STATE OF NEW JERSEY v. TIMOTHY P. LABARRE, SR

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0817-07T40817-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TIMOTHY P. LABARRE, SR.,

Defendant-Appellant.

_________________________

 

Submitted November 12, 2008 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-01-0004.

Yvonne Smith Segars, Public Defender, attorney for appellant (Mark P. Stalford, Designated Counsel, of counsel and on the brief).

Thomas S. Ferguson, Warren County Prosecutor, attorney for respondent (Dit Mosco, Assistant Prosecutor, of counsel and on the brief.

PER CURIAM

Defendant, Timothy P. LaBarre, was indicted for second-degree eluding a law enforcement officer, in violation of N.J.S.A. 2C:29-2(b). Defendant was also charged, in motor vehicle summonses 2121-Y24-127511 through -127516, with speeding, in violation N.J.S.A. 39:4-98; failure to keep to the right, in violation of N.J.S.A. 39:4-88; reckless driving, in violation of N.J.S.A. 39:4-96; driving while intoxicated, in violation of N.J.S.A. 39:4-50; driving with a suspended license, in violation of N.J.S.A. 39:3-40; and driving without a license, in violation of N.J.S.A. 39:3-10. Tried to a jury on November 13, 14 and 15, 2006, defendant was convicted of second-degree eluding. Following the jury verdict, the trial judge, sitting as the trier of fact, found defendant guilty of speeding, driving while intoxicated and driving while suspended; the judge merged the charges of failure to keep to the right, reckless driving and driving without a license. On March 30, 2007, defendant was sentenced to a term of five years on the eluding charge; he was also assessed various fines and costs on the motor vehicle charges, as well as an aggregate thirty-month suspension of his driver's license. This appeal followed.

I.

The pertinent factual background may be summarized as follows. Sometime between 2:30 and 3:00 a.m. on September 18, 2005, patrolmen Mark Merrill of the Washington Borough Police Department was conducting a radar patrol on Route 31 in a marked police cruiser. Merrill observed a pickup truck traveling southbound at a high rate of speed in a thirty-five miles per hour speed zone. Upon activating his radar, Merrill discovered that the truck was traveling at fifty-three miles per hour. Merrill activated his overhead lights and siren and attempted to stop the vehicle. As the officer pulled near, the truck increased its speed to seventy miles per hour; this occurred in a zone where the posted speed limit was fifty miles per hour. Merrill noted that the truck began weaving back and forth, repeatedly crossing the double yellow center line; it eventually increased its speed to ninety miles per hour. There was no oncoming traffic at that time.

On at least two occasions, while traveling between seventy and ninety miles per hour, the truck approached other southbound vehicles. As it approached those vehicles, the truck flashed its blinking hazard lights, forcing the other cars to pull to the side of the road to allow the truck and Merrill's vehicle to pass. Eventually, the truck approached a white SUV that swerved back and forth on the road, preventing it from passing. The SUV was an unmarked police vehicle driven by Officer Stephen Sexton of the Human Services Department; Sexton was in full uniform and carried a weapon. The SUV forced the truck to stop on the side of the road. Merrill then pulled his cruiser alongside the truck, blocking it in.

Merrill exited his vehicle, approached the truck and ordered the driver, later identified as defendant, to exit at gun point. Other officers had arrived at the scene by this time and, along with Merrill and Sexton, ordered defendant several times to lie down on the ground. Defendant did not comply with this order. Therefore, officers sprayed defendant with O.C. spray and, with considerable effort, wrestled him to the ground and handcuffed him. Merrill testified that, while placing defendant under arrest, he smelled alcohol on defendant's breath.

Defendant was transported to Washington Borough Police headquarters, where Merrill attempted to administer a breathalyzer test. However, because defendant was coughing as a result of his exposure to the spray, Merrill was unable to administer an effective test. Defendant consented to have blood samples drawn to be tested for blood alcohol content as an alternative.

Merrill thereupon accompanied defendant to the county hospital. At the hospital, Merrill witnessed a medical technician, Linda Jane Heim, draw two vials of defendant's blood, label them with the date and time of collection, sign them, and place them in a sealed evidence box. Merrill transported that box back to police headquarters and placed it in a secure evidence refrigerator.

