STATE OF NEW JERSEY v. MALIK F. CANTY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0030-04T40030-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MALIK F. CANTY,

Defendant-Appellant.

________________________________________________________________

 

Submitted February 7, 2006 - Decided March 6, 2006

Before Judges Collester, Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-01-0085.

Yvonne Smith Segars, Public Defender, attorney for appellant (James A. Plaisted, Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Linda K. Danielson, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant, Malik F. Canty, was convicted of second-degree eluding. N.J.S.A. 2C:29-2b. The jury acquitted defendant of third-degree resisting arrest, N.J.S.A. 2C:29-2a. The judge sentenced defendant to nine years imprisonment with a three-year parole disqualifier. Mandatory monetary assessments and a one-year driver's license suspension were imposed. On appeal, defendant presents these arguments:

POINT I

THE LEGAL INSTRUCTION FOR ELUDING WAS DEFECTIVE; THEREFORE, A RETRIAL IS NECESSARY (NOT RAISED BELOW).

A. THE FACTUAL CONTEXT.

B. THE PROSECUTOR'S CLOSING COMPLETELY CLOUDED THE CRITICAL ISSUES.

C. THE JURY EXPRESSED CONFUSION ON THE CRITICAL ISSUES.

D. THE COURT DID NOT ADEQUATELY CLARIFY THE CRITICAL ISSUES.

POINT II

THERE WAS INSUFFICIENT EVIDENCE OF ALL THE ELEMENTS OF THE OFFENSE.

POINT III

NO PROPER LIMITING INSTRUCTIONS WERE PROVIDED [TO] THE JURY AS TO THE RULE 404(B) EVIDENCE AT ALL; NOR WERE RULE 609 LIMITING INSTRUCTIONS PROVIDED WHEN THE DRUG CONVICTIONS WERE INTRODUCED TO IMPEACH THE DEFENDANT. (NOT RAISED BELOW).

POINT IV

THE EVIDENCE OF MULTIPLE DRUG CONVICTIONS WAS UNDULY PREJUDICIAL AND SHOULD HAVE BEEN RESTRICTED UNDER NEW JERSEY RULE[S] OF EVIDENCE AND 609 AND RULE 404(a).

POINT V

THE REASONABLE DOUBT STANDARD WAS UNCONSTITIONALLY DILUTED. (NOT RAISED BELOW).

A. THE "FIRMLY CONVINCED" LANGUAGE IS NOT AN APPROPRIATE DEFINITION OF "BEYOND A REASONABLE DOUBT."

POINT VI

RESENTENCING IS REQUIRED BY STATE V. NATALE.

We agree with Point VI and remand for resentencing. We reject defendant's remaining arguments and in all other respects affirm.

On the afternoon of September 6, 2002, two plain clothes Elizabeth police officers were in the vicinity of 143 7th Street, a high crime area. They were standing outside their unmarked police vehicle investigating an unrelated incident. They heard the screech of tires and observed a vehicle pulling away from a stop sign at a high rate of speed, which caused them to believe the vehicle might not have stopped at the stop sign. It was later determined that defendant was the operator. The officers had their police badges displayed, hanging on chains around their necks. As defendant drove by them, he held his hand up to obscure his face. When defendant was later apprehended, one of the officers knew him from prior contacts in the neighborhood.

The officers entered their vehicle and pursued defendant. The pursuit lasted nearly two miles. Much of it was through residential and commercial zones where the maximum permitted speed was twenty-five miles per hour. At some points, defendant traveled at speeds up to eighty-five miles per hour. Throughout the chase, the officers were in close proximity to defendant's vehicle, at some points within one car length of it.

The officers placed a rotating flashing red light, held by a magnet, on the roof of their vehicle. They activated their flashing headlights, red flashing grill lights, and red and blue flashing strobe lights on the rearview mirrors, facing forward. They also activated their siren. Other units in the area were informed of the ongoing pursuit. At one point, defendant lost control of his car, causing it to spin completely around. The pursuing police vehicle, with its lights and sirens still activated, was next to defendant's vehicle at that point. Defendant regained control of his vehicle and accelerated away from the police vehicle, which continued the pursuit. Defendant and the pursuing vehicle passed a marked police car, with flashing emergency lights, that was blocking the right lane of the road to stop traffic. Defendant eventually pulled into a gas station. Two other plain-clothed officers with visible badges approached defendant's vehicle while it was still in motion. One of the officers drew his gun and pointed it at defendant, at which time defendant stopped his vehicle. The officers then pulled defendant out of his vehicle through the driver's side window that was already opened. Apparently the door handle was not functioning properly. The officers contended that defendant struggled slightly in the process of being handcuffed. A search of defendant's vehicle revealed no contraband.

