STATE OF NEW JERSEY v. OMAR LUGO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6556-03T46556-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OMAR LUGO,

Defendant-Appellant.

______________________________________________

 

Submitted February 1, 2006 - Decided March 24, 2006

Before Judges Weissbard and Winkelstein.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

Ind. No. 03-06-2033.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Patricia Nichols,

Designated Counsel, of counsel and on the brief).

Vincent P. Sarubbi, Camden County Prosecutor,

attorney for respondent (Laurie A. Corson,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Omar Lugo appeals his conviction after a two-day jury trial of second-degree eluding for which he was sentenced to an eight-year term of imprisonment. On appeal, defendant raises the following issues:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

A. THE EVIDENCE WAS CAPABLE OF

CHANGING THE VERDICT.

B. THE STATE FAILED TO PRESENT A PRIMA FACIE CASE ON ALLEGED MOTOR VEHICLE VIOLATIONS AND THE TRIAL JUDGE ERRED IN PERMITTING THE JURY TO CONSIDER THEM IN DECIDING THE PERMISSIBLE INFERENCE OF RISK OF INJURY TO RAISE A CONVICTION FOR ELUDING FROM THIRD DEGREE TO SECOND DEGREE.

POINT II

THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO CALL WITNESSES.

POINT III

DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL.

POINT IV

THE SENTENCE IMPOSED WAS IMPROPER.

We affirm defendant's conviction but remand for a new sentencing in light of State v. Natale, 184 N.J. 458 (2005) (Natale II).

I

On April 11, 2003, at approximately 11:00 p.m., Camden Police Officer Paul Price was on patrol in a marked patrol car in the primarily residential area of 21st and Harrison Streets in Camden where the speed limit was twenty-five miles per hour. He observed a white Camaro in the middle of the street doing circles or "donuts," with its front wheels locked, creating a cloud of smoke.

Officer Price activated his emergency lights and siren in order to conduct a motor vehicle stop of the Camaro. The vehicle stopped its spin, straightened out, and then took off at a high rate of speed towards the police car. Price observed two male occupants in the Camaro when it passed him, one in the driver's seat and the other in the front passenger seat.

After passing the police car, the Camaro drove down Harrison Avenue, forcing other vehicles off of the road. At North 17th Street, the Camaro made a left, crossed Pierce Street and then attempted to turn left onto Wayne Street, a one-way street, going in the wrong direction. At that point, the Camaro hit a telephone pole at Wayne and North 17th Streets.

Price, the State's sole witness at trial, estimated that the Camaro was traveling at sixty miles per hour during the chase. Price never lost sight of the Camaro as it went through two stop signs without stopping. After the Camaro hit the pole and came to a stop, Price stopped his vehicle approximately two car lengths behind it and observed the driver exit the vehicle. Price exited his vehicle and pursued the fleeing driver on foot. The driver was apprehended a short distance away from the Camaro, between ten and thirty feet. Price's partner pursued the passenger, who had also exited the car and fled on foot, but was unsuccessful in apprehending him.

Price issued tickets to defendant for driving with a suspended license, leaving the scene of an accident, reckless driving, failure to signal a turn, unlawful letting off of a passenger and leaving a motor vehicle while it was running. At trial, Price identified defendant as the driver.

II

Defendant argues that the trial judge erred in denying his motion for a new trial. Specifically, defendant contends that he is entitled to a new trial because of newly discovered evidence that places in doubt the integrity of his conviction. We disagree.

Pursuant to R. 3:20-1, "[t]he trial judge on defendant's motion may grant the defendant a new trial if required in the interest of justice." The Court has held that, "[t]o meet the standard for a new trial based on newly discovered evidence, defendant must show that the evidence is 1) material, and not 'merely' cumulative, impeaching, or contradictory; 2) that the evidence was discovered after completion of the trial and was 'not discoverable by reasonable diligence beforehand'; and 3) that the evidence 'would probably change the jury's verdict if a new trial were granted.'" State v. Ways, 180 N.J. 171, 187 (2004) (quoting State v. Carter, 85 N.J. 300, 314 (1981)).

"Newly discovered evidence must be reviewed with a certain degree of circumspection to ensure that it is not the product of fabrication, and, if credible and material, is of sufficient weight that it would probably alter the outcome of the verdict in a new trial." Id. at 187-88. Specifically, motions for a new trial based solely upon affidavits are "disfavored because the affiants' statements are obtained without the benefit of cross-examination and an opportunity to make credibility determinations." Herrera v. Collins, 506 U.S. 390, 417, 113 S. Ct. 853, 869, 122 L. Ed. 2d 203, 227 (1993).

