STATE OF NEW JERSEY v. LOUIS HODGE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3866-07T43866-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LOUIS HODGE,

Defendant-Appellant.

_________________________________________

 

Submitted September 14, 2009 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-11-1362.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, of counsel and on the brief).

Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Louis Hodge was convicted of fourth degree hindering apprehension, N.J.S.A. 2C:29-3b(1). The judge imposed an eighteen-month term. We affirm.

This is a summary of the trial proofs. At approximately 8:50 a.m. on July 14, 2006, Detective Lieutenant Danyal Bachok was conducting surveillance with the Passaic County Prosecutor's Office Narcotics Task Force from an unmarked vehicle parked about fifty to one hundred feet from the main entrance to the Alexander Hamilton Housing Projects in Paterson. He observed defendant drive up in a 2000 Kia Sportage and park diagonally opposite from the surveillance position. Defendant walked into the housing projects and engaged in a brief conversation near the entrance with another male. Defendant handed the other male money in exchange for an object and immediately put the object in his front pants pocket. Bachok could not discern, with the use of binoculars, the precise quantity of money or the nature of the object. He estimated that the entire conversation and exchange took approximately five seconds. Defendant promptly walked back to the Kia alone and drove off.

Bachok radioed a description of defendant, his vehicle, and its direction to nearby arrest teams. Moments later, Detective Dean Bradle, driving an unmarked vehicle with his partner, Patrol Sergeant Michael Kassai, spotted the Kia. They pulled up behind it and executed a stop. A second arrest team in another unmarked vehicle driven by Detective Sergeant George Rosario simultaneously activated their lights and sirens and pulled in front of the Kia.

Rosario's partner, Detective James Avigliano, jumped out of the second arrest car displaying his badge. Defendant hastily raised his right hand to his face as though he was putting something in his mouth. Believing that defendant was attempting to swallow narcotics, Avigliano ran to the Kia, opened the driver's side door, and put his hand on defendant's throat with the intent of inducing a gag reflex. Avigliano announced that he was a police officer, told defendant that he was under arrest, and instructed him to spit out whatever he had in his mouth. Defendant flailed his arms and tried to free himself from Avigliano. Kassai approached the Kia from behind and opened the front passenger door. The Kia began to roll forward for a few feet. Kassai managed to put the Kia in park. Defendant, while struggling with Avigliano, spit out what he had in his mouth. The spit struck Kassai in the face, left eye, nose, and mouth. Kassai immediately pulled back from the Kia to wipe the spit from his face with his shirt and hands. He testified that a hard, granular, off-white substance was in the saliva he wiped off. The substance was never field tested or submitted to a laboratory for analysis.

Defendant was quickly removed from the Kia, handcuffed, and placed on the sidewalk. A search of the interior of the Kia yielded a small zip lock plastic bag with its top roughly torn off, lying on the front passenger seat. A four-to-five-inch clear glass pipe was subsequently found in defendant's jeans.

Bradle drove Kassai to a nearby firehouse, while defendant was handcuffed and seated in the rear of the police vehicle. There, a medic flushed the residue from Kassai's face, but suggested going to a hospital to ensure that everything had been removed. On the way to St. Joseph's Hospital, defendant attempted to reassure Kassai by offering to give blood or be otherwise tested to confirm that he was not sick. A doctor examined Kassai and determined that the medic's cleaning was adequate and that no testing would be needed at that point. Neither the pipe nor the plastic bag was introduced at trial.

On appeal, defendant contends:

THE TRIAL COURT SHOULD HAVE SUPPRESSED THE EVIDENCE SEIZED IN THIS MATTER AND PRECLUDED ANY MENTION OF IT AT THE TRIAL (Partially Raised at Trial).

We disagree.

During trial, the judge denied defendant's motion to suppress evidence. We agree with the judge's analysis. With respect to the plastic bag, a warrantless search of a vehicle following a stop and arrest of its occupant can be justified pursuant to the automobile exception or search-incident-to-arrest exception to the normal requirement of a warrant based on probable cause. State v. Pena-Flores, 198 N.J. 6, 28-30 (2009). Under the automobile exception, the warrant requirement may be excused only "where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28. Exigency must be determined on a case-by-case basis. Id. at 28-29. Here, in view of the fact that defendant had just spat an unidentified substance in Kassai's face, there was an exigent need to search for the source of the substance.

Defendant also contends:

THE STATE PRESENTED EXPERT TESTIMONY THROUGH THE TESTIMONY OF THE OFFICERS WHICH WENT BEYOND LAY OPINION TESTIMONY AND FOR WHICH THE OFFICERS WERE NOT QUALIFIED BEFORE THE JURY AS EXPERTS. THE STATE'S RELIANCE ON THIS TESTIMONY DURING SUMMATION COUPLED WITH AN ARGUMENT NOT BASED ON FACTS IN EVIDENCE COMPOUNDED THE ERROR OF THIS TESTIMONY THEREBY DEPRIVING THE DEFENDANT OF A FAIR TRIAL (Partially Raised at Trial).

