STATE OF NEW JERSEY v. DOMINICK DI PALMA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5059-04T45059-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DOMINICK DI PALMA,

Defendant-Appellant.

________________________________________________________________

 

Submitted March 1, 2006 - Decided July 12, 2006

Before Judges Parker and Grall.

On appeal from the Superior Court of New

Jersey, Law Division, Somerset County,

Indictment No. 04-02-0075.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael B. Jones, Assistant

Deputy Public Defender, of counsel and on the

brief).

Wayne J. Forrest, Somerset County Prosecutor,

attorney for respondent (Michael McLaughlin,

Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Dominick DiPalma appeals from a judgment of conviction entered on April 15, 2005 after a jury found him guilty of second degree eluding, N.J.S.A. 2C:29-2b; and third degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10c. He was also found guilty of the disorderly persons offense of possessing a hypodermic needle. He was sentenced to an aggregate term of seven years. We affirm.

The facts pertinent to this appeal are as follows. At about 1:15 a.m. on January 9, 2004, Bernards Township Police Officer Eric Geleta stopped a 1991 Honda Accord on Interstate 78 westbound for a loud muffler and a burned out license plate light. Geleta activated the sound and video recording devices in his squad car and recorded the stop.

After he was stopped, defendant told Geleta he did not have the insurance card or registration because it was a customer's car. When asked for his driver's license, defendant said he did not have it with him and told Geleta his brother was a police officer in Somerville. Geleta asked defendant to get out of the car but he did not comply. Instead, defendant rolled the Honda back several feet and then sped off. Geleta chased the Honda with his lights flashing and his dashboard video recorder running. Defendant exited Interstate 78 at Routes 202/206 where Geleta's supervisor told him to break off the chase.

At trial, Geleta testified that the chase covered about three miles over a period of three and a half minutes, and that the chase reached speeds of 115 to 120 m.p.h. When the police contacted the owner of the vehicle, she reported that she had left it at a Sunoco station in Somerville to be repaired and sold. Geleta remembered that defendant had been wearing a Sunoco employee shirt.

Wearing plain clothes and driving an unmarked car, Geleta and another officer went to the Sunoco station where Geleta immediately recognized defendant and arrested him. After being read his Miranda rights, defendant indicated he did not wish to speak to the officers. During a search of defendant incident to his arrest, the police found two hypodermic syringes, a cooking spoon used to process heroin and a cap for mixing heroin.

Detective Steven Elder provided defendant with a written Miranda form at the police station. After it was read to him, defendant indicated that he understood each of his rights, signed the form and said he was willing to speak to Elder. Defendant told the detective he knew the car belonged to a customer and he did not have permission to use it. Elder ended the interview when defendant said he did not want to give a taped statement. As he was being transported to the Somerset County Jail, defendant spontaneously told Elder that he "had better watch out" for a black Camaro or Trans Am because the next time the police would not be able to catch him.

In this appeal, defendant argues:

POINT ONE

THE JUDGE'S REFUSAL TO APPROPRIATELY ANSWER THE JURY'S QUESTIONS DEPRIVED THE DEFENDANT OF A FAIR TRIAL UNDER THE SIXTH AMENDMENT AND N.J. CONST. ART. I, PARA. 10

POINT TWO

THE COURT ERRED IN NOT SUPPRESSING DEFENDANT'S STATEMENTS MADE TO DETECTIVE ELDER AND THOSE MADE EN ROUTE TO THE COUNTY JAIL

POINT THREE

THE DECISION IN STATE V. DIXON IS INCORRECT AND THE MENTAL STATE REQUIREMENT APPLIES TO ALL SECTIONS OF THE ELUDING STATUTE, INCLUDING THE "RISK CREATION" ELEMENT. (Not Raised Below)

I

The day after being charged, the jurors deliberated for forty-five minutes and then asked a series of questions:

[1] Can we see D-1 and D-2?

[2] Are we allowed to know the sentencing process?

[3] Difference in severity of degrees?

[4] Can risk be explained better in layman's terms? Potential risks, prior risks, does the fact that there was - there was no cause for accident matter? Can we consider what ifs?

[5] Can we agree on only the lesser charges, if we can't agree on the higher charges? What can we do?

[6] Does he have a driver's license? Does he own a black car?

[7] Why was he pleading not guilty to lesser charges, when he has admitted doing both of the lesser charges?