On September 30, 2005, Washington Borough Police Detective Wendell Whitmore took the blood samples to the New Jersey State Police Laboratory for testing. An employee of the lab, Meghan Williams, received the samples from Detective Whitmore, identified them and logged them in. A lab scientist, Christine Davis Thomas, tested the samples and found the blood alcohol content to be 0.117%. At trial, Williams could not be certain whether defendant's blood samples had arrived in a heat-sealed plastic bag or in an evidence box.

II.

On appeal, defendant raises the following issues for our consideration:

POINT 1

THE ERRORS IN THE COURT'S INSTRUCTIONS TO THE JURY DENIED THE DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW).

A. The court improperly and inadequately charged the jury on the seventh element of second degree eluding. [Not Raised Below.]

B. The court failed to instruct the jury on the requested lesser included offense of hindering one's own apprehension.

POINT II

THE COURT ERRED IN ADMITTING INTO EVIDENCE DEFENDANT'S BLOOD ALCOHOL READING BECAUSE THE STATE FAILED TO ESTABLISH AN UNTAMPERED CHAIN OF CUSTODY OF DEFENDANT'S BLOOD SAMPLE.

POINT III

THE COURT ERRED IN ADMITTING INTO EVIDENCE DEFENDANT'S BLOOD ALCOHOL TEST RESULT AS THE POLICE LACKED REASONABLE GROUNDS TO BELIEVE THE DEFENDANT WAS DRIVING IN VIOLATION OF N.J.S.A. 39:4-50.

POINT IV

THE COURT COMMITTED REVERSIBLE ERROR BY REFUSING TO CHARGE THE JURY PURSUANT TO STATE V. CLAWANS WITH REGARD TO THE STATE'S FAILURE TO PRODUCE THE TESTIMONY OF DETECTIVE WHITMORE.

POINT V

THE SENTENCE IMPOSED BY THE COURT IS MANIFESTLY EXCESSIVE.

A. The [c]ourt erred in its findings and analysis of the applicable aggravating and mitigating factors.

B. The court should have imposed a sentence for defendant's second degree conviction within the third degree range.

C. Defendant's circumstances warranted a finding that the presumption of imprisonment was overcome.

Having reviewed these contentions in light of the record and the controlling law, we affirm.

We first address defendant's argument that the trial judge erred when instructing the jury on the offense of second-degree eluding. Defendant lodged no objection to this aspect of the charge at trial, and therefore it is raised as plain error. Thus, we must consider whether the claimed error was "clearly capable of producing an unjust result." R. 2:10-2. To warrant reversal for error in the jury charge, we must have a "reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

With that standard of review in mind, we look first to the statute, N.J.S.A. 2C:29-2(b) which provides:

Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be 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 chapter 4 of Title 39 . . . of the Revised Statutes.

The "risk of death or injury to any person" is the so-called "seventh element" which, when present, elevates the offense of eluding from third to second degree. Model Jury Charge (Criminal), "Eluding an Officer" (2004).

The Model Jury Charge guides the trial judge on instructing the jury as to the difference between second- and third-degree eluding. The model charge requires the judge to define the term "injury." Ibid. The charge also requires the judge to enumerate the motor vehicle violations with which the defendant is charged that would warrant the "permissive inference" of "risk of death or injury to any person[.]" Ibid. The charge further requires the judge to explain to the jury the elements of each such motor vehicle violation. Ibid.

Here, the trial judge properly defined the term "injury" for the jury. The judge then proceeded to charge the jury as follows:

You may infer a 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 statutes of this state.

It is alleged that the defendant's conduct involved violations of motor vehicle laws.

Specifically, . . . it is alleged that the defendant violated Title 39:3-40, driving while his license was suspended, 39:4-50, driving while intoxicated, 39:4-96, reckless driving, 39:4-98, speeding, 53 in a 35-mile-an-hour zone, and 39:3-10, an unlicensed driver.

. . . .

[Y]ou may consider the evidence that he committed motor vehicle offenses in deciding whether he created a risk of death or injury.

Defendant alleges two errors with respect to this charge: (1) the trial judge failed to explain the elements of the pertinent motor vehicle violations, and (2) the judge included motor vehicle violations under chapter 3 of Title 39, in violation of the statute.

We agree with defendant that this aspect of the charge was deficient in these two respects. Nonetheless, under the totality of circumstances, we conclude these errors were harmless and did not "le[a]d the jury to a result it otherwise might not have reached." Macon, supra, 57 N.J. at 336.

