STATE OF NEW JERSEY v. JAMAD Q. PATRICK

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-630-03T46300-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAD Q. PATRICK,

Defendant-Appellant.

_______________________________

 

Submitted October 18, 2006 - Decided November 1, 2006

Before Judges Stern and Collester.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 02-08-1035-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Roger L. Camacho, Designated Counsel, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel; Amy F. Newcombe, Law Intern, on the brief).

PER CURIAM

Following a jury trial, defendant was convicted of aggravated assault by attempting to cause or causing significant bodily injury, N.J.S.A. 2C:12-1b(7), as a lesser included offense to aggravated assault by attempting to cause or causing serious bodily injury, N.J.S.A. 2C:12-1b(1) (count one); causing bodily injury while eluding, N.J.S.A. 2C:12-1b(6) (count two); aggravated assault upon a law enforcement officer, N.J.S.A. 2C:12-1b(5)(a) (count three); eluding an officer, N.J.S.A. 2C:29-2b (count four); two counts of resisting arrest, N.J.S.A. 2C:29-2a (counts five and six); hindering prosecution, N.J.S.A. 2C:29-3b(4) (count seven); and causing damage, N.J.S.A. 2C:17-

3a(1) (count nine). The convictions on counts three and four were merged into the conviction on count two, and defendant was sentenced on the second degree eluding conviction embodied in count two to the custody of the Commissioner of the Department of Corrections for a term of eight years with 85% to be served before parole eligibility under the No Early Release Act (NERA). A four year consecutive sentence was imposed on count one. Concurrent sentences, made concurrent to the sentence on count two, were imposed for the remaining convictions. They included 18-month sentences on the fourth degree crimes.

On this appeal defendant argues:

POINT I SINGLING OUT PATRICK BASED UPON RACE

FOR A MOTOR VEHICLE STOP ULTIMATELY

IN ANOTHER JURISDICTION AND AN ENSUING

HIGH SPEED MOTOR VEHICLE PURSUIT CON-

TRARY TO THE ATTORNEY GENERAL'S POLICY

GUIDELINES WAS ILLEGAL; THEREFORE, THE

TRIAL COURT REVERSIBLY ERRED IN REJECTING

PATRICK'S MOTION FOR AN ACQUITTAL AT THE

END OF THE STATE'S CASE AND HIS MOTION FOR

ACQUITTAL AND ORDER FOR A NEW TRIAL

AFTER THE VERDICT.

(U.S. Const. Amends IV & XIV; N.J. Const.

(1947), Art I, Paras 1 and 5)

(PARTIALLY RAISED BELOW)

POINT II THE TRIAL COURT SUA SPONTE SHOULD HAVE

SUPPRESSED THE SCREWDRIVERS SEIZED FROM

PATRICK'S VEHICLE AFTER THE INCIDENT AS

EVIDENCE (1) BECAUSE THE STATE NEVER

ESTABLISHED EITHER ACTUAL POSSESSION OR

CONSTRUCTIVE POSSESSION BY PATRICK AND

(2) AS THE PRODUCT OF A CONSTITUTIONALLY

TAINTED PRE-CONTACT INVESTIGATION, AN

ILLEGAL STOP AND THE RESULTING UNLAWFUL,

WARRANTLESS SEARCH (U.S. Const. Amends.

IV & XIV; N.J. Const. (1947) Art I, Para. 7)

(NOT RAISED BELOW)

POINT III PATRICK'S SENTENCES SHOULD BE REVERSED

AS UNCONSTITUTIONAL IN VIOLATION OF HIS

FEDERAL CONSTITUTIONAL RIGHT TO A JURY

TRIAL AND TO CONFRONT WITNESSES AGAINST

HIM

(U.S. Const. Amends V & VI; N.J. Const.

(1974) Art I, Para 10)

POINT IV PATRICK'S CONSECUTIVE SENTENCES WERE

EXCESSIVE AND ILLEGAL AND SHOULD HAVE

BEEN CONCURRENT

Except for the contention raised on Point III, we find these arguments to be without merit and that only the following discussion is warranted. R. 2:11-3(e)(2).

