STATE OF NEW JERSEY v. RONALD A. KASZA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6306-03T46306-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONALD A. KASZA,

Defendant-Appellant.

_______________________________________________________________

 

Submitted March 14, 2006 - Decided August 24, 2006

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Criminal Division, Warren County, 03-04-0113-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Toni Ann Russo, Designated Counsel, on the brief).

Appellant filed a pro se supplemental brief.

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Tara J. Kirkendall, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant, Ronald A. Kasza, was found in a car belonging to another without permission. Following a trial before a jury, he was found guilty of third-degree eluding, third-degree unlawful taking of means of conveyance and related disorderly persons and motor vehicle charges. Defendant appeals from his convictions and the imposition of an extended-term sentence. We affirm.

On this appeal, defendant makes the following assertions of error through counsel:

POINT I: IT WAS PLAIN ERROR FOR THE TRIAL COURT TO PERMIT PROSECUTION EXPERT TO COMMENT ON ACCIDENT IN OPENING STATEMENT AFTER HAVING EXCLUDED IT. (RAISED BELOW).

POINT II: THE TRIAL COURT ERRED AND/OR ABUSED ITS DISCRETION PERMITTING THE PROSECUTION TO FILE FOR EXTENDED TERM OUT OF TIME AND/OR WITHOUT A SHOWING OF GOOD CAUSE. (RAISED BELOW).

POINT III: THE COURT ERRED BY IMPOSING AN EXCESSIVE TERM OF INCARCERATION (NOT RAISED BELOW).

By way of a pro se brief, defendant asserts the following additional arguments:

POINT I: THE DEFENDANT'S CONVICTION ON ELUDING MUST BE REVERSED AND FURTHER PROSECUTION BARRED BECAUSE PROSECUTORS VIOLATED THE DEFENDANT'S DUE PROCESS RIGHTS WHEN HE WAS FORCED TO STAND TRIAL ON AN INDICTMENT WHICH WAS KNOWN TO BE BASED PARTIALLY ON PERJURED TESTIMONY.

POINT II: THE DEFENDANT'S CONSTITUTIONAL RIGHT TO TRIAL IS BEING USED AGAINST HIM BY THE STATE, BY SENTENCING DEFENDANT TO THE SENTENCE AFFORDED BY A PLEA PRIOR TO TRIAL FOR AN OFFENSE HE WAS SUBSEQUENTLY ACQUITTED OF.

None of defendant's arguments has sufficient merit to require reversal or remand. Point II of defendant's pro se brief lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A Warren County Grand Jury issued a three count indictment that charged defendant with second-degree eluding, N.J.S.A. 2C:29-2 (count one), third-degree unlawful taking of means of conveyance, N.J.S.A. 2C:20-10c (count two), and second-degree aggravated assault, N.J.S.A. 2C:12-1b(6) (count three). In addition, by summonses and complaints, defendant was charged with numerous disorderly persons offenses and motor vehicle violations: possession of drug paraphernalia, N.J.S.A. 2C:36-2, a disorderly persons offense; possession of a hypodermic needle, N.J.S.A. 2C:36-6, a disorderly persons offense; and with numerous motor vehicle violations: leaving the scene of an accident, N.J.S.A. 39:4-129; failure to report an accident, N.J.S.A. 39:4-130; lamps required, N.J.S.A. 39:3-47; failure to signal turn, N.J.S.A. 39:4-126; reckless driving, N.J.S.A. 39:4-96; failure to observe signal, N.J.S.A. 39:4-81; failure to stop or yield, N.J.S.A. 39:4-144 (two summonses); failure to signal turn, N.J.S.A. 39:4-126 (two summonses); careless driving, N.J.S.A. 39:4-97; and driving while suspended, N.J.S.A. 39:3-40.

Prior to the trial before a jury, the court dismissed count three of the indictment, which charged aggravated assault. Following the trial, defendant was found guilty of third degree eluding, a lesser included offense of count one; and third degree unlawful taking, count two. The court also found defendant guilty on the charges of lamps required, failure to observe signal, failure to stop or yield (two summonses). The court granted the State's motion for an extended term and sentenced defendant to seven years in prison on counts one and two, to be served concurrently. Appropriate fines and penalties were imposed for the disorderly persons offenses and the motor vehicle violations.

At trial, Elizabeth Papagni testified that at about 7:00 p.m., on Christmas Day, 2002, she was visiting her daughter in Phillipsburg, New Jersey. At the conclusion of her visit, she and her future son-in-law, Enrique (Henry) Noriega, were outside getting her vehicle warmed up for the children. She noticed three individuals stopped to talk to Henry. When Henry finished clearing snow from the sidewalks, he came back into the house. At that point, Papagni realized she had forgotten to install the baby's car seat, but as she went back outside, she saw her truck was being driven away without her permission. Her daughter, Denise, called the police. Henry identified defendant as one of the individuals who engaged him in conversation that night.

Officers James Stettner and Timothy Moore, in an unmarked vehicle, received the call and activated the vehicle's rotating light. It was snowing at the time and there were six inches of snow on the ground. Stettner shouted at the defendant to stop his vehicle. Defendant failed to pull over despite several attempts to have him do so. Defendant's vehicle was almost struck by another vehicle which was backing out of a driveway. When the vehicle came to a stop, Moore approached the vehicle, and as Moore was about to open the rear of the vehicle, defendant emerged from the driver's side door.

First, defendant contends the court erred in its decision to allow information relating to an accident defendant was involved in after he took the vehicle. Prior to trial, defense counsel made a motion to exclude testimony concerning the accident. Defense counsel argued that the evidence was not relevant to the eluding charge or, in the alternative, any probative value was far outweighed by the prejudicial effect of the evidence. The court ruled initially that any reference to the accident was excluded, but it clarified later that references to accidents were relevant and admissible, provided the statements attributed to defendant by the operator of the snow removal vehicle that defendant hit, was not the source of the testimony by the police. The judge ruled, however, that the accident itself was relevant and part of the res gestae.

"[R]elevant evidence means evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. In determining whether evidence is relevant, the inquiry focuses upon "the logical connection between the proffered evidence and a fact in issue." State v. Hutchins, 241 N.J. Super 353, 358, (App. Div. 1990). "In determining relevance, the inquiry should focus upon whether the proffer 'renders the desired inference more probable than it would be without the evidence.'" State v. Davis, 96 N.J. 611, 619 (1984) (quoting State v. Deatore, 70 N.J. 100, 116 (1976)). A determination, however, that "evidence is irrelevant in the sense that it lacks probative value" means that it "does not justify any reasonable inference as to the fact in question." State v. Allison, 208 N.J. Super 9, 17 (App. Div. 1985) (quoting McCormick on Evidence, 185 at 544 (3rd ed. 1984)).

Relevance is subject to N.J.R.E. 403 which provides that relevant evidence may be excluded "if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury or (b) undue delay, waste of time, or needless presentation of cumulative evidence."

The admissibility of relevant evidence falls largely with a trial court's discretion. State v. Nelson, 173 N.J. 417, 470 (2002).

During his opening statement, the prosecutor stated:

The testimony will show, the testimony and even a statement from the defendant that . . . in the course very shortly after that car was taken the defendant got into an accident and hit another vehicle.

The defendant then was chased by the police officer -- the testimony will show that there was a motive too -- the testimony will show the defendant's license was suspended, that he got into a hit and run accident and asked the . . . the person in the vehicle that he hit not to call the cops and ran away, out of the mouth of [defendant] and -- three reasons, good reasons to elude a police officer. The testimony will show that.

In finding the accident relevant to the charge of eluding, the judge stated:

It can be relevant to the eluding charge if in fact a reasonable person could conclude after having given a statement to the police that as soon as I heard the statement I have to call the police, I left the scene of the accident, that occurred prior to the eluding, but may serve as a basis for a motive to elude.

. . . .

It is relevant. That is leaving the scene of the accident after some statement, you're going to call the police. He doesn't stop, he just keeps going or he stops and then leaves.

And I do not find that the prejudicial value outweighs the relevance of that opening statement. I'll deny defense counsel's motion.

We do not perceive such a reference to the accident to be an abuse of the judge's discretion.

Next, defendant challenges the imposition of an extended term, asserting that the State's motion for an extended term was not timely filed under R. 3:21-4. Rule 3:21-4 provides that:

a motion for enhanced sentence . . . shall be filed with the court by the prosecutor within 14 days of the entry of defendant's guilty plea or of the return of the verdict. . . . For good cause shown the court may extend the time for filing the motion.

Defendant was found guilty on February 24, 2004. Therefore, pursuant to R. 3:21-4, the notice for an enhanced sentence was to have been filed on March 9, 2004. The State filed notice of motion for extended term on March 10, 2004 at 9:11 a.m. The State acknowledges that it miscounted the number of days because it failed to take into account for the twenty-ninth day of February due to a leap year. We do not perceive any prejudice to defendant since he was already on notice of the State's intention to seek the extended term prior to filing of the notice. Nor do we observe any malicious intent on the part of the State. As such, we find good cause for the State's error and most minimal non-compliance with the statute.

Next, defendant challenges the imposition of a seven-year sentence. When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990). However, an appellate court may review and modify a sentence when the trial court's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). We perceive no error in the court's imposition of the then-presumptive term for an extended sentence. As the court found, "Your prior criminal record consists of at least fourteen convictions for offenses including forgery, theft, bad checks, larceny, burglary and passing forged documents. You are a 'career criminal' and a menace to society."

Defendant alleges that the prosecution violated his due process rights by suborning perjury. Any defect in the grand jury proceedings that affects the decision that probable cause existed to indict is rendered harmless if a petit jury later convicts, because a subsequent guilty verdict demonstrates that a defendant was guilty beyond a reasonable doubt. State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994); State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993).

"[W]illfully false testimony of a witness may in some circumstances justify setting aside a verdict or judgment." City of Linden v. Benedict Motel Corp., 370 N.J. Super. 372, 396 (App. Div.) certif. denied, 180 N.J. 356 (2004) (quoting State v. Probasco, 114 N.J. Super. 546, 549 (App. Div. 1970)). However, the party seeking relief on the grounds of perjured testimony must show by "clear, convincing and satisfactory evidence" that the perjured testimony was "willfully and purposefully falsely given . . . material to the issue tried and not merely cumulative but probably . . . controlled the result [and] the falsity must not have been discoverable by reasonable diligence prior to trial." Ibid.

Defendant emphasizes that at the grand jury proceedings, Moore testified that his vehicle had overhead lights, air horns and sirens. At the trial, however, Moore admitted he had made a mistake and corrected his testimony at trial. At trial, Moore testified that he did not have any sirens on, but that he used the vehicle's horn and had a bubble light on.

There is no evidence that Moore willfully or purposefully testified falsely. Moreover, defendant's conviction was not the result of the disputed testimony from Moore. In fact, defendant was notified prior to trial of the change in Moore's testimony and his attorney was able to cross-examine Moore regarding such change. Therefore, defendant has failed to satisfy the standard necessary to obtain relief from the use of perjured testimony.

As previously noted, defendant's remaining argument, that he was improperly sentenced because he received the same sentence he was offered by the State prior to trial, is not supported by any legal premise. As such, it is without merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).

Affirmed.

 

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A-6306-03T4

August 24, 2006