STATE OF NEW JERSEY v. AKBAR SABAR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6120-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

AKBAR SABAR,

Defendant-Appellant.

______________________________________________

 

Submitted September 21, 2005 - Decided

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Essex County, 02-08-3079.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Gilbert G. Miller, of counsel

and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Joan E. Love, Special Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Akbar Sabar appeals his conviction after a jury trial on all counts of an indictment charging: fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5)(a) (count one); fourth-degree possession of a weapon, an automobile, under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5d (count two); third-degree possession of a weapon, an automobile, with intention to use it unlawfully against another, N.J.S.A. 2C:39-4d (count three); and second-degree eluding a police officer, N.J.S.A. 2C:29-2b (count four). At the sentencing, the judge rejected the State's motion to impose an extended term. On count four, eluding, the judge imposed a seven-year term of imprisonment. Count three was merged into count one, and nine month jail terms were imposed on counts one and two to run concurrent with each other and with count four. Appropriate penalties and assessments were also imposed.

On appeal defendant presents the following arguments:

POINT I

THE PROSECUTOR ENGAGED IN MISCONDUCT ON SUMMATION AND DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)

POINT II

THE COURT'S JURY INSTRUCTIONS WERE INADEQUATE IN SEVERAL RESPECTS.

(Partially raised below)

POINT III

THE ELUDING CONVICTION WAS AGAINST THE WEIGHT OF THE EVIDENCE, AND A JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN ENTERED OR A NEW TRIAL ORDERED.

POINT IV

THE COURT PERMITTED THE STATE TO ADMIT EVIDENCE WHICH WAS NOT RELEVANT AND IN ANY EVENT UNDULY PREJUDICIAL.

POINT V

DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE.

We find no reversible error and affirm. I

On the afternoon of June 19, 2002, defendant's stepmother gave defendant her 1987 Chevrolet Corvette to have it tuned up and cleaned. At about 8:40 p.m. that day, Lieutenant James O'Connor, Commander of the Newark Police Auto Theft Task Force, and his partner Detective Stacy Connolly were patrolling the South District in an effort to locate stolen cars. They were traveling in an unmarked, four-door 1990 Chevy Caprice. Lieutenant O'Connor was driving. Both officers were dressed in black polo shirts with identifying yellow Newark Police patches on the side and Newark Police Officer printed on the back. They both wore fatigue pants and black baseball caps with the symbol of the Newark Police. They also had standard issue gun belts, guns, shields around their necks, ammunition, and radios.

While looking for stolen cars they were flagged down by a woman who advised them of a small, black convertible being driven erratically. They first saw the black convertible Corvette on Renner and Skyler Avenues "rolling a stop sign." The police pulled nose to nose with the car, with their flashers on and siren briefly activated. At this point, the officers were going to do a motor vehicle check to ensure the car was not stolen. Connolly exited the police car, announced that they were police officers, and asked the driver of the Corvette to shut off his motor. Then O'Connor got out of the vehicle and took a few steps toward the vehicle. Unexpectedly, the driver, later identified as defendant, quickly put the Corvette in reverse and traveled about one block at more than fifty miles per hour. O'Connor decided to turn the patrol car lights off and check the block to see if anyone was hurt. The police made a right turn onto Shepherd Avenue and began traveling westbound when the Corvette "came flying by," driving east at a speed of between fifty and seventy miles an hour in the residential area. O'Connor turned his vehicle around on Shepherd Avenue in order to follow the Corvette, and observed that down the block the Corvette had struck a marked police car head-on, operated by Officer Julio Paredes at the intersection of Shepherd Avenue and Hunterdon Terrace.

Paredes was a member of the Crime Suppression Unit and was alone, in full uniform, in his marked police car with overhead lights on at the time of the collision. He was traveling westbound on Shepherd Avenue when he noticed a speeding car, the convertible driven by the defendant, moving eastward down the middle of the street. He immediately pulled over to the right curb to avoid being hit since, by his estimate, the car was traveling between sixty and one hundred miles an hour down the middle of the road, but his vehicle was struck head-on. According to Paredes, at no time did the vehicle appear to brake, and, while the driver could have avoided the police car, he appeared to intentionally aim straight for the vehicle. The front end of the driver's side of Paredes's vehicle was severely damaged, and the car was destroyed. The Corvette was totaled as well.