I.

On May 13, 2002, three Mountainside police officers conducted surveillance at the Loews Movie Theatres on Route 22 East in Mountainside, due to a problem with motor vehicle break-ins. Detective Kenneth Capobianco was wearing plain clothes and driving an unmarked Toyota Camry. Officer Jeffrey Stinner was in uniform and driving an unmarked police vehicle.

Detective Capobianco observed a vehicle pull into the movie theater parking lot and act in what he considered "a suspicious fashion." The vehicle was missing a license plate and contained four black males. The driver's hair was in dreadlocks or corn rows, which matched a description of an individual seen breaking into a vehicle at a nearby parking lot several days earlier. Defendant was later identified as the driver.

The vehicle was observed being driven around the parking lot. Nobody exited or entered the vehicle. The vehicle did not stop by the front door of the theater. Detective Capobianco testified that he believed the occupants of the vehicle were "looking for a car to steal."

The vehicle exited the lot onto Route 22 East. Detective Capobianco and Officer Stinner followed the car "in the general fashion to see what was going to happen next, if they were going to another parking lot and do a similar type of thing." The vehicle drove slowly in the right-hand lane, at about forty miles per hour in a forty-five mile per hour zone, and entered Springfield. The vehicle traveled a quarter to a half mile then pulled into the Sports Authority parking lot. Detective Capobianco pulled into an adjacent parking lot and saw the vehicle travel up and down the rows of cars in the parking lot. Nobody exited or entered the vehicle, and it left the lot onto Route 22 East.

The vehicle traveled about half a mile before it pulled into the exit driveway of the Circuit City parking lot and into the entrance of a Target store parking lot in Union. The vehicle was then traveling towards Detective Capobianco's vehicle, so the detective pulled into an open parking space. He intended to get out of the vehicle and look through the cars to see what was going on, but he lost sight of defendant's vehicle.

Officer Stinner followed the vehicle as it turned onto Route 22 and headed east again until it approached the Wiz flagship store, which is now P.C. Richards. The vehicle changed lanes twice without signaling but was traveling within the speed limit. Additionally, the vehicle had a temporary tag affixed to the front window instead of the rear window. Officer Stinner waited until he got to a safe area where there was backup from a marked Union patrol car, and then "activated [his] emergency lights." The lights, called "wig wags," "flash back and forth alternating" and had a red flashing light on the dashboard.

The defendant's vehicle immediately changed lanes and "sped up" in excess of eighty miles per hour. Officer Stinner quickly activated his "audible siren" and advised his headquarters that he was "in pursuit of the vehicle." Detective Capobianco was behind Officer Stinner at all times, sometimes closer than quarter of a mile.

The vehicle continued to travel on Route 22 East for several miles and exited at Frelinghuysen Avenue in Newark. Officer Stinner continued to follow the vehicle and saw it make a right-hand turn onto Meeker Avenue. Officer Stinner was able to bring his car parallel with defendant's vehicle, which abruptly moved into his lane of traffic, striking the front driver's side of his car. Both vehicles went out of control. Officer Stinner's vehicle veered off to the right and defendant's vehicle turned around and continued in the direction it came from.

Defendant's vehicle continued on Meeker Avenue and made a right-hand turn into Weequahic Park. Officer Stinner followed the vehicle into the park. Stinner believed this was a dead end due to the darkness, but it really was a large circle. Defendant's vehicle stopped and Officer Stinner pulled up behind it. Defendant's vehicle thereupon reversed, struck the Stinner car, and made a K-turn so he was facing Officer Stinner's vehicle.

Officer Stinner exited his vehicle, and standing in between his open door and his vehicle, he drew his firearm, and ordered the individuals out of defendant's vehicle. Defendant's vehicle was about ten to fifteen feet from Officer Stinner's car when it sped forward and struck the officer's vehicle head on. Officer Stinner's vehicle "jump[ed] backwards" and the door hit his rib cage on the left side. Defendant's vehicle then backed up, went around Officer Stinner's car, and sped away.

