STATE OF NEW JERSEY v. MARCUS FOY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4680-03T44680-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS FOY,

Defendant-Appellant.

__________________________________

 

Submitted October 24, 2005 - Decided

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey, Law Division, Union County,

03-04-0310.

Yvonne Smith Segars, Public Defender, attorney for appellant (Raquel Y. Bristol, Assistant Deputy Public Defender, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Daniel I. Bornstein, Deputy Attorney General, of counsel.)

PER CURIAM

Following a jury trial, defendant, Marcus Foy, was found guilty of second-degree eluding an officer, N.J.S.A. 2C:29-2(b) (Count One); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (Count Two); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (Count Three). The judge granted the State's motion for an extended term and imposed a seventeen-year sentence with eight and one-half years of parole ineligibility on the first count conviction. An eighteen-month concurrent term was imposed on the second count conviction and a consecutive five-year term was imposed on the third count conviction. Defendant appeals and we affirm the judgment of conviction but remand for resentencing in light of the recent holdings in State v. Natale (Natale II), 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005).

On Saturday, October 12, 2002, Officer Lawrence Gioconda was patrolling the area near the Jersey Gardens Mall in downtown Elizabeth in a marked police vehicle. At approximately 12:44 p.m., Gioconda observed a silver 2001 Jeep Cherokee proceed through a red traffic signal at the intersection of Dowd Avenue and Davidson Street. Gioconda followed the vehicle, activating the police car's lights and sirens. The driver of the Jeep began to accelerate, reaching speeds of up to fifty miles per hour, in a twenty-five mile-per-hour zone. Eventually, the Jeep came to a stop and two male passengers exited the vehicle and ran. Gioconda called headquarters to inform them of the direction in which the individuals were running. The driver of the Jeep then continued on Dowd Avenue, reaching speeds in excess of fifty miles per hour. He then proceeded, without stopping, through a stop sign at Trumbull and Dowd, turned left onto Trumbull, made another left onto Memorial Drive, and then right onto Jersey Gardens Boulevard. Throughout the pursuit, it was raining and the roads were wet. As the driver of the Jeep attempted to turn left onto Kepkowsky Road, he lost control of the vehicle, leaving the roadway and coming to rest in a pond. Just before the vehicle entered the pond, the driver rolled out of the driver's door and began to run. Gioconda never lost sight of the Jeep throughout the pursuit.

At trial, Gioconda identified the defendant as the driver of the Jeep. He testified that he never lost sight of the defendant from the time the defendant exited the vehicle to the time the he apprehended defendant on foot. He was "Hundred percent" sure that defendant was the driver of the Jeep. During the foot chase, Gioconda identified himself by saying, "Stop, police." Once Gioconda caught defendant, he placed him under arrest.

The vehicle, which was retrieved from the pond, was registered to Mary Gillard of Asbury Park. Gillard had locked her vehicle in the garage of her apartment complex the evening before. The next morning she discovered that the outer padlock on the garage door was missing, the door was off the track, and her vehicle was missing. She did not give anyone permission to take her vehicle. The Jeep's side rim was damaged and the interior was flooded with water and plant matter.

Defendant gave a different version of the events. He testified that on October 12, 2002, while working for Waste Management/Recycle America, he went to the mall on a personal errand for his boss. According to defendant, while he was intending to go to Caldor's in the mall to pick up garden supplies, he heard a commotion near the pond adjacent to the parking lot where he parked. Deciding to investigate, defendant emerged through the tumbleweeds and observed a police officer yelling, with his weapon drawn. The officer then tackled defendant and arrested him. Defendant testified that he saw another individual running from the scene.

Gioconda was re-called as a rebuttal witness and testified that he was a former Jersey Garden Mall employee and that Caldor's is not, and never has been, a store in the Jersey Gardens Mall. In response to the judge's inquiry, neither party had any jury charge requests.