After the crash, defendant put the Corvette into reverse, backed up and went around the police car and traveled eastbound farther down the street. The car hit the curb, defendant jumped out and fled on foot, but he was captured by Connolly, O'Connor, and Paredes around the corner on Osbourne Terrace between Shepherd and Renner Avenues.

An ambulance was called for Paredes who had a swollen eye, damage to his hand, and was badly shaken. He was taken to the hospital where he received treatment and was released. Paredes received injuries to his hands, face, back and knees, and was out of work for approximately six to eight months.

II

Defendant argues that the prosecutor advanced an erroneous legal theory in summation which prejudiced him. In his own summation, defendant's attorney had argued that defendant did not know the officers were police given the unmarked vehicle and their manner of dress. He also argued that, "there was no chase. One of the key elements of this offense was that the defendant would have to know he was still being pursued by the police." Thereupon, the prosecutor objected on the basis that defense counsel's argument was "a misstatement of the law." The judge overruled the objection, and counsel continued in the same vein, arguing that the State was required to prove that defendant "knew that he was being pursued by police officers but still did not stop."

Apparently in response to these defense arguments, the prosecutor argued that "there were two eludings in this case -- the initial eluding when O'Connor and Connolly first tried to stop him. There was a second eluding after he hit Paredes, wasn't there?" Near the conclusion of his remarks, the prosecutor told the jurors that he "would like to read a little bit of the law to you so you have some understanding of what we're thinking about. [The judge] is going to explain in much greater detail exactly what all this means in a few minutes." After discussing the aggravated assault, and car-as-a-weapon charges, the prosecutor continued as follows:

With regard to eluding, ladies and gentlemen, it does not matter how long the pursuit goes on for. It doesn't even have to be a pursuit. See that's a great fallacy. It's a great misunderstanding. The police don't have to chase him. They attempted to stop him. He fled from them, not once but twice. It was the first time when O'Connor and Connolly got out of the car and the second time after he had hit Paredes. Two times.

The prosecutor then read the eluding statute to the jury.

After the State's summation was concluded, defense counsel raised a number of objections at sidebar. In part, the record reveals the following:

Secondly, Your Honor, while he did correctly read the statute, the charge to the jury is actually a more complete representation of the law, and as a matter of law, I believe you should instruct that the State must prove beyond a reasonable doubt that he or she knew that he was being pursued by police officers, but still did not stop.

So, if there was no pursuit, there can be no violation. So to say that it was a matter -- whether there is a pursuit, is a misstatement of the law, Judge.

THE COURT: They will hear what the law is from me, and they will be reminded that it is what I tell them the law is that controls and not what anybody else says what the law is.

Defendant contends that the prosecutor misstated the law when he argued that there "doesn't even have to be a pursuit." Rather, as the Model Charge itself requires, as modified in the wake of State v. Mendez, 345 N.J. Super. 498, 507-09 (App. Div. 2001), "mere failure to stop does not constitute flight." Rather, "in order for you to find that defendant fled or attempted to elude the police, the State must prove beyond a reasonable doubt that (he/she) knew that (he/she) was being pursued by police officers, but still did not stop." Model Jury Charge (Criminal), "Eluding an Officer," (2001). Defendant argues that the prosecutor's statement that there did not have to be a pursuit:

had a clear tendency to lead the jury to find defendant guilty simply because he failed to heed the initial signal and direction by O'Connor and Connolly to remain where he was by the stop sign without the required additional finding that defendant was knowingly aware of a pursuit which he was fleeing or attempting to elude. As there was no evidence of an actual pursuit from which defendant could knowingly flee or attempt to elude, the prosecutor's misstatement of law was highly prejudicial.

Defendant also argues that the prosecutor's statement that there were two eludings was factually incorrect because there was no evidence that defendant ever fled from Paredes since that officer never signaled him to stop.

Finally, defendant argues that the prosecutor's several statements suggesting that the difference between the scienter elements of recklessly or purposefully "doesn't really matter. It's just a matter of semantics," was prejudicial in that it encouraged "the jury to disregard the fine distinctions involved in finding culpability elements on all the offenses."

Defendant's arguments are not without merit. The prosecutor's remarks demonstrate why it can be unwise for the parties to delve into the law to the degree exemplified here. Thus, the comment that the difference between the mental states is "just a matter of semantics" was improper in that it tended to denigrate the carefully crafted scienter distinctions in the Code. See N.J.S.A. 2C:2-2b. While it was not a clear misstatement of law, the prosecutor's argument that there did not have to be a pursuit for there to be eluding had the capacity to confuse the jury. And the prosecutor's statement that there were two eludings was factually incorrect. As the State correctly concedes on appeal, "instruction on the law is better left to the trial judge."

