June 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANTHONY CRAWFORD, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-10-0961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 12, 2012
Before Judges Fisher and Grall.
A jury found defendant Anthony Crawford guilty of second-degree eluding a law enforcement officer while operating a motor vehicle and creating a risk of death or injury to others, N.J.S.A. 2C:29-2b. The trial judge imposed the appropriate penalties and assessments, suspended defendant's license for twelve months, and sentenced him to a term of seven years' imprisonment. We remand for resentencing but affirm in all other respects.
In the early evening of September 8, 2008, Sergeant Christopher Blackburn arrived at the intersection of Hampton and New Streets in Bridgeton in response to a complaint regarding the operation of a dirt bike. As he canvassed the area, Sergeant Blackburn heard a sound that he described as "a high pitched dirt bike" traveling eastbound down New Street in his direction. Moments later, as he pulled his unmarked police vehicle out from an alley on to New Street, Sergeant Blackburn observed the dirt bike appear in front of his vehicle. Having had "fifty to sixty" encounters with defendant prior to this occasion, Sergeant Blackburn recognized defendant as the operator. He later testified that defendant was not wearing a helmet, goggles, or anything else that would have obstructed his face, and that the evening had not yet grown dark. He was "one-hundred percent positive" that defendant was the operator.
Based on the dirt bike's high rate of speed, and on his observation of "numerous" other motor vehicle violations, Sergeant Blackburn activated his flashing lights and siren and began pursuing defendant's vehicle. Defendant responded by increasing his rate of speed and turning to look over his shoulder at Sergeant Blackburn several times as he drove. Despite increasing his own rate of speed to approximately sixty miles per hour in this twenty-five mile per hour zone, Sergeant Blackburn was unable to close in on defendant's vehicle. Because he had seen a group of children playing basketball nearby, and several people walking their dogs on the street, Sergeant Blackburn determined that the risk of injury to others outweighed the need to stop defendant's vehicle. Therefore, he ended his pursuit. Defendant was apprehended five days later, and he was subsequently released on bail.
On January 19, 2010, defendant appeared for a pre-trial conference at which he signed a memorandum acknowledging an assigned trial date of February 22, 2010 and also the possibility that the trial would proceed in his absence should he fail to appear.*fn1 Defendant nonetheless failed to appear for trial, and his attorney informed the judge that she had not been able to contact her client. Defense counsel requested an adjournment to allow her to continue those efforts; the judge denied that request.
The judge addressed defendant's absence in his preliminary instructions to the pool of potential jurors:
The Defendant has pleaded not guilty to the charge and is presumed to be innocent. I must say that the Defendant also has chosen not to be here for this trial, or he's not here, and therefore we are trying the case in his absence.
I'll be giving you, if you're left on the jury, a jury charge to that effect at a later date but I wanted . . . to make you aware that we're aware he's not here, but he's chosen not to be here, as far as we can tell.
Again, the Defendant has pleaded not guilty to these charges and is presumed innocent unless found guilty otherwise.[*fn2 ]
At sidebar, defense counsel objected to the judge's discussion of her client's absence. Although the transcript does not reveal the precise nature of her objection, we presume her concern centered on the judge's suggestion that defendant "chose" not to attend trial.
The judge addressed defendant's absence again during voir dire. He questioned the prospective jurors individually, asking whether they would be able to separate their thoughts about defendant's absence from their deliberations on defendant's guilt or innocence. Six potential jurors indicated that they might not be able to do so. Two of the six expressed particularly emphatic opinions on the subject; they were excused by the court. Of the remaining four, each ultimately expressed confidence that they could succeed in the task. Only one of these four actually became a juror, and we recite the relevant portion of his exchange with the trial judge and counsel here:
Q: Okay. Let me ask you this. The Defendant's not here. It's his right not to be here if he doesn't want to. What I want to make sure is that you're not going to hold that against him during your deliberations. I'm going to be asking you not to.
Q: You're not supposed to hold it against him because he's not here or because he doesn't -- just like if he chooses not to testify, you can't hold it against him.
Q: Would you be able to deliberate and keep that out of the deliberation room?
A: I think so, yeah. I --Q: No problems?
A: I think I have more of a problem with that process. I don't understand that really as far as because it's his right, well then --Q: I can understand that. That's the most [honesty] I've heard today.
Q: But we want to . . . make sure if you're not going to take that in and make that part of your deliberations.
Q: And do you have any feelings at all about the Defendant not being here today?
A: No . . . I don't understand why someone -- how someone can be tried in something such as this without being present. But again, if it's his right to do so, then I can't say anything about that. [Emphasis added.]
Following jury selection and prior to opening statements, the jurors were once again instructed that defendant's absence from trial was irrelevant to their eventual deliberations. On this occasion, the judge followed the model charge:
Now as you know, [defendant] has been absent from this trial. You should not speculate about the reasons for his absence. You are not to consider for any purpose or in any manner in arriving at your verdict the fact that [defendant] is not present at trial. That fact should not enter into your deliberations or discussions in any manner at any time. [Defendant] is entitled to have the jury consider all evidence presented at trial. He is proved [sic] innocent even if he is not present.
The judge repeated that same instruction in his final charge to the jury immediately prior to their deliberations, properly substituting the word "presumed" for "proved."
