STATE OF NEW JERSEY v. ACHAN BEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3416-03T43416-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ACHAN BEY,

Defendant-Appellant.

________________________________________________

 

Submitted September 12, 2005 - Decided

Before Judges C.S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 01-04-1930 and 99-11-3306.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen A. Caruso, Assistant Deputy Public Defender, of counsel and on the letter brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In this appeal, defendant contends he was deprived of a fair trial when convicted of fourth-degree joyriding and fourth-degree resisting arrest because the prosecutor, during summation, personally opined about the credibility of witnesses. In addition, defendant argues that the sentence imposed both on those convictions and on a violation of probation were excessive and contrary to the constitutional precepts announced in Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). While we agree that the prosecutor's expression of his personal opinion of the witnesses' credibility was improper, we affirm the convictions because defendant did not then object and because the prosecutor's statements were not capable of producing an unjust result.

However, we will vacate the sentence on both the joyriding and resisting arrest convictions, as well as the violation of probation, and remand for further proceedings, not only because of the changes to our sentencing procedures brought about by the Supreme Court's landmark decisions last Term, but also because the trial judge (1) may have placed undue emphasis on his own view of the evidence, which conflicted with the jury's, (2) found and relied upon an aggravating factor that constituted an element of the offense, (3) found and relied upon other facts rejected by the jury, and (4) may have double-counted other circumstances.

I

During the trial of this matter, the jury heard testimony that two police officers stopped a 2000 Ford Expedition in Newark on September 25, 2000 because it had a "busted out taillight." One of the officers, Richard Allen, exited his vehicle and approached the Expedition on foot. According to Officer Allen, defendant lowered the driver's side window and asked "what was up?" Officer Allen said the vehicle's taillight was broken and asked to see defendant's license, registration and insurance card. With that, according to Officer Allen, defendant "floored the accelerator and took off." Officer Allen returned to his vehicle and, with Officer Brinton Huggins, pursued the Expedition. After following for a short distance, the officers observed the Expedition crash at a high rate of speed into a Cadillac, driven by James Miley, causing the Cadillac to flip over twice and land on its roof. When the officers arrived moments later, they observed that the Expedition's three occupants had exited and fled north on foot. Officer Allen stopped and provided assistance to Miley. Officer Huggins testified that he chased defendant on foot and, without ever having lost sight of him, apprehended defendant in the basement of a nearby building.

Defendant was arrested, brought to police headquarters and issued summonses for reckless driving, leaving the scene of an accident, driving a vehicle with a defective taillight, and driving an uninsured vehicle. He was also issued summonses for not having either a driver's license or a registration for the vehicle.

Defendant was later indicted, and charged with third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7 (count one); second-degree eluding, contrary to N.J.S.A. 2C:29-2(b) (count two); second-degree aggravated assault, contrary to N.J.S.A. 2C:12-1(b)(6) (count three); two counts of criminal mischief, contrary to N.J.S.A. 2C:17-3 (counts four and five); and third-degree resisting arrest, contrary to N.J.S.A. 2C:29-2 (count six).

Counts four and five were dismissed during a pretrial hearing. At the conclusion of the trial, the jury acquitted defendant of counts two and three, but found him guilty, on count one, of the lesser-included fourth-degree offense of unlawful taking of the means of conveyance (joyriding), in violation of N.J.S.A. 2C:20-10(d), and also found defendant guilty, on count six, of the lesser-included fourth-degree offense of resisting arrest, in violation of N.J.S.A. 2C:29-2(a)(3).

Upon completion of the jury trial, the judge presided over a bench trial on the traffic offenses. Even though it seems obvious, and the State has not disputed, that the jury's verdict was tantamount to a finding that defendant was not the Expedition's driver but only a passenger, the trial judge concluded that defendant was the driver and found that defendant committed all the motor vehicle violations with one exception (the charge of driving a vehicle with a non-working taillight). The judge's disposition of these motor vehicle violations has not been raised on appeal.

Defendant was sentenced to concurrent eighteen-month terms of imprisonment on the joyriding and resisting arrest convictions. At the same time, defendant was also sentenced to a term of three-years' imprisonment for violating a previously-imposed probationary term, to run consecutively to the concurrent eighteen-month sentences on the fourth-degree convictions. Mandatory fees and assessments were also imposed.

II

Defendant appealed, raising the following arguments for our consideration:

I. THE PROSECUTOR'S IMPROPER REMARKS DENIED THE DEFENDANT A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PAR. 10.

II. THE SENTENCE IMPOSED WAS EXCESSIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.

III. BLAKELY PROHIBITS THE IMPOSITION OF SENTENCES ABOVE THE PRESUMPTIVE TERM, ON THE BASIS OF JUDGE-FOUND FACTORS, AS OCCURRED IN THIS CASE.

