June 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ANTHONY R. KORECKY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-11-2024.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Before Judges Yannotti and Hoffman.
Tried before a jury, defendant Anthony R. Korecky appeals following his conviction and sentencing for second-degree eluding, contrary to N.J.S.A. 2C:29-2b. We affirm.
The following evidence was introduced at trial. On the evening of August 27, 2010, defendant was drinking alcohol and four-wheeling in a privately-owned gravel pit in Berkley Township when his pickup truck got stuck in a mud hole. The local police, who had been dispatched to the gravel pit to investigate a report of an unrelated incident, asked defendant if he wanted them to call for a tow truck and explained there would be a fee for the tow. Defendant accepted the offer and the police called for a tow truck operator; however, before the tow truck arrived, another vehicle successfully pulled defendant's vehicle out of the mud. Because defendant's vehicle had already been pulled out of the mud, the tow truck operator agreed to charge defendant only $125, instead of his normal fee of $350. Defendant agreed, but stated he needed to drive to a nearby gas station where there was an ATM machine to get cash to pay the fee. At the time of all relevant events, defendant had a seventeen-year-old passenger, R.C., in his vehicle.
As defendant drove out of the gravel pit, a police officer who was standing outside his patrol vehicle at the entrance to the gravel pit, attempted to stop defendant's vehicle by signaling him verbally and with a flashlight. Rather than stopping his vehicle, defendant hit the accelerator and took off. R.C testified that the driver's side window was down and that he heard the officer's command. R.C. then told defendant to stop and he replied "fuck it . . . . fuck the tow truck . . . I ain't going to pay it." A high-speed chase ensued with defendant refusing to pull over in response to overhead lights and sirens of at least two police cars. Eventually, defendant lost control of his vehicle and hit a tree. He then fled on foot before police finally found him hiding in the bushes of a nearby house.
At trial, defendant did not testify and presented no witnesses. Defendant's blood alcohol content (BAC) of .155 was stipulated. No specific jury charge was requested by defendant, and no objections were made to the charge. After instructing the jury as to the elements of eluding, including the requisite mental state of "knowing, " the trial judge charged the jury regarding the defense of intoxication, by giving the Model Jury Charge, "Intoxication Negating An Element of the Offense, " (2005), verbatim.
The jury rejected defendant's intoxication defense and found defendant guilty of second degree eluding a police officer, in violation of N.J.S.A. 2C:29-2b. Because of defendant's extensive prior record, the State moved for imposition of an extended term. N.J.S.A. 2C:44-3a. The court rejected the application, and sentenced defendant to a ten-year term, with a five-year period of parole ineligibility.
Defendant presents the following claims on appeal:
[DEFENDANT] WAS PREJUDICED BY AN INCORRECT AND MISLEADING JURY INSTRUCTION CONCERNING THE DEFENSE OF INTOXICATION (NOT RAISED BELOW).
THE MATTER SHOULD BE REMANDED FOR RESENTENCING (NOT RAISED BELOW).
THE SENTENCE OF TEN YEARS WITH A FIVE YEAR PAROLE DISQUALIFIER WAS EXCESSIVE (NOT RAISED BELOW).
Under N.J.S.A. 2C:29-2b, "the offense of eluding consists simply of 'knowingly' fleeing or attempting to elude a law enforcement officer by motor vehicle after receiving a signal to stop." State v. Mendez, 345 N.J.Super. 498, 506 (App. Div. 2001), aff'd, 175 N.J. 201 (2002). "A person acts knowingly with respect to the nature of his conduct . . . if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence." N.J.S.A. 2C:2-2b(2).
"N.J.S.A. 2C:2-8(a) permits evidence of intoxication as a defense to crimes requiring either 'purposeful' or 'knowing' mental states but it excludes evidence of intoxication as a defense to crimes requiring mental states of only recklessness or negligence." State v. Cameron, 104 N.J. 42, 52 (1986). Intoxication is defined as "a disturbance of mental or physical capacities resulting from the introduction of substances into the body[.]" N.J.S.A. 2C:2-8e(1). In the case of voluntary intoxication, there must be a showing of such "prostration of faculties" that defendant was incapable of forming the requisite mental state. Cameron, supra, 104 N.J. at 56.
As defendant failed to object to the jury charge, we review the claimed error under the plain error standard, and may reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Torres, 183 N.J. 554, 564 (2005) ("[A] defendant waives the right to contest an instruction on appeal if he does not object to the instruction."). Without an objection, "there is a presumption that [a] charge was not error and was unlikely to prejudice defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012) (citing State v. Macon, 57 N.J. 325, 333-34 (1971)).