Officer Stinner entered his vehicle to continue the pursuit. Defendant's vehicle exited the park through the same entrance it had entered. The vehicle turned right onto Meeker Avenue and continued onto Frelinghuysen Avenue. The vehicle was traveling about fifty to sixty miles an hour on these local streets.

The vehicle then made a right-hand turn onto Dayton Street, which ends at almost a ninety-degree turn onto Evergreen Street. Defendant tried to stop the vehicle abruptly, but then accelerated, which caused the rear end of his vehicle to skid out and crash into a telephone pole. Officer Stinner maneuvered his vehicle to hit the driver's side door head on so the driver could not escape. Defendant attempted to move the vehicle, rocking it back and forth in forward and reverse. Officer Stinner remained in his vehicle, stepping on the accelerator, to keep defendant's vehicle pinned against the pole. Then, all four occupants exited the car through the passenger's window.

Officer Stinner exited his vehicle, radioed his headquarters, and chased the driver on foot. The officer chased defendant through "a few back streets" and a Popeye's Restaurant on Evergreen Street at the corner of Frelinghuysen Avenue. Officer Stinner "gained ground" on defendant, caught up to him, "tackled" him, and told him he was under arrest. Defendant was "flailing" his arms and trying to escape, so Officer Stinner used "a burst of Mace" on him. Defendant was subdued, and Officer Stinner placed him under arrest.

Detective Michael D. Jackson processed the vehicle the next day, which involved taking photographs and looking for evidence inside the vehicle. Detective Jackson recovered two screwdrivers, an Exxon Mobil credit card, and an Exxon Tiger Mart receipt. Stratos Syristatides testified that the Exxon Mobil credit card was his, but it was stolen when someone broke into his car on Route 3 in Secaucus on May 9, 2002.

It was stipulated that on May 10, 2002, defendant purchased the vehicle he was driving the night of his arrest from Presto Auto Sales in Newark.

II.

At the end of the State's case, defendant moved for a directed verdict of acquittal. The judge denied the motion, except as to count eight which charged unlawful theft or receipt of a credit card, N.J.S.A. 2C:21-6c.

Before sentencing, defendant also moved for a Judgment of Acquittal, or in the alternative, a new trial. The motion was denied.

In sentencing defendant, the judge found that aggravating factors 3 and 9 existed and substantially outweighed the lack of any mitigating factors. The court stated:

I find that aggravating - clearly convinced that aggravating factors 3 and 9 substantially outweigh no mitigating factors.

. . . .

The eluding an officer, causing bodily injury, aggravated assault, third degree, eluding an officer all merge. On those merged counts you're sentenced to 8 years, 85 percent.

On the aggravated assault charge, you are sentenced to 4 years flat to run consecutive.

I find that under State v. Yarbrough and the relevant statute set forth the following factors, should be no free crime in a system where punishment fits the crime. Also says the reasons for the consecutive sentence should be separately given. And the Court should consider the crime and their objectives where the crimes and their objectives were independent of each other, which I find exist here, and crimes involve separate acts or threats of violence, and the crime was committed at separate time or place, rather than indicating a single period of aberrant behavior, the crime involved multiple victims and convictions, if numerous.

I balance these factors. I find that the assault on the police officer was separate and distinct from the - from the eluding. That they involved separate acts or threats of violence, and convictions here are numerous.

On the fourth degree resisting arrest, 18 months concurrent.

On the second, the resisting arrest, third degree, three years concurrent.

Fourth degree hindering, 18 months concurrent.

On the fourth degree criminal mischief, 18 months concurrent.

These sentences to run consecutive to the sentence that's currently being [served] on.

The judge also imposed the requisite penalties and driver's license suspension.

III.

In his first point, defendant argues that (1) racial targeting existed at the "pre-contact investigative stage";

(2) Officer Stinner lacked the jurisdictional authority to stop and to arrest defendant; and (3) Officer Stinner's high-speed motor vehicle pursuit was in violation of the Attorney General's guidelines. Defendant also argues that it was erroneous for the trial court to deny both his motions for an acquittal and for a new trial. We disagree.

