STATE OF NEW JERSEY v. OSMAN BROWN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1488-06T41488-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

OSMAN BROWN,

Defendant-Appellant.

_______________________________

 

Submitted: April 21, 2008 - Decided:

Before Judges C.S. Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 05-09-1015.

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Eileen N. Walsh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Osman Brown appeals from a judgment of conviction on a one-count indictment charging him with second-degree eluding in violation of N.J.S.A. 2C:29-2(b) on which a sentence of eight years imprisonment with a six-month license suspension and various fines and penalties were imposed. Motor vehicle violations for careless driving and two failures to signal were merged into the eluding charge. A $10 fine was imposed for a seatbelt violation and a six-month consecutive license suspension was imposed for driving on the revoked list. We affirm.

On April 28, 2005, Officer Cosimo Tripoli of the Hillside Police Department observed defendant driving a light-blue Buick on Schley Street, which is one way and has one lane. Defendant passed a Lexus on the right side and, without stopping, made a right turn onto Winans Avenue. As the officer made a right turn on Winans, he observed defendant turning right on Fabyan Place. As the officer followed defendant, he called headquarters for a motor vehicle check on the SJY93P license plate on the Buick.

As defendant drove toward the entrance ramp to Route 78, the officer activated his lights and defendant pulled over on the entrance ramp. The officer stopped behind the Buick, which had its brake lights on, indicating that it was still in drive. As the officer radioed the stop to headquarters, he observed that defendant had turned around to look at him. Defendant maintained eye contact the entire time and the officer studied his face carefully. The defendant was a black male wearing a skull cap and a beige Carhart jacket.

Both the officer and the defendant left their cars in drive. When the officer opened his door, defendant accelerated onto Route 78. The officer gave chase and estimated that defendant was driving in excess of eighty to ninety miles an hour, speeding through a work zone, cutting off motorists and driving on the shoulder of the road. Out of concern for public safety, the officer abandoned the chase.

The Buick was owned by defendant's sister, Dana Brown, who resided at 428 Leslie Street, Newark, which was about a one minute drive from the point on Schley Street where the officer first encountered defendant. On May 10, 2005, the officer was shown a six-person photo array and immediately identified the defendant, stating that he was one hundred percent sure of the identification.

The State and the defendant stipulated to certain facts at trial: At the time of the offense, the Buick was registered to Dana Brown. Defendant had permission to drive the car and did so on dates prior and subsequent to April 28, 2005. The defendant's address, according to his motor vehicle record, was 428 Leslie Street and, at the time of the offense, his driver's license was suspended.

Two witnesses testified for the defense. Dana Brown claimed that she would rent her car to make extra money and that on April 28, 2005, she had rented it to a man named "John" who no longer lived in the area. She did not know his last name or phone number. She did not know if he had a driver's license and was not sure of his address. She told the jury that she had never had a driver's license and could not drive, but the State confronted her with the certified abstracts of two different New Jersey driver's licenses in her name. Other discrepancies emerged from cross-examination.

The second witness for the defense was Bruce Jones, who testified that he worked for defendant's roommate, Dwayne Swan, selling T-shirts on the corner of Halsey and Branford in Newark. He could not produce proof of his employment. He claimed to remember that on April 28, 2005, defendant, who was also working for Swan, arrived at work at 8:00 a.m. Jones had no recollection of defendant's arrival time at work on other random dates. He claimed to have refreshed his recollection by looking at an inventory book. When it was produced later in the day, the only notations on the page dated April 28, 2005, were the initials of himself, defendant and Swan and a list of T-shirt sizes and prices. He then admitted that he had no idea when defendant arrived at work that day.

The trial began on May 23, 2006, and at the conclusion of the proofs on May 25, 2007, the judge charged the jury, which began its deliberations after lunch that day. The jury knocked with four questions during the afternoon and the testimony of one of the police officers was read back to the jury. The jury was brought into the courtroom at 3:23 p.m. and their remaining questions were answered. The jurors then handed two additional questions to the judge and returned to their deliberations. One of the additional questions was:

Our current vote reflects a hung jury. We need information that was not and cannot be provided in trial. People on our jury need this information in order to feel comfortable making [the] decision.

Neither counsel objected to the judge instructing the jury to continue its deliberations and the judge did so. Thereafter, the jury asked for a recharge on reasonable doubt, which was given at 3:50 p.m. and the jury returned to its deliberations. The jury was excused for the day at 4:11 p.m. and returned the next morning. The jury was instructed to arrive at 9:00 a.m. and the following day it returned its verdict at 9:15 a.m. The judge then determined the traffic tickets and scheduled sentencing for July 14, 2006.