We agree with the State that the issue is moot because this testimony was irrelevant to the hindering charge on which defendant was convicted. Moreover, the judge granted defendant's motion in limine to prohibit Kassai from directly opining that the substance contained in defendant's saliva was cocaine and addressed a number of objections to confine Kassai's testimony accordingly. Defendant did not object to the other testimony he now challenges. We find no error warranting a reversal.

Defendant argues that during summation, the prosecutor inappropriately presented Kassai, Bachok, and Avigliano as experts and emphasized facts unsubstantiated by the record but given significance by Kassai's and Bachok's inappropriate testimony.

Challenged remarks are evaluated not in isolation but in the context of the summation as a whole, State v. Atwater, 400 N.J. Super. 319, 335 (App. Div. 2008) (citing State v. Carter, 91 N.J. 86, 105 (1982)), and reversal is justified only if they were "'clearly and unmistakably improper'" and "'substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense.'" State v. Ingram, 196 N.J. 23, 43 (2008) (quoting State v. Harris, 181 N.J. 391, 495 (2004)). Moreover, it is "'fair to infer from [a] failure to object below that in the context of the trial the error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471 (2002) (quoting State v. Macon, 57 N.J. 325, 333 (1971)).

The prosecutor was not forbidden from indicating that Avigliano, Kassai, and Bachok had a combined twenty-five years of experience, ample evidence of which had already been presented to the jury. Although Kassai's testimony regarding typical methods of packaging crack cocaine did cross into the realm of expert testimony, that error was harmless and the prosecutor's remarks were an accurate and innocuous summary of that testimony.

Defendant also challenges the prosecutor's mention that the bag found in defendant's vehicle was a "tinted blue glassine bag," because no one had testified to the color of the bag at trial. He further contends that Kassai's testimony about dealers packaging crack cocaine in tinted plastic bags imbued that improper remark with added significance such that it "precluded any other alternative explanation for the bag's presence in the defendant's automobile" than that it once held drugs. Although this brief remark strayed from the facts adduced at trial, see State v. Smith, 167 N.J. 158, 178 (1999), the transgression was negligible. Kassai's testimony attached no special significance to blue bags as opposed to clear bags or bags of any other tint, and, as mentioned above, substantial alternative evidence was far more probative of the relevant elements of hindering than the bag, whether blue or not. Indeed, that the jury acquitted defendant of possession suggests that it did not find the color of the bag as probative as defendant asserts.

Defendant also contends:

UNDER THE CIRCUMSTANCES, THE COURT IMPOSED AN EXCESSIVE SENTENCE.

We are not persuaded.

We note that the judge found as aggravating factors "[t]he risk that defendant will commit another offense," "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44-1a(3), (6) & (9), but implicitly rejected that "[t]he defendant committed the offense against a police . . . officer . . . acting in the performance of his duties while in uniform," N.J.S.A. 2C:44-1a(8), which the State had urged. The judge found no mitigating factors and sentenced defendant to a custodial eighteen-month term with no parole disqualifier.

Defendant contends that his sentence is excessive. He does not challenge the court's finding of aggravating factors but argues that the court erred in failing to find three mitigating factors listed in N.J.S.A. 2C:44-1b, i.e., (1) "defendant's conduct neither caused nor threatened serious harm;" (2) "defendant did not contemplate that his conduct would cause or threaten serious harm;" and (3) "defendant acted under a strong provocation." We disagree with this contention. From our careful review of the record, we conclude that the sentencing factors identified by the judge are supported by the evidence. See State v. Johnson, 42 N.J. 146, 161 (1964). The sentence is in accord with the sentencing guidelines and based on a proper weighing of the factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989). The sentence does not shock our judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (1984). We are mindful that trial courts exercise wide discretion in sentencing decisions, "so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). We will not disturb a sentence "as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." O'Donnell, supra, 117 N.J. at 215.

Defendant's remaining contentions are:

THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1. THE COURT FURTHER ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A NEW TRIAL AS THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE PURSUANT TO R. 3:20-1.

THE TRIAL COURT ERRED WHEN IT DID NOT SUA SPONTE REQUIRE THE JURY TO ANSWER A SPECIFIC INTERROGATORY AS TO THE SPECIFIC CRIME FOR WHICH THE DEFENDANT KNEW HE WAS LIKELY TO BE CHARGED (Not Raised at Trial).

We reject these contentions, concluding that they are clearly without merit and do not warrant discussion in a written opinion. R. 2:11-3(e)(2).

 
Affirmed.

The jury acquitted defendant of third degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); and third degree resisting arrest, N.J.S.A. 2C:29-2a(3). The State dismissed a fourth degree charge of throwing bodily fluids at law enforcement officer, N.J.S.A. 2C:12-13.

(continued)

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A-3866-07T4

November 30, 2009