In denying defendant's motion for acquittal at the end of the State's case, the trial judge explained with respect to the eluding count:

The motion is denied based on State v. Seymour, 289 N.J. Super. 80 (App. Div. 1996), which basically says the subsection creates a duty to immediately bring a vehicle to a full stop after receiving a law enforcement officer's signal whether the officer's stop is legal or illegal.

Even if I accept the defense's argument that this was an illegal stop, and I am hypothetically saying that, there is a duty to stop if the - under this case law and this rationale, which I find is logical and reasonable, that when somebody encounters a direction to stop on a highway or road in a car from a law enforcement officer, they need to come to a full stop.

As I said earlier it is very analogous to the situation with resisting arrest. In this case law enforcement officers signaled to stop. There has been no argument made to me that there is insufficient evidence under Reyes purposes that the defendant under these circumstances - there is not a sufficient inference to conclude that the defendant knew this was a law enforcement officer directing him to stop. He then took off way in excess of the speed limit driving in an unsafe manner and under this case law the motion is denied.

In denying defendant's motion to acquit at the end of the State's case, the trial judge added the following with regard to defendant's racial profiling claim:

Let me also say that I don't believe this is a racial profiling situation, not that it is relevant to my ruling but you are trying to argue it both ways. The police had information that a black male with dreads had been seen in the area trying to break into cars. The police didn't jump on that. They did an extended surveillance, not just in one lot but two, three lots where they saw what could be characterized as suspicious activity. Somebody going in and out of three parking lots, cruising up and down the aisles, not pulling into any spots, looking at various cars.

In my opinion there would be enough here for a Terry stop. There was no motion to suppress either pretrial or earlier. This is in the context of a motion to dismiss an indictment but I believe based on the officer's testimony and the situation here there would have been enough for a Terry stop.

Once the lights and flashers went on and if I accept for purposes of this motion that the defendant took off down Route 22 driving in a dangerous manner, going 80 miles an hour, at that point in time there was probable cause for the officers to believe based on their own observations that there was a second degree eluding taking place.

We agree with the trial court's assessment and conclude that the trial court properly denied defendant's motion to acquit.

Even assuming that defendant established a prima facie case of racial targeting, the State nevertheless met its burden. The police targeted defendant, because he matched the description of an individual seen attempting to steal a vehicle nearby several days earlier. This is a race-neutral motivation for the police action which followed. State v. Segars, 172 N.J. 481, 494 (2002). In any event, defendant's actions and conduct caused a break in the chain of events following any unlawful endeavor by the police to stop him, thereby justifying admission of the evidence seized. State v. Lee, 381 N.J. Super. 429, 435-36 (App. Div. 2005); see also State v. Ball, 381 N.J. Super. 545 (App. Div. 2005), and State v. Gonzalez, 382 N.J. Super. 27 (App. Div. 2005). Accordingly, defendant's acts of eluding and resisting arrest require that we affirm the convictions in this case. Lee, supra, 381 N.J. Super. at 435-36.

Defendant also contends that Officer Stinner did not have the jurisdictional authority to pursue him, because the officer was employed by Mountainside, and defendant did not commit a crime in Mountainside. The trial judge rejected this claim in denying defendant's motions for acquittal. Defendant further alleges that there was no basis for a Terry stop, especially because there was no reasonable suspicion to pull him over, as the officers racially targeted his vehicle. See Terry v. Ohio, 39 U.S. 1, 22, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968). We disagree.

N.J.S.A. 40A:14-152.1 authorized Officer Stinner to stop defendant for suspected criminal activity that occurred in his presence, and police officers are authorized to arrest individuals for motor vehicle violations that occur in their presence outside of their municipalities of employment. State v. O'Donnell, 192 N.J. Super. 128, 130 (App. Div. 1983).