At sentencing defense counsel argued that defendant had two prior indictable convictions, both on the same day, for a third-degree gun charge and third-degree eluding charge, which he argued should be treated as only one prior conviction for sentencing purposes. Given that minimal record, defense counsel argued that mitigating factors nine and ten applied and asked that a term of five years be imposed. The State sought a minimum of seven years in prison. The judge made note of defendant's municipal drug charges and found that there were no mitigating factors. He then observed:

With respect to the sentence, the [c]ourt notes that the [c]ourt is to begin at the mid-point, which is at seven years. And if the defendant has a prior criminal record, the [c]ourt is to then sentence him somewhere between the seven and 10 year range.

The range is between 5 and 10 years, however, if he has no prior record. And we start at the mid-range of seven, the [c]ourt would go down, but since he does have a prior record, the [c]ourt sentences the defendant to 8 years to New Jersey State[] Prison.

This appeal followed.

Defendant raises the following issues:

POINT I - WHEN THE JURY ANNOUNCED AFTER HOURS OF DELIBERATIONS ON THE SINGLE CHARGE THAT IT WAS DEADLOCKED, THE COURT ERRED IN FAILING TO DECLARE A MISTRIAL, OR AT LEAST TO MAKE FURTHER INQUIRIES. (Not Raised Below.)

POINT II - DEFENDANT'S SENTENCE MUST BE VACATED AND THE MATTER REMANDED PURSUANT TO STATE v. NATALE.

The scope of our review is governed by Rule 2:10-2, which provides:

Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result, but the appellate court may, in the interests of justice, notice plain error not brought to the attention of the trial or appellate court.

Not only did defense counsel not bring to the attention of the judge any issue respecting the instruction to continue deliberations, counsel specifically stated that she had no objection to the instruction. She obviously saw no prejudice to defendant from the instruction and did not seek a mistrial. Fertile v. St. Michael's Med. Center, 169 N.J. 481, 495 (2001). Nor do we. The jurors had only deliberated for a very short period of time and announced no definite deadlock, permitting the judge to exercise his discretion to return the jury to their deliberations. State v. Czachor, 82 N.J. 392, 405 n.4 (1980).

Furthermore, a mistrial is committed to the sound discretion of the trial judge and "depends on the specific facts of the case." State v. Allah, 170 N.J. 269, 280 (2002); State v. Loyal, 164 N.J. 418, 435 (2000). It is an extraordinary remedy not to be invoked lightly. State v. Harvey, 151 N.J. 117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). We find no mistaken exercise of discretion on the record before us and affirm the conviction.

We are, however, troubled by the manner in which the judge arrived at the sentence imposed. The defendant argues that the judge's sentencing analysis "represents a misreading" of Natale, supra, 184 N.J. 458. Natale was the progeny of Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362, 147 L. Ed. 2d 435, 455 (2000). In Apprendi the defendant pled guilty to two second-degree offenses carrying a sentencing range of five to ten years. Id. at 468, 120 S. Ct. at 2351, 147 L. Ed. 2d at 442. However, the court imposed an extended term based on judicial conclusion that the crime was motivated by bias, which extended the statutory maximum from ten to twenty years. Id. at 469, 120 S. Ct. at 2351, 147 L. Ed. 2d at 442. The Court held, "Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Id. at 490, 120 S. Ct. at 2362, 147 L. Ed. 2d at 455.

Concerned by the implications of Apprendi in light of New Jersey's presumptive sentencing scheme, our Supreme Court in Natale eliminated the statutory presumptive term, leaving only the sentencing range, in order to avoid wholesale constitutional infirmity and preserve as much of New Jersey's statutory sentencing scheme as possible. Natale, supra, 184 N.J. at 487. Judges retain the discretion to weigh aggravating and mitigating factors, but cannot "be required to do so from the fixed point of a statutory presumptive." Id. at 488. Although the Court suggested that it may be reasonable for a judge to "pick the middle of the sentencing range as a logical starting point for the balancing process" it pointed out that this is not compelled. Ibid.

Defendant contends that "[t]he court in the instant matter evidently believed that by substituting the word 'mid-range' for the word 'presumptive,' it had solved its constitutional problems." The State concedes that a remand under Natale for resentencing is required. We agree.

The judge in imposing sentencing mistakenly expressed that he was required to begin sentencing at the mid-point and, because there were prior convictions, he stated that he was required to impose a sentence greater than the mid-point. That is not so. The judge had discretion to sentence anywhere within the full range of available sentences. On remand under Natale the judge may not consider any additional aggravating factors and the aggravating factors previously found may only be based on defendant's prior record. As a consequence, the judge must resentence defendant in accordance with this opinion. Because we are remanding for resentencing, we do not address the issue of the excessiveness of the sentence.

Affirmed in part and remanded for resentencing.

 

State v. Natale, 184 N.J. 458 (2005).

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A-1488-06T4

July 21, 2008