STATE OF NEW JERSEY v. ROBERT BENNETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5929-04T45929-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT BENNETT,

Defendant-Appellant.

_________________________________

 

Submitted April 3, 2006 - Decided April 26, 2006

Before Judges Lintner and Parrillo.

On appeal from the Superior Court of New Jersey,

Law Division, Essex County, Docket No. 04-05-1791.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, and on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for

respondent (Sara A. Friedman, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Tried by a jury, defendant, Robert Bennett, was found guilty of the lesser-included disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a1, and second-degree eluding, N.J.S.A. 2C:29-2b, but acquitted of fourth-degree throwing a bodily fluid at a law enforcement officer, N.J.S.A. 2C:12-13. He was sentenced to an eight-year term on the eluding offense and a consecutive six-month term on the resisting arrest conviction. Appropriate fees and penalties were also imposed. Defendant appeals. We affirm the conviction, but remand for resentencing in accordance with State v. Natale, 184 N.J. 458 (2005) (Natale II).

According to the State's proofs, defendant and Latisha Roland left a go-go bar in Irvington at about 1:30 a.m. on October 30, 2003. En route to Roland's home, the pair came upon Grove Street, between Springfield and Clinton Avenues, blocked off with six to eight police units with emergency lights flashing. Instead of turning around, defendant, who was driving a white BMW, simply continued on and struck Investigator Anthony Sommese's unmarked 1990 Chevrolet Caprice, equipped with emergency lights, radio and siren, and pushed it into the car in front.

At a high rate of speed, defendant backed up, turned the car around, went south, entered the intersection of Clinton Avenue, turned its wheels to face west, and headed westbound on Clinton Avenue. Sommese entered his damaged vehicle and was the first police vehicle to give chase. Every police unit on the scene, with lights and sirens activated, followed in pursuit of defendant, who would not stop. Defendant had a good lead and sped up, but Sommese never lost sight of the BMW. The pursuit continued for one-quarter mile, at 50 to 55 m.p.h. down residential streets with pedestrians in the area, until defendant, weaving through traffic and making sharp turns, lost control of his vehicle and smashed into a light pole on Springfield Avenue.

After striking the pole, defendant got out of his car and attempted to flee, but Sommese and his partner, Detective Andreotolla, managed to tackle him with some assistance from other units. When Sommese attempted to handcuff him, defendant flailed his arms, kicked around, and screamed expletives, but he was eventually arrested and taken to headquarters. By then, defendant had defecated in his pants. When asked for his personal items while in the holding cell, defendant reached in his pants and soiled his hands so that the officer would not come into the cell to remove his personal effects.

According to defendant, who testified on his own behalf, he spent the evening drinking at another bar and later with a friend, Roxanne Erving, before going to the Irvington go-go bar where he met Roland and continued drinking. He had not realized, however, that he was drunk until he started driving. Although he recalls "bumping into something" and within seconds, "another accident," he denied knowing that he struck a police car or was being chased by police. After he crashed into the pole, he claimed to be incoherent and upon exiting the car, suddenly being "pummeled" by the police. He admitted, however, that when he was in the holding cell, he was giving police problems and being "an A-hole, because he did not know why he was there. He claims to have been drunk and "blowing off steam with the officers", upset because they would not allow him to go to the bathroom to use a toilet.

Evidently crediting the State's version, the jury found defendant guilty of second-degree eluding and the disorderly persons offense of resisting arrest. On appeal, he raises the following issues:

I. THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE POLICE OFFICERS IN HER SUMMATION.

II. THE PROSECUTOR'S CROSS-EXAMINATION OF THE DEFENDANT CONCERNING HIS PRIOR CRIMINAL CONVICTIONS UNFAIRLY PREJUDICED HIS RIGHT TO A FAIR TRIAL BECAUSE THE DEFENDANT HAD DISCLOSED ALL OF HIS PRIOR CONVICTIONS DURING HIS DIRECT TESTIMONY. (NOT RAISED BELOW).