Defendant also contends that the high speed motor vehicle chase was in violation of the Attorney General's Guidelines (the Guidelines). Defendant argues that Detective Capobianco authorized Officer Stinner's chase in violation of the Guidelines because there was no reasonable belief that defendant committed a first or second-degree offense at the time. However, defendant's actions in eluding the officer created the risk of death or injury to other motorists, constituting a second-degree crime under N.J.S.A. 2C:29-2b. Defendant acknowledges that the Guidelines permit pursuit for second-degree crimes.

Moreover, even if the Guidelines did not authorize the pursuit, we have held that a police officer's deviation from the Guidelines cannot excuse a defendant's conduct or relieve him from his statutory responsibilities. See State v. Pantusco, 330 N.J. Super. 424, 442 (App. Div.), certif. denied, 165 N.J. 527 (2000).

At trial, defendant did not raise any objection to the admission into evidence of the screwdrivers found in his car. Nor did he move to suppress the screwdrivers prior to trial. As a result, we find no "plain error." R. 2:10-2; see State v. Macon, 57 N.J. 325, 336 (1971).

IV.

We agree with defendant that the matter must be remanded for resentencing. In State v. Natale, 184 N.J. 458 (2005), the Court, in light of Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), held that "a sentence above the presumptive statutory term based solely on a judicial finding of aggravating factors, other than a prior criminal conviction, violates a defendant's Sixth Amendment jury trial guarantee." Natale, supra, 184 N.J. at 466. See N.J.S.A. 2C:44-1f(1) (presumptive terms).

In State v. Thomas, 188 N.J. 137 (2006), the Court subsequently held that it was remanding cases for resentencing where presumptive sentences were increased based on judicial findings of aggravating factors three (the defendant's risk of recidivism), six (the seriousness and extent of a defendant's prior criminal record), and nine (the need to deter defendant and others), because these factors are not necessarily "based exclusively on the 'fact' of a prior conviction." Id. at 152. See also State v. Pierce, 188 N.J. 155 (2006).

Defendant was sentenced to eight years for his second-degree conviction and eighteen month terms for each of his fourth-degree convictions. The presumptive term for a second-degree crime is seven years, N.J.S.A. 2C:44-1f(1)(c), and the presumptive term for a fourth-degree crime is nine months, N.J.S.A. 2C:44-1f(1)(e). Thus, defendant was sentenced one year above the presumptive term for his second-degree convictions and nine months above the presumptive term for his fourth-degree convictions as a result of the finding of the aggravating factors. Therefore, we vacate defendant's sentence and remand for resentencing.

We disagree, however, with defendant's assertion that this court should exercise its original jurisdiction to vacate the consecutive sentences. The trial judge stated sufficient reasons for imposing a consecutive term. See State v. Yarbough, 100 N.J. 627, 635 (1985). See also State v. Carey, 168 N.J. 413, 423-24 (2001). On remand for re-sentencing in compliance with Natale, supra, 184 N.J. at 487, the judge should impose an entirely new sentence which should reconsider the consecutive feature as well as the length of time, so long as the sentence, consistent with Natale, does not exceed the original maximum. Id.

Affirmed and remanded for sentencing.

 

As can be seen from the next to last sentence and the balance of the statement of reasons, the judge did not impose an 8-year sentence for the third-degree aggravated assault.

Defendant specifically argues that the officers engaged in racial targeting at the beginning of their surveillance because of the "four black men" in his car, and the "dreadlocks or corn row hair." Defendant contends Detective Capobianco's testimony indicates racial targeting, and if the police were truly interested in stopping him for the missing license plate, they should and would have done so at the outset.

The judge adhered to this opinion after further argument. The judge also addressed this subject and other issues again in denying the post-verdict motion.

In light of our disposition, we do not comment on the appropriate procedure for raising a racial profiling issue or the remedy, particularly with respect to crimes occurring after the endeavor to stop. See State v. Gonzalez, 382 N.J. Super. 27 (App. Div. 2005), State v. Ball, 381 N.J. Super. 545 (App. Div. 2005), and State v. Lee, 381 N.J. Super. 429 (App. Div. 2005).

(continued)

(continued)

17

A-630-03T4

November 1, 2006