STATE OF NEW JERSEY v. ENOCH BRIMAGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1372-04T41372-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ENOCH BRIMAGE,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 28, 2006 - Decided April 21, 2006

Before Judges Lefelt and Hoens.

On appeal from the Superior Court of

New Jersey, Law Division, Monmouth

County, Indictment No. 03-12-2392-I.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Susan Brody,

Assistant Deputy Public Defender,

of counsel and on the brief).

Appellant, Enoch Brimage, submitted

a pro se supplemental brief.

Luis A. Valentin, Monmouth County

Prosecutor, attorney for respondent

(Mark P. Stalford, Assistant

Prosecutor, of counsel and on the

letter brief).

PER CURIAM

In this direct appeal, defendant Enoch Brimage, by counsel and pro se, challenges (1) his twenty-five year aggregated prison sentence, which was imposed by Judge DeStefano after defendant's guilty plea to numerous theft and burglary related offenses, and (2) the factual basis defendant provided to support convictions for two counts of attempted burglary and one count of third-degree resisting arrest. We affirm.

A task force consisting of the Long Branch police, the Ocean Township police, and the Monmouth County Prosecutor's office were searching for a burglar who had been breaking into apartment complexes. Following a physical struggle, the task force arrested defendant, Enoch Brimage. After his arrest, defendant promptly confessed to a series of burglaries, thefts, and other crimes that he had committed over the preceding ten months at apartment complexes in Long Branch, Ocean Township, and nearby towns. Defendant eventually pled guilty to three indictments charging theft by deception, failure to register as a sex offender, two counts of attempted burglary, forty-one counts of burglary, twenty-eight counts of theft by unlawful taking, two counts of theft of credit cards, and one count of resisting arrest. There was no prosecutor's recommendation regarding any sentence except to dismiss two counts of forgery and uttering a forged instrument contained in one of the indictments and to run the sentences on all three indictments concurrently to each other and to defendant's previously imposed Middlesex County sentence.

There is no contention that Judge DeStefano failed to adhere to defendant's plea bargain. The judge, on one of the indictments, sentenced defendant to an extended term of ten years with five years of parole ineligibility for one count of third-degree burglary, N.J.S.A. 2C:18-2. The judge then sentenced defendant on the same indictment to three consecutive separate terms of five years imprisonment with two-and-one-half years of parole ineligibility for one additional count of third-degree burglary; one count of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3(a); and one count of third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a). The judge then imposed concurrent sentences on all of the other convictions contained in all of the indictments. Therefore, defendant's aggregate sentence was twenty-five years with twelve-and-one-half years of parole ineligibility.

Upon appeal, defendant first challenges the factual basis he provided to support his convictions for two counts of attempted burglary. Defendant admitted entering the vestibules of two apartments "[l]ooking to commit a burglary." When asked whether he was "casing the place," defendant replied "[y]es sir."

The record does not clearly reflect that the vestibules were open to the public as argued by defendant. In any event, we believe that entering the vestibule of an apartment to "case" the premises, even assuming the vestibule was open to the public, is "a substantial step in a course of conduct planned to culminate in [] commission of [a] crime." N.J.S.A. 2C:5-1a(3). Merely because the burglary was not committed does not excuse defendant's conduct. See State v. Robinson, 136 N.J. 476, 483 (1994).

Second, defendant claims the factual basis he supplied was sufficient only to convict him of fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(2), which prohibits flight to "prevent[] or attempt[] to prevent a law enforcement officer from effecting an arrest." To justify a conviction for third-degree resisting arrest, defendant must prevent or attempt to prevent the arrest by using or threatening "to use physical force or violence against the law enforcement officer," or by using "any other means to create a substantial risk of causing physical injury to the public servant or another." N.J.S.A. 2C:29-2a(3)(a)-(b).

All that is necessary to justify a conviction for third-degree resisting arrest is that defendant use some physical force while resisting. State v. Brannon, 178 N.J. 500, 507 (2004). During the plea colloquy, defendant was asked whether he had run away from the police, causing a chase, which ended in "a physical struggle between you and the police officers." Defendant answered "yes," which constitutes a sufficient factual basis for his guilty plea to this offense. See ibid.