On appeal, defendant raises the following points:

I. THE COURT'S FAILURE TO INSTRUCT THE JURY THAT THE STATE HAD TO PROVE IDENTIFICATION BEYOND A REASONABLE DOUBT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (Not Raised Below).

II. THE SENTENCE IS ILLEGAL BECAUSE IT VIOLATES BLAKELY V. WASHINGTON IN THAT: (1) THE FINDING THAT AN EXTENDED TERM WAS NECESSARY FOR THE PROTECTION OF THE PUBLIC WAS NOT MADE BY A JURY; (2) THE SENTENCES FOR ALL COUNTS WERE IN EXCESS OF THE ORDINARY PRESUMPTIVE TERMS BASED ON AGGRAVATING FACTORS FOUND BY A JUDGE, VIOLATING BLAKELY AND STATE V. NATALE AS WELL; (3) A CONSECUTIVE TERM WAS IMPOSED ON COUNT THREE BASED ON THE JUDGE-MADE FINDINGS OF APPLICABILITY OF THE STATE V. YARBOUGH FACTORS TO THIS CASE.

A. The Extended Term Is Unconstitutional.

B. The Sentences in Excess of the Presumptive Terms Must Be Reduced Pursuant to Blakely and Natale.

C. N.J.S.A. 2C:44-5 Is Unconstitutional Because It Permits A Court To Impose Consecutive Sentences Based On Judge-Made Findings.

III. THE COURT ABUSED ITS DISCRETION IN IMPOSING AN EXTENDED TERM ON COUNT ONE AND A CONSECUTIVE SENTENCE ON COUNT THREE.

For the first time on appeal, defendant claims that his due process rights were violated by the trial judge's failure to instruct the jury on identification. Although we reject the State's argument that identification was not a critical issue, we conclude that any error committed in failing to instruct the jury did not have the capacity to produce an unjust result. R. 2:10-2.

Upon an appropriate request, a trial court should instruct a jury that it is the prosecution's burden to prove beyond a reasonable doubt that the defendant committed the crime charged, that the defendant has no duty to show that he was elsewhere when the crime was committed, that the State's case depends upon the reliability of the identification evidence presented, and that it is appropriate to consider the capacity or ability of the witness to make observations and his opportunity under all the attendant circumstances for seeing that which he says he saw. State v. Green, 86 N.J. 281, 293-94 (1981). If a pretrial identification has been made, the judge should instruct the jury that it is to determine whether any in-court identification results from the observations or perceptions of the defendant during the commission of the crime rather than being the product of the pretrial confrontation. Id. at 294. Finally, the judge should mold the instruction in a manner that explains the law to the jury in the context of the material facts of the case. Id. at 287-88; see also State v. Concepcion, 111 N.J. 373, 379 (1988). Although we agree that the better practice would have been to give an identification instruction, we nevertheless conclude that any error was harmless.

The cases addressing an omitted identification charge demonstrate that the necessity of vitiating an otherwise valid conviction depends on the circumstances of the case and is highly fact-sensitive. See State v. Green, 86 N.J. at 291-92; State v. Malloy, 324 N.J. Super. 525, 535 (1999); State v. Walker, 322 N.J. Super. 535, 545-50 (App. Div.), certif. denied, 162 N.J. 487 (1999); State v. McNeil, 303 N.J. Super. 266, 272 (App. Div. 1997); State v. Edmonds, 293 N.J. Super 113, 118 (App. Div. 1996), certif. denied, 148 N.J. 459 (1997); State v. Salaam, 225 N.J. Super. 66, 69-72 (App. Div. 1988); State v. Frey, 194 N.J. Super. 326, 330 (App. Div. 1984).

