J.S.A. 2C:29-2(a), and eluding, N.J.S.A. 2C:29-2(b), and that he contested the two elements required for proof of eluding, i.e., that the pursuit occurred on a street or highway and that he knowingly eluded the police.
To satisfy the mens rea element of resisting arrest, the State would have to prove beyond a reasonable doubt that it was the defendant's conscious object to prevent his own arrest. State v. Ambroselli, 356 N.J. Super. 377, 384-385 (App. Div. 2003). The mens rea element of eluding is satisfied by proof that the defendant "fle[d] by motor vehicle from a person who the perpetrator knows to be a law enforcement officer." Mendez, supra, 345 N.J. Super. at 506; see also State v. Fuqua, 303 N.J. Super. 40, 44 (App. Div. 1997). In light of Serrano's testimony that he identified himself as a police officer when he commanded defendant to stop, there was no rational basis for the jury to conclude that defendant had the conscious object to prevent his own arrest but was unaware that Serrano was a police officer.
Further, as we have noted, there was adequate - and undisputed -evidence that defendant's flight included the operation of a vehicle on a highway. We are therefore satisfied that the evidence here did not provide a rational basis for the jury to acquit on the eluding charge but convict on the lesser-included charge.