We reject the argument contained in Point I, but agree that the sentences must be vacated and the matter remanded for re-sentencing not only because of the changes in sentencing brought about by our Supreme Court's recent decisions during the pendency of this appeal, see Natale, supra, 184 N.J. 458; Abdullah, supra, 184 N.J. 497; Franklin, supra, 184 N.J. 516, but for other reasons as well.

III

Defendant argues, quite correctly, that the prosecutor exceeded the bounds of appropriate advocacy by expressing a personal opinion that Officers Allen and Huggins were credible witnesses and defendant's version of what occurred was not worthy of belief. In referring to the fact that Officer Allen had retired but traveled from his Maryland home to testify, the prosecutor not only properly argued the lack of a motive for Officer Allen to lie, stating "[why would he] come here, and just lie to you . . .," but then also improperly asserted that Officer Allen "didn't do that." In addition, the prosecutor vouched for Officer Huggins's credibility: "You heard from Huggins, and he told you the truth." And, in speaking about the testimony of both, the prosecutor again improperly asserted his personal belief that the officers were telling the truth:

Now, there may have been one or two very, very slight inconsistencies, but that's what makes the testimony credible. That's what shows you that they were telling the truth.

I mean if they came in here and they said the exact same thing, the exact same distances, the exact same time, and everything else, wouldn't the light bulb go on? [You would then say,] ["]Well, these guys must have been coached. They told [us] the exact same thing.["] But they didn't. They didn't because they weren't coached. They told you the truth.

[Emphasis added.]

The prosecutor also wrongfully argued to the jury his own personal opinion about defendant's credibility: "He wasn't telling you the truth."

While the prosecutor was free to argue to the jury the factors and reasons contained or suggested by the evidence from which they could determine whether a witness did or did not testify truthfully, a prosecutor is not permitted to "express his or her professional belief or opinion as to the truth or falsity of any testimony. . . ." State v. Marshall, 123 N.J. 1, 154 (1991); see also State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993); State v. Michaels, 264 N.J. Super. 585, 640 (App. Div. 1993); State v. West, 145 N.J. Super. 226, 233 (App. Div. 1977). While there is no question that the credibility of the witnesses regarding the identity of the Expedition's driver was hotly contested, and while the State was certainly entitled to vigorously argue why the jury should have believed the State's witnesses and not the defendant's, the prosecutor was not entitled to buttress the State's position by personally opining as to the credibility of the witnesses. It is in this latter regard that the prosecutor exceeded the bounds of proper advocacy.

Notwithstanding, we observe that defendant's attorney did not object to any portion of the prosecutor's summation. From that we may legitimately infer that counsel did not consider the remarks inappropriate or prejudicial, State v. Vasquez, 265 N.J. Super. 528, 560 (App. Div.), certif. denied, 134 N.J. 480 (1993), and, thus, need only be concerned with whether "the remarks, if improper, substantially prejudiced the defendant['s] right to have the jury fairly evaluate the merits of [his] defense, and thus had a clear capacity to bring about an unjust result," State v. Johnson, 31 N.J. 489, 510 (1960).

In considering the verdict, it is readily apparent that the jury was not influenced by the prosecutor's improper comments. Defendant had asserted in his own testimony that he was not the Expedition's driver; the police officers testified to the contrary. In acquitting defendant of the eluding and assault charges, there can be no doubt but that the jury believed defendant's testimony that he was not driving the Expedition, and rejected the testimony of the police officers who said that he was. Accordingly, it is clear that the jury was not persuaded by the prosecutor's contention that the officers were truthful or by the prosecutor's opinion that defendant was lying about who was driving the Expedition and, thus, it cannot be said that that part of the prosecutor's summation which exceeded the bounds of proper advocacy had a capacity to prejudice defendant's right to a fair trial.

IV

Defendant contends that the sentence was excessive because of the judge's reliance upon factors that conflicted with the jury's verdict.

In Indictment No. 99-11-03306, defendant was charged with third-degree possession of heroin with the intent to distribute, in violation of N.J.S.A. 2C:35-5(b). He pleaded guilty to that charge, and was sentenced on March 27, 2000 by another judge, who found the presence of aggravating factor nine (the need to deter), N.J.S.A. 2C:44-1(a)(9), but also found mitigating factors seven (the lack of a prior criminal history), N.J.S.A. 2C:44-1(b)(7), and ten (the likelihood that defendant would respond well to probationary treatment), N.J.S.A. 2C:44-1(b)(10). As a result, the judge who presided over the earlier matter placed defendant on probation for a period of two years.

Following his arrest for the offenses charged in Indictment No. 01-04-1930, defendant was charged with violating the terms of his probation. While charged in Indictment No. 01-04-1930 with more serious offenses, defendant was convicted of fourth-degree joyriding and fourth-degree resisting arrest. He was sentenced on those convictions as well as the violation of probation on September 30, 2002.

As for the violation of probation, the trial judge found that mitigating factor ten (defendant was amenable to probationary treatment), N.J.S.A. 2C:44-1(b)(10), was no longer applicable since defendant had committed the newer offenses while on probation. He also found that "the mitigating factors slightly outweigh the aggravating factors," and sentenced defendant to a three-year term of imprisonment.

In turning to Indictment No. 01-04-1930, the judge found the presence of aggravating factors three (the risk that defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3), and nine (the need to deter), N.J.S.A. 2C:44-1(a)(9), and no mitigating factors. While the judge rightfully considered the prior drug conviction and the fact that defendant committed the fourth-degree offenses while on probation, our examination of the judge's reasoning (1) suggests the possibility that the judge gave weight to his belief that defendant was the Expedition's driver; (2) demonstrates that the judge based his findings of aggravating factors on circumstances that formed an element of one of the offenses, (3) indicates that he relied upon facts the jury rejected; and (4) suggests that certain circumstances may have been double-counted in the judge's overall determination to impose an aggregate term of imprisonment of four and one-half years. For these reasons, and because of the change in sentencing procedures announced by our Supreme Court during the pendency of this appeal, we remand for re-sentencing.

First, as noted, following the jury's verdict -- which cannot be interpreted in any way other than the jury found defendant to be a passenger and not the driver of the Expedition -- the judge made findings on the traffic violations and, in so doing, relied on his own finding that defendant was the Expedition's driver. Again, defendant has not appealed the disposition of those traffic violations nor argued that the judge was then required to accept and adhere to the jury's verdict. But defendant argues that in sentencing him on the fourth-degree convictions, the judge was constitutionally required to base the sentence on the jury's verdict. The judge recognized this, stating on more than one occasion during the sentencing proceedings that he had "to go by the jury verdict whether I agree with it or disagree with it." That is certainly a correct statement of what is constitutionally required. See, e.g., Ring v. Arizona, 536 U.S. 584, 602, 122 S. Ct. 2428, 2439, 153 L. Ed. 2d 556, 572 (2002); Natale, supra, 184 N.J. at 473. But we are concerned that the judge's repeated mention of this obligation, and the emphasis he placed on his disagreement with the jury's findings, may have overborne his findings of the aggravating factors applied in imposing the maximum sentence on the fourth-degree convictions. Upon his reconsideration of the sentence, the judge should not allow his own personal view of the evidence -- to the extent it conflicts with the jury's findings -- to affect the sentence imposed.

Second, the judge partially based his findings of aggravating factors on a fact that formed an element of the joyriding offense:

What I am considering is the fact that he probably knew that that vehicle was stolen.

. . . .

Whether I agree or disagree with the verdict, that's the verdict. After all, when a defendant is found guilty of the most serious charges, whether I agree or disagree with the verdict, I have to sentence in accordance with the jury verdict. But I did hear all the facts in the case, and I did get a flavor of the case, and this wasn't just a simple joyriding situation where no one was injured or where the police weren't [led] on a wild goose chase . . . .

. . . .

I did not find [defendant's] testimony to be credible that he didn't know the vehicle was stolen. I believe he knew that that vehicle was probably stolen, and I base that upon his actions once the vehicle was involved in the collision he ran from the police.

. . . .

If he didn't know . . . the vehicle was stolen, or probably stolen, why would he run like that? I think that plays into the fact that he knew that the vehicle was probably stolen. That effects his credibility as far as I was concerned as a witness that he took the stand and he lied about that. And I think he lied about the circumstance under which he got into the car.

[Emphasis added.]

By incorporating into his findings that defendant knew the vehicle was probably stolen, the judge relied upon an element of the offense of joyriding, i.e., that defendant entered and rode in a vehicle "knowing that the motor vehicle has been taken or is being operated without the consent of the owner or other person authorized to consent," N.J.S.A. 2C:20-10(d). This fact should not have been considered in the determination of aggravating factors because "the Legislature had already considered the elements of an offense in the gradation of a crime." State v. Kromphold, 162 N.J. 345, 353 (2000). As the Court held, "[i]f we held otherwise, every offense arguably would implicate aggravating factors merely by its commission, thereby eroding the basis for the gradation of offenses and the distinction between elements and aggravating circumstances." Ibid.

