July 23, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CORNELIUS C. UTLEY, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-00273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 15, 2012
Before Judges Messano and Yannotti.
Following a jury trial, defendant Cornelius C. Utley was convicted of third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft, N.J.S.A. 2C:20-3 (count two); second-degree eluding, N.J.S.A. 2C:29-2(b) (count five); and three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6) (counts six, seven and eight). The judge sentenced defendant to concurrent terms of four years' imprisonment on counts one and two. On count five, the judge sentenced defendant to a seven-year term, consecutive to the sentence imposed on counts one and two. On counts six, seven, and eight, the judge sentenced defendant to concurrent seven-year terms with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to the sentence imposed on count five.
Defendant moved for reconsideration of the sentence, and, in an oral decision, the judge merged counts one and two and reversed her earlier determination that aggravating factor eight, N.J.S.A. 2C:44-1(a)(8), applied. The judge did not otherwise modify the sentence imposed.
Before us, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO REMAIN SILENT AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION THAT JURORS COULD CONVICT THE DEFENDANT OF THEFT BECAUSE HE POSSESSED THE ITEM A SHORT TIME AFTER IT HAD BEEN STOLEN (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL INSTRUCTION TO THE JURY ON THE LAW OF ATTEMPTED ELUDING (Not Raised Below)
A. THE TRIAL COURT OMITTED AN INSTRUCTION ON THE LAW OF ATTEMPTED ELUDING EVEN THOUGH ATTEMPTED ELUDING WAS AN ESSENTIAL ELEMENT OF THE OFFENSE
B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPTED ELUDING REQUIRES PURPOSEFUL CONDUCT AND THAT THEY CANNOT FIND [THAT THE DEFENDANT] KNOWINGLY ATTEMPTED TO ELUDE POINT III THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S RELIANCE ON IRRELEVANT EVIDENCE TO EVOKE JURY SYMPATHY FOR THE VICTIMS (Not Raised Below)
POINT IV THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES OF ELUDING AND AGGRAVATED ASSAULT BEYOND A REASONABLE DOUBT POINT V DOUBLE JEOPARDY AND MERGER LAW REQUIRES THAT THE CONVICTION FOR ELUDING WHILE CREATING A RISK OF INJURY MERGE WITH THE CONVICTIONS FOR AGGRAVATED ASSAULT WHILE FLEEING
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES
B. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction. We remand the matter to the trial court to vacate the sentence imposed on count five, and merge the conviction in that count into the convictions on counts six, seven and eight. In all other respects, we affirm the sentence imposed.
Wade Housen lived on Scotland Road in Orange and owned a black Infiniti sedan. At approximately 8:30 p.m. on May 3, 2008, Housen parked and locked his car across the street from his house. After later re-checking that the car was locked, Housen retired for the evening. The following morning, he found another car parked where his Infiniti had been. As he approached the parking spot, Housen stepped on tinted glass that appeared to have come from his car's window. He notified the police and reported the car stolen. At trial, Housen stated that he did not give anyone permission to drive his vehicle and had not provided anyone with its keys.
Elizabeth police officer Louis Figueiredo was working with his partner in plain clothes in an unmarked police car on the night of May 3 into the morning hours of May 4. At approximately 2:00 a.m., he observed two vehicles, a white and black Infiniti, later identified as Housen's car, following each other in close proximity. Figueiredo testified that this maneuver screens an officer's vision of the first vehicle's license plate and usually means it is stolen.
The officers followed the two cars. Eventually, the white Infiniti pulled over, and the black Infiniti turned and proceeded in the wrong direction down a one-way street. When the officers activated the sirens and lights on their unmarked car, the vehicle "stop[ped] for a few seconds" and reversed direction. Figueiredo testified that the driver looked at the officers and took off at a high rate of speed. The officers followed in pursuit with lights and sirens operating.
The Infiniti eventually ran a red light and struck a car driven by Mariana Beltran in the intersection. Princess Arroyo and Jason Cruz were passengers in Beltran's car. Upon seeing the cars collide, Figueiredo ran to the Infiniti and found defendant "pinned" inside. He also observed that the vehicle's ignition was damaged, and he saw two screwdrivers and a wrench on the floor of the vehicle. Defendant was placed under arrest.
