STATE OF NEW JERSEY v. DAVID MORALES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3548-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID MORALES,

Defendant-Appellant.

_________________________________

December 17, 2010

Submitted September 15, 2010 - Decided

Before Judges Fuentes and Ashrafi.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment

No. 04-09-1226.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Richard Sparaco,

Designated Counsel, on the brief).

Paula T. Dow, Attorney General, attorney for

respondent (Michael J. Williams, Deputy

Attorney General, of counsel and on the brief).

PER CURIAM

Defendant David Morales was tried before a jury and convicted of third degree assault by auto, N.J.S.A. 2C:12-1c(2), third degree resisting arrest, N.J.S.A. 2C:29-2a(3), second degree eluding, N.J.S.A. 2C:29-2b, and second degree aggravated assault, N.J.S.A. 2C:12-1b(6). After merging the assault by auto and eluding convictions with the aggravated assault conviction, the court sentenced defendant to a term of five years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent three-year term on the resisting arrest conviction.

Defendant now appeals, raising a number of arguments attacking his conviction. We affirm. We gather the following facts from the record developed before the trial court.

On April 9, 2004, defendant drove into New York City and picked up a friend to go to a bar. Between 4:30 and 5:00 p.m., defendant consumed three shots of cognac. The two men left the bar around 5:00 p.m. and proceeded to drive to the home of an acquaintance of defendant's friend who resides in Paterson; the trip took approximately ninety minutes. Once in Paterson, defendant consumed more cognac, two "regular glass[es] but filled up halfway." At trial, defendant testified that after consuming the second glass of cognac, he had no recollection of the rest of the evening's events.

Paterson Police Officer Jason Wester testified that at 8:30 p.m. he stopped his marked patrol car about two car-lengths behind a silver Honda that was stopped at a red traffic signal. Webster observed the traffic signal change from red to green and back to red again without the Honda responding or otherwise proceeding through it. Consequently, Wester "activated [his overhead] emergency lights and pulled behind the vehicle." Wester exited his patrol car and approached the driver's side of the Honda. The traffic signal had again cycled from green to red without any movement from the Honda.

When Wester knocked on the Honda's driver's side window, defendant rolled down the window and answered affirmatively when Wester asked him if he "was okay." Wester then asked defendant why he failed to proceed through the green lights, to which defendant responded: "I m waiting for the light to turn green, you jerk-off."

When the traffic signal turned green once more, defendant sped away. Before this occurred, Wester noticed that defendant was not wearing his seatbelt. At this point, however, Wester did not observe any signs that defendant was intoxicated; his speech was not slurred and he did not smell of alcohol.

Wester returned to his patrol vehicle and began pursuing defendant with the intention of giving him a verbal warning regarding his seatbelt. He activated his overhead lights and sirens as defendant navigated "extremely well" around approximately five blocks in Paterson. The pursuit lasted from two to five minutes and was conducted at speeds in excess of fifty miles-per-hour. The local speeding limit was twenty-five miles-per-hour. At one point in the pursuit defendant turned off his headlights for approximately thirty seconds.

Wester decided to terminate the pursuit because the risk of endangering innocent lives for a "minor seatbelt infraction" was "just not worth it." After turning off his overhead lights and sirens, Wester reduced his speed to comply with the local speed zone but continued to follow defendant's vehicle. At this point, Wester saw defendant s vehicle collide with another vehicle and continue without stopping. After checking on the conditions of the occupants of the car struck by defendant, Wester watched as defendant drove out of his sight. Wester then heard two loud bangs and "saw sparks shoot across the street."

Wester drove to the scene of the apparent accident and upon arriving, saw that a vehicle had struck a utility pole, a parked car had been struck and was "on top of another parked vehicle," and defendant's car had come to a stop. As Wester approached defendant's car, defendant "exited his vehicle and began to run in the direction toward [another uniformed officer who had arrived at the scene]." After running for about fifty feet, defendant "turned around and began to run in [Wester's] direction." Defendant then slipped and fell. Wester attempted to arrest defendant but "[h]e began flailing his arms in a violent manner," forcing Wester to seek the assistance of another officer to finally handcuff him. At this point, Wester noticed defendant "was slurring his speech," was "sway[ing] while he was walking," and that an odor of alcohol emanated from his person.

Defendant was taken from the scene to a nearby hospital to treat injuries he suffered from the collision. The parties stipulated that defendant's blood tested at the hospital indicated that defendant had a blood alcohol concentration (BAC) of .227%, nearly three times the 0.08% presumptive level of intoxication under N.J.S.A. 39:4-50a.

