STATE OF NEW JERSEY v. JAMES A. BAINES

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6070-07T46070-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES A. BAINES,

Defendant-Appellant.

________________________________

 

Submitted: January 27, 2010 - Decided:

Before Judges Cuff and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-04-0492.

Yvonne Smith Segars, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant James A. Baines appeals from a judgment convicting him of second-degree eluding, contrary to N.J.S.A. 2C:29-2b, on which a sentence of eight years with a parole disqualifier of forty-two months was imposed, made to run concurrently with a sentence he was serving for a violation of parole. We affirm.

The evidence at trial established that on February 21, 2007, at about 3:30 a.m. Trenton Police Officer David Ordille and his partner, Officer Gregory Hollo, were on routine patrol. At the intersection of Morris Avenue and Division Street, Ordille observed a gold Toyota being operated by defendant on Morris Avenue fail to stop at the stop sign. In executing a right turn, defendant almost struck Ordille's vehicle. The officer activated his lights. Rather than stopping, defendant doubled his speed and continued down Division Street. Ordille kept pace, about two to three car lengths behind him.

Defendant made a left turn onto Williams Street, continuing to drive at about forty-five to fifty miles per hour through a residential neighborhood. He drove through a stop sign at Anderson Street and another one at Liberty Street. At that point, he struck a vehicle on Liberty Street, which was lawfully proceeding through the intersection. Ordille was about fifty to one hundred yards behind defendant.

Ordille stopped his vehicle and approached the gold Toyota. He observed defendant, smelling of alcohol, slumped over the passenger seat. Although conscious, he did not appear to be able to move or exit the car and complained of being hurt. The officers radioed for an ambulance and went to check on the other vehicle. The two people in the vehicle defendant struck were not injured.

Ordille issued summonses for being an unlicensed driver and failing to stop at the stop signs. At the hospital, a nurse drew blood from defendant to test for alcohol. An indictment was returned on April 10, 2007, charging defendant with second-degree eluding police, contrary to N.J.S.A. 2C:29-2b, and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a(2).

The trial was conducted on January 23 and 29-31, 2008. Initially, the State moved to dismiss the resisting-arrest charge, which was granted. Ordille testified to the events he observed on February 21, 2007, as described above, and identified defendant as the operator of the gold Toyota. He also testified about the various photographs that had been taken of the scene and the vehicles involved in the crash.

Giovannia Salas Alvazado testified that she was driving home from work on February 21 on Liberty Street when suddenly at a corner a vehicle ran the red light and collided with her vehicle. Her car was a total loss. She did not see the police car until after the accident.

Detective Rick Rivera testified that he was assigned to the fatal crash investigation team. That team investigates fatal crashes; all crashes involving serious, life-threatening injuries; and all crashes involving police officers in one way or another. He was qualified as an expert and testified he investigated this accident. That investigation demonstrated that the accident occurred as Ordille described it. There were no pre-accident skid marks, and the vehicles impacted almost right in the middle of the intersection. He could not determine the speed of defendant's vehicle. The crash was a simple, basic crash anyone could figure out. After completing the investigation, he signed a complaint against defendant for driving while intoxicated and reckless driving. He prepared a diagram of the accident and testified about it.

Officer Joseph D'Ambrosio testified he became involved in this case when he responded to the scene to assist the officers already there. Sergeant Luddie Austin instructed him to accompany defendant, who was still sitting in his car, to the hospital for treatment. D'Ambrosio rode with defendant in the back of the ambulance. D'Ambrosio was to wait for a blood kit, which was being delivered to the hospital by another officer, to obtain defendant's blood and take it back to police headquarters for testing. When the blood kit arrived, he gave it to a nurse, who drew defendant's blood and returned the kit to D'Ambrosio. The sample was labeled and sealed by D'Ambrosio. He then waited while defendant was being treated. When defendant was discharged, D'Ambrosio called for a transport to take him and defendant to police headquarters. Once there, he prepared a property report and gave the report and blood kit to the commanding officer, who placed the sample in the refrigerator.

The registered nurse who supervised the blood draw, Leah Mihaly, testified to the procedure followed in obtaining defendant's blood and giving the blood kit to D'Ambrosio. Tara Mayka, a State toxicologist, testified at trial that defendant's blood-alcohol content was 0.106%. His blood also tested positive for cocaine. The State then rested.

Defendant moved pursuant to Rule 3:18 and State v. Reyes, 50 N.J. 454 (1967), to amend the charge to a third-degree offense because Alvazado testified that she did not see the police until after the accident. He urged that the police were no longer in pursuit when the accident happened. The State pointed out that it only had to prove that defendant created a risk of injury and urged that Ordille's testimony established that risk given the speed at which defendant was traveling, forty-five to fifty miles per hour, through a residential neighborhood, and obviously there was a crash. The judge found that a reasonable jury could convict defendant on the second-degree charge beyond a reasonable doubt and denied the motion. He found that Ordille's testimony established that defendant was given a signal to stop but he continued to flee until he crashed.

Defendant then testified on his own behalf. He stated that February 19 was his birthday, which he celebrated on February 20. He started drinking mixed drinks with rum, vodka, and gin around 11:00 a.m. In all, he drank a quart or more of alcohol between 11:00 a.m. on February 20 and 2:00 a.m. on February 21. Around 2:30 p.m. on February 20, he snorted $20 worth of cocaine while he was at a crack house drinking. When he got home, he had a big argument with his fiancée. When she told him to go to bed, he said he was leaving and went out to his car, which was parked on the street near his home on Williams Street. He said the last thing he could remember was putting his head on the steering wheel. The next thing he knew, he was handcuffed to a gurney in the hospital. He testified he had no recollection of almost hitting a police car and then being pursued by the police while he was driving back to his home.

Defendant was convicted of second-degree eluding and was sentenced thereafter. This appeal followed.

Defendant raises the following issues on appeal:

POINT 1: THE DEFENDANT WAS DENIED THE RIGHT TO A FAIR TRIAL WHEN THE STATE WAS ALLOