STATE OF NEW JERSEY v. ANDREW LIGE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4257-05T24257-05T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDREW J. LIGE,

Defendant-Appellant.

_________________________________

 

Submitted: September 10, 2007 - Decided:

Before Judges Collester and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, 03-03-383.

Robin Kay Lord, attorney for appellant (Ms. Lord and Richard W. Berg, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for respondent (Maura K. Tully, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Andrew J. Lige was charged in a three-count indictment with third-degree possession of cocaine in violation of N.J.S.A. 2C:35-10(a)(1), second-degree possession of cocaine with intent to distribute in violation of N.J.S.A. 2C:35-5(a)(1) and -5(b)(2), and fourth-degree tampering with physical evidence (cocaine) in violation of N.J.S.A. 2C:28-6(1). Defendant moved to suppress the cocaine evidence but the motion judge denied his motion on January 14, 2004. The motion judge set the matter down for trial on June 21, 2004. Defendant appeared that day for the pretrial proceedings. However, he failed to return the following day for trial, and the court proceeded in absentia.

On June 24, 2004, the jury returned a unanimous verdict on the third-degree possession charge and the fourth-degree tampering charge, but was unable to reach a verdict on the second-degree intent-to-distribute charge. The trial judge declared a mistrial, scheduled retrial for September 14, 2004, and issued a bench warrant for defendant's arrest. The defendant was not arrested before April 14, 2004, and did not appear for trial. The second trial judge proceeded with the trial, again in absentia. This time the jury convicted defendant on all three counts.

When law enforcement authorities eventually arrested defendant on the bench warrant, defendant moved for a new trial on the ground that the trial in abstentia was unconstitutional. The State cross-moved for extended-term sentencing. The second trial judge denied defendant's motion and granted the State's motion on April 13, 2006. Defendant was immediately sentenced. The judge merged the conviction for third-degree possession with the conviction for second-degree possession with intent to distribute. He imposed a term of fourteen years with a seven-year parole disqualifier and related penalties and fees. On the fourth-degree tampering conviction, the judge imposed a term of eighteen months consecutive to the fourteen-year term. This appeal followed.

The operative facts may be summarized briefly. While Lakewood Officer Michael Zwick and Officer Thomas Langenberger were investigating an unrelated incident at the Blue Pines rooming house, Zwick saw Dennis Singleton, who was known to Zwick from prior investigations. Langenberger also recognized Singleton from a photograph Zwick previously showed him. After leaving the Blue Pines Zwick asked dispatch to check for warrants against Singleton. Dispatch advised that there was one outstanding warrant from East Windsor.

While waiting for the warrant information, the officers observed Singleton leave the Blue Pines in the company of defendant, who was not known by the officers. Singleton and defendant walked west on Third Street and then turned south on Route 9. Each officer got into his patrol car, with Langenberger following the two men and Zwick taking another route to approach the men from the opposite direction via First Street. Langenberger had the two men in sight when they turned east on First Street through a Sovereign Bank parking lot. Langenberger drove into the parking lot to the east of the two men and drove toward them. The two men turned in the opposite direction and crossed over to the south side of First Street. At this point Zwick drove up behind Langenberger and both officers parked their patrol cars. As the officers stepped out of their cars, defendant ran behind the bank building.

Langenberger, who had already radioed the Lakewood police dispatcher to advise of the pursuit in progress, now radioed that they had a "runner." Langenberger then ran after the man, who he initially assumed was Singleton because that was the person with the outstanding warrant. However, as he was running he saw Singleton standing still and he stopped and arrested him. Langenberger called out to Zwick that he had Singleton and Zwick confirmed the identification.

In the meantime, another Lakewood officer, Thomas D'Elia, responded to Langenberger's call and arrived in the vicinity of the pursuit. He observed Zwick and Langenberger get out of their vehicles and saw defendant run. D'Elia pursued defendant in his patrol car, believing that he was following Singleton. D'Elia pulled up beside defendant and ordered him to stop, but defendant ran toward Route 9. D'Elia chased on foot and defendant ran through the bank parking lot between the lines of cars waiting to reach the drive-up window. D'Elia apprehended defendant at the corner of Route 9 and North Lake Drive and awaited the arrival of Langenberger and another Lakewood officer. Langenberger advised the officers that Singleton had already been apprehended. He then advised defendant that he was under arrest for disorderly conduct and obstructing traffic and said that defendant would be transported to headquarters and issued a summons for those offenses.

