STATE OF NEW JERSEY v. GARY WILSON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1211-04T41211-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

GARY WILSON,

Defendant-Appellant.

 

Submitted on March 7, 2006 - Decided April 21, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment Nos. 02-06-1294, 01-08-1441.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard W. Berg, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Carol M. Henderson, Assistant Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Gary Wilson appeals from his conviction and sentence, following a jury trial, for second-degree eluding, N.J.S.A. 2C:29-2b; and from his sentence following his plea of guilty to charges of third-degree conspiracy to possess a controlled dangerous substance with intent to distribute, N.J.S.A. 2C:5-2, :35-5b(3); and third-degree receiving stolen property, N.J.S.A. 2C:20-7. We affirm the convictions but remand for reconsideration of the sentence.

The following facts are relevant to the issues that arise from defendant's trial on the second-degree eluding charge. Shortly after midnight on July 14, 2001, Officer Daniel Brian of the Somers Point Police Department was on patrol in a marked car when he saw a gray station wagon approaching without its headlights on. As it passed, Officer Brian saw that defendant, whom he recognized, was driving. The officer also saw that there was another individual, whom he did not know, in the front passenger seat.

Because driving without headlights on was both a hazard to others and a violation of the traffic laws, the officer turned around and attempted to stop defendant by activating his overhead lights and his siren. The vehicle did not stop, but accelerated, reaching a speed of forty to fifty miles per hour in a twenty-five mile per hour zone. Thereafter, the vehicle drove through a stop sign at an intersection without stopping and drove the wrong way on a one-way street. In addition, after driving the vehicle into a dead-end, defendant made a u-turn, heading straight toward the officer on a narrow road and passing within a few feet of the patrol car.

When the vehicle passed him, the officer again saw, and recognized, defendant as the driver. Defendant next drove the wrong way down a one-way street, crossed a heavily traveled road without stopping and drove toward a vehicle waiting to make a turn from the intersecting street. Defendant passed that vehicle by driving on the sidewalk, missing it by inches. Eventually, defendant turned into a parking lot, where the vehicle jumped the curb before stopping. He and the passenger then ran from the scene. Defendant was later apprehended by other officers.

Based on these events, defendant was indicted for second-degree eluding and he was charged with several motor vehicle violations. Following a jury trial, he was found guilty of second-degree eluding. He was sentenced to a term of ten years, along with appropriate fees and penalties.

Defendant raises the following issues for our consideration in his appeal from his conviction for eluding:

POINT I

ERRORS IN THE TRIAL COURT'S JURY INSTRUCTIONS CONSTITUTED PLAIN ERROR, AND COUNSEL'S FAILURE TO OBJECT DEPRIVED APPELLANT OF THE EFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)

A. DRIVING WITHOUT LIGHTS.

B. DRIVING THE WRONG WAY ON A ONE-WAY

STREET.

C. CARELESS DRIVING.

D. RECKLESS DRIVING.

POINT II

THE PROSECUTOR'S MISCONDUCT IN SUMMATION DEPRIVED APPELLANT OF A FAIR TRIAL, AND COUNSEL'S FAILURE TO OBJECT CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)

POINT III

THERE WAS INSUFFICIENT EVIDENCE OF APPELLANT'S GUILT OF SECOND-DEGREE ELUDING AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V

APPELLANT'S RIGHT TO A FAIR TRIAL WAS INFRINGED BECAUSE THE JURY WAS ABLE TO OVERHEAR SIDEBAR DISCUSSIONS. FURTHERMORE, THE FAILURE OF COUNSEL TO MOVE FOR A MISTRIAL CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL. (Not Raised Below)

We have considered these arguments in light of the record and the applicable legal principles and find them to be unpersuasive. We therefore affirm.

We first reject defendant's argument on appeal that the trial judge erred in charging the jury with respect to the relevance of and the specific elements of the several traffic violations with which he was charged. The crime of second-degree eluding includes "a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person" if defendant's conduct involves a violation of the traffic laws. N.J.S.A. 2C:29-2b; see State v. Wallace, 158 N.J. 552, 558-59 (1999). A trial judge must therefore include in the jury charge an explanation of the elements of any traffic offenses that are asserted to give rise to this inference. See State v. Dorko, 298 N.J. Super. 54, 59 (App. Div.), certif. denied, 150 N.J. 28 (1997).