However, even if the prosecutor was mistaken in these respects, we conclude that any error was harmless. State v. Pillar, 359 N.J. Super. 249, 278-79 (App. Div.), certif. denied, 177 N.J. 572 (2003). As is customary, the judge instructed the jury that his rendition of the law controlled, and the judge delivered a correct and unchallenged instruction on eluding. Indeed, as a result of a jury question, the judge charged eluding a second time. We have no reason to believe that the jurors did not follow the instructions. State v. Scherzer, 301 N.J. Super. 363, 437 (App. Div.), certif. denied, 151 N.J. 466 (1997). Nevertheless, we caution judges to carefully monitor attorney discussions of the law in their closing arguments.

III

Defendant makes three arguments concerning the jury instructions. First, defendant contends that the judge's use of a Power Point slide presentation with respect to the elements of the eluding offense was error. At trial, defense counsel objected on the basis that the slide presentation would overwhelm the judge's oral instructions. More specifically, counsel complained that the abbreviated listing of elements failed to include the language, quoted earlier, requiring that the State prove defendant knew he "was being pursued by police officers but still did not stop." The record does not indicate at which point the judge utilized the Power Point presentation, but we assume it took place when the judge went over the six basic elements of eluding and then the seventh, "risk of death or injury," element. Defendant made no further objection at the conclusion of the charge. Although hard copies of the slides were marked as court exhibits, we have not been provided with copies of them.

During deliberations, the jury asked for a "list of conditions for each count," which the judge interpreted to mean a list of the elements of each offense. In response, while reminding the jury of the Power Point display, the judge fully re-charged the jury on each offense, apparently doing so without the slide presentation. Defendant did not object. Defendant also filed a motion for a new trial which did not mention the Power Point presentation.

We reject defendant's argument that the judge's use of the Power Point was error. While we believe that it would have been better for the judge to make clear to the jury that the list of elements was not a substitute for the complete instructions, the fact is that the jury received a full and correct charge on the law and then a second one without use of the Power Point. We discern no possibility that the jury was confused or misled under these circumstances. In general, the use of visual aids is best left to the trial judge's discretion. Indeed, we are informed that the use of such aids is widespread and growing. However, a judge employing such lists of elements should be certain, as we have noted, that the jury is clearly made to understand that the list is only an aid and that it is the full charge that explains the meaning of the elements and governs in their deliberations. In that regard, a jury should never be provided with simply a list of elements to assist in its deliberations since such a list without the complete instructions might well cause the panel to lose sight of the full charge and focus only on the bare elements. In any event, that was not done here, and we find no error.

Second, defendant argues that the charge on count two, possession of a weapon (a car) under circumstances not manifestly appropriate for its lawful use, was deficient in that it failed to instruct the jury that defendant had to have intended to use his car as a weapon. Specifically, defendant argues that with respect to objects that have lawful uses but may take on the character of a weapon under particular circumstances, such as the automobile in this case, the defendant must intend the use of the object as a weapon. In support of that proposition, defendant cites State v. Riley, 306 N.J. Super. 141 (App. Div. 1997).

Defendant misreads Riley. That case did not involve a jury charge, and did not, as defendant suggests, hold that a defendant must subjectively intend to use the particular object as a weapon. Ibid. Indeed, as the State correctly points out, State v. Lee, 96 N.J. 156 (1984), holds directly to the contrary. As the Court stated, after a careful analysis of the several code provisions dealing with possession of weapons, "the Legislature did not require proof of an intent to use a weapon for an unlawful purpose as an element of a violation of 2C:39-5d." Id. at 163. Rather, all of the circumstances surrounding possession of the item are to be considered in determining whether the possession is "not manifestly appropriate" for its lawful use. Id. at 162-64. Remarkably, defendant does not cite, much less discuss, Lee in his brief.

