STATE OF NEW JERSEY v. DONALD E. BOYD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5562-04T45562-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DONALD E. BOYD,

Defendant-Appellant.

____________________________

 

Submitted September 11, 2006 - Decided October 10, 2006

Before Judges S.L. Reisner, Seltzer,

and C.L. Miniman.

On appeal from the Superior Court of New

Jersey, Law Division, Criminal Part,

Hudson County, 04-02-0191.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael Confusione,

Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County

Prosecutor, attorney for respondent

(Kelley Lavery, Assistant Prosecutor,

on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b; and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a(1). He was acquitted of two counts of aggravated assault, N.J.S.A. 2C:12-1b(5)(a). He appeals from his eluding conviction and from the ten-year custodial sentence, with a five-year period of parole ineligibility, imposed on that conviction. We affirm the conviction and remand for reconsideration of the sentence in light of State v. Natale, 184 N.J. 458 (2005).

The trial record reveals that on September 10, 2003, Officer Louis Velez was on duty in a patrol car in Hudson County when he saw a white Ford Taurus station wagon run a red light. Velez activated his siren and pursued the Taurus. After the Taurus came to a stop at a red light, Velez instructed the operator to pull off the road into a McDonald's parking lot. Velez then exited his automobile and approached the Taurus. He noticed that the driver, a white male with blondish hair wearing a white tee shirt and jeans, was the only occupant. At trial, Velez identified defendant as the driver.

When Velez requested production of the operator's license, registration, and insurance, the driver put his vehicle into gear and drove off at a high rate of speed. Velez followed. The Taurus drove north on Tonnelle Avenue, occasionally passing along the shoulder of the road and across the curb line. When the Taurus approached the intersection of Route 3, it passed vehicles waiting at a red light and attempted to enter Route 3. As it negotiated the intersection, the Taurus struck a vehicle that had lawfully entered the intersection.

After the collision, the driver of the Taurus left his car and began running. Velez observed the incident and gave chase. Velez ultimately lost sight of defendant and called for additional support. Using Velez's description, other officers began to canvas the area. Officer Gaughran, having received advice that a suspicious person was sighted in the area, located an individual matching the description provided by Velez. When that person saw Gaughran, he began to flee. Gaughran followed the individual but lost sight of him after he entered the traffic on Route 495.

By that time Velez arrived and located defendant hiding in a nearby wooded area. As Velez, Gaughran, and other responding officers surrounded the area, defendant fled back to Route 495 where he was apprehended. Defendant admitted at trial that he was apprehended by the police, although he denied he was the operator of the car. He claimed that he was at home and that his brother, Frank Boyd, was using the car. Defendant said he was present at the scene in response to a call from his brother and that he was "jumped" by the police for no reason.

The Taurus was removed from the accident scene. A temporary registration tag was recovered from where it had been displayed on the rear windshield. It was valid and evidenced defendant's ownership of the car. An expired registration tag issued to Frank Boyd was also recovered, as was a bill of sale for the vehicle from Victoria Pre-owned Auto, Inc. to Frank Boyd.

The indictment alleged second-degree eluding in Count One. This count alleged that defendant created a risk of death or injury because such a risk is a constituent element of second-degree eluding. Specifically, the indictment originally charged that defendant's flight "or attempt to elude created a risk of death or injury to Police Officer Velez . . . ." Immediately prior to trial, the judge amended the indictment to indicate that the risk of death or injury was "to Police Officer Velez and/or defendant Donald Boyd . . . ."

On appeal, defendant asserts that the evidence was insufficient to sustain a conviction, that various trial errors require reversal, that defendant's motion for a new trial based on newly discovered evidence was improperly denied, and that his sentence was both excessive and entered in violation of the principle later announced in Natale. None of the defendant's challenges to his conviction have sufficient merit to warrant a reversal.

Defendant's allegation that the judge incorrectly denied his motions for acquittal at the close of the State's case and after judgment requires an evaluation of whether "the evidence is insufficient to warrant a conviction." R. 3:18-1. The motion made at the conclusion of the State's presentation must be denied if "viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967) (citing State v. Fiorello, 36 N.J. 80, 90-91 (1961), cert. denied, 368 U.S. 967, 82 S. Ct. 439, 7 L. Ed. 2d 396 (1962)). The same standard governs the motion made, pursuant to R. 3:18-2, at the conclusion of the entire case. State v. Sugar, 240 N.J. Super. 148, 152-53 (App. Div.), certif. denied, 122 N.J. 187 (1990). We apply that same standard in determining whether the trial judge should have granted either motion. State v. Moffa, 42 N.J. 258, 263 (1964).

Defendant argues that there was insufficient evidence from which the jury could conclude beyond a reasonable doubt that he was the driver of the Ford Taurus. Although defendant testified that he appeared at the scene of the arrest as the result of a telephone call from his brother and was attacked by the police without cause, the testimony of Officer Velez alone, identifying defendant as the operator of the Taurus, if believed, was sufficient to support the conviction.

That testimony was bolstered, however, by evidence that defendant, when apprehended, was dressed identically to the driver when stopped initially by Velez. It was also supported by evidence that defendant attempted to evade apprehension and by the admission of the temporary registration, which evidenced defendant's ownership of the vehicle and triggered the rebuttable presumption that the "owner of a vehicle . . . was the operator of the vehicle . . . at the time of the offense." N.J.S.A. 2C:29-2b. At the end of the day, the jury was required to evaluate the credibility of Velez and the surrounding circumstantial evidence. There was more than sufficient evidence to support a conviction.