Defendant contended he stopped at the stop sign, and as he proceeded to drive, he saw two men who did not look familiar, one of them pointed at him, the other drew a gun, and the two quickly entered their car. He said he believed he was being chased by two armed civilians. He did not deny he was trying to get away from them, but insisted he was doing so for his own safety. He contended he was looking for a safe place to stop, where he could receive assistance and protection.

Defendant had three prior indictable convictions, all for drug offenses. Convictions for those offenses include, as part of the sentence, a mandatory driver's license suspension. Defendant's driver's license suspension from his most recent prior conviction was still in effect when this eluding incident occurred. Defendant testified at trial. After conducting a Sands/Brunson hearing, the judge ruled that if defendant testified, the State would be permitted to elicit evidence of his three prior drug convictions for the limited purpose of impeaching his credibility. See N.J.R.E. 609. The judge also ruled that the prosecutor would be permitted to elicit evidence that as part of the sentence for those convictions, defendant's driver's license was suspended. The judge concluded that the evidence was relevant as tending to establish a motive for defendant to flee the police and that any prejudicial effect did not outweigh its probative value. Defendant testified on direct examination regarding his convictions of the three prior drug offenses. On cross-examination, the prosecutor elicited from defendant the particular sentences imposed in each instance, including the imposition on the most recent offense of a driver's license suspension. The prosecutor also elicited that the suspension was in effect on the date of the eluding incident and that defendant was aware of it at that time.

We first address Point III raised by defendant, that the judge committed reversible error by not giving a proper limiting instruction regarding the evidence of his driver's license suspension, and by failing to instruct the jury at the time the evidence was introduced about his prior convictions and about the limited purpose for which that evidence was admitted. Defendant did not raise these issues during the trial. We are therefore guided by the plain error standard, and, if there was error, we will reverse only if the error was "clearly capable of producing an unjust result." R. 2:10-2. Not any possibility of an unjust result will suffice. The possibility must be "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

With respect to evidence of defendant's three prior convictions, in his final charge to the jury, the judge properly instructed the jury that the limited purpose for which they could consider defendant's prior convictions was to affect his credibility. Defendant does not dispute the correctness of that charge. However, defendant argues that the failure to also give that instruction at the time the evidence was adduced constituted reversible error. It is preferable that the instruction be given twice, once when the evidence is introduced and again in the final charge. State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998). Whether failure to do so warrants a new trial depends upon the circumstances of each case. In this very short trial, all of the testimony was presented on one day, and the judge's charge was delivered the following day. The evidence of defendant's guilt was overwhelming. The failure to give the instruction at the time the evidence was introduced did not have the clear capacity to produce an unjust result. State v. Angoy, 329 N.J. Super. 79, 89-90 (App. Div.), certif. denied, 165 N.J. 138 (2000).

Regarding the driver's license suspension, defendant argues that the limited purpose for which this evidence was admissible was to demonstrate a possible motive for his eluding the police. He contends that a limiting instruction to that effect was required by N.J.R.E. 404(b) and the cases applying it. He argues that failure to give the instruction was reversible error. We do not agree.

We first note that evidence of defendant's driver's license suspension was admissible because it was part of the sentence imposed for a prior conviction, and evidence of that prior conviction was admissible (albeit for a limited purpose) because defendant testified. State v. Hicks, 283 N.J. Super. 301, 307 (App. Div. 1995), certif. denied, 143 N.J. 327 (1996). As we see it, the evidence was admissible on this independent basis, in order to enable the jury to assess the seriousness of defendant's prior criminal conduct as affecting his credibility. Therefore, even if evidence of the driver's license suspension did not carry with it another basis for relevance, namely motive to elude the police, it was properly admitted under the circumstances of this case.

This is not a situation, as contemplated by N.J.R.E. 404(b) where a prior bad act, such as a non-indictable motor vehicle conviction or other misconduct not rising to the level of a crime resulted in a driver's license suspension. Under those circumstances, no independent basis for admissibility of the prior conduct, resulting in a driver's license suspension, would exist, but the evidence might be admissible, not to show the defendant's disposition to violate the law, but for some other limited purpose, such as motive. In such circumstances, a limiting instruction is required.

Although the circumstances here do not fit within the typical N.J.R.E. 404(b) model, the court might have given a limiting instruction to the effect that the jury should not conclude that because defendant drove during the eluding incident with a suspended license he is a bad person, a violator of the law, and, therefore, likely to be guilty of the offense for which he was on trial. Such an instruction would have been appropriate. It was not requested. We are satisfied from our review of the record that the absence of this instruction did not lead the jury to a result it might not otherwise have reached.

It was not disputed in this trial that defendant was trying to get away from the vehicle pursuing him. Defendant testified and explained to the jury that he did not know his pursuers were police officers and he was fleeing for his safety. The jury obviously found that contention incredible. In his summation, defense counsel framed the issue of motive to flee this way:

He is going to risk all of that going back there [to prison] again on a driving on the revoked list ticket? That is probably the motive that the State is going to ascribe. What is more believable in this case? He was afraid, I submit to you he was, or he was trying to avoid getting a ticket for driving on the revoked list?