Our review of the charge here compels us to reject defendant's assertions of error. Defendant was charged with four separate motor vehicle violations that were relevant to the jury's consideration of whether he was guilty of second-degree eluding. More specifically, as a result of the events of July 14, 2001, defendant was charged with driving without lights, N.J.S.A. 39:3-47a; driving the wrong way on a one-way street, N.J.S.A. 39:4-85.1; careless driving, N.J.S.A. 39:4-97; and reckless driving, N.J.S.A. 39:4-96. We discern no error in the manner in which the judge explained these offenses or their relationship to the second-degree eluding charge in her instructions to the jury.

First, the judge adequately explained the elements of each of these motor vehicle violations. Second, there was no evidence in the record that defendant's head lights, which were not illuminated when the officer first observed him, were turned on after the officer signaled defendant to stop. Defendant's suggestion on appeal that the failure to illuminate his headlights only occurred prior to the officer's signal to stop and that this aspect of the traffic laws was therefore inappropriately charged is without any basis in the record. Third, defendant's argument that a portion of the jury charge utilized by the trial judge is unconstitutional is meritless, particularly in light of the judge's use of the model jury charge. See State v. Angoy, 329 N.J. Super. 79, 84 (App. Div.), certif. denied, 165 N.J. 138 (2000); Pressler, Current N.J. Court Rules, comment 8.1 on R. 1:8-7 (2006). Fourth, defendant's several assertions that there was insufficient evidence to support the court's charge relating to reckless and careless driving are meritless. More specifically, the police officer was qualified to testify that defendant operated his vehicle at a rate of speed in excess of the posted rate, see N.J.R.E. 701; State v. Locurto, 157 N.J. 463, 471-72 (1999), that he proceeded through a stop sign without stopping, and that he drove onto the sidewalk to pass a stopped car. This evidence was sufficient to support the charges relating to both careless and reckless driving.

In light of our conclusion that there was no error in the jury charge, we reject defendant's related ineffective assistance of counsel assertion as well. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We find no ground in this record on which to conclude that counsel was ineffective for failing to pursue objections to the jury charge. In particular, in light of our conclusion that these objections would not have succeeded, there is no basis for an ineffective assistance argument. See State v. Worlock, 117 N.J. 596, 625 (1990).

We also reject defendant's argument on appeal concerning the prosecutor's summation and defendant's related attack on his own attorney for failing to object to portions of that summation he now asserts were objectionable. Although the prosecutor incorrectly referred to the inference that the eluding statute permits to be drawn from violations of the traffic laws as a presumption during her closing, nothing in that misstatement implied that the jury was required to reach any particular conclusion. That is to say, although the prosecutor used the word "presumption," she did so in a permissive context. See State v. Thomas, 132 N.J. 247, 255 (1993); State v. Stasio, 78 N.J. 467, 484-85 (1979). Nothing in the prosecutor's comments "was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Moreover, nothing in the failure of defendant's attorney to object constitutes ineffective assistance of counsel. Defendant's next assertion on appeal, namely, that the jury's verdict of guilt on the second-degree eluding charge was against the weight of the evidence, lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2).

Nor do we find merit, under the circumstances as they appear in the record, in defendant's argument that he was deprived of a fair trial because one or more of the jurors may have heard part of a sidebar discussion. The record reflects that during defense counsel's summation, the prosecutor objected to a particular factual assertion about the arresting officer's police report and his testimony. The jury was excused and the court and counsel engaged in a discussion that included their review of portions of the officer's testimony. The trial judge concluded that defense counsel's factual assertion was "too broad" and "not completely accurate" and instructed counsel to be more specific in her closing comments. When the jury returned to the courtroom and the judge began to summarize the objections and her ruling, the transcript reflects that one juror said that the jury had heard it. Neither the judge nor the attorneys responded to or commented about that remark.

Following the return of the guilty verdict, defense counsel moved for a new trial, in part based on the argument that the jury had overheard the sidebar discussion during summation. The judge reviewed the transcript of the trial, in particular the discussion that may have been overheard, and concluded that there was nothing that constituted prejudice sufficient to require a new trial.

We find no basis on which to reach a different conclusion. The side bar discussion related to a review of testimony that the jury had heard and documents that were in evidence. The judge said nothing that might have been understood, even if it had been entirely overheard, as prejudicial to defendant. We find nothing in the record to demonstrate that any other sidebar conference was overheard and nothing that would lead us to conclude that the specific discussion that one of the jurors overheard resulted in any prejudice to defendant. To the extent that defendant raises a more general argument to the effect that other matters may have also been overheard by the jury, we decline to address it. Such an argument rests on matters outside of the record on appeal, and is more appropriately addressed in the context of a petition for post-conviction relief. See State v. Morton, 155 N.J. 383, 433 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. Martini, 144 N.J. 603, 609 (1996), cert. denied, 519 U.S. 1063, 117 S. Ct. 699, 136 L. Ed. 2d 621 (1997); State v. Preciose, 129 N.J. 451, 460 (1992).