The defendant's claims of error respecting the evidence considered by the jury and the jury instructions do not require a different conclusion. First, defendant claims the admission of the registration was error because it was not produced in response to a discovery demand. The judge specifically found that defendant was aware of the tag from the police report and failed to make any application to the court to force the State to produce the evidence. Defendant does not, even now, suggest how physical possession of the tag would have assisted him or affected the outcome. To the extent the admission of the document was error, it was, therefore, harmless. See State v. Macon, 57 N.J. 325, 337-38 (1971).

Defendant also asserts that the judge erred in permitting the State to use photographs of the roadway and shoulder over which Velez claimed defendant had fled because they were taken immediately before trial. The admission of these photographs, however, was well within the judge's discretion. See State v. Conklin, 54 N.J. 540, 545 (1969). They were provided to defense counsel shortly after they were taken, and the jury received a description of the differences between the physical characteristics of the roadway depicted in the photographs and those existing at the time of incident. We see no error in the use of the photographs. Moreover, the judge's refusal to grant an adjournment as a condition of using the photographs was also well within his discretion. See State v. Smith, 66 N.J. Super. 465, 468 (App. Div. 1961), aff'd, 36 N.J. 307 (1962).

We reject defendant's associated claim that the refusal to grant an adjournment requires that his motion for a new trial be granted because he was later able to obtain construction reports and pictures of the actual condition of the roadway at the time of the incident. We note that no such pictures were submitted to the judge in support of the new trial motion and none have been presented to us. The judge properly rejected that motion, recognizing that even if the evidence was not available previously, it was not "of the sort that would probably change the jury's verdict . . . ." State v. Carter, 85 N.J. 300, 314 (1981).

Defendant also asserts that the judge should have instructed the jury that a conviction of second-degree eluding requires a finding that defendant "knowingly" created a risk of injury. Defendant argues that the contrary holding of State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002), should be disregarded as wrongfully decided. That argument has now been rendered moot by the Supreme Court's endorsement of Dixon. See State v. Thomas, 187 N.J. 119, 137 (2006).

Finally, we reject defendant's argument that the conviction of eluding was tainted by the amendment to the indictment. The purpose of an indictment is to provide adequate notice, allowing an accused to prepare a defense. State v. Lopez, 276 N.J. Super. 296, 302 (App. Div.), certif. denied, 139 N.J. 289 (1994). The indictment "preclude[s] the substitution by a trial jury of an offense which the grand jury did not in fact consider or charge." State v. Boratto, 80 N.J. 506, 519 (1979) (citing State v. LaFera, 35 N.J. 75, 81 (1951); State v. Spano, 128 N.J. Super. 90, 92 (App. Div. 1973)).

A judge, however, may amend an indictment "to correct an error in . . . the description of the crime intended to be charged . . . provided that the amendment does not charge another or different offense from that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits." R. 3:7-4. The description of the crime contained in the indictment was of an eluding that involved a risk of death or injury. The amendment merely indicated the risk was to either Velez or defendant. That amendment did no more than correct an error in the description of the crime. Moreover, given the expected testimony and the case law indicating a risk of injury to the defendant is sufficient to support a second-degree eluding conviction, see State v. Bunch, 180 N.J. 534, 547 (2004), the amendment created no risk of prejudice. This is especially so since defendant did not contest the proofs that the driver was put at risk; rather, he disputed that he was the operator of the vehicle.

Defendant next argues that several incidents, which he characterizes as prosecutorial misconduct, warrant reversal. We have examined each of the incidents identified. Most did not elicit an objection and must be judged by the plain error standard of R. 2:10-2. That standard requires that an error not the subject of an objection be disregarded unless it was "clearly capable of producing an unjust result." Ibid. Our independent review of the remarks of which defendant complains convinces us that they possessed no such capacity. "The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Frost, 158 N.J. 76, 84 (1999). With one exception, the claim that "prosecutorial misconduct" requires reversal is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

We recognize that the prosecutor improperly began to question defendant as to when he first told anyone that he was not the driver and first identified his brother as the offender. That question was repeated even after the judge sustained an objection and advised the prosecutor that the inquiry was improper. However, on timely objection, the judge provided a strong curative charge. Given that prompt action, and the strong evidence of guilt, we believe the error was cured by the judge's prompt instructions. See State v. Winter, 96 N.J. 640 646-49 (1984).

In his last attack on his conviction, defendant asserts that the court erred in permitting defendant's prior convictions to be used for impeachment purposes. N.J.R.E. 609 permits the introduction of a conviction to affect the credibility of a witness. Nevertheless, the judge must exercise discretion to determine if the probative value of the evidence is substantially outweighed by any prejudice it may generate.

State v. Sands, 76 N.J. 127, 144 (1978). The judge exercised his discretion in accordance with the considerations set out in Sands. His rulings were unexceptionable and provide no basis for reversal.

Although defendant's conviction must be affirmed, the State recognizes that the ten-year custodial sentence imposed on the second-degree eluding conviction exceeded the presumptive sentence of seven years in effect at the time of sentencing. The State concedes that defendant is entitled to a remand for consideration of the appropriate sentence in light of State v. Natale. Since the matter must be remanded, we decline to consider defendant's claim that the sentence imposed was excessive.

 
The eluding conviction is affirmed; the matter is remanded to the trial court for consideration of the appropriate sentence on Count One in light of State v. Natale.

(continued)

(continued)

11

A-5562-04T4

 

October 10, 2006