STATE OF NEW JERSEY v. YUSEF GRESHAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6629-03T46629-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

YUSEF GRESHAM,

Defendant-Appellant.

________________________________________________________________

 

Submitted December 14, 2005 - Decided May 5, 2006

Before Judges Fall and Parker.

On appeal from the Superior Court of New Jersey,

Law Division, Bergen County, Indictment No.

03-06-1286.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Wroblewski, Designated

Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Catherine A. Foddai,

Assistant Prosecutor, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant appeals from a judgment of conviction entered after a jury found him guilty of third degree receipt of a stolen motor vehicle, N.J.S.A. 2C:20-7; and second degree eluding a police officer in a motor vehicle, N.J.S.A. 2C:29-2b. Defendant was sentenced to an aggregate term of fifteen years subject to seven years parole ineligibility to be served consecutive to sentences he was then serving.

These charges arose out of an incident that occurred on January 18, 2003, when Trevaughn Johnson left his 1990 Honda with license plate number DL1 666 parked at 32nd Street and 18th Avenue in Paterson. The next morning, the car was gone and reported stolen. On January 19, 2003, South Hackensack Police Officer David Agar was on routine patrol checking the license plates on cars parked at the Super 8 Motel. One of the license plates was DL1 666 on Johnson's stolen Honda. The motel office was unable to provide Agar with a registration card claiming ownership of the Honda. He then returned to his patrol car and began surveillance of the stolen vehicle. An hour later, Agar saw a man, later identified as defendant, and a woman leave room 115 and get into the Honda. Agar radioed headquarters for backup. As the Honda pulled out of the parking space, it came nose-to-nose with Agar's patrol car. When Agar got out of his patrol car, the Honda accelerated suddenly and drove straight toward Agar's patrol car. Agar jumped back into the patrol car and defendant sped away down U.S. Route 46.

Officer Robert Chinchar responded to Agar's call for backup and pursued the stolen Honda on Route 46, with lights and siren activated. The chase continued through six Bergen County towns with defendant driving on shoulders of the roads and weaving through traffic. At one point, defendant squeezed past a car, knocking its mirror off.

Saddle Brook Police Officer David DeGannaro joined the pursuit with his lights and siren activated after hearing the radio transmissions. At times, DeGannaro reached seventy-five miles per hour while pursuing defendant, but did not catch him.

While the two officers were chasing defendant, Agar went into the Super 8 Motel office and retrieved the registration card for room 115. The card was signed by "Yakeem Grenshaw" and did not contain any motor vehicle information. The back of the registration card had a photocopy of defendant's identification, including a photograph.

On January 20, 2003, Passaic Police Officer Thomas Longo was called to investigate an abandoned car, which turned out to be the Honda. The ignition was damaged, the radio was missing and there were minor dents and scratches on the exterior.

South Hackensack Detective Sergeant Robert Kaiser later identified defendant as the person whose picture was on the motel registration card and defendant was arrested. Upon investigation, it was determined that defendant's driver's license had been suspended in April 1995 and not restored.

In the brief submitted by counsel, defendant argues:

POINT ONE

THE TRIAL COURT IMPERMISSIBLY DENIED THE DEFENSE REQUEST FOR A HEARING OUTSIDE THE PRESENCE OF THE JURY CONCERNING THE IDENTIFYING PROCEDURES, DENYING THE DEFENDANT DUE PROCESS OF LAW.

POINT TWO

THE IN-COURT IDENTIFICATION OF MR. GRESHAM SHOULD HAVE BEEN EXCLUDED BECAUSE THE PHOTOGRAPHIC IDENTIFICATION USED WAS SO IMPERMISSIBLY SUGGESTIVE THAT IT GAVE RISE TO A SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION.

POINT THREE

THE TRIAL COURT IMPERMISSIBLY ADMITTED INTO EVIDENCE A REGISTRATION CARD FROM THE MOTEL IN VIOLATION OF MR. GRESHAM'S RIGHT TO DUE PROCESS OF LAW (Not raised below).

POINT FOUR

THE TRIAL COURT IMPROPERLY ALLOWED THE JURY TO HEAR EVIDENCE OF MR. GRESHAM'S PRIOR DRIVER'S LICENSE SUSPENSION, THEREBY DENYING HIM A FAIR TRIAL AND HIS RIGHT TO DUE PROCESS OF LAW.

POINT FIVE

NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL UNDER THE 14TH AMENDMENT AND ARTICLE 1, PARAGRAPH 10 OF THE NEW JERSEY CONSTITUTION (Not raised below).