In addition to the guilty verdict on the second-degree eluding charge, defendant entered a guilty plea to charges of conspiracy and receiving stolen property. Those charges were contained in a separate indictment that also charged defendant with third-degree possession of a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-10a(1); and third-degree manufacturing, distributing or dispensing a controlled dangerous substance (cocaine), N.J.S.A. 2C:35-5a(1). That separate indictment was based, in part, on evidence recovered during a search of defendant's residence pursuant to a search warrant. In Point IV of his appeal, he raises the following argument about the search warrant:

POINT IV

THE STATE FAILED TO DEMONSTRATE SUFFICIENT JUSTIFICATION FOR ISSUANCE OF A NO-KNOCK SEARCH WARRANT, AND THE EVIDENCE SEIZED SHOULD HAVE BEEN SUPPRESSED. SUBSTITUTE COUNSEL'S FAILURE TO VIGOROUSLY PURSUE THIS ISSUE ON APPELLANT'S MOTION FOR NEW TRIAL AND RECONSIDERATION CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL.

We are not persuaded by either of these assertions on appeal. Counsel challenged the search warrant as part of the basis for the pretrial motion to suppress. That motion raised the same argument that defendant urges on appeal, namely, that it was inappropriate to include a no-knock provision in the search warrant. We, however, agree with the judge who denied the motion to suppress. The affidavit offered in support of the warrant contained a reasonable, articulable suspicion of danger to the safety of the officers who would be executing the warrant that was sufficient to permit the inclusion of a no-knock provision in that warrant. Moreover, in light of defendant's lengthy history of prior offenses, which included a number of violent crimes and an assault on a police officer, the issuance of a no-knock warrant was appropriate. See State v. Jones, 179 N.J. 377, 390-91 (2004); State v. Johnson, 168 N.J. 608, 624-25 (2001).

Nor do we find any merit in defendant's appellate argument that he was deprived of the effective assistance of counsel in connection with the attack on the search or the search warrant. Defendant's argument is based on the assertion that his attorney was insufficiently vigorous in his efforts to secure a new trial on the second-degree eluding conviction by referring to the suppression motion. Because the suppression motion was related to defendant's separate indictment for conspiracy, receiving stolen property and related drug offenses, and because defendant entered a plea agreement to dispose of those charges by pleading guilty to two of them, an attack on the denial of the suppression motion could not have supported a new trial.

Finally, defendant raises the following argument on appeal:

POINT VI

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

The judge sentenced defendant to a ten-year term on the second-degree eluding count. She sentenced defendant to concurrent five-year terms on each of the two third-degree offenses to which defendant entered his guilty plea, while dismissing the two other third-degree charges in that indictment based on the plea agreement. Each of these terms of incarceration represents the maximum permissible sentence for each of these offenses. Each was based on aggravating factors (3), (6) and (9), that is, the risk that defendant would re-offend, the extent and seriousness of defendant's prior offenses, and the need to deter defendant and others from violating the law. See N.J.S.A. 2C:44-1a.

We need not recite at length the considerations set forth by our Supreme Court respecting Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and its effect on our sentencing provisions. Rather, we conclude, based on our review of the record, that defendant is entitled to a remand for reconsideration of his sentences in light of the Court's recent decisions. See State v. Natale, 184 N.J. 458 (2005)(Natale II); State v. Abdullah, 184 N.J. 497 (2005); State v. Franklin, 184 N.J. 516 (2005). Although the State urges us to conclude that the sentences are based solely on defendant's lengthy prior record of offenses, our reading of the transcript of the sentencing hearing does not permit us to so conclude. Rather, we note that the judge, while referring at length to defendant's history of prior offenses, also made reference to other considerations that may have influenced the decision concerning the imposition of the maximum terms. We therefore conclude that defendant is entitled to a remand for a reconsideration of his sentence in accord with the dictates of these decisions.

The convictions on both indictments are affirmed and the matter is remanded solely for reconsideration of the sentence imposed for each of the offenses in accordance with these principles.

 

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A-1211-04T4

April 21, 2006