Third, while it was a mistaken exercise of the judge's sentencing authority to rely upon an established element of the offense as an aggravating circumstance, as we have observed, ibid., it was also erroneous for the judge to find as an aggravating factor a factual circumstance that the jury rejected. See, e.g., Franklin, supra, 184 N.J. at 535-39. Here the judge held, in finding the presence of aggravating factor nine (a need to deter), N.J.S.A. 2C:44-1(a)(9):

As far as deterrence there's a strong factor for the need to deter the defendant and others from violating the law, and I think that message was set forth in what I had to say. Mr. [Miley] and the officers could have [been] caused serious bodily injuries by the actions of both of these defendants. Granted the jury verdict showed that the driver of the vehicle was [another person]. [Defendant] aggravated a terrible situation, emergent situation by running from the police by causing a police chase in which serious injuries . . . could have been sustained. While as the jury verdict shows him to be the passenger, I can't find any mitigating factors because I think he fully contemplated what his conduct would do when he left the scene of that accident where he knew -- had to know that there was a serious injury which was caused at the scene and that Mr. [Miley's] vehicle had been sent into the retaining wall. He knew there were serious injuries at the scene, and then he left -- he ran for several blocks, so he contemplated that his conduct would cause or threaten serious harm."

In finding that defendant engaged in conduct knowing that it could cause serious bodily injuries, the judge mistakenly overlooked the fact that the jury acquitted defendant of all the charges that required proof of that fact. Defendant was acquitted of second-degree eluding, which required proof that defendant's flight created a risk of death or injury to another person, N.J.S.A. 2C:29-2(b), and defendant was acquitted of third-degree resisting arrest, which required proof that he prevented a law enforcement officer from effecting a lawful arrest by using or threatening the use of physical force or violence against an officer, N.J.S.A. 2C:29-2(a)(3). Thus, the underpinnings for the judge's findings represented a view of the facts that the jury did not share.

Fourth, the fact that defendant committed the offense while on probation may have unduly weighed on the sentence imposed. The fact that defendant was arrested and convicted for fourth-degree offenses emanating from the September 25, 2000 incident was utilized not only as the basis for a finding of a violation of probation, and not only caused defendant's loss of the benefit of the mitigating factor found by another judge in placing defendant on probation, but also was utilized as an aggravating factor that buttressed the judge's determination to sentence defendant to the maximum term permitted by the fourth-degree convictions. In addition, the aggregate term of imprisonment on these charges was further increased by the judge's direction that the terms on both the drug conviction and the fourth-degree convictions run consecutively.

We do not mean to suggest that the violation of probation should not have been considered in sentencing defendant on the fourth-degree convictions. Instead, we hold that the weight to be given to this circumstance, considering the impact it has had in other respects on this overall sentence, may need to be tempered so that its repeated use in the imposition of sentence does not impermissibly represent the double-counting of the circumstances and unduly increase the sentence imposed. See, e.g., State v. Miller, 108 N.J. 112, 122 (1987); State v. Vasquez, 374 N.J. Super. 252, 267 (App. Div. 2005). In other words, in re-sentencing defendant, the trial judge should consider the fact that the fourth-degree convictions generated the basis for the sentence imposed as a result of the violation of probation, and the violation of probation appears to have generated a basis for the imposition of the maximum terms on the fourth-degree convictions. Each step taken by the judge in this regard may have a logical and reasonable underpinning, but when looking at the aggregate term of imprisonment imposed on this defendant, it can be seen that there is merit to defendant's claim that the aggregate sentence was exponentially increased by the repeated consideration of the same circumstances.

Lastly, in light of the recent changes to the sentencing statutes made by the Supreme Court, we are obligated to remand for re-sentencing since this appeal was pending at the time the Supreme Court decided Natale, Abdullah, and Franklin. See Natale, supra, 184 N.J. at 494-95.

The convictions are affirmed, but the matter remanded to the trial judge for re-sentencing in conformity with this opinion. We do not retain jurisdiction.

 

State v. Natale, 184 N.J. 458 (2005); State v. Abdullah, 184 N.J. 497 (2005); State v. Franklin, 184 N.J. 516 (2005).

The appeal requires our consideration of the proceedings relating to two different indictments. Defendant was charged with various offenses in Indictment No. 01-04-1930, relating to the September 25, 2000 incident described in greater detail in Section I of this opinion. Indictment No. 99-11-03306 charged defendant with possession of heroin with the intent to distribute, to which defendant previously pleaded guilty. Defendant was sentenced to a two-year probationary term on the drug conviction, but charged with violating the terms of probation as a result of the September 25, 2000 incident.

Miley was taken from the scene of the collision to a nearby hospital where he remained for six days and was treated for three fractured ribs, a lacerated liver, cuts to his face, and an injured knee.

(continued)

(continued)

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A-3416-03T4

October 7, 2005