Third, defendant argues that his sentence was excessive because the judge failed to find several mitigating factors including N.J.S.A. 2C:44-1b(12), cooperating with the police, and neither causing or threatening serious harm to any of the victims, N.J.S.A. 2C:44-1b(1). In his pro se brief, besides adding case law support to counsel's arguments, defendant claims the judge's three maximum consecutive sentences were unjustified.

Therefore, defendant argues that if the judge properly considered the two omitted mitigating factors along with the factors mentioned in 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), defendant's aggregate sentence would not have been greater than fifteen years with a seven-and-one-half year parole bar. Finally, in further support of the excessive sentence argument, defendant asserts that imposition of terms greater than the presumptive violated defendant's Sixth Amendment right to a jury trial, as interpreted by our Supreme Court in State v. Natale, 184 N.J. 458, 484 (2005).

In imposing sentence, the judge found that "[a]ggravating factors 3, 6, and 9 are more than amply supported by his extensive criminal history. 3, there's an obvious risk he'll commit another offense. 9, there's a need to deter. And 6, these offense are serious as well as the priors." The judge found "no mitigating factors." But, the judge did say on defendant's behalf "that [defendant] did plead guilty open-ended to everything, which is why we have this great number of burglaries before us. Ordinarily, there would be a plea bargain entered into, and he would be here on . . . fewer of them."

The State was asking for a sentence of "40 years in State Prison," but the judge noted that he would "try and look at this as fairly as I can." We believe, from the transcript, that the judge in fact weighed defendant's cooperation, though he never specifically mentioned mitigating factor twelve. In addition, defendant committed forty-three residential burglaries between November 2002 and August 2003. Every time such a break-in occurs there is the threat of serious harm. We cannot fault the judge for not considering mitigating factor one. Even considering the fact of defendant's cooperation by pleading guilty to numerous offenses, the judge still found "[t]he aggravating factors clearly preponderate." We cannot fault this determination either.

Furthermore, the judge articulated his reasons for imposing consecutive sentences. The judge stated "because they are different crimes at different times, and there's certainly any number of them, I'm going to run a number of these [sentences] consecutive." The judge stated in overall justification of the sentence he was imposing that he was "taking into account the number of crimes, the history, the fact that at age 39, by the time he gets out he should not be really in a position to run around burglarizing people's houses again."

In our view, Judge DeStefano's justification for imposing three consecutive sentences was sufficient under Yarbough, supra, 100 N.J. at 643-44. Furthermore, there is "no overall outer limit on the cumulation of consecutive sentences for multiple offenses." N.J.S.A. 2C:44-5(a)(2).

 
Finally, it is clear to us that the factors utilized by the judge to impose terms in excess of the presumptive were all offender-based and determined, as specifically stated by the judge, exclusively by defendant's "extensive criminal history." The factors used to impose a greater than presumptive sentence fall within the recidivism exception established by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and recognized by our Supreme Court in State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). Therefore, a remand pursuant to Natale supra, 184 N.J. at 458, is not in order, and we affirm defendant's entire sentence as well as the underlying convictions.

Affirmed.

These arguments were specifically set forth by counsel and defendant as follows:

Point I. Because defendant did not provide an adequate factual basis on Counts Five and Six, the convictions on those counts must be vacated and the matters remanded for dismissal. (Not raised below).

Point II. Because defendant's factual basis as to Count Nine established the offense of fourth-degree, rather than third-degree, resisting arrest, the conviction on that count must be amended and the sentence reduced from a five-year term to an 18-month term. (Not raised below).

Point III. The aggregate sentence imposed upon defendant was manifestly excessive and must be vacated.

Point IV. Because the court's finding of aggravating factors violated principles set forth by the Supreme Court in State v. Natale, the sentence imposed must be vacated and the matter remanded for resentencing.

Appellant's Pro Se Supplemental Brief

Point One. Defendant['s] appellate counsel on the brief failed to raise legal case law in support of the argument against the aggregate sentence imposed upon defendant was manifestly excessive and must be vacated.

(continued)

(continued)

8

A-1372-04T4

RECORD IMPOUNDED

April 21, 2006