The three occupants of Beltran's car suffered injuries as a result of the accident. Beltran's right ankle was fractured, and she experienced back and lower abdominal pain. Arroyo injured her bottom lip and could not open one of her eyes for almost two weeks. Cruz sustained injuries to his lower back and legs.
In Points I and II, defendant takes issue with the judge's charge. Since no objection was made below, we review the claims under the plain error standard. R. 2:10-2.
"In the context of a jury charge, plain error requires demonstration of '[l]egal impropriety . . . prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Burns, 192 N.J. 312, 341 (2007) (alteration in original) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). The allegation of error must be assessed in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275, 289 (2006). While an erroneous jury charge may be a "poor candidate for rehabilitation under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)) (internal quotation marks omitted), we nonetheless consider the effect of any error in light "of the overall strength of the State's case." Chapland, supra, 187 N.J. at 289. Additionally, the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment." State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000).
Here, the court utilized Model Jury Charge (Criminal), "Supplemental Charge on Theft Used if Defendant is in Possession of Stolen Property Within Short Time After Theft" (2008). Defendant argues this violated his Fifth Amendment right to remain silent. We disagree.
"It is without question a long standing and well established principle that 'the unexplained and exclusive possession of stolen property shortly after the theft justifies an inference that the possessor is the thief.'" State v. Burch, 179 N.J. Super. 336, 339 (App. Div.) (quoting State v. Dancyger, 29 N.J. 76, 85, cert. denied, 360 U.S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959)), certif. denied, 89 N.J. 396 (1981). "[S]uch an instruction does not constitute an improper comment by the court on the defendant's failure to testify, and does not violate his privilege against self-incrimination[,]" ibid., because the inference "may be rebutted by testimony other than that of the defendant, so that the giving of the instruction does not, in any way, compel the defendant himself to testify at trial." Id. at 339-340 (quoting Annotation, Modern Status: Instruction Allowing Presumption or Inference of Guilt from Possession of Recently Stolen Property as Violation of Defendant's Privilege Against Self-Incrimination, 88 A.L.R. 3d 1178, 1180 (1978)) (internal quotation marks omitted). Indeed, the charge has been permitted even where there is an absence of a specific showing . . . as to the availability of a source other than defendant's own testimony to explain such possession . . . [if] the property is of a nature that is not subject to abandonment or some similar act by the owner and the circumstances otherwise are such as to strongly suggest the existence and availability of explanatory evidence. [Id. at 343-44 (citation omitted).]
Here, the nature of the stolen property, a motor vehicle, as well as other circumstances, made it likely that exculpatory evidence, other than defendant's testimony, could have been produced if it existed. The charge was entirely proper.
Defendant next argues that the trial court failed to properly instruct the jury on eluding. N.J.S.A. 2C:29-2(b) provides:
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. [(citation omitted).]
Specifically, defendant contends that the judge failed to adequately instruct the jury "on the law of attempted eluding" and that "the law of attempted eluding requires purposeful conduct."
We specifically considered and rejected the same argument in State v. Mendez, 345 N.J. Super. 498 (App. Div. 2001), aff'd on other grounds, 175 N.J. 201 (2002). We explained that the offense of eluding is a substantive offense and not an attempt to commit another substantive offense. Id. at 506. "Eluding does not involve an attempt to commit any other substantive offense." Ibid. The argument lacks sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
In Point III, defendant contends that the prosecutor included "irrelevant evidence" in her opening statement, resulting in prejudice and requiring a new trial. In Point IV, defendant argues that the evidence was insufficient to prove his guilt beyond a reasonable doubt of eluding and aggravated assault. Both arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). We add only the following.
In her opening, the prosecutor stated:
Princess, the front passenger, and Marianna had been at a memorial service that evening for the father of Princess's child. Little did they know upon leaving that memorial service, that the trauma of their day did not come to an end but was rather just beginning. As a result of this car accident, all three people in that car went to the hospital.
There was no objection.
During opening statements, a prosecutor should confine his statement to the facts he intends to prove at trial with competent evidence. State v. Wakefield, 190 N.J. 397, 442 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Reversal is warranted only when a prosecutor's misconduct is so egregious that it deprived defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999). When no objection is made to challenge the offending remarks, we will generally not consider the remarks to be prejudicial. Ibid. Here, the prosecutor's fleeting comments raised no objection and clearly were not sufficiently egregious so as to prejudice defendant's right to a fair trial.
