STATE OF NEW JERSEY v. DANNY VLADO

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-16693-07T41693-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANNY VLADO,

Defendant-Appellant.

_________________________________

 

Submitted April 28, 2009 - Decided

Before Judges Wefing, Yannotti and LeWinn.

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, No. I-04-10-2283.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Ingrid A. Enriquez, Designated

Counsel, on the brief).

Theodore F. L. Housel, Atlantic County Prosecutor,

attorney for respondent (Jack J. Lipari, Assistant

County Prosecutor, of counsel and on the brief).

PER CURIAM

A jury convicted defendant of third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7); third-degree conspiracy, N.J.S.A. 2C:5-2; and second-degree bias intimidation, N.J.S.A. 2C:16-1(a)(1). It acquitted defendant of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); unlawful possession of a weapon, N.J.S.A. 2C:39-5(d); and possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d). It was unable to reach a verdict on bias intimidation under N.J.S.A. 2C:16-1(a)(3). The trial court merged the conviction for conspiracy into the conviction for aggravated assault and sentenced defendant to four years in prison. The trial court also sentenced defendant to a consecutive seven years for the bias crime, resulting in an eleven-year prison term. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's convictions rest upon an incident which occurred between 3:30 a.m. and 4:30 a.m. on June 20, 2003, in Atlantic City. MD Morshed and AK Mohammed, both of whom had come to the United States from Bangladesh, worked as taxi drivers in Atlantic City. AK was working the 7:00 p.m. to 7:00 a.m. shift; MD had finished his shift several hours earlier. The two men met when AK was standing next to his cab waiting to see if he could pick up any passengers who might be leaving from several nearby clubs and MD walked by after leaving one of those clubs. The two men knew each other and chatted for several minutes. AK testified that a gray pickup truck pulled up; inside the truck were two white men, who began shouting and swearing at AK and MD, with various obscenities, referring to them as Indians and denouncing them for having come to this country from India.

AK said the two men then got out of the truck and continued their tirade. He said that the passenger then swung at him with a closed fist but that he managed to duck and avoid the blow; he ran and took shelter behind a car some six to seven feet away. MD then asked the man why he swung, and the man turned and punched him in the face, breaking his nose. AK said the driver took a metal rod from the truck, and the two men then began beating MD, continuing with their obscene ethnic insults. They assaulted MD for several minutes and then took off in their truck. MD was lying on the sidewalk, bleeding heavily. AK managed to drag MD into his cab. He called 9-1-1 and drove off, trying to find the truck. The police responding to the 9-1-1 call, located AK and summoned an ambulance for MD, who was taken to Atlantic City Medical Center. The police then drove with AK in search of the truck. They came upon other officers who had two men placed up against a wall; AK identified the two men as the assailants. At trial, AK said that defendant looked very much like one of the two assailants, but he could not be certain; he was, however, able to identify defendant's co-defendant, Anthony Marks.

After MD was taken to the hospital, AK was taken to the police station to give a statement. In that statement, he did not mention that the two attackers had used ethnic insults during the attack. While he told the police that MD had been hit several times, he made no mention of a metal rod or pipe being used.

MD testified that he worked from 10:00 a.m. to 10:00 p.m. on June 19, 2003. When he finished working, he went home and changed his clothes and went out to a club where he had four or five beers. He left the club to go home when he ran into AK. He said the two men were chatting when a truck pulled up with two white men who began to insult them, swear at them and hurl ethnic insults. MD said the men punched and kicked him and also hit him with a metal rod. He lost consciousness from the beating and awoke in the hospital.

There was medical testimony as to the nature of the injuries MD received in this attack. Tests at the hospital revealed that MD had a blood alcohol level of .25.

The arresting officer, Officer Brett Foster of the Atlantic City Police Department, testified about his involvement that night. He admitted that in completing his report, he did not indicate that this was a bias-related incident but rather described it as "bullying."

Defendant Vlado testified to a different scenario. He said his co-defendant, Marks, had come by to show him the new paint job on his truck and to see if Vlado wanted to go out for a while. Vlado initially declined; it was Father's Day and he was spending time with his father. Marks returned later, after Vlado's father had gone to bed, and the two men went out, ending up at the D j Vu club. They left when the club closed. They were inching in traffic when two women walked by, wearing tight, form-fitting clothing, and Marks began to speak to them through the open cab window. Vlado testified that AK and MD were nearby and began to make insulting remarks about American women and Marks responded by remarking that the two should return to their own country. One of the two then kicked Marks's truck and he got out to protest. Vlado said that MD swung at Marks and that he got out of the truck to help Marks. He admitted he punched MD several times, breaking his nose. He denied striking him with an iron rod or kicking him.

Marks also testified. He recounted going out with Vlado and ending up at D j Vu. He told the jury of the traffic when the club closed and his talking out the window with the two women walking down the street. He said AK and MD came by, with

AK leading MD because he was drunk. Words were exchanged when the men made insulting comments about American women. Marks said he and the women cursed at MD and AK but denied using any ethnic references. He said MD rushed the truck and grabbed him through the window. He opened the cab door to disengage MD but MD pulled him out of the truck. He said he struck MD to get free. By its verdict the jury clearly rejected the contention that defendants acted in response to the conduct of AK and MD.

On appeal, defendant raises the following arguments.