We are satisfied that the jury understood the significance of the driver's license suspension as it related to the issue of defendant's state of mind in trying to get away from the pursuing vehicle. We are also satisfied that the jury understood the high stakes involved in this criminal jury trial, the seriousness of the offenses for which defendant was on trial, and would not find a propensity to commit such serious criminal behavior based upon his commission of a traffic violation. For that reason, and in light of the overwhelming evidence of defendant's guilt, we conclude that any error in failing to give the limiting instruction did not constitute plain error and does not warrant reversal and a new trial.

The arguments raised by defendant in Points I, II, IV and V lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add these brief comments.

The judge's instruction on the elements of eluding, which followed the model jury charge, clearly and accurately explained the offense and clearly explained to the jury that the State was required to prove that defendant knew the individuals in the vehicle behind him were law enforcement officers, that he knew they signaled him to stop, and that he knew they were pursing him. The prosecutor's comments did not misstate the law, and the judge's response to a jury question did not misinform them regarding the law.

Viewing the evidence most favorably to the State, all of the elements of second-degree eluding were clearly proven beyond a reasonable doubt. See State v. Reyes, 50 N.J. 454, 459 (1967). Defendant's arguments on appeal are nothing more than credibility arguments. But it is the province of the jury to make credibility determinations. The verdict is well supported by the record, and we have no occasion to interfere.

We reject defendant's argument that the State was, in effect, enabled to re-open its case after it rested and present additional evidence, namely evidence of motive, by being allowed to elicit from the testifying defendant that the sentence for one of his prior crimes included a driver's license suspension. We do not know why the State failed to introduce in its case-in-chief, evidence of defendant's driver's license suspension, which it could have done in a sanitized fashion with an appropriate limiting instruction. Nevertheless, for the reasons we have previously discussed, the nature and admissibility of the evidence in connection with defendant's testimony was completely proper.

We also find no mistaken exercise of discretion in admitting evidence of all three of defendant's prior indictable drug convictions as bearing upon his credibility in accordance with the guidelines prescribed in State v. Sands, supra, 76 N.J. at 147. Because the drug convictions were dissimilar to the eluding and resisting arrest charges for which defendant was on trial, there was no need to sanitize them under the principles set forth in State v. Brunson, supra, 132 N.J. at 394.

We reject defendant's argument regarding the reasonable doubt standard charged to the jury. The judge followed the model jury charge and instructed the jury, as he was obligated to do, on the definition of beyond a reasonable doubt as laid down by our Supreme Court in State v. Medina, 147 N.J. 43 (1996), cert. denied, 520 U.S. 1190, 117 S. Ct. 1476, 137 L. Ed. 2d 688 (1997).

We finally address the sentencing issue raised by defendant in Point VI. Defendant argues that because the nine-year base term imposed was above the presumptive sentence for a second-degree crime, the matter must be remanded for resentencing under the principles of State v. Natale, 184 N.J. 458 (2005), which was decided during the pendency of this appeal. The State counters that because the judge found the applicability of only aggravating factors (3) the risk of re-offense, (6) the extent and seriousness of defendant's prior criminal record, and (9) the need for deterrence, the recidivism exception to the rules set forth in Blakley v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), applies. Our Supreme Court has recognized the applicability of the recidivism exception when all aggravating factors are based solely on the defendant's prior criminal record. See State v. Adbullah, 184 N.J. 497, 506 n.2 (2005). The State argues that the judge based his findings of aggravating factors (3), (6), and (9) solely on defendant's prior record. Our reading of the sentencing transcript leads us to conclude otherwise.

The judge first noted defendant's "extensive prior record," including two juvenile adjudications, numerous disorderly convictions, and three prior adult convictions. He then noted, however, referring to the eluding conviction for which he was imposing sentence, that the nature of the crime "was a further demonstration of [defendant's] disregard for the law, in that he ignored police officers who were trying to stop him." He also noted that defendant committed the eluding offense one week after being placed on probation. In discussing his prior record, the judge also noted that defendant violated juvenile probation and parole as an adult.

It is clear to us that the judge considered evidence other than the fact of defendant's prior convictions and their seriousness in finding aggravating factors. Therefore, imposition of a greater than presumptive term does not fall within the recidivism exception and is contrary to the holdings in Natale and Abdullah. We therefore remand for resentencing anew in accordance with the principles set forth in Natale and Abdullah.

 
The conviction is affirmed. The matter is remanded for resentencing.

State v. Sands, 76 N.J. 127 (1978); State v. Brunson, 132 N.J. 377 (1993).

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A-0030-04T4

March 6, 2006