As noted, the trial judge properly instructed the jury with respect to the element of "injury" which, in and of itself is sufficient to raise the eluding offense from third to second degree. This proper instruction was sufficient guidance to the jury in light of the uncontroverted evidence of defendant's speeding and erratic driving.

In State v. Wallace, 158 N.J. 552 (1999), the defendant was similarly charged with second-degree eluding by virtue of the commission of motor vehicle offenses. The trial judge failed to properly instruct the jury on the "injury" element of N.J.S.A. 2C:29-2(b); however, the judge properly instructed the jury with respect to the elements of the motor vehicle offenses with which defendant had been charged. Id. at 558-59. Under those circumstances, the Supreme Court held that the failure to properly instruct the jury on the "injury" element was harmless error, noting that the statutory definition either of "injury" or of the motor vehicle offenses would be sufficient to sustain a jury charge on second-degree eluding. Ibid. As in this case, the trial record before the Wallace Court contained evidence that "circumstantially demonstrate[d] . . . [the] risk of death or injury by defendant's eluding." Id. at 560.

Where, as here, defendant failed to object to this aspect of the 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). "It may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." Macon, supra, 57 N.J. at 333. 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 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)).]

Here, defendant was initially observed driving fifty-three miles per hour in a thirty-five-mile zone, and swerving between two lanes of a four-lane highway. Once Officer Merrill activated his lights and siren and gave chase, defendant increased his speed to seventy miles per hour while in a fifty- mile zone and continued to weave his vehicle, this time between the shoulder and the center double yellow line on the highway. He then increased his speed to almost ninety miles per hour, continuing to cross over the double yellow center line, and approaching other vehicles from behind, forcing them to pull over to the shoulder so that he could pass. We are satisfied that this evidence, in conjunction with the proper jury charge defining "injury[,]" was sufficient to support the jury verdict on second-degree eluding.

Neither the trial judge's reference to motor vehicle offenses under chapter 3 of Title 39, nor the failure to define the elements of the motor vehicle offenses, rises to the level of plain error here. To the extent defendant relies upon State v. Dorko, 298 N.J. Super. 54, 59-60 (App. Div.), certif. denied, 150 N.J. 28 (1997), such reliance is misplaced. In Dorko, a second-degree eluding case, we determined "that the failure of the court to charge the elements of the applicable motor vehicle statutes was . . . reversible error," when compounded by the fact that "[t]he jury was never told what the word 'injury' meant in the phrase 'death or injury.'" Id. at 57, 59. Thus, our decision in Dorko was based upon the trial judge's failure to charge the jury on either of the two statutory factors sufficient to elevate the eluding offense from third to second degree.

Defendant further argues that the trial judge failed to distinguish for the jury the speeding violation that occurred prior to Merrill giving chase from that which occurred once pursuit was underway. Therefore, he contends, the jury might have erroneously found his conduct preceding the chase to have created the risk warranting a second-degree verdict. We reject this argument as wholly without merit. The evidence is undisputed that, once Merrill was in pursuit with his lights and siren activated, defendant increased his driving speed to seventy miles per hour and then to ninety miles per hour in a fifty-mile-per-hour zone. Thus, the jury had ample evidence of defendant's speeding during Merrill's pursuit.

To the extent the trial judge failed to explain the elements of driving while intoxicated, speeding, failure to keep to the right and reckless driving, once again we conclude that any such error was harmless. Merrill's testimony was that defendant smelled of alcohol at the time of apprehension, immediately following a high-speed chase during which defendant drove erratically. In addition, the State Police Laboratory tests showed defendant's blood alcohol level to be above the legal limit.

Defendant's second challenge to the eluding charge was the trial judge's refusal to instruct the jury on the lesser included offense of hindering one's own apprehension under N.J.S.A. 2C:29-3(b)(2), which provides in pertinent part:

A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes . . . , he:

. . . .

[p]revents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him . . . .[]

We disagree.

"[A] defendant is entitled to a charge on all lesser included offenses supported by the evidence." State v. Short, 131 N.J. 47, 53 (1993). Where a defendant requests submission to the jury of a lesser included offense, the trial court must determine whether there would be a rational basis for the jury to acquit the defendant of the charged offense and convict him of the lesser offense. State v. Harris, 357 N.J. Super. 532, 539 (App. Div. 2003). An offense is "included" when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]" N.J.S.A. 2C:1-8(d)(1).

We conclude that defendant was not entitled to a hindering apprehension charge since proof of such an offense requires establishing facts other than those necessary to prove eluding. A hindering apprehension conviction requires proof that a person (1) with the purpose to hinder his apprehension for a motor vehicle violation, (2) prevents or obstructs by means of force or intimidation anyone from performing an act that might lead to his apprehension. Unlike the offense of eluding, the crime of hindering apprehension requires proof of the use of force or intimidation for the purpose of avoiding apprehension. Thus, hindering apprehension is not a lesser included offense of eluding pursuant to N.J.S.A. 2C:1-8(d).

Defendant cites State v. Savage, 172 N.J. 374 (2002), for the proposition that "strict adherence to the definition of 'included' under N.J.S.A. 2C:1-8d 'is less important than whether the evidence presents a rational basis on which the jury could acquit the defendant of the greater charge and convict the defendant of the lesser.'" Id. at 397 (quoting State v. Brent, 137 N.J. 107, 117 (1994)). The jury might have considered that defendant hindered his own apprehension based upon his conduct once under arrest, in refusing the police officers' instructions to lie down on the ground and cooperate. Those facts, however, are separate and apart from the evidence establishing defendant's guilt of eluding. Therefore, there was no rational basis on which the jury could convict defendant solely of hindering his own apprehension to the exclusion of the eluding charge. Thus, we conclude that the trial judge did not err in declining to give this jury instruction.

Defendant next argues that the trial judge erred in admitting evidence of his blood alcohol reading because the State failed to establish a complete chain of custody of his blood samples. Again, we disagree.

Defendant raised an objection to the admission of this evidence during the State's case. In overruling his objection, the judge stated:

I've heard the testimony of the Washington Borough Police Department describing what . . . the arresting officer did with the blood sample. I've heard the testimony of the State Police procedure person who knows [O]fficer . . . Whitmore and has seen him on more than one occasion and recognizes that he's the one that delivers this evidence to the state police lab. She was shown the evidence receipt and said yes, I remember receiving this.

Her testimony deviates from the arresting officer, in that the arresting officer had a plastic box that was sealed, that she received a sealed plastic envelope.

Still having the identifiers in it, the testimony will come from this witness as to what was in that bag, but it had the markings [sic] it was received. . . .

. . . .

I don't think (indiscernible) even have the technicality as to whether it was a box or a bag. I guess we have to leave it at that, that this witness can deal with [it] the best she can.

Here, the testimony of Heim, Merrill and Williams established an unbroken chain of custody of defendant's blood samples. Heim drew the blood and handed the samples to Merrill who then took those samples back to the secure evidence locker at Washington Borough Police Headquarters. Merrill testified that Whitmore is the only individual who takes blood samples to the State Police laboratory in Trenton, and identified Whitmore's signature on the evidence sign-out sheet. Williams testified that she received blood samples at the laboratory directly from Whitmore, with whom she is very familiar.

It is unfortunate that Whitmore was not available to testify regarding his transmittal of the evidence. It does appear that at some point the blood samples were for some reason transferred from a sealed evidence box to a heat-sealed plastic bag. However, we do not consider this discrepancy fatal to the State's case. First, Williams was uncertain whether the blood arrived in a box or a bag. She testified that on many occasions the police would deliver blood samples in a box and then she and the delivering officer would together transfer the contents into an evidence bag. She also testified that, on some occasions, the police would themselves transfer evidence to a bag before dropping off the samples at the lab. Secondly, and of particular significance, the vials containing the blood samples contained their own labels and bore those same labels when delivered to the laboratory.

As the Supreme Court has recognized, "'a defect in the chain of custody goes to the weight, not the admissibility of evidence introduced.'" State v. Morton, 155 N.J. 383, 446-47 (1998), cert. denied, 532 U.S. 932, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001)(citation omitted). We note that defense counsel addressed this "defect" extensively in his summation, arguing that the State had not "proved conclusively beyond a reasonable doubt that this blood is [defendant's] blood." Thus, we conclude the trial judge did not err in admitting the evidence of the blood alcohol readings. The jury was free to consider the weight of the evidence in light of defendant's summation argument.

Defendant further argues that the judge erred in admitting evidence of his blood alcohol readings because the facts surrounding his arrest did not create "reasonable grounds" for Merrill to believe defendant had been driving while intoxicated. Once again, we disagree.

N.J.S.A. 39:4-50.2(a) provides that a police officer may request a suspect to submit to blood alcohol testing only if the officer has "reasonable grounds" to believe that the suspect has been operating a vehicle while intoxicated. In other words, "a driver cannot be detained for the purpose of testing unless the arresting officer has probable cause to believe that the person was driving while under the influence of alcohol." State v. Tischio, 107 N.J. 504, 521 (1987).

"Probable cause to arrest . . . generally is defined as a well grounded suspicion or belief on the part of the . . . arresting officer that a crime has been or is being committed." State v. Guerrero, 232 N.J. Super. 507, 511 (App. Div. 1989). We have found probable cause to believe a defendant was driving while intoxicated where the defendant's vehicle had twice crossed the right shoulder line and where the defendant's speech was slurred and his breath smelled of alcohol. State v. Pavao, 239 N.J. Super. 206, 209 (App. Div.), certif. denied, 122 N.J. 138, cert. denied, 498 U.S. 898, 111 S. Ct. 251, 112 L. Ed. 2d 209 (1990).

We conclude that the circumstances surrounding defendant's arrest provided Merrill with probable cause to believe that he had been driving while intoxicated. Defendant engaged Merrill in a high-speed chase, swerving from side to side on the road, repeatedly crossing both the center yellow line and the right shoulder line. Moreover, defendant acted in a belligerent and uncooperative manner when the police ordered him to lie down on the ground. Merrill further testified that he smelled alcohol on defendant's breath at the time of apprehension. We conclude that these facts are sufficient to establish probable cause and, therefore, the trial judge did not err on this basis.

Defendant next argues that the trial judge erred in refusing to instruct the jury, pursuant to State v. Clawans, 38 N.J. 162 (1962), that it was permitted to draw a negative inference from the State's failure to produce Detective Whitmore at trial. In response to defendant's request for this charge, the prosecutor stated that Whitmore was not available because his son was terminally ill. In denying defendant's application, the judge stated:

The Court has heard the evidence thus far presented and is faced with the task it usually has in deciding whether or not an adverse inference should be drawn from this witness' absence.

The witness in this case was a detective with the Washington Borough Police Department who was "the detective in charge of the evidence room at the Washington Borough Police Department."

The defendant's blood had been taken at the Warren Hospital and returned by the arresting officer to the evidence lab at the Washington Borough Police Department in an alcohol blood test box which had been sealed by the . . . the phlebotomist who took the blood sample.

The State advised this Court and the defense . . . on the day of trial of the absence of the evidence detective.

. . . .

So Officer Whitmore had clearly a medical excuse for not being here, and the question the Court must first decide is . . . if there's a satisfactory explanation for the non-production. I think there is. The circumstances are pretty clear on the record as to why this witness is not here.

He was available to both parties. Defense has the authority to subpoena witnesses, as does the State. This wasn't done. His testimony, based on the testimony this Court has heard, would be relatively unimportant in a substantive fashion, although he is a key in the chain of custody as to what occurred with the evidence box that was given to him by the arresting officer.

The testimony of Ms. Williams, who's the receptionist and the recipient of the evidence at the state police lab, was that she was familiar with Officer Whitmore . . . . She knows him by name and knows where he's from, says yes, I know who that was and I know who[se] signature that was.

And she reviewed the procedure at the state police laboratory, indicating that even if the municipal police department brings the blood test kit in a . . . sealed box which is pre-prepared, that box is opened and placed in heat sealed evidence [sic] at the state police laboratory. The evidence is not disputed.

And the evidence in the box, according to the phlebotomist, each vial is sealed and hermetically closed, with the identifiers placed on it of the defendant's bodily fluids.

Those were never added by the state police laboratory and the witness testified that on many instances the police will bring the boxes and they will remove the contents and place them in a heat sealed envelope.

Defense counsel is free to argue in his summation[] that there may have been some untoward action on behalf of the absent witness. I can't prevent that.

However, this Court can find no evidence that the defendant's rights in this case have been prejudiced to such an extent that I should give an adverse inference, as this was a chain of [custody] witness and there is absolutely no evidence that the samples were tampered with as they arrived at the laboratory in their sealed and pristine condition.