The facts here show that defendant would not have benefited by an instruction on identification. The identification was by a trained officer who viewed defendant's criminal activity. The officer's observations of defendant were not the product of a chance encounter. The officer was at the scene following an intense pursuit of the Jeep. He obviously had a heightened awareness of the need for a proper identification. He also had a strong incentive to be observant. See State v. Little, 296 N.J. Super 573, 580 (App. Div.), certif. denied, 150 N.J. 25 (1997). Defendant's arrest occurred at the scene almost immediately after the commission of the crimes when the officer's on-the-scene perceptions were indelibly imprinted in his mind. The officer readily identified defendant without hesitation and was unequivocal in his statement that defendant was the perpetrator throughout extensive cross-examination. Salaam, supra, 225 N.J. Super. at 67-69.

Simply put, the jury was well aware of the mistaken identity defense, although argued by defendant in terms of credibility. Moreover, the jury was adequately instructed on credibility. Had the trial judge been alerted to the problem belatedly advanced by defendant on appeal, the instructions would have incorporated the highly relevant, incriminating facts. We do not know the reason for the defense's failure to submit a timely request to charge or interpose an appropriate objection to the instructions as given. It is certainly arguable, however, that this omission constituted a tactical or strategic decision on the part of defendant's lawyer. In any event, it would offend the interests of justice to require a re-run of the trial under these circumstances. See State v. Macon, 57 N.J. 325, 333 (1971).

Defendant's next contentions, that the imposition of an extended term and consecutive sentence are violative of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), are devoid of merit. The judicial fact finding respecting a defendant's eligibility for an extended term as a persistent offender, N.J.S.A. 2C:44-3a, does not violate Blakely because it is predicated on defendant's prior record. State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005); State v. McMillan, 373 N.J. Super. 27, 28 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005); State v. Dixon, 346 N.J. Super. 126, 139-41 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002).

Moreover, "there is no presumption in favor of concurrent sentences" and a criminal is fully aware that he or she is at risk for an aggregate sentence covering all the offenses committed. Abdullah, supra, 184 N.J. at 513. Accordingly "imposing a consecutive sentence . . .[does] not exceed the statutory maximum for Blakely or Apprendi purposes." Id. at 514. Here, contrary to defendant's contention, the judge undertook the appropriate discussion and analysis and correctly applied the Yarbough guidelines in imposing a consecutive sentence for the eluding and receiving stolen property convictions. 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). We see no reason to intervene.

Finally, defendant contends that his seventeen-year extended term, which exceeds the statutory presumptive term for a second-degree crime, violates his Sixth Amendment jury trial guarantee. In Natale II, supra, 184 N.J. at 466, the Court held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Thus, when a defendant receives a sentence higher than the presumptive term based on judicial finding, other than a prior criminal conviction, his sentence does not comply with the Sixth Amendment. Ibid. To remedy the constitutional defect in our sentencing code that permitted sentencing judges to impose a term above the presumptive based on the finding of aggravating factors other than a prior conviction, the Court eliminated presumptive terms, but left intact the sentencing ranges contained in N.J.S.A. 2C:43-6(a). Id. at 487.

For those defendants whose cases were on direct appeal as of the date of the decision or who had raised this challenge to their sentences at trial or on direct appeal and who had been sentenced to a term above the presumptive in violation of the Sixth Amendment, the Court ordered a new sentencing hearing. At this hearing, which will be based on the record at the prior sentencing proceeding, the defendant is entitled to have "the trial court . . . determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence." Id. at 495-96.

In this case, the trial judge found as aggravating factors, N.J.S.A. 2C:44-1(a)(3), (6), and (9) and no mitigating factors. The judge predicated factor (3) based upon the fact that defendant was on parole at the time he committed the offenses and factor (6) based upon defendant's prior record. He did not, however, base factor (9) exclusively on defendant's prior criminal conviction. We are, therefore, constrained, in light of Natale II, to remand for consideration of whether the judge would impose a lesser sentence in the absence of the presumptive term. See Abdullah, supra, 184 N.J. at 506 (decided the same day as Natale II).

We remand for resentencing in accordance with this opinion. In all other respects the judgment of conviction is affirmed.

 

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A-4680-03T4

November 4, 2005