In Riley, we were faced with the question of whether the proofs permitted a finding that defendant's possession of a pocket knife, never taken out of his pocket while he committed a robbery, was "permissibly categorized as a deadly weapon," as to permit the crime to be elevated from a second-degree to first-degree offense under N.J.S.A. 2C:15-1b. Riley, supra, 306 N.J. Super. at 148. After examining the proofs, the court answered its query in the negative. Ibid. Indeed, the trial judge had "found that defendant neither used nor intended to use his pocket knife in the commission of this robbery." Id. at 149. Since the victim was totally unaware that defendant had a knife in his pocket, the knife was not a deadly weapon. Ibid. Using that same reasoning, the court held that Riley could not be convicted under N.J.S.A. 2C:39-5d either. Id. at 150. With respect to that charge, the court began its analysis by referring to the Court's holding in State v. Kelly, 118 N.J. 370, 380 (1990) (citing State v. Lee, supra), that "whether defendant intends to use [the item] lawfully or unlawfully is immaterial." Ibid. At that point, Riley appears to diverge from Kelly and Lee while purporting to follow them by stating that, "it is the intended use that makes the otherwise lawful implement a weapon, and thus the defendant's actual or presumed state of mind in possession the implement is critical to a determination of whether the implement is a weapon at all." Ibid. In any event, in the end, Riley must be read as standing only for the proposition that, under the circumstances, Riley's possession of the knife was not, as a matter of law, proven to be manifestly inappropriate for its lawful use. Indeed, that was the conclusion in our earlier opinion in State v. Blaine, 221 N.J. Super. 66 (App. Div. 1987). The knife at issue in Blaine, "was not of a character whose bare possession, in the absence of a single additional incriminating circumstance, can sustain a conviction of crime." Id. at 71. Accordingly, the charge in this case, which conformed to the Model Jury Charge, was a correct statement of the law. See State v. Wright, 96 N.J. 170, 172-73 (1984); State v. Irizarry, 270 N.J. Super. 669, 673 (App. Div. 1994).

Finally, defendant contends that the charge on aggravated assault was error. This argument is grounded in the fact that the indictment charged that defendant "did purposely attempt to cause bodily injury" to Officer Paredes, while the judge charged the jury in the words of the statute which defines the offense as attempting to cause or "purposely, knowingly, or recklessly," causing bodily injury to a law enforcement officer (emphasis added). Thus, while the indictment only referred to the mental state of purposely, the jury was instructed in terms of the three alternate mental states of purposely, knowingly, or recklessly. Defendant made a proper and timely objection to the charge on this basis.

We reject defendant's argument that the charge constituted an amendment of the indictment. As the trial judge properly noted, the indictment put defendant clearly on notice of the statute he was charged with violating. As such, defendant was on notice that he could be convicted based on a jury finding as to any of the mental states set forth in the statute. None of the guarantees behind the right to indictment were violated by the court's instruction on all of the applicable mental states. See State v. Mello, 297 N.J. Super. 452, 462-64 (App. Div. 1997).

IV

Defendant argues that his motion for judgment of acquittal or for a new trial should have been granted on the eluding charge. Judged by the State v. Reyes, 50 N.J. 454, 458-59 (1967), standard, the evidence was clearly sufficient to withstand the R. 3:18-1 motion. Further, there was no "manifest denial of justice," R. 3:20-1, that would support granting defendant's new trial motion.

V

Defendant claims that two pieces of evidence were erroneously admitted by the trial judge, resulting in prejudice that warrants a new trial.

The first incident arose out of O'Connor's denial on cross-examination that he had prepared an incident report relating to the events of June 19, 2002. More specifically, O'Connor testified that, as a superior officer, he would not normally prepare an incident report. In this case, he reviewed the report prepared by Officer Connolly. Later in his cross-examination, defense counsel asked O'Connor if there had been an internal investigation of the June 19 incident and the witness agreed that, "there was an internal done on this." The following colloquy then ensued:

Q. As -- I asked you earlier if you had ever prepared any reports with regard to this incident and you indicated only Detective Connolly had done the report.

A. You asked me with regards to prepping for this case, for the criminal case, if I had submitted any reports regarding to this case prior to coming here.

Q. Well, is it fair to say that in December of 2002 you did, in fact, prepare a report, administrative report, with regard to this incident?

A. There would be an administrative report, an in-house report as they're called, for internal use.

Q. Okay. And you're aware that the investigation concerned an allegation that your vehicle had struck Mr. Sabar's vehicle in the back and that is how the accident occurred, correct?

A. I don't exactly recall, counselor. If you read -- there's probably an IOP form in that pile. You could read the IOP form in that pile. You could read the IOP form. But I don't recall.