In Clawans, the Supreme Court held that "[g]enerally, failure of a party to produce before a trial tribunal proof which, it appears, it would serve to elucidate the facts in issue, raises a natural inference that the party so failing fears exposure of those facts would be unfavorable to him." Id. at 170. To warrant such an inference, it must appear that the non-testifying witness was within the power of the party to produce. Id. at 171.

The record establishes that Detective Whitmore was unavailable to testify because of his son's terminal illness. We conclude this provided the State with an adequate alternative explanation for its failure to produce the detective at trial. We decline to draw a negative inference from the State's failure to produce this witness, as "the inference is not proper if the witness is for some reason unavailable . . . ." Ibid. The trial judge's denial of the Clawans charge was not error under these circumstances.

Finally, defendant argues that his sentence was manifestly excessive; that the trial judge erred in his weighing and analysis of aggravating and mitigating factors; and that he should have been sentenced within the third-degree range. We reject these arguments as wholly without merit.

Defendant received the minimum sentence for a second-degree offense. N.J.S.A. 2C:43-6(a)(2). In sentencing defendant, the trial judge stated:

On September the 18th of 2005 the [Washington] Borough Police attempted to stop you. You refused to stop and increased your speed between 70 and 90 miles per hour, swerved across double yellow lines several times. Another vehicle eventually impeded your travel and forced you to stop.

You failed to comply with the directions of the officers at the scene . . . . They had to use OC spray to subdue you. If this was ever a case which marks clear the old adage that he who sins when he's drunk is punished when he's sober, here you are today. . . .

[T]here is a presumption of prison for a second-degree jury conviction for eluding a law enforcement officer . . . .

You have a substantial prior record, which this Court also considered, dating back to 1979. It includes ten indictable convictions, three disorderly convictions, [twelve] convictions in municipal court. Many of these are charges relating to assaults, threats, and intoxication.

The trial judge found that aggravating factors #3, #6, and #9 applied, as well as mitigating factor #9 ("[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense"). N.J.S.A. 2C:44-1(a)(3),(6),(9); - 1(b)(9).

Defendant argues that the trial judge should have found four additional mitigating factors: #2 ("defendant did not contemplate that his conduct would cause or threaten serious harm"); #7 ("defendant . . . has led a law-abiding life for a substantial period of time before the commission of the present offense."); #10 ("defendant is particularly likely to respond affirmatively to probationary treatment"); and #11 ("imprisonment of the defendant would entail excessive hardship to himself or his dependents"). N.J.S.A. 2C:44-1(b)(2), (7), (10) and (11).

We find no basis on which to accord defendant the benefit of these mitigating factors. First, his conduct in the early morning hours of September 18, 2005, clearly threatened "serious harm[,]" and only the absence of more vehicular traffic at the time prevented the occurrence of a serious accident. Secondly, defendant's prior record completely belies his assertion that he led a law abiding life "for a substantial period of time before the commission of the present offense[.]" Defendant's record also reflects that he violated previous probationary terms by committing new offenses while on probation. Regarding mitigating factor #11, the trial judge was aware of defendant's medical history and his concern for his son; however, we conclude the judge did not abuse his discretion in determining what weight to attribute to this factor.

These reasons also lead us to conclude that the trial judge did not err in sentencing defendant to a second-degree term. N.J.S.A. 2C:44-1(f)(2) permits a judge to sentence a defendant convicted of a second-degree crime to a term appropriate for a third-degree conviction if the court is "clearly convinced that the mitigating factors substantially outweigh the aggravating factors" and if the "interest of justice demands" it. This is a two-pronged test. State v. Johnson, 376 N.J. Super. 163, 173 (App. Div.), certif. denied, 183 N.J. 592 (2005). Only "compelling reason[s]," in addition to and apart from the mitigating/aggravating factors balance, will warrant a downgrade for sentencing purposes. State v Megargel, 143 N.J. 484, 501-02 (1966).

For the same reasons we reject defendant's argument that his circumstances warrant overcoming the presumption of incarceration that attaches to a second-degree conviction. We do not find it necessary to discuss this point further. R. 2:11-3(e)(2).

 
Affirmed.

O.C. spray is commonly referred to as "pepper" spray.

N.J.S.A. 2C:29-3(b)(1), (3) and (4) proscribe three other forms of conduct not relevant here, namely: concealing or tampering with evidence; intimidating witnesses; and giving false information to a police officer.

(continued)

(continued)

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A-0817-07T4

February 17, 2009