On a motion for a new trial, the trial judge has the feel of the case and is far better situated than an appellate court to assay credibility in those situations where credibility is pivotal. Dolson v. Anastasia, 55 N.J. 2, 7 (1969) (citation omitted). Accordingly, on appeal, we must take into account the views of the trial judge insofar as firsthand observation may be significant, but, having done so, it remains our duty to determine whether there was a manifest denial or miscarriage of justice. Id. at 8 (citation omitted). In other words, "the standard for appellate review of a trial court's decision on a motion for a new trial is substantially the same as that controlling the trial court, except that due deference should be afforded for its feel of the case, including credibility determinations." Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984). And, when the motion for new trial is based on newly discovered evidence, the court must conduct "a thorough, fact-sensitive analysis to determine whether the newly discovered evidence would probably make a difference to the jury." Ways, supra, 180 N.J. at 191.

Defendant's motion for a new trial was supported by an affidavit submitted by Felix Rodriquez claiming that he was the driver of the Camaro on April 11, 2003. Specifically, that affidavit, dated May 6, 2004, which was read into the record, reads:

Felix Rodriquez, being duly sworn, on his oath according to law deposes and says I am the petitioner in the following petition. The allegations in the petition are true to the best of my knowledge and belief and the said petition is made in truth, good faith and causes set forth therein. I, Felix Rodriquez, was the driver of the car. It started on 21st and Harrison and ended on 17th and Wayne. The car was a 1986 Chevy Camaro, white. I got out and got away. The reason I ran was because I was parole [sic] and I wasn't going back to prison. If you need me to ask me any more questions, please feel free to come and see me.

The events leading up to and following the execution of the affidavit are illuminating. In a certification submitted in support of the new trial motion, defendant's trial counsel stated, in pertinent part:

3. In substantial part, Mr. Lugo's defense was that he was not actually the operator of the vehicle which was alleged to have eluded the police. His assertion was that he was the passenger, and upon crashing into a telephone pole, the driver sprung from the car and fled on foot, while Mr. Lugo, the passenger was apprehended and incorrectly labeled as the driver.

4. As part of the Defense investigation, on October 29, 2003 my Firm retained a private investigator to locate and meet with an individual who was identified as Felix Rodriguez, who was purportedly the driver of the car in the incident in which Mr. Lugo was arrested during the incident in question.

5. On November 6, 2003 Investigator William Hancock from Agency Private Investigations, located a Felix Rodriguez at the Camden County Jail. Investigator Hancock made an appointment and interviewed Mr. Rodriguez on that date. During the interview, Mr. Rodriguez denied any involvement or even knowledge of the events leading to Mr. Lugo's arrest on the case at bar. Accordingly, Mr. Rodriguez was not called as a witness at trial.

6. On March 18, 2004, upon Mr. Lugo being convicted in the present case, bail was revoked and he was remanded to the Camden County Jail.

7. During his stay at the Camden County Jail, Mr. Lugo made contact with a Felix Rodriguez. This Felix Rodriguez was not the same individual that Investigator Hancock visited with on November 6, 2003, however they share the same name. This Mr. Rodriguez advised Mr. Lugo that he admits he was the driver of the vehicle on the night in question. He further advised Mr. Lugo that upon impact with the telephone pole, while eluding police, he (Mr. Rodriguez) jumped out of the vehicle and ran. Mr. Rodriguez further advised that he, not Mr. Lugo, should have been convicted of that offense.

8. Upon receiving this information, on May 4, 2004, my office contacted the attorney whom Mr. Rodriguez identified as representing him for his pending matters, Wayne Powell, Esquire, seeking permission to interview this Mr. Rodriguez. Upon speaking with Mr. Powell, I learned that Mr. Powell's Firm does not presently represent Mr. Rodriguez in his pending matters. Mr. Powell advised that his partner represented Mr. Rodriguez on previous matters, but since they do not represent him at the present time, they would have no objection for our investigator to speak with him.

9. To perform due diligence, on May 4, 2004, I contacted the Public Defender's Office to ascertain if they provided representation for Mr. Rodriguez. I was advised that Efrain Nieves, Esquire is his attorney. I left messages for Mr. Nieves to return my call on 5/4/04 and 5/5/04. Mr. Nieves returned my call at approximately 12:40 p.m. on 5/5/04 at which time he advised that he does represent Mr. Rodriguez. Mr. Nieves advised that he would make an appointment to meet with Mr. Rodriguez on Monday May 10, 2004. He also advised that after meeting with his client, he would contact me to discuss whether an investigator on behalf of Omar Lugo would be permitted to speak with his client.

These events were expanded upon during the May 28, 2004 argument on the new trial motion. When defendant spoke with Rodriguez in the jail, Rodriguez told defendant "that he would be available if needed to be called to court and he would give a statement if necessary." Accordingly, Rodriguez wrote a letter that was described on the record on follows:

On April 6, 2004, Mr. Rodriguez sent a letter, a copy of which I provided to both the Court and the State amplifying his interest in coming forward and admitting that he was the driver of the vehicle on April 11, 2003.

Now in the letter there's some language used loosely where Mr. Rodriguez refers to taking the weight for Mr. Lugo. And while that can be subject to multiple interpretations, the only case outstanding or pending for Mr. Lugo was this eluding case.

Remarkably, a copy of that letter was never placed into the record and is, therefore, unavailable for our review. In any event, the affidavit was thereafter prepared and executed on May 6, 2004, following Mr. Powell's advice that he did not represent Rodriguez. Finally, on May 10, after the affidavit was received, defendant's attorney spoke with Mr. Nieves, an attorney representing Rodriguez "on a homicide case." Nieves advised that Rodriguez "would not provide any further information regarding this matter and was no longer prepared to testify he was the driver." As a result, defense counsel agreed with the judge that if Rodriguez were, as a result of invoking his right against self-incrimination, unavailable to testify at a new trial, defendant would be left with only "the ability to read a hearsay affidavit to the jury assuming [the judge] were to find that it was a statement against his criminal interest and was, therefore, admissible."

Applying the three-part test of Carter, supra, the judge, and both parties, agreed that the first two prongs had been met, in that the evidence was material and was not discoverable by reasonable diligence before the trial. However, addressing the third prong, the judge queried:

How would the jury evaluate the credibility of Felix Rodriquez? He's not going to testify. All the jury's going to have is that affidavit. How do they evaluate the credibility of an affidavit?

Judge Baxter then made the following ruling:

The issue is whether newly discovered evidence is of the sort that would probably change the jury's verdict if a new trial were granted. So the issue is whether, assuming that Officer Price testifies in the same manner as he did, would the testimony of Felix Rodriquez - and I shouldn't say the testimony, - I should say the affidavit. Would that affidavit raise a reasonable doubt about the guilt of the defendant? Would it be sufficient to persuade the jury or to cause the jury to not be firmly convinced of guilt? Those are really the issues.

. . . .

The jury would, first of all, not have the ability to evaluate the credibility of Felix Rodriquez. All they would have would be the one paragraph affidavit in which he states he was the driver. That affidavit is, as the State points out, really devoid of any details of the chase or driving. He just describes the type of car and he gives that date. He doesn't say I began driving by doing doughnuts on the street. I tried to make a turn. I lost control of the car. He doesn't provide any of the evidentiary details that would tend to make that one paragraph statement reliable.

But beyond that it is, as the State indicates, provided more than a year after the arrest of Mr. Rodriquez. When - I'm sorry, after the arrest of [defendant]. When the girlfriend of [defendant] saw Felix Rodriquez the day after the event, he said I heard that your boyfriend Omar was arrested. He doesn't say I feel bad. I was the driver. He clearly had an opportunity to do so at that time and didn't. And, in fact, when he was interviewed by the defense investigator in November of '03 he continues to say that he wasn't the driver and doesn't know anything about the incident. Only after he comes face-to-face with [defendant] in the jail does he for the first time say I'm going to take the weight for this.

As I indicated, his letter saying he's going to take the weight from April 6th of '04 is devoid of any details. In other words, he doesn't show any knowledge of what offense he would be even taking the weight for which I think would cause a jury to be highly skeptical of his later claim in the affidavit that he was the driver. And notably in May he indicates that he's not having anything more to do with this matter and is not going to testify.

[Defendant] tells us in a letter sent to the Court, which I provided to both of you, [defendant] says that Felix Rodriquez said well, he felt sorry for me. Words to that effect. Let me see if I can find that particular part of it because that's important. I think if that were read to the jury, which it could very well be, the jury would be likely to conclude that the reason why Mr. Rodriquez got involved in the first place was because he felt sorry for [defendant], not because it was the truth that he was indeed the driver.