Once defendant was secured, Langenberger and D'Elia retraced defendant's steps. In the bank parking lot they found what was later confirmed to be three rocks of crack cocaine. At this point, a bank customer, Arthur Rosky, approached the officers and advised them that he had seen defendant with a softball-size package in his hand containing a whitish or cream-colored substance. He also stated that he saw defendant breaking off pieces, "chipping it on the ground" or throwing it on Rosky's car as he ran. He also stated that he observed defendant run toward Route 9 with D'Elia in hot pursuit. The Lakewood officers examined the bank's parking lot and, in all, found over twenty ounces of crack cocaine.

Defendant raises the following issues on appeal:

POINT I - THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTIONS, AND THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Partially raised below)

POINT II - THE TRIAL COURT'S TRUNCATED JURY INSTRUCTION ON IDENTIFICATION CONSTITUTED REVERSIBLE ERROR.

POINT III - THE TRIAL OF DEFENDANT IN ABSENTIA WITHOUT ACTUAL NOTICE VIOLATED HIS CONSTITUTIONAL RIGHTS PURSUANT TO THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION AND N.J. CONST. 1947., ART. I, 10, AND ALSO CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.

POINT IV - POLICE PURSUIT AND SEIZURE OF DEFENDANT VIOLATED HIS CONSTITUTIONAL RIGHTS UNDER THE 4TH AMENDMENT OF THE UNITED STATES CONSTITUTION AND N.J. CONST., ART. 1, 7, AND ANY RESULTING SEIZURE OF EVIDENCE WAS FRUITS [SIC] OF THE ILLEGAL ARREST. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

POINT V - THE SENTENCE IMPOSED WAS MANIFEST-LY EXCESSIVE, ILLEGAL, AND UNCONSTITUTIONAL.

At the suppression hearing, the motion judge determined from the totality of the circumstances that D'Elia had a reasonable, articulable suspicion that defendant was involved in criminal activity, authorizing an investigatory stop. The judge noted that D'Elia was expected "to investigate any potential criminal activity that might be taking place at the scene and, thus, initiate an investigatory stop of the one individual who took flight at the sight of the advancing police." This suspicion, he found, was heightened when D'Elia pulled up to defendant, ordered him to stop and then saw him flee again. The judge concluded that a search of the public grounds where defendant had been standing was justified as part of the investigatory stop. Finally, he concluded that defendant had no constitutionally protected privacy interest in the bank's parking lot and, thus, was not entitled to suppression of the evidence.

We have recognized that that a mistaken identification does not impair the validity an arrest if the police officer reason-ably believed that he was arresting the person who was the subject of the warrant. State v. Green, 318 N.J. Super. 346, 352-53 (App. Div. 1999). The motion judge was required to determine if the officer's belief was objectively reasonable in light of the facts known to the officer at the time. State v. Bruzzese, 94 N.J. 210, 219-21 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). "This reason-ableness test may be satisfied even though the police have made a mistake in executing a warrant." Green, supra, 318 N.J. Super. at 354. As in Green, defendant here fled when he saw the police. Any reasonable officer would conclude from this flight that defendant was Singleton trying to avoid an arrest on the warrant. Indeed, once defendant refused to stop when he was ordered to do so by D'Elia, the officer had probable cause to arrest him for obstructing the administration of justice contrary to N.J.S.A. 2C:29-1(a). State v. Crawley, 187 N.J. 440, 451-52, cert. denied, ___ U.S. ___, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006).

Inasmuch as the arrest was valid, the motion judge was not required to suppress the evidence of the cocaine. Even if the arrest was invalid, suppression of the cocaine evidence is not warranted. Defendant had no constitutionally protected right to privacy with respect to the cocaine he threw to the ground in the bank's parking lot. State v. Sharpless, 314 N.J. Super. 440, 454 (App. Div.) (no expectation of privacy in mound of dirt in a public street), certif. denied, 157 N.J. 542 (1998). As a consequence, defendant has no standing to seek suppression of the cocaine evidence. We are satisfied that the motion judge did not err in denying the suppression motion on this ground.

We are also satisfied that defendant waived his right to be present at his trial. After declaring a mistrial, the first trial judge observed that he could not schedule a status date because defendant was a fugitive. However, he concluded that a status date would not be required by State v. Hudson, 119 N.J. 165 (1990), so long as he set a trial date immediately. Accordingly, he scheduled the retrial for September 14, 2004.

Defendant's counsel advised the court on the date set for retrial that she had no knowledge of defendant's whereabouts and had exhausted every avenue known to her to contact him. She objected to conducting the trial in his absence. The State argued that defendant had received his Hudson notice and chose to absent himself from the first trial. The second trial judge read the acknowledgment signed by defendant on March 5, 2004, a portion of which says:

I've been advised of my right to be present at the trial of this case. If I fail to appear for trial on the date scheduled for a trial, the Court has a right to conduct the trial in my absence. If my case is not reached for trial on that date, the Judge will schedule a new trial date. If I am not present on the original trial date or any rescheduled trial date, the trial will proceed without me and I will be bound by the jury's verdict.

Above the acknowledgment was the June 21, 2004, trial date. Another document signed by defendant contained the same acknowledgment. The judge concluded that defendant had waived his right to be present pursuant to R. 3:16(b) and proceeded with the second trial.

After he was apprehended but before sentencing, defendant moved for a new trial, arguing that he should not have been tried in absentia because there was no witness in frail health or about to die. He also urged that there had to be some finding of an extraordinary circumstance to justify trial in his absence and that an insufficient effort was made to give him notice of the second trial date. The sentencing judge denied the motion for a new trial on the ground that defendant had not "carried his burden of demonstrating that his absence was not a knowing and voluntary waiver."

The right of a criminal defendant to be present at trial has constitutional dimensions.

A criminal defendant's right to be present at trial is grounded in the [federal and state] constitutional right to confront witnesses. The constitutional nature of this right, however, does not preclude its waiver. A criminal defendant can waive constitutional rights, including the right to counsel, the right to a trial by jury, and the right to remain silent.

[State v. Morton, 155 N.J. 383, 434-35 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001) (other citations omitted).]

See also State v. Finklea, 147 N.J. 211, 222 (1996), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63 (1997). A defendant's voluntary absence from trial after attending its opening, as here, may be deemed a valid waiver of the constitutional right to be present. Taylor v. United States, 414 U.S. 17, 19-20, 94 S. Ct. 194, 195-96, 38 L. Ed. 2d 174, 177-78 (1973). The validity of a waiver is to be based upon the specific facts of each case. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S. Ct. 1019, 1023, 82 L. Ed. 1461, 1466 (1938).

R. 3:16(b) provides in pertinent part:

The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, unless otherwise provided by Rule. Nothing in this Rule, however, shall prevent a defendant from waiving the right to be present at trial. A waiver may be found either from (a) the defendant's express written or oral waiver placed on the record, of (b) the defendant's conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgment of the trial date, or (2) trial has commenced in defendant's presence.

In Hudson, supra, 119 N.J. at 181-82, the Supreme Court determined that commencement of jury selection was not the sine qua non of a waiver of the right to be present at trial. Rather, a waiver may be based on absence before the trial actually starts, as here when defendant absented himself after the initial pretrial proceedings that took place on the first day of trial prior to jury selection. Ibid. (delineating the type of notice required prior to finding a waiver of the right to be present at trial).

Defendant was given the notice required by the rule as revised following the Hudson decision. He signed two written acknowledgments, one of the trial date and the other that if he failed to appear the trial could proceed without him. He appeared on the trial date and attended the initial proceedings, but he did not return for jury selection. In Finklea our Supreme Court held that notice of an adjourned trial date is not required when the defendant fails to appear at the first trial date. Finklea, supra, 147 N.J. at 219. It reached this conclusion because:

If a defendant does not appear in court for trial after being informed in court of the trial date and supplemental notification by defense counsel, a requirement that the trial court must give notice of an adjourned date would vest in a defendant the power to prevent the trial from proceeding until the defendant is willing to appear. Neither constitutional law, nor our rules of criminal procedure, require such extreme measures.

[Ibid.]

Actual notice of the original trial date is all that is required. Ibid.; see also State v. Dwight, 378 N.J. Super. 289, 294-96 (App. Div.) (holding that a waiver of the right to be present at trial by failure to appear on the original trial date applies to any retrial after a mistrial), certif. denied, 185 N.J. 391 (2005). We find no mistaken exercise of discretion on the part of the first or second trial judge in deciding to proceed in absentia. Defendant absented himself for almost two years before he was apprehended, all the while knowing that he had failed to return to court for the first trial.

At the retrial after both sides rested, defendant sought an identification charge to the jury. The second trial judge agreed because the State has to prove that defendant was the perpetrator. He gave the following charge:

For you to find this defendant guilty, the State must prove beyond a reasonable doubt that this defendant, Andrew Lige, is the person who committed the crime. The defendant has neither the burden nor the duty to show that the crime, if committed, was committed by someone else or to prove the identity of that other person.

You must determine, therefore, not only whether or not the State has proved each and every element of the [of]fense charged beyond a reasonable doubt, . . . but [you] must also be satisfied that the State has proved beyond a reasonable doubt that this defendant, Andrew Lige, is the person who committed it.

Defendant contends that this charge was erroneous because the judge excluded a significant portion of the model charge. Specifically, the judge deleted the portion of the charge relating to identification of defendant on an occasion prior to trial. However, defendant did not specifically seek to have that portion of the charge given and did not object to the charge afterwards. As a consequence, we review the charge under the plain error standard. R. 2:10-2. "[P]lain error requires demonstration of 'legal impropriety in the charge prejudicially affecting the substantial rights of the defendant and 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. Chapland, 187 N.J. 275, 289 (2006) (citation omitted).

Here, there was no testimony respecting any identification on an occasion prior to trial. As a result, that portion of the model charge was not appropriate. It certainly was not plainly erroneous to exclude it. Identification was not a central issue in this case. Defendant was apprehended at the scene of the crime after a foot chase during which D'Elia never lost sight of him. The identification instruction given here was sufficient to inform the jury that the State had the burden of proving that defendant was the individual who committed the crime. State v. Cotto, 182 N.J. 316, 327 (2005).

After the State rested during the second trial, defendant moved for a judgment of acquittal with respect to the evidence-tampering conviction. Defendant argued that there was no evidence of tampering because he merely threw an object when the police were approaching. The State argued that there was indeed tampering because not all of the cocaine was recovered. Langenberger testified that cocaine had been crushed into the ground and could not be picked up. Additionally, some of the cocaine on the ground was dissolving in the rain. The second trial judge denied the application on the ground that the jury could infer from defendant's conduct in breaking smaller pieces off the softball-sized piece of cocaine that it was his intent or purpose to conceal or destroy evidence and, in fact, evidence was destroyed.

Defendant also contends on appeal that the evidence was insufficient to convict defendant of any of the offenses for which he was indicted and that the verdict was against the weight of the evidence. He bases these contentions on the absence of any testimony that the State's witnesses had previously identified defendant out of court. He urges that the officers did not testify that the man they saw with Singleton was the man on trial for these offenses. Furthermore, Rosky did not testify to any out-of-court identification of defendant and, thus, did not establish that the man D'Elia apprehended was the man Rosky saw in the bank parking lot. Only D'Elia identified defendant's picture at trial as the man he apprehended. However, defendant points out that he did not see defendant discard anything, and because defendant was not in court, the jury could not compare the picture to defendant. Defendant argues that "[a] critical link in the State's case was missing."

Rule 2:10-1 governs our review of these contentions. It provides:

In both civil and criminal actions, the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court. The trial court's ruling on such a motion shall not be reversed unless it clearly appears that there was a miscarriage of justice under the law.

[R. 2:10-1.]

Clearly, the claim that the evidence was insufficient to support the verdict because of alleged deficiencies in the identification of defendant was waived by the failure to move for a new trial. State v. Marinez, 370 N.J. Super. 49, 56 (App. Div.), certif. denied, 182 N.J. 142 (2004); State v. DiFerdinando, 345 N.J. Super. 382, 399 (App. Div. 2001), certif. denied, 171 N.J. 338 (2002). Nevertheless, we will address these contentions in the interest of justice. State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001).

Pursuant to R. 3:18-1, the court shall order the entry of a judgment of acquittal if the evidence is insufficient to warrant a conviction. In deciding a motion for acquittal made at the close of the State's evidence, the court must determine whether the State's evidence, viewed in its entirety and giving the State the benefit of all favorable inferences, could permit a jury to find the defendant guilty beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). "In assessing the sufficiency of the evidence, the relevant inquiry is whether 'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Martin, 119 N.J. 2, 8 (1990) (quoting State v. Brown, 80 N.J. 587, 592 (1979)). On a motion for a judgment of acquittal, "the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975). The same standards are to be applied by a reviewing appellate tribunal. State v. Kittrell, 145 N.J. 112, 130 (1996).

The trial court may set aside a jury verdict where the verdict is against the weight of the evidence. R. 3:20-1. The jury verdict shall not be set aside by the trial judge "unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears there was a manifest denial of justice under the law." Ibid.; State v. Sims, 65 N.J. 359, 373-74 (1974).

Our appellate review is limited. We must given due regard to the jury's assessment of witness credibility based on its opportunity to have heard live witness testimony and to have gained a "feel for the case." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985). We may not set aside a verdict as against the weight of the evidence "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1.

Applying these standards to the case at bar, our full examination of the record discloses that no miscarriage of justice occurred. D'Elia observed Zwick and Langenberger get out of their vehicles and saw defendant run. D'Elia pursued defendant in his patrol car. D'Elia pulled up beside defendant and ordered him to stop, but defendant ran toward Route 9. D'Elia chased on foot and defendant ran through the bank parking lot between the lines of cars waiting to reach the drive-up window. Defendant was within D'Elia's sight at all times. D'Elia apprehended defendant at the corner of Route 9 and North Lake Drive and awaited the arrival of Langenberger and another Lakewood officer. Once defendant was secured, Langenberger and D'Elia retraced defendant's steps. In the bank parking lot they found what was later confirmed to be three rocks of crack cocaine. At this point Rosky approached the officers and advised them that he had seen defendant with a softball-size package in his hand containing a whitish or cream-colored substance. He also stated that he saw defendant breaking off pieces, "chipping it on the ground" or throwing it on his car as he ran in front of Rosky's car. He also stated that he observed defendant run toward Route 9 with D'Elia in hot pursuit. The Lakewood officers examined the bank's parking lot and, in all, found over twenty ounces of crack cocaine. The rest of the cocaine could not be recovered because it was either ground into the macadam or melted by the rain. D'Elia identified defendant in court by his photograph, which defendant's counsel corroborated as depicting her client. The convictions on all counts were supported by the heavy weight of the evidence and no manifest denial of justice has occurred here.

In response to the State's motion for an extended term, defendant argued that R. 3:21-4(e) requires such a motion to be filed within fourteen days of the verdict returned on September 24, 2004. The State responded that the statute, N.J.S.A. 2C:43-6(f), did not set a time limit on a motion for an extended term and that an extended term is mandated when the factual predicate has been established. The sentencing judge, after observing that the State had to show good cause for the late filing of the motion, concluded that the absence of defendant was good cause for extending the time for filing the motion and, in view of the mandatory nature of the statute, granted the motion for an extended term on the conviction of possession with intent to distribute.

Rule 3:21-4(e) specifically permits a judge for good cause shown to extend the time to file such a motion. A decision to grant or deny an extension of time under R. 3:21-4(e) is, like sentencing generally, State v. Leggeadrini, 75 N.J. 150, 156-57 (1977), committed to the sound discretion of the sentencing judge. We must defer to the sentencing judge's exercise of discretion unless it is so mistaken that it has prejudiced the substantial rights of a party. Id. at 157. "Thus, the scope of appellate review is normally limited to the question of whether that discretion has been abused by the imposition of a sentence which is manifestly excessive under the particular circumstances of the case." Ibid. The absence of good cause would support a finding of a mistaken exercise of discretion. However, the amount of time by which the deadline has been extended is not determinative. In State v. Reldan we concluded that the trial judge had good cause for extending the time to seek an extended term after we reversed the initial sentence imposed some years after the jury's verdict. 231 N.J. Super. 232, 235 (App. Div. 1989).

Here, there was good cause for extending the time for filing a motion for an extended term because defendant chose to absent himself from trial and timely sentencing. We find no "'clear showing of abuse of discretion.'" State v. Whitaker, 79 N.J. 503, 512 (1979) (quoting State v. Velazquez, 54 N.J. 493, 495 (1969)).

In determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 359 (1987). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Jabbour, 118 N.J. 1, 5-6 (1990).

The sentencing judge here determined that the extended term on the second-degree crime was ten to twenty years with no presumptive term. The judge found aggravating factors three, six and nine with no mitigating factors. He imposed a sentence of fourteen years with a seven-year period of parole ineligibility and associated fines and penalties. On the tampering conviction, the judge sentenced defendant to eighteen months to run consecutive to the fourteen-year term. There was sufficient credible evidence to support the judge's findings and the sentence was entirely reasonable.

Affirmed.
.

We have not been provided with a transcript of the June 21, 2004, proceedings.

(continued)

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A-4257-05T2

November 19, 2007