At trial, defendant testified that the car he drove on the day of the incident was purchased for him by his mother. According to defendant, he did not recall any of the events that transpired from between 6:00 p.m. on April 9, 2004, when he left his friend's home in Paterson, to the time he woke up in the police holding cell the next day. Defendant admitted in his direct testimony having been convicted of driving while intoxicated (DWI) in New York the previous year. However, he did not experience any blackout on that occasion. On cross-examination, defendant indicated that he believed the car he was driving in this incident would be impounded as a result of his inebriated condition, the same way the car he drove in New York was impounded the previous year.

Defendant called Dr. Mark L. Willenbrig in support of his blackout defense. The court admitted Dr. Willenbrig as an expert witness in the field of behavioral sciences and the psychiatry of addiction. Although he did not review defendant s particular offense in this case, Dr. Willenbirg gave the jury the following explanation concerning alcoholic blackouts:

A blackout is a period of time when someone who had been drinking heavily has no memory for that period of time . . . [D]uring a blackout, people can do complicated tasks like interact, eat, drive a car, even be on their job[,] although somewhat impaired. The best way to think about what a blackout is is it s the inability to lay down new memories . . . .

[S]o after the intoxication is over, and people sober up, they re unable to [remember what] occurred during that period of time.

Against this evidential record, defendant now raises the following arguments in support of his appeal.

POINT I

ADMISSION OF EVIDENCE OF THE DEFENDANT'S PRIOR DWI CONVICTION DENIED HIM THE RIGHT TO A FAIR TRIAL.

A. THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS OWN ATTORNEY INTRODUCED EVIDENCE THAT DEFENDANT HAD A PRIOR DWI CONVICTION. (Not Raised Below)

B. IN THE ALTERNATIVE, THE COURT SHOULD NOT HAVE RULED THAT THE DEFENDANT'S PRIOR DWI CONVICTION IS ADMISSIBLE IF DEFENDANT PUT IN A BLACKOUT DEFENSE.

POINT II

THE TRIAL COURT ERRED IN ADMITTING THE OTHER-CRIMES EVIDENCE BECAUSE IT WAS HIGHLY PREJUDICIAL, CONFUSING AND MISLEADING PURSUANT TO N.J.R.E. 403.

POINT III

THE TRIAL COURT ERRED IN FAILING TO CONSIDER LIMITING, SANITIZING OR OTHERWISE MINIMIZING THE PREJUDICIAL EFFECT OF THE OTHER-CRIMES EVIDENCE.

POINT IV

THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT PRECLUDED HIM FROM PROBING INTO COMPENSATION MADE TO THE VICTIM.

POINT V

THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

We reject these arguments. We address each argument in the order presented.

We review a claim of ineffective assistance of counsel under the two-prong test established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), and subsequently adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987). First, defendant must demonstrate that defense counsel's performance was deficient. Strickland, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693. Second, defendant must show that there exists "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S. Ct. at 2068, 80 L. Ed. 2d at 698. Our Supreme Court has also expressed a clear policy of not entertaining claims of ineffective assistance of counsel on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992).

Here, defendant's trial counsel decided to introduce evidence of defendant's prior DWI conviction in support of his overall defense strategy. We cannot, on this record, determine the soundness of counsel's decision nor whether it contributed to defendant's conviction. Because ineffective assistance of counsel claims are better suited for post conviction relief, we reject this argument without prejudice to defendant's right to bring a timely petition on these grounds. State v. Castagna, 187 N.J. 293, 316 (2006).

We next address defendant's contention that the trial court erred in admitting evidence concerning his prior DWI conviction. He argues that under N.J.R.E. 404(b), the court should have excluded this "other-crimes" evidence because it only served to characterize defendant as a bad person. We disagree.

Defendant's prior DWI conviction was introduced by his own counsel in support of his blackout defense. In this light, any prejudice that may have resulted from such a defense strategy was self-induced. Defendant cannot adopt and successfully advocate a position at trial and then attack as error the trial court's decision acceding to his request. State v. Jenkins, 178 N.J. 347, 358-59 (2004).

That being said, the State did not use defendant's prior DWI conviction to paint defendant as a bad person or someone with a proclivity for driving drunk. The prosecutor's comments on summation referred to defendant's New York DWI conviction as a possible reason or "motive" for defendant's failure to adhere to Officer Wester's directions to stop his car. Such a use of this evidence is permitted under N.J.R.E. 404(b). State v. Cofield, 127 N.J. 328, 338 (1992).

Finally, defendant's decision to introduce this evidence also triggers a plain error standard of review on appeal. R. 2:10-2. This requires that we find the prejudice caused by the erroneous admission of this evidence to be "clearly capable of producing an unjust result." Ibid. Given the State's carefully limited use of this evidence, defendant has not satisfied this heightened standard of review.

Defendant's remaining arguments as reflected in Points III, IV, and V lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

A