The judge answered the questions but defendant argues for the first time here that the judge "essentially refused to answer" questions four and seven. With respect to question four, the judge told the attorneys:

I'm not going to answer that question directly. I am going to ask them again to listen very carefully to the charge. And you are to apply this law as - to the facts - as you find them to be.

The judge then re-read the charge relating to risk and the jury's duty in finding the facts.

With respect to question seven, the judge stated to counsel:

And I'm not going to enter into a dialogue or a philosophical discussion with the jurors. I'm going to charge them that they have to make a factual finding. And what I was going to do, so that we're clear, again is to point out that the indictment charges, read the indictment, go through eluding an officer, go through the sixth and then the seventh. Go into one of the elements of - the elements of reckless driving and speeding. And charge them that that's really for this court to find, but that they may draw certain inferences, etc.

We note that defendant did not object to the judge's responses at trial and, accordingly, we will apply the plain error standard. R. 2:10-2. Nevertheless, defendant contends that the judge's re-reading the jury charges in response to questions four and seven was improper. We disagree.

Question four indicated the jury was having difficulty with the model charge on risk. The judge appropriately re-read the charge to them.

A question from a jury during its deliberations means that one or more jurors need help and that the matter is of [such] sufficient importance that the jury is unable to continue its deliberations until the judge furnishes that help. An appropriate judicial response requires the judge to read the question with care to determine precisely what help is needed. Sometimes a question is direct and simple to answer. For instance, if the jurors ask to be reminded of a definition or of one or more elements of a crime, the judge may simply repeat the appropriate portion of the instructions.

[State v. Parsons, 270 N.J. Super. 213, 221 (App. Div. 1994) (emphasis added).]

In question seven, the jury was inquiring about why defendant's trial counsel acknowledged defendant's guilt to the lesser offenses in summation. In his summation, defense counsel argued:

I'm [asking] you [to] listen carefully to his instructions, and if I am off, obviously go with what the Judge says, but in the end you are going to be given a choice in eluding charges. One is eluding with the risk of death or injury to any person, second degree. And there will be a lesser included charge of eluding, third degree. There is no question that there was a signal to stop. There is no question that there was a failure to stop. And there is no question that there was a chase. The question is under these circumstances, reviewing the evidence as you see it, is there a risk of death or injury to any person? The answer is no.

. . . .

Now, there is a second charge, unlawful taking of a means of conveyance, temporarily withholding a vehicle from its owner. No question that took place. The only question again here is it the third degree, that it was the joy ride or the taking the means of conveyance was with risk of danger to person or property.

. . . .

Now, the Judge is also going to charge you [that you] can you can use the fact that he was charged with some traffic offenses, two in particular, reckless operation, reckless driving and speeding.

Now, there is no real question he was speeding. And under certain circumstances you could say because he broke these traffic laws, and the Judge is going to charge you this, you could infer that there was danger to or risk of death or injury to other people, to any person. And the Judge will also tell you: But you don't have to infer that. And the reason you don't have to infer it is because there may be other facts that say under these circumstances there was not a risk of death or injury to any person.

You look at the tape. And I suggest there is really only one conclusion. The answer is no, that's not so, there is no risk of death or injury to other person.

The trial judge properly declined to answer the question directly but resorted to re-reading the indictment and the model charge on each offense and directed the jurors to find the facts based on the evidence before them.

II

Defendant next argues that the trial court erred in failing to suppress statements made by defendant to Detective Elder after his arrest and during transport.

When defendant was arrested at the Sunoco station, Geleta read the Miranda warnings to him. Defendant responded, saying "I have nothing to say to you." Thereafter, defendant was transported to the police station where Detective Elder read the warnings again and defendant signed the waiver form indicating he understood his rights. Elder asked if defendant was willing to speak to him and defendant said, "Yes." Thereafter, in response to Elder's questions, defendant made several incriminating statements, admitting he took the Honda without permission. When defendant declined to give a taped statement, Elder ended the interview.

Later that evening, while Elder was transporting defendant to the Somerset County Jail, defendant "made an off-handed comment" that the police "better watch out for a black Camaro." When Elder asked who would be driving it, defendant said, "That will be me. And next time those Crown Vics won't catch me." At the suppression hearing, defendant denied making the statement to Elder during transport.

After considering the evidence presented at the suppression hearing, the trial judge found the officers' testimony credible and admitted defendant's statements to Elder into evidence. Defendant now argues that all statements made by him after he declined to talk to Geleta at the Sunoco station should have been suppressed.