In imposing a seven-year sentence following defendant's conviction, the judge found the following aggravating factors: a risk that defendant would commit another offense, N.J.S.A. 2C:44-1a(3), which was given "moderate weight"; the extent of defendant's prior criminal record and the seriousness of the offenses of which he had been convicted, N.J.S.A. 2C:44-1a(6), including four arrests as a juvenile and another four as an adult, that were given "moderate weight"; the fact that defendant committed his offense against a police officer, N.J.S.A. 2C:55-1a(8), which was given "slight weight"; and the need for deterrence, N.J.S.A. 2C:55-1a(9), which was given "moderate weight." The judge did not find any mitigating factors.
Defendant raises the following issues on appeal:
I. THE TRIAL COURT ERRED IN NOT DISMISSING THE JURY AFTER GIVING THE JURY AN IMPROPER INSTRUCTION REGARDING DEFENDANT'S ABSENCE DURING JURY SELECTION.
II. THE TRIAL COURT ERRED BY NOT GRANTING THE DEFENDANT'S REQUEST FOR AN ADJOURNMENT.
III. THE TRIAL COURT [MISAPPLIED] THE AGGRAVATING AND MITIGATING FACTORS AND IMPOSED AN EXCESSIVE SENTENCE.
Based on our review of the record and consideration of the arguments presented, we conclude that Points I and II are without sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following.
Regarding Point I, we reject defendant's claim that he was prejudiced by the one instance in which the trial judge suggested that he had "chosen" to be absent from trial. In assessing a portion of jury instructions claimed to be prejudicial, we examine the instructions as a whole to determine their overall effect. State v. Wilbely, 63 N.J. 420, 422 (1973). "[A]ll that is necessary is that the charge as a whole be accurate." State v. Jordan, 147 N.J. 409, 422 (1997). Although the judge's one comment to the pool of potential jurors deviated from the language of the applicable model charge, the judge effectively mitigated any potential prejudice that may have resulted from that deviation by accurately reciting the model charge both at the beginning and end of defendant's trial. We are satisfied, based upon our review of the record, that the jury was adequately informed that it was not permitted to consider defendant's absence for any purpose during the course of deliberations or to speculate about the reason for his absence. See State v. Manley, 54 N.J. 259, 271 (1969) (discussing the presumption that a jury follows the trial court's instructions).
Turning to the argument presented in Point II, we must review a trial court's denial of a request for adjournment under the abuse of discretion standard. State v. D'Orsi, 113 N.J. Super. 527, 532-33 (App. Div.), certif. denied, 58 N.J. 335 (1971). "Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965). We recognize, in light of the strong public interest in "prompt and effective operation of . . . judicial institutions," that a trial court "must have the power to tightly control its own calendar so that the assignment of cases cannot be manipulated by the defense counsel or the defendant." State v. Ferguson, 198 N.J. Super. 395, 401 (App. Div. 1985).
Here, the sole basis for defense counsel's adjournment request was that defendant had failed to appear for trial despite his express acknowledgment of the trial date and consequences of non-appearance just one month earlier. Since defendant had failed to communicate with his attorney, she was unable to even suggest to the court the length of time or other accommodation that would be necessary to secure his appearance.
Under these circumstances, we are satisfied that the judge did not abuse his discretion in denying the request for an adjournment.
Finally, regarding Point III, our review of a sentence imposed by the trial court is limited. State v. Miller, 205 N.J. 109, 127 (2011). We do not substitute our own judgment for that of the trial court, but instead exercise "a vigorous and close review for abuses of discretion . . . ." State v. Natale, 184 N.J. 458, 489 (2005) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). The governing analysis was established in State v. Roth, 95 N.J. 334 (1984). We consider first, whether the correct sentencing guidelines . . . have been followed; second, whether there is substantial evidence in the record to support the findings of fact upon which the sentencing court based the application of those guidelines; and third, whether in applying those guidelines to the relevant facts the trial court clearly erred by reaching a conclusion that could not have reasonably been made upon a weighing of the relevant factors. [Id. at 365-66].
Where the judge has applied the correct guidelines based on findings that are supported by the record, reversal is warranted only where the trial court's application of the guidelines to the facts results in a sentence that is so clearly unreasonable that it "'shock[s] the judicial conscience.'" Natale, supra, 184 N.J. at 489 (quoting Roth, supra, 95 N.J. at 364-65).
Defendant argues that the trial judge erred in giving any weight to the fact that defendant committed this offense against a law enforcement officer, N.J.S.A. 2C:44-1a(8), because police involvement is an essential element of the underlying offense -eluding a law enforcement officer. We agree. In a case involving eluding, we have previously held that N.J.S.A. 2C:44-1a(8) cannot constitute an aggravating factor. State v.
Nataluk, 316 N.J. Super. 336, 350 (1998). We reached that conclusion in light of the well-settled principle that a circumstance that is an element of an underlying crime "cannot be considered as an aggravating factor for sentencing purposes." State v. Pineda, 119 N.J. 621, 627 (1990).
Here, although the trial judge appears to have given less weight to N.J.S.A. 2C:44-1a(8) than to the other four aggravating factors identified, because the judge considered that factor, we cannot be certain that he would not have imposed a lesser sentence had he followed Nataluk. Accordingly, we remand so that the judge may reassess the relative weight of the aggravating and mitigating factors without relying on N.J.S.A. 2C:44-1a(8).
Defendant also argues that the trial court improperly considered risk of recidivism as an aggravating factor, N.J.S.A. 2C:44-1a(3). In support of this claim, he submits that a trial judge is obligated to conduct "psychological risk analysis" in reaching the determination that there is a risk of a defendant committing another offense. Defendant has not cited and we have not found any authority that supports this argument.
Remanded for resentencing in conformity with this opinion; affirmed in all other respects.