POINT FIVE B

THE PROSECUTOR'S QUESTION TO OFFICER AGAR REGARDING THE CERTAINTY OF HIS IDENTIFICATION AND HIS COMMENT ON SUCH IN HIS SUMMATION DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

POINT SIX

THE TRIAL JUDGE COMMITTED FUNDAMENTAL ERROR BY PERMITTING SERGEANT KAISER TO COMPARE THE DEFENDANT'S SIGNATURE WITH THE SIGNATURE OF THE MOTEL REGISTRATION CARD, DEPRIVING DEFENDANT OF DUE PROCESS OF LAW.

POINT SEVEN

THE EXTENDED TERM SENTENCE IMPOSED BY JUDGE CONTE WAS AN ABUSE OF DISCRETION AND WAS UNDULY EXCESSIVE.

POINT EIGHT

THE SENTENCE IMPOSED BY JUDGE CONTE WAS UNCONSTITUTIONAL AND THE DEFENDANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO HAVE A JURY DETERMINE THE ESSENTIAL FACTS FOR IMPOSITION OF AN EXTENDED STATUTORY TERM.

In the first three points of counsel's brief, defendant challenges the identification procedure and the admission of the motel registration card into evidence at trial. We find insufficient merit in these arguments to warrant lengthy discussion in a written opinion. R. 2:11-3(e)(2). Nevertheless, we add the following comments.

Identification was not a material issue in this case. Agar clearly saw and identified defendant when defendant left the motel room and drove the Honda at Agar in the Super 8 parking lot. The motel registration card was relevant to the identification issue and properly admitted with Agar's testimony because he had first-hand knowledge of the document and how it was obtained. Moreover, motel/hotel registration cards are maintained in accordance with N.J.S.A. 29:4-1, which prescribes the information required and the manner in which the registration shall be maintained. We are satisfied that under the circumstances, defendant's failure to object to the admissibility of the card at trial indicates that there was no perceived prejudice to defendant. Moreover, we see no undue prejudice accruing to defendant because the card contained information provided by him to the motel. He did not challenge any of the information on the card or claim that it was other than he provided. Consequently, we find no plain error in its admission into evidence. R. 2:10-2.

Defendant next argues in counsel's brief that evidence of his driver's license suspension should not have been admitted. We find no merit in this point either. R. 2:11-3(e)(2). The suspension of defendant's driver's license was relevant to the eluding charge because, notwithstanding the stolen vehicle, it provided a motive for his running away.

In counsel's brief, defendant further contends that there were "numerous instances of prosecutorial misconduct." Defendant actually points to two instances of alleged misconduct and he failed to object to either at trial. We note initially that when no objection is made, we presume that defense counsel did not believe the remarks to be prejudicial. State v. Frost, 158 N.J. 76, 84 (1999). Failure to make an appropriate objection deprives a trial judge of an opportunity to take curative measures. State v. Bauman, 298 N.J. Super. 176, 207 (App. Div.), certif. denied, 150 N.J. 25 (1997). It also limits our standard of review to a consideration of whether the comments were plain error clearly capable of producing an unjust result. R. 2:10-2.

Prosecutors play a unique role in the criminal justice system, in that their duty is not to zealously obtain convictions, but rather to ensure that justice is done. State v. Ramseur, 106 N.J. 123, 320 (1987) (citing State v. Farrell, 61 N.J. 99, 104 (1972)). Nonetheless, this duty does not "preclude the prosecutor from making a 'vigorous and forceful presentation of the State's case.'" Ramseur, supra, 106 N.J. at 320 (quoting State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958)).

Defendant objects to the prosecutor's reference to Officer Agar as a "trained eyewitness" and to his "training" in observation. He argues that the prosecutor's remarks respecting these points "misled [the jury] to believe that Officer Agar was specially trained to make observations in such situations as this."

Defendant's reliance on State v. Staples, 263 N.J. Super. 602 (1993), is misplaced. There, the defendant was charged with cocaine distribution in a school zone. "The defense to the prosecution was that the State's case against defendant was manufactured by the police because one of the arresting officers . . . had a grievance against defendant." Id. at 604. The trial focused "on the issue of credibility and on defendant's contention that [the officer] had a motive to lie." Ibid. "In summation, the prosecutor undertook to compare defendant's credibility to that of the police witnesses" and stated with respect to the officer: "I am sure that he would not put his career and everything that comes with it on the line by coming here and testifying falsely." Id. at 605. We reversed, holding that "[a] prosecutor may not express a personal belief or opinion as to the truthfulness of his or her witness's testimony." Ibid. (citing State v. Marshall, 123 N.J. 154, 156 (1991)).

Defendant argues that Staples expressly prohibits the prosecutor's "suggest[ion] that the police are more credible simply because of their status as police." We disagree with defendant's argument in this instance because the prosecutor's reference to the officer's training does not equate to the prosecutor's statement in Staples.

Moreover, defense counsel's summation focused in large part on questioning the reliability of Officer Agar's identification of defendant in the motel parking lot. Defendant's closing arguments are relevant to the issue of prosecutorial misconduct when the prosecutor's remarks are a response to defendant's. United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1044, 84 L. Ed. 2d 1, 10 (1985). "[I]f the prosecutor's remarks were 'invited,' and did no more than respond substantially in order to 'right the scale,' such comments would not warrant reversing a conviction." Id. at 13; State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001).

The second instance of alleged misconduct arose after Agar identified defendant as the perpetrator. The prosecutor asked him to quantify, on a scale of one-to-ten, how certain he was of the identification. Agar responded, "Ten." Defendant claims this question is "misleading and very prejudicial" because the "jury very likely did not give the issue of identification the careful, deliberate consideration required." We reject defendant's argument. The prosecutor's confirmation of a witness's certainty on identification is neither misleading nor unduly prejudicial. We have carefully reviewed the record, and we are satisfied that the prosecutor's statements fall far short of prosecutorial misconduct. We find no error, much less plain error. R. 2:10-2.

In counsel's brief, defendant next argues that the trial court erred in allowing Sergeant Kaiser to compare defendant's signature on the motel registration card with defendant's signature on another document. The prosecutor expressly noted that Sergeant Kaiser was not an expert witness before asking his opinion as to whether defendant's signature was similar to the signature on the hotel registration card. N.J.R.E. 701 allows a lay witness to give an opinion if it is "(a) rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue." Kaiser's testimony was consistent with N.J.R.E. 701 and its admission was not error.

The final two arguments in counsel's brief address defendant's sentence. On the second degree eluding charge, defendant was sentenced to ten years plus a five year extended term for an aggregate sentence of fifteen years. The extended term was based on a finding of no mitigating factors to counterbalance aggravating factors three, six and nine. N.J.S.A. 2C:44-1(a)(3), (6) and (9). Defendant argues that the extended term was "unduly excessive."

In State v. Young, 379 N.J. Super. 498, 510 (App. Div. 2005), we held that a judge's decision to impose an extended term based on a defendant's prior criminal history falls within the "recidivism exception" to Blakely v. Washington, 542 U.S. 296, 301, 124 S. Ct. 2531, 2536, 159 L. Ed. 2d 403, 412 (2004), and passes constitutional muster. Here, defendant's sentence falls within the "recidivism exception" as well.

In a pro se supplemental brief submitted by defendant on March 31, 2006, he argues:

POINT ONE

TRIAL COURT ALLOWED THE JURY TO INFER THAT DEFENDANT'S CONDUCT CREATED A RISK OF DEATH OR INJURY IF HIS CONDUCT VIOLATED ANY OF THE MOTOR VEHICLE OFFENSES OUTLINED IN CHAPTER 4 OF TITLE 39, AND SUCH RISK IS AN ELEMENT OF THE SECOND-DEGREE CRIME OF ELUDING. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO DEFINE AND DELIMIT THE UNDERLYING MOTOR VEHICLE OFFENSES (Not Raised Below).

For the first time, defendant argues pro se "that the trial court committed reversible error for failure to adequately instruct the jury on pertinent evidence, as it related to the findings of second-degree eluding, as opposed to third-degree eluding, based on the failure to inform the jury of the enumerated traffic offenses obtain[ed] in the course of fleeing and/or flight."

Here, the trial judge charged the jury on the elements of third degree eluding. He then moved to the second degree offense:

To find the defendant guilty of second-degree eluding the State must additionally prove to you beyond a reasonable doubt, that the flight or attempt to elude created a risk of death or injury to any person.

"Injury" means physical pain, illness or any impairment of physical condition.

In order to find this element, you must determine that there was at least one person put at risk by the defendant's conduct, including persons along the chaser route, police officers in the chasing vehicles, or persons in the eluding vehicle.

You may infer risk of death or injury to any person if the defendant's conduct in fleeing or attempting to elude the officer involved a violation of the motor vehicle law[s] of this state.

In this case it is alleged that defendant's conduct involved violations of motor vehicle laws.

Before getting into specific motor vehicle violations that defendant is alleged to have committed, I'd first like to define for you the term "highway" as used in the Motor Vehicle Code. Highway means the entire width between the boundary lines of every way publicly maintained when any part thereof is open to the use of the public for the purposes of vehicular traffic.

Whether defendant is guilty or not guilty of these motor vehicle violations will be determined by an appropriate Court. In other words, it is not your job to decide whether he is guilty or not guilty of the motor vehicle offenses. However, you may consider the evidence that he committed any one of the motor vehicle offenses in deciding whether he created a risk of death or injury.

At the same time, remember you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts or circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish.

In summary, if you find the State has proven beyond a reasonable doubt all seven elements of the offense, then you must find the defendant guilty of the second degree crime of eluding an officer. On the other hand, if you are [to] find that the State has failed to prove the seventh element beyond a reasonable doubt, but has proven the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of second degree eluding but guilty of third degree eluding.

In State v. Dorko, 298 N.J. Super. 54, 59 (App. Div.), certif. denied, 150 N.J. 28 (1997), we held in a second degree eluding case "that the failure of the court to charge the elements of the applicable motor vehicle statutes was [] reversible error." In addition to not being charged on the motor vehicle offenses, "[t]he jury was never told what the word 'injury' meant in the phrase 'death or injury.'" Id. at 57. We found that "[t]his created a significant problem in that the jury could have speculated concerning the extent of an injury that would satisfy the statute, or even whether property damage was sufficient to turn the crime from one of third-degree into one of second-degree." Id. at 57-58. Thus, the reversal in Dorko was based on the trial court's failure to charge the jury on either of the two issues bearing on the elevation of eluding from a third to a second degree offense.

In State v. Wallace, 158 N.J. 552, 558 (1999), the Supreme Court held "that in a second-degree eluding case, the jury must be instructed that the term 'injury' means bodily injury as defined in N.J.S.A. 2C:11-1a." Ibid. The Court found, however, that "[t]he failure to define the term 'injury' for the jury . . . was harmless error" because "[t]he case was tried on the theory that because defendant violated our traffic laws, his eluding created a rebuttable inference that the flight or attempt to elude posed a risk of death or injury to any person within the meaning of N.J.S.A. 2C:29-2b," and the trial court "instructed the jury on each element of the . . . motor vehicle offenses with which defendant had been charged." Id. at 558-59.

While the eluding statute allows "a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of" motor vehicle statutes, it does not require references to specific motor vehicle offenses. N.J.S.A. 2C:29-2b. The Court in Wallace indicated that either the N.J.S.A. 2C:11-1a definition of "injury" or the motor vehicle offenses was sufficient for a jury charge on second degree eluding. Moreover, the court rejected defendant's argument

that if the [statutorily] permissible inference of N.J.S.A. 2C:29-2b is unavailable, the prosecutor must prove that some member of the public was in the vicinity of the chase caused by the eluding vehicle. We are satisfied that the Legislature intended to protect all persons by the eluding statute, including the police officers occupying the chasing vehicle and any persons in the eluding vehicle, as well as any people who could potentially be exposed to injury or death along the chase route. In our view, the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others.

[Id. at 560.]

The Court noted that "the evidence of the time of day of defendant's chase, the residential or commercial character of the neighborhood, and the volume of traffic all circumstantially demonstrate that people were likely to be in the area and that they were put at risk of death or injury by defendant's eluding." Ibid.

Where a defendant fails to object to a jury charge at trial, we may presume that defense counsel perceived no prejudice in the charge as given. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Macon, 57 N.J. 325, 337 (1971). In the absence of an objection, we will reverse only if we find plain error. R. 2:10-2. Plain error, in the context of a jury charge, is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Generally, "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Afanador, supra, 151 N.J. at 54. However, when ultimately passing upon the propriety of a trial judge's instruction, we must examine the entire charge to see if it was ambiguous or misleading in the context of the trial, thereby prejudicing defendant. State v. Hipplewith, 33 N.J. 300, 317 (1960).

Here, the evidence demonstrated that defendant drove the stolen Honda directly at Officer Agar, the chase continued through six Bergen County towns at speeds up to seventy-five miles per hour on shoulders of the roads and weaving through traffic and, in one instance, defendant squeezed so close to another car that he knocked its mirror off. We are satisfied that the evidence, in conjunction with the jury charge defining "injury" pursuant to N.J.S.A. 2C:11-1a, was sufficient to support the jury verdict on second degree eluding.

Affirmed.

 

N.J.S.A. 2C:11-1a defines "Bodily Injury" as a "physical pain, illness or any impairment of physical condition."

(continued)

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A-6629-03T4

May 5, 2006