III. THE AGGREGATE CUSTODIAL SENTENCE OF EIGHT AND ONE-HALF (8) YEARS WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS, UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR SENTENCE ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE ELUDING ON COUNT TWO WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(B)

IMPOSITION OF A SENTENCE IN EXCESS OF THE PRESUMPTIVE SEVEN (7) YEAR SENTENCE FOR A SECOND DEGREE CRIME VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(C)

THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING A CONSECUTIVE SENTENCE ON THE DEFENDANT'S CONVICTION FOR RESISTING ARREST ON COUNT ONE.

We address the issues in the order raised.

(i)

Defendant claims it was reversible error for the prosecutor in summation to contend that Latisha Roland and the police had no motive to lie. We disagree.

After defense counsel personally vouched for the truthfulness of defendant's testimony, the prosecutor, in her summation, contrasting defendant's selective memory, simply stated:

Latisha Roland has nothing to gain or lose. The officers have nothing to gain or lose. He's [defendant's] got something to gain or lose, and I ask you to take that into consideration when you judge the credibility of witnesses you heard from.

This isolated remark does not constitute reversible error.

First, the comment arises in response to defense counsel's personal voucher, also in summation, for defendant's credibility. See State v. Vasquez, 374 N.J. Super. 252, 259-62 (App. Div. 2005). The defense claimed defendant was too intoxicated to form the requisite intent to elude police and resist their efforts to arrest him. Yet, as the prosecutor argued in summation, defendant was not so intoxicated as to be relieved of criminal culpability since he remembered many details of the evening's events save, conveniently, for those testified to by Roland and Officers Sommese and Eason, namely the police cars blocking Grove Street and later giving chase as defendant recklessly sped away. Thus, the brief comment on motive simply compared the credibility of defense and prosecution witnesses.

To be sure, "it is improper for a prosecutor to contend in summation that the police had no motive to lie." State v. R.B., 183 N.J. 308, 331-32 (2005). See e.g., State v. Goode, 278 N.J. Super. 85, 90 (App. Div. 1994) ("[I]t has also been held improper to contend police had no motive to lie."); State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993) ("Moreover, it is 'obviously improper' to imply that police testimony should be accepted, 'not because of its believability but because the witnesses were policemen.'") (quoting State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969)).

However, the challenged comment here was far more neutral than those criticized in other cases. See e.g., Staples, supra, 263 N.J. Super. at 606 (police officer could lose vested pension if he lied and other officers would risk their careers if they lied, raising the specter that an acquittal would have adverse effect on policemen); State v. Frost, 158 N.J. 76, 85 (1999) (police had too much to risk by lying, a huge "'magnitude' of charges that could be brought against them"); State v. West, 145 N.J. Super. 226, 233 (App. Div. 1976) (policeman would be harmed and his "'career would be finished in a minute'" if he got on witness stand and lied), certif. denied, 53 N.J. 67 (1977); Goode, supra, 278 N.J. Super. at 90 ("convicting defendant would 'make a difference' in [jurors'] communities" and disregarding police testimony would, itself, be a crime, amid a panoply of errors). In this case, the prosecutor's bare comment contained none of the potential for prejudice inherent in those remarks found objectionable in other cases. The prosecutor did not imply that the police witnesses would lose their jobs, or be adversely affected by an acquittal, or that their careers would be ruined.

In any event, any error here does not warrant reversal. Following defense counsel's objection, the judge instructed the jury, as he did before opening statements, that the arguments of counsel were not evidential and that their determination had to be based on the evidence. As to witness credibility, the judge instructed:

Now, as judges of the facts, you are to determine the credibility of the witnesses. And in determining whether a witness is worthy of belief and therefore credible, you may take into consideration the appearance and demeanor of the witness; the manner in which he or she may have testified; the witness' interest in the outcome of the trial, if any; his or her means of obtaining knowledge of the facts; the witness' power of discernment, meaning their judgment, understanding; his or her ability to reason, observe, recall, and relate; the possible bias, if any, in favor of the side for whom the witness testified; the extent to which if, at all, each witness is either corroborated or contradicted, supported or discredited by other evidence; whether the witness testified with an intent to deceive you; the reasonableness or unreasonableness of the testimony the witness has given; and any and all other matters in the evidence which serve to support or discredit his or her testimony.