In State v. Hartley, 103 N.J. 252, 267 (1986), the Supreme Court adopted noted Professor Yale Kamisar's "minimum requirement" for admissibility of statements made by a defendant after invoking Miranda rights:

"(1) the original interrogation is promptly terminated; (2) the questioning is resumed only after 'the passage of a significant period of time' (presumably the passage of at least an hour or two); (3) the suspect is given another set of Miranda warnings at the outset of the interrogation * * *." Kamisar, "The Edwards and Bradshaw Cases: The Court Griveth and the Court Taketh Away," 5 The Supreme Court: Trends and Developments 1982-83 153, 155 (1984).

[Hartley, supra, 103 N.J. at 267].

The record before us amply demonstrates that the Hartley standard was met.

Geleta testified at the suppression hearing that he ceased questioning defendant after defendant said he had "nothing to say." Defendant made statements to Geleta in response to Geleta's comment that he was impressed with defendant's driving, but those statements were not admitted.

Defendant was arrested and received verbal Miranda warnings at 3:00 p.m. on January 12. The second Miranda warnings were given to defendant in writing at 6:05 p.m., approximately three hours after he first invoked his right to remain silent. When defendant declined to give a taped statement, the questioning was again stopped. Defendant's spontaneous statements to Elder during transport to the Somerset County Jail were made after defendant was warned twice, invoked the privilege twice and was not subject to interrogation. We find no error in the trial court's admitting the statements into evidence.

III

Defendant next argues for the first time on appeal that State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), was wrongly decided, resulting in the trial court's error in failing to charge the jury on the requisite mental state for the "risk creation" element necessary for second degree eluding. This argument is subject to the plain error standard because defendant failed to raise it at trial. R. 2:10-2.

In Dixon, we held that "a person may be found guilty of second-degree eluding only if the jury finds that his flight or attempt to elude created a risk of death or injury to any person." Id. at 135 (citing State v. Wallace, 158 N.J. 552, 560 (1999); Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); and State v. Johnson, 166 N.J. 523 (2001)). "[A] permissive inference may be established through evidence that defendant 'violated one or more motor vehicle statutes' during the chase . . . . However, the term 'knowingly' does not relate to the risk which aggravates the eluding and makes it a second degree crime." Dixon, supra, 346 N.J. Super. at 135 (citation omitted).

By way of explanation, we parsed the eluding statute, noting, "[t]he relevant clauses in N.J.S.A. 2C:29-2b are separated by a semi-colon, and there is no culpability requirement independent of the third degree crime." Ibid. We added:

We recognize that N.J.S.A. 2C:2-2c(3) requires a "knowing" culpability where culpability is intended and the Code is otherwise silent. We also recognize that the "risk of death or injury" factor, whether considered a sentence enhancer or element of the second degree crime, requires a jury finding of proof beyond a reasonable doubt. See Apprendi v. New Jersey, supra, 530 U.S. at 495-97, 120 S. Ct. at 2365-67, 147 L. Ed. 2d at 458-59; State v. Johnson, supra, 166 N.J. at 549, 766 A.2d 1126; N.J.S.A. 2C:1-13a. Nevertheless, the structure of N.J.S.A. 2C:29-2b, and a reasonable reading of its provisions, results in a construction that a defendant need not knowingly create the risk so long as the defendant, as in this case, is found to have committed third degree eluding with the requisite knowing culpability. Cf. State v. Mendez, 345 N.J. Super. 498, 785 A.2d 945 (App. Div. 2001) (indicating "knowingly flees or attempts to elude" requires knowing culpability). See also State v. Burford, 163 N.J. 16, 20, 746 A.2d 998 (2000).

[Id. at 136].

Defendant contends that our analysis in Dixon "was wrong. The 'risk creation' element of N.J.S.A. 2C:29-2b is either part of the whole statute, or it is separate . . . . when viewed as a part of the whole statute . . . the 'risk creation' element of N.J.S.A. 2C:29-2b requires a 'knowing' state of mind, since that is one of the elements of second degree eluding."

Simply stated, we disagree. We decline to revisit Dixon. Affirmed.

 

The judgment of conviction incorrectly indicates that defendant pled guilty. He was, however, tried to a jury.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Although the Supreme Court denied certification in Dixon, the issue was addressed in an unpublished opinion, State v. Thomas, A-6113-02T4, (decided July 26, 2005), certif. granted, 185 N.J. 298 (2005). That case has been argued before the Supreme Court and disposition is currently pending.

(continued)

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A-5059-04T4

July 12, 2006