I think that he felt - I think the likely conclusion from this entire scenario where initially he denies any involvement and at the end he says he's not involved, only in the middle. Only when he makes this one affidavit, that's the only time that he says that he was the driver. That he did it because he felt sorry for [defendant].

. . . .

Mr. Rodriquez signed an affidavit on his own. There was no pressure from anyone for him to do so. But now all of a sudden he says he did it because he felt sorry for me. When the jury has no opportunity to evaluate the credibility of Felix Rodriquez, when all they have is a conclusory one paragraph affidavit, that is then measured against his failure to tell Jeanette Martinez he was the driver, his statement to the investigator in November of '03 that he wasn't involved, and then his later statement that he isn't going to be involved in this anymore. And, most notably, he's not going to come to court and testify on behalf of [defendant].

I think taking all of that into consideration, and especially relying on the fact his affidavit provides no details and it's not supplied until a year after the event, he had numerous opportunities prior to that to come forward and accept responsibility. I think under all of these circumstances, the evidence is not of a sort to probably change the outcome. I think, most likely, it is probably of a sort to be totally rejected by a jury. I think the result would clearly be different if Felix Rodriquez continued today to say I was the driver. If he was willing to come to court, testify, I think that would be an entirely different scenario. Where all we have is simply a one paragraph affidavit that would be read to a jury, given all the other circumstances which throw that statement into substantial doubt considering the entire factual scenario, I do not think that that one paragraph affidavit by itself is of a sort that would probably change the outcome of the trial.

I say that also because I remember and recollect the testimony of Officer Price. He was - I thought testified in a straightforward and credible manner. So taking all of that into consideration I do not find that that one paragraph affidavit, especially now that it has been repudiated as of the sort that would probably change the jury's verdict.

Accordingly, for that reason the motion for new trial is denied.

We are in agreement with Judge Baxter and affirm the denial of defendant's new trial motion substantially for the reasons she expressed in her oral opinion. We add the following brief comments.

In his brief, defendant argues that the judge improperly evaluated the impact of the new evidence, stating:

That alternative outcomes were probable was all that was needed. The trial judge was not supposed to interpose her interpretation of the evidence or her speculation as to which way the jury would go. That the evidence opened new doors was all that was needed.

This is not a correct statement of the law. Rather, the new evidence must be such as "would probably change the outcome of the case." Ways, supra, 180 N.J. at 195. "[T]he test is probability and not possibility." State v. Smith, 29 N.J. 561, 573, cert. denied, 361 U.S. 861, 80 S. Ct. 120, 4 L. Ed. 2d 103 (1959). Judge Baxter, as trial judge, had a unique "feel of the case" which we do not have, and applied the correct standard. Dolson, supra, 55 N.J. at 7. Her decision is unassailable.

As a result, we have no need to consider the State's argument that the second prong "was not necessarily met as the trial court and the parties assumed"; that it was an "unwarranted conclusion." This is, of course, directly contrary to the State's position before the trial court. In any event, we are satisfied that the second prong was met. While defendant must have had some knowledge of the driver's identity since he claimed to have been a passenger in the car, his counsel's certification suggested that he only knew the driver by a nickname, "J.D." Even so, when the name Felix Rodriguez surfaced, counsel did locate and interview someone by that name, only to be told by the individual that he was the wrong man. We cannot say that counsel did not exercise due diligence in attempting to locate the driver. Ways, supra, 180 N.J. at 192.

We are sensitive to the purpose of post-conviction review as "provide[ing] a safeguard in the system for those who are unjustly convicted of a crime." Id. at 188. In this case, we agree with the trial judge that the validity of the verdict was not "cast in doubt by evidence suggesting that [the] defendant may be innocent." Ibid.

III

As part of his new trial motion, defendant argued that the trial judge erred in permitting the jury to consider certain alleged motor vehicle violations and to use them as a basis for drawing a permissive inference that the eluding created a risk of injury or death to some person. N.J.S.A. 2C:29-2b. Specifically, defendant points to the motor vehicle violations involving improper letting off of a passenger and leaving a motor vehicle running, both of which were later dismissed by the judge after the verdict was returned. We agree with defendant, but not for the reason he has advanced.

To support the permissive inference provided by the eluding statute, the motor vehicle offenses must relate to some driving conduct which has a logical connection to the risk of injury or death. Neither improper dropping off nor leaving a motor vehicle running, both of which concerned activity occurring after the chase had ended, had such a connection. They should not have been charged for that reason. The judge recognized this requirement in instructing the jury that two other summonses, driving with a suspended license and leaving the scene without leaving proper identifying information, were to be disregarded because they had "nothing to do with safe or unsafe operation of a motor vehicle."