Especially in light of this instruction, we are persuaded that the prosecutor's lone objectionable comment in summation was not capable of prejudicing defendant's right to a fair trial.

(ii)

For the first time on appeal, defendant argues that the State's questioning about his prior convictions on cross-examination was plain error. We conclude otherwise.

Actually, defense counsel first elicited the fact of defendant's three prior convictions in 1999 for second-,third-, and fourth-degree offenses on his direct examination of defendant. On cross-examination, the prosecutor simply elicited the additional fact that defendant received State prison sentences for each of these offenses. The offenses were neither remote nor excludable for other causes. State v. Sands, 76 N.J. 127, 144 (1978). Moreover, the court allowed only three of defendant's four prior convictions to be used for impeachment purposes. In addition, the State agreed to sanitize all three convictions, even though only one was similar in nature to the instant offense, introducing only the date of conviction, degrees of offenses, and sentences without any reference to or description of the substantive crimes. State v. Brunson, 132 N.J. 377, 394 (1993). And finally, the court gave an appropriate limiting charge, instructing the jury such evidence may only be used in assessing defendant's credibility. In sum, there was no error here, much less plain error.

(iii)

Lastly, defendant contends that the eight-year term is excessive and unconstitutional, and that the imposition of a consecutive six-month term is an abuse of discretion. We conclude a remand is required to reconsider the eight-year term in light of recent case law developments.

In Natale II, the Court stated that, under our Code of Criminal Justice, "before any judicial fact finding, the maximum sentence that can be imposed on a jury verdict or guilty plea is the presumptive term," and therefore "the 'statutory maximum' for Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403, reh'g denied, 542 U.S. 961, 125 S. Ct. 21, 159

L. Ed.2d 851 (2004)] and [United States v.] Booker[, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)] purposes is the presumptive sentence." Natale II, supra, 184 N.J. at 484. Accordingly, the Court therefore "eliminat[ed] the presumptive terms" creating "the 'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea [as] the top of the sentencing range for the crime charged

. . . ." Id. at 487 (quoting N.J.S.A. 2C:43-6(a)(2)).

The holding in Natale II is entitled to "[p]ipeline retroactivity" and thus applicable to defendants who had cases on direct appeal at the time of the decision. Id. at 494. "[A] new sentencing hearing [is to be held] in each affected case based on the record at the prior sentencing." Id. at 495. At the hearing

the trial court must determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Id. at 495-96.]

Here, after finding aggravating factors (3), (6), (8) and (9), N.J.S.A. 2C:44-1a(3),(6),(8) and (9), and mitigating factors (2) and (8), N.J.S.A. 2C:44-1b(2) and (8), the trial court imposed an eight-year term on defendant's second-degree eluding conviction. The sentence clearly exceeds the former seven-year presumptive term for a second-degree offense under N.J.S.A. 2C:44-1f(1)(c). Because it appears that the judge's fact findings were based on factors other than defendant's prior conviction, the matter does not fall within "the recidivism exception" recognized by the Court in State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). Therefore, we are constrained to remand for reconsideration of the sentence on the eluding offense.

There is no warrant for our interference, however, with the consecutive six-month sentence, supported, as it is, by sound reasons articulated by the judge.

Affirmed in part; remanded for reconsideration of sentence.

 

In Abdullah, the Supreme Court suggested "that aggravating factors (3), (6) and (9) related to [a] defendant's prior convictions" might be "the basis for increasing defendant's sentence above" what had been the presumptive term. Abdullah, supra, 184 N.J. at 506, n.2. But see State v. Nesbitt, 185 N.J. 504, 519 (2006) (term of imprisonment in excess of presumptive term remanded for consideration notwithstanding citation of aggravating factors (3), (6) and (9)).

(continued)

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A-5929-04T4

April 26, 2006