POINT I THE TRIAL COURT'S FAILURE TO MOLD THE JURY INSTRUCTIONS, EXPLAINING THAT THE VICTIM'S INTOXICATED STATE WAS RELEVANT TO DEFENDANT'S CLAIM OF SELF-DEFENSE, VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. 1, PARS. 1, 9, 10.

POINT II BECAUSE THE MERGER PROVISION OF N.J.S.A. 2C:16-1A1 VIOLATES THE DUE PROCESS

AND DOUBLE JEOPARDY PROVISIONS OF THE STATE CONSTITUTION, THE SENTENCE IMPOSED ON THAT COUNT MUST BE VACATED.

POINT III DEFENSE COUNSEL ERRED IN FAILING TO SEEK PRE TRIAL INTERVENTION PRIOR TO TRIAL AND IN FAILING TO DO SO, WAS CONSTITUTIONALLY INEFFECTIVE. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1 AND 10. (Not Raised Below)

POINT IV DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY'S VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V THE COURT BELOW ERRED IN FAILING TO PROPERLY CREDIT DEFENDANT WITH A MITIGATING FACTOR.

POINT VI THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO IMPOSE A PROBATIONARY SENTENCE.

Defendant raised no objection to the trial court's charge on self-defense. We have reviewed this charge, and we find no plain error. R. 2:10-2. The trial court placed no restriction on defense counsel urging in summation that the jury could infer that MD's intoxication led to assaultive conduct on his part, to which defendant had responded. The jury was free to draw that inference or to reject it. The jury obviously declined to draw that inference; that, however, did not make defendant's trial unfair.

We are not persuaded by defendant's argument that the trial court should have merged his convictions for aggravated assault and bias intimidation. N.J.S.A. 2C:16-1(e) provides:

Notwithstanding the provisions of N.J.S. 2C:1-8 or any other provision of law, a conviction for bias intimidation shall not merge with a conviction of any of the underlying offenses referred to in subsection a. of this section, nor shall any conviction for such underlying offense merge with a conviction for bias intimidation. The court shall impose separate sentences upon a conviction for bias intimidation and a conviction of any underlying offense.

This statute thus contains the clear expression of legislative intent that the Supreme Court in State v. Dillihay, 127 N.J. 42 (1992), found wanting in its examination of the anti-merger provision in N.J.S.A. 2C:35-7.

We find instructive a recent discussion of merger by Judge Stern in State v. Quezada, 402 N.J. Super. 277, 287-89 (App. Div. 2008). The defendant in that case was a volunteer fireman who was convicted of official misconduct, N.J.S.A. 2C:30-2(a); setting false fire alarms, N.J.S.A. 2C:33-3; and committing a pattern of official misconduct, N.J.S.A. 2C:30-7. Quezada, supra, 402 N.J. Super. at 279. We rejected the defendant's contention that his convictions for official misconduct and committing a pattern of misconduct should merge. Id. at 287. We noted the following language in N.J.S.A. 2C:30-7(b):

Notwithstanding the provisions of N.J.S. 2C:1-8 or any other law, a conviction of pattern of official misconduct shall not merge with a conviction of official misconduct . . . nor shall such other conviction merge with a conviction under this section, and the court shall impose separate sentences . . . .

[Quezada, supra, 402 N.J. Super. at 287.]

After noting that provision, we continued in the following vein:

Nothing could be clearer with respect to the legislative intent. The language is expressed because it has been so consistently held that the double-jeopardy provision of the state constitution is co-extensive with, or provides no greater protection than, the federal double-jeopardy clause . . . and because the cases under the federal constitution make clear that merger is a matter of legislative intent when defendant is convicted of multiple offenses in the same prosecution. Accordingly, given the additional language in N.J.S.A. 2C:30-7 in light of, or because of, [State v.] Gonzalez[, 123 N.J. 462 (1991),] and Dillilhay, we find no basis for merger of the pattern violation into the misconduct violation.

[Quezada, supra, 402 N.J. Super. at 289

(citations omitted).]

That reasoning is fully applicable here. There was no error by the trial court.

We also reject defendant's argument that his attorney was ineffective within the parameters of State v. Fritz, 105 N.J. 42, 58 (1987), when he failed to submit an application on defendant's behalf for entry into pretrial intervention. Guideline 3(i)(3) for pretrial intervention provides that the application of a defendant charged with having deliberately committed a crime of violence or a threat of violence against another "should generally be rejected." R. 3:28.

Similarly, we reject the contention that the verdict was against the weight of the evidence. The jury heard two starkly different versions of what occurred in the early morning hours of June 20, 2003. It lay entirely within the jury's province to determine which to accept.

Defendant's final two arguments revolve around his sentence. We find no support in the record for the contention that the trial court failed to consider appropriate mitigating factors, contrary to State v. Dalziel, 182 N.J. 494 (2005). Defendant's flight from New Jersey before the jury returned its verdict clearly demonstrates to us that mitigating factor 10, defendant is likely to respond to probationary treatment, N.J.S.A. 2C:44-1(b)(10), was inapplicable. The nature of the jury's verdict, moreover, precluded the sentencing court from utilizing mitigating factor 4, substantial grounds tending to excuse or justify defendant's conduct. N.J.S.A. 2C:44-1(b)(4).

Finally, there is no merit to defendant's final contention that the trial court abused its sentencing discretion in not imposing a probationary term upon defendant.

Affirmed.

 

Throughout this record, both Morshed and Mohammed are referred to as MD and AK, respectively. We shall continue that practice throughout this opinion.

(continued)

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A-1693-07T4

 

June 16, 2009