Although defendant never moved for a judgment of acquittal pursuant to Rule 3:18-1, he now argues in Point IV that the State failed to prove beyond a reasonable doubt that he knowingly attempted to elude the police officers. When deciding a motion for acquittal based upon the insufficiency of the State's evidence, the trial court must apply the time-honored standard set forth in State v. Reyes, 50 N.J. 454 (1967):
[W]hether viewing the . . . evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [Id. at 459.]
We review the decision of the trial judge de novo applying the same standard. State v. Bunch, 180 N.J. 548-49 (2004).
Figueiredo testified that when he activated the sirens and lights on the unmarked patrol car, defendant stopped momentarily, reversed direction and sped off at a high rate of speed after defendant looked at Figueirado and his partner. Defendant continued to drive at a high rate of speed, through a red light and into the intersection where the collision occurred. The evidence was clearly sufficient to prove defendant's guilt beyond a reasonable doubt.
We consider defendant's final two points that raise issues regarding his sentence.
In Point V, defendant argues that the judge erred by imposing "consecutive sentences for eluding while creating a risk of injury and for aggravated assault while fleeing" because "aggravated assault while fleeing is . . . a heightened form of eluding." He argues that separate convictions violate double jeopardy, or, alternatively, that merger of the convictions was required. We agree that the convictions should have merged.
The Court has stated:
Merger is based on the principle that "an accused [who] has committed only one offense . . . cannot be punished as if for two." Merger implicates a defendant's substantive constitutional rights. The analysis is similar to a double jeopardy analysis. Slightly different interests are involved, however. In double jeopardy cases the defendant seeks to avoid both multiple prosecution and multiple punishment; in merger cases, only multiple punishments are at issue.
The first step is to compare the statutes defining the offenses at issue. [State v. Miller, 108 N.J. 112, 116 (1987) (alteration in original) (quoting State v. Davis, 68 N.J. 69, 77 (1975)) (citations omitted).]
As noted above, eluding can be either a second- or third-degree offense depending upon whether the actor's conduct "creates a risk of death or injury to any person." N.J.S.A. 2C:29-2(b). N.J.S.A. 2C:12-1(b)(6) provides that an actor is guilty of second-degree aggravated assault if he:
Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of [N.J.S.A. 2C:29-2(b)] . . . . Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this subsection upon proof of a violation of [N.J.S.A. 2C:29-2(b)] . . . .
According to one noted commentator, "The second degree crime defined by [N.J.S.A. 2C:12-1(b)(6)] is not really an assault crime. The provision serves to increase the penalty for operating a motor vehicle in violation of . . . [N.J.S.A. 2C:29-2(b)] . . . when an injury occurs." Cannel, New Jersey Criminal Code Annotated, comment 11 on N.J.S.A. 2C:12-1 (2012). In other words, it would appear that the Legislature has determined that eluding is a third-degree crime, but, if the actor's conduct creates a "risk of death or injury," or actually "[c]auses bodily injury," eluding becomes a second-degree offense. N.J.S.A. 2C:29-2(b); N.J.S.A. 2C:12-1(b)(6).
"N.J.S.A. 2C:1-8(a) establishes the legislative parameters for merger of offenses." State v. Diaz, 144 N.J. 628, 637 (1996). It provides: "When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense[,] [but] [h]e may not . . . be convicted of more than one offense if . . . [o]ne offense is included in the other." An offense is included in another if:
(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission. [N.J.S.A. 2C:1-8(d)(1) and (3).]
Subsection (3) "largely duplicates the basis found in subsection
(d)(1)." Cannel, supra, comment 4 on N.J.S.A. 2C:1-8. Strictly applying the statutory analysis, it is apparent
that third-degree eluding is a lesser-included offense of both second-degree eluding and aggravated assault while eluding. However, neither second-degree eluding nor aggravated assault while eluding are "included" within each other. Theoretically, one can be guilty of eluding without creating "a risk of death or injury," yet be "strictly liable" if an injury actually occurs, and, therefore, guilty of aggravated assault. N.J.S.A. 2C:29-2(b); N.J.S.A. 2C:12-1(b)(6). Conversely, one can create the risk of injury but not cause an actual injury, and, thus, be guilty of second-degree eluding but not guilty of an aggravated assault.