The same cannot be said of the other motor vehicle offenses for which defendant received summonses, reckless driving and failure to signal. We reject defendant's contention that the judge improperly charged the jury on those motor vehicle violations. With respect to the two offenses that should not have been charged, the error was harmless. R. 2:10-2; State v. Pillar, 359 N.J. Super. 249, 278-79 (App. Div.), certif. denied, 177 N.J. 572 (2003).

IV

Defendant contends that the trial court, "restricted the defense ability to call the second officer and specifically prohibited the defense from calling an investigator from the prosecutor's office." These contentions do not call into question the defendant's constitutional right to call witnesses.

First, as to defendant's claim that he was restricted from calling the second officer, the record indicates that the defense would not be calling the witness:

COURT: Counsel, before we ended on Tuesday, we were in the process of argument on the State's motion in limine to bar the defense from eliciting testimony about the disability retirement of Officer Borodziuk based upon post-traumatic stress disorder.

I understand, [defense counsel], that the defense will not be calling that witness and, therefore, there's no need to continue with the hearing, is that correct?

DEFENSE COUNSEL: That's correct, your Honor.

Defendant's claim that he was prohibited from calling an investigator from the Prosecutor's Office is similarly without merit. Judge Baxter determined that, based upon defendant's proffer, the witness's testimony was inadmissible. Specifically, defendant wanted to ask the investigator about inconsistencies in the police reports. The court responded that whether "Janet Jordan investigated an inconsistency or not . . . [did not have] any relevance to whether the State has proven beyond a reasonable doubt that . . . [defendant] eluded the police." The judge barred the proffered testimony of Investigator Jordan because it was irrelevant for several reasons, including that it would elicit hearsay and would get "into the internal investigative processes of the . . . Prosecutor's Office."

"'Relevant evidence' means evidence having a tendency to prove or disprove any fact of consequence to the determination of the action." N.J.R.E. 401. Whether evidence is relevant "is tested by the probative value the evidence has with respect to the points at issue." State v. Hutchins, 241 N.J. Super. 353, 358 (App. Div. 1990). The trial court's discretion to make relevance determinations is broad and will be afforded substantial deference on appeal. See State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001); State v. E.B., 348 N.J. Super. 336, 344 (App. Div.), certif. denied, 174 N.J. 192 (2002). Defendant fails to establish that Judge Baxter's ruling on this evidentiary determination constituted an abuse of discretion.

V

Defendant argues that his trial counsel was ineffective because he made numerous errors. We decline to address this contention, as it should be addressed in an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 459-60 (1992).

VI

Defendant was sentenced to an eight-year term of imprisonment. He argues that the trial judge improperly relied on his prior record to impose a sentence higher than the presumptive.

In sentencing defendant, Judge Baxter found the following aggravating factors: risk that defendant would commit another crime (three); extent of defendant's prior record (six); and the need for deterrence (nine). As for mitigating factors, the judge found that the character and attitude of the defendant indicate that he is unlikely to commit another offense (nine). After weighing the factors qualitatively and quantitatively, Judge Baxter determined that the aggravating factors "do slightly outweigh the mitigating and [an] upward adjustment I find from the presumptive sentence is necessary." She then imposed an eight-year sentence.

It is unnecessary to address defendant's arguments because the sentence must be remanded for reconsideration in light of Natale II, supra, decided after the sentencing in this case. Judge Baxter formulated defendant's sentence with reference to the presumptive term, finding that a slight upward adjustment from the presumptive was warranted. Presumptive sentencing terms, as set forth in N.J.S.A. 2C:44-1f(1), have been eliminated. Id. at 487. Under the new sentencing regime, judges will continue to balance the aggravating and mitigating factors, but they will no longer be required to do so from the fixed point of a statutory presumptive. Whether the new assessment will have any effect on defendant's sentence will be for Judge Baxter to decide.

Conviction affirmed; remanded for resentencing.

 

Within his argument concerning the charge, defendant also urges that the judge improperly allowed testimony about other conduct that might violate motor vehicle laws, failing to stop for a stop sign, speeding, "smelling of alcohol." These arguments have not been included in a Point heading, R. 2:6-2a(5), and are not elaborated upon in the brief. We will not consider them.

(continued)

(continued)

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A-6556-03T4

March 24, 2006