Q. Thank you, Lieutenant. I don't have any more questions.

On re-direct examination the prosecutor was permitted to elicit that the internal affairs investigation resulted from a complaint lodged by defendant about six months after the incident. After an objection and a brief hearing out of the jury's presence, O'Connor was not permitted to testify as to why he believed defendant waited six months to make the complaint. However, over objection as to relevance, O'Connor was asked and permitted to answer "what became" of defendant's complaint. His response, which is said to be reversible error, was that, "I was exonerated of the complaint and so were the men of my team."

We agree with defendant that the outcome of the complaint was irrelevant, and defendant's objection to the question should have been sustained. We do not agree that defendant's cross-examination as to whether O'Connor ever prepared a report on the events leading up to defendant's arrest "opened the door" to O'Connor's "exoneration" testimony. See State v. James, 144 N.J. 538, 554-60 (1996) (discussing the "opening the door" doctrine as "essentially a rule of expanded relevancy").

Nevertheless, we are entirely satisfied that the error was harmless. The testimony was extremely brief and, significantly, it was never mentioned in the prosecutor's summation. Further, since the nature of the complaint was never elicited, the jury did not know what O'Connor was exonerated of. We conclude that the admission of the testimony regarding the exoneration of O'Connor and the other officers after an internal investigation was not likely to have influenced the jury's decision as to guilt or non-guilt. The error does not require a new trial. State v. Pillar, supra, 359 N.J. Super. at 278-79.

Defendant also argues that the testimony by Paredes as to the extent of his injuries, resulting, he claimed, in an eleven- month leave of absence, was unduly prejudicial, having a "tendency to inflame the passion of the jury," and thereby cause it to return a guilty verdict, "out of sympathy to Paredes and hostility toward defendant." We reject that contention. As defendant apparently recognizes, the nature of Paredes's injuries was clearly relevant to the aggravated assault charge, which requires a finding of "bodily injury." N.J.S.A. 2C:12-1b(5)(a). While the testimony complained of certainly went far beyond the absolute minimum the State was required to prove to establish "bodily injury," N.J.S.A. 2C:11-1a, we would not hold the State to the least amount of evidence needed to prove its case. The State may advance whatever proof is at its disposal in order to persuade the jury, subject to the exercise of the judge's discretion and the constraints of N.J.R.E. 403. We see no abuse of the judge's discretion in allowing the challenged proofs. The testimony was not, in our view, the kind that would cause a jury to return a verdict based on sympathy.

VI

Defendant received a seven-year sentence for eluding; the other terms being lesser and concurrent. He maintains that his sentence was "manifestly excessive." The judge rejected the State's application for discretionary extended term sentencing, although defendant was eligible. The judge balanced the aggravating and mitigating factors and found them to be in equipoise. As a result, the judge imposed the presumptive term for the second-degree offense. We do not address defendant's excessiveness argument since we believe the sentence must be remanded for reconsideration in light of State v. Natale, 184 N.J. 458 (2005). There, in order to preserve the constitutionality of our sentencing scheme in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), the Court performed judicial surgery, eliminating presumptive terms. Id. at 487. The Court stated:

Although judges will continue to balance the aggravating and mitigating factors, they will no longer be required to do so from the fixed point of a statutory presumptive. We suspect that many, if not most, judges will pick the middle of the sentencing range as a logical starting point for the balancing process and decide that if the aggravating and mitigating factors are in equipoise, the midpoint will be an appropriate sentence. That would be one reasonable approach, but it is not compelled. Although no inflexible rule applies, reason suggests that when the mitigating factors preponderate, sentences will tend toward the lower end of the range, and when the aggravating factors preponderate, sentences will tend toward the higher end of the range. In the past, defendants with long criminal records have been sentenced toward the upper part of the sentencing range. They should not anticipate a departure from that practice with the presumptive terms gone.

[Id. at 488.]

As a result, we conclude that a sentence formulated with reference to the presumptive term must be reconsidered in light of Natale. Such is the case here. On remand, the judge might find that a sentence less than the presumptive is warranted even though the balance of aggravating and mitigating factors would have previously called for a presumptive term. We do not suggest what a proper sentence should be in this case, only that the judge is somewhat freed of constraints previously in place.

Conviction affirmed; sentence vacated and remanded for reconsideration. We do not retain jurisdiction.

 

We reject defendant's related contention that it was error for the prosecutor to say that negligence was the requisite standard for aggravated assault. On objection, the prosecutor immediately conceded that he misspoke and that the correct standard was reckless.

(continued)

(continued)

21

A-6120-03T4

October 12, 2005