The Court has said:
The standard for merger of offenses set forth at N.J.S.A. 2C:1-8 . . . has been characterized as "mechanical." State v. Truglia, 97 N.J. 513, 520 (1984). A preferred and more flexible standard was articulated in the pre-code case of State v. Davis, 68 N.J. 69 (1975). [Diaz, supra, 144 N.J. at 637 (parallel citation omitted).]
This flexible standard entail[s] analysis of the evidence in terms of . . . the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed. [Davis, supra, 68 N.J. at 81.]
"Guidance also arises from the principle that 'the Legislature may fractionalize a single criminal episode into separate offenses when the Legislature intends them to be punished separately and when the fractionalization does not offend constitutional principles.'" State v. Hill, 182 N.J. 532, 543 (2005) (quoting State v. Mirault, 92 N.J. 492, 504 (1983)).
In this case, the evidence clearly demonstrated that defendant eluded Figueiredo and his partner, and, while in the course of continuing to elude the officers, defendant's car struck the Beltran vehicle causing injuries to its three occupants. In our opinion, the eluding and the assault occurred congruently in "the time and place"; "the proof submitted" as to the eluding was "a necessary ingredient to a conviction" for the aggravated assault; the eluding "was an integral part of a larger scheme or episode -- the aggravated assault; and "the intent" of defendant was the same, i.e., to flee the officers. Davis, supra, 68 N.J. at 81. The eluding charge, count five, merges into counts six, seven and eight.*fn1
We are therefore compelled to remand the matter to the trial court for the entry of an amended judgment of conviction vacating the separate sentence imposed on count five and reflecting the merger.
Lastly, defendant argues that the judge erred in considering the aggravating and mitigating sentencing factors and by imposing consecutive sentences. We disagree.
After reconsideration of the original sentence, the judge found aggravating factors three (the risk that defendant will commit another offense); six (the extent and seriousness of defendant's prior criminal record); nine (the need to deter); and thirteen (defendant in the possession of a stolen motor vehicle during the commission of the crime).*fn2 N.J.S.A. 2C:44-1(a)(3), (6), (9) and (13). The judge found no mitigating factors. Defendant contends that only aggravating factor six was established and mitigating factor eleven (incarceration will impose an excessive hardship on defendant's family), N.J.S.A. 2C:44-1(b)(11), applies.
In reviewing a "sentence challenged for excessiveness[,]
[t]he reviewing court is expected to assess the aggravating and mitigating factors to determine whether they 'were based upon competent credible evidence in the record.'" State v. Bieniek, 200 N.J. 601, 608 (2010) (quoting State v. Roth, 95 N.J. 334, 364 (1984)). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shocks the judicial conscience" in light of the particular facts of the case. Roth, supra, 95 N.J. at 364-65; accord State v. Cassady, 198 N.J. 165, 183-84 (2009).
Here, the mitigating factor urged by defendant does not apply. There is nothing in the record to indicate he supports his child. Regarding the aggravating factors, three, six and nine were amply supported by the record and defendant's prior criminal history. We acknowledge that the judge's finding of aggravating factor thirteen was "double-counting" as to the merged burglary and theft counts. State v. Henry, 323 N.J. Super. 157, 165 (App. Div. 1999).
Nevertheless, it was a proper factor to consider in imposing sentences on the convictions for eluding and aggravated assault, neither of which required that the vehicle used be stolen. We are firmly convinced that the sentencing calculus would remain unaffected.
Lastly, defendant argues the judge erred in imposing consecutive sentences. We disagree.
In State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986), the Court set forth the factors to be considered when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)) (internal quotation marks omitted).
Here, the consecutive sentences imposed for the burglary and theft of Housen's car and those imposed for the assaults while eluding, were entirely appropriate. These were different crimes and involved different victims. The judge did not mistakenly exercise her broad discretion.
Defendant's conviction is affirmed. The separate sentence imposed for count five, eluding, is vacated and that conviction merges into the convictions for counts six, seven and eight. The matter is remanded to the trial court for entry of an amended judgment of conviction. We otherwise affirm defendant's sentence. We do not retain jurisdiction.