We have identified five factors to consider when reviewing a claim of plain error in a jury instruction:
(1) the nature of the error and its materiality to the jury's deliberations; (2) the strength of the evidence against the defendant; (3) whether the potential for prejudice was exacerbated or diminished by the arguments of counsel; (4) whether any questions from the jury revealed a need for clarification; and (5) the significance to be given to the absence of an objection to the charge at trial.
[State v. Docaj, 407 N.J.Super. 352, 365-66, (App. Div.) (citations omitted), certif. denied, 200 N.J. 370 (2009).]
In this case, defendant alleges that the trial court's jury instruction misled the jury as to the State's burden of proof. Specifically, he claims error in the following portion of the intoxication charge:
If after considering all the evidence you have a reasonable doubt whether the defendant's intoxication was such as to render him incapable of acting knowingly, then you must acquit him of eluding.
First, we note that the judge's language tracked the model jury charge verbatim, and is therefore presumed proper. See Model Jury Charge (Criminal), "Intoxication Negating an Element of the Offense" (2005); see also State v. R.B., 183 N.J. 308, 325 (2005) (instructing trial courts to follow the model jury charges and read them "in their entirety to the jury."); Mogull v. C.B. Comm. Real Estate Group, Inc., 162 N.J. 449, 466 (2000) (noting that "it is difficult to find that a charge that follows the Model Charge so closely constitutes plain error").
Here, the trial judge issued instructions that tracked the relevant model jury charge and were consistent with the governing law on eluding and the defense of intoxication, as set forth above. Contrary to defendant's assertion, the judge's instructions correctly informed the jury that it was obligated to acquit defendant if it doubted that defendant acted knowingly because he was intoxicated at the time in question. Importantly, the trial court's instruction twice stated that it was the State's burden to prove, beyond a reasonable doubt, that defendant's level of intoxication did not render him incapable of acting knowingly.
Because the trial court followed the model jury charge on intoxication and correctly instructed the jury that the State had to prove that defendant acted knowingly despite being intoxicated, there was no error, let alone plain error, warranting reversal. Defendant's claim to the contrary clearly lacks merit.
Defendant also argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, we should not overturn the sentence unless it is so clearly unreasonable as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obligated to affirm. State v. Cassady, 198 N.J. 165, 180-81 (2009).
Due to defendant's extensive prior history of convictions, we find the trial judge appropriately applied aggravating factors three, N.J.S.A. 2C:44-1a(3) (likelihood that defendant will commit another offense); six, N.J.S.A. 2C:44-1a(6) (extent of prior record); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). Contrary to defendant's assertion on appeal, the record did not support a finding of mitigating factors two, N.J.S.A. 2C:44-1b(2) (defendant did not contemplate that his conduct would cause or threaten serious harm), four, N.J.S.A. 2C:44-1b(4) (substantial ground tending to excuse or justify defendant's conduct), or eleven, N.J.S.A. 2C:44-1b(11) (excessive hardship).
As the Court noted in Dalziel, supra, 182 N.J. at 504, mitigating factors must be "amply based in the record before the sentencing judge to be found." Defendant was not entitled to the benefit of mitigating factor two or four in a case where he led police on a high-speed pursuit down a busy highway while under the influence of alcohol. As the judge found, defendant "put himself in that position, he voluntarily consumed alcohol" and "was aware of what he was doing during that period of time when he was fleeing . . ."
Moreover, the court did take into account defendant's history of mental illness, along with his intoxication, when it awarded defendant mitigating factor number three. N.J.S.A. 2C:44-1b(3) (defendant acted under a strong provocation). Finally, with respect to mitigating factor eleven, defendant presented no evidence at sentencing that his children would suffer excessive hardship were he to be placed in jail. In fact, the record belies this claim, as defendant's child support arrears were close to $40, 000 at the time of sentencing.
The court concluded that the aggravating factors substantially outweighed the mitigating factors and imposed a ten-year sentence with a five-year period of parole ineligibility. We are satisfied that the sentencing court acted well within its discretion in identifying and weighing the aggravating and mitigating factors supported by the evidence and imposed a sentence within the permissible range for the offense State v Bieniek 200 N.J. 601 608 (2010) As the court applied correct legal principles and the sentence is amply supported by the record and does not shock our judicial conscience we discern no basis to disturb it Roth supra 95 N.J. at 363-64
Because the sentencing court denied the State's motion to sentence defendant to an extended term the judge was not required to engage in an extended-term analysis when imposing defendant's sentence Moreover the serious nature of defendant's crime and his extensive criminal record amply support the judge's exercise of his discretion in imposing a ten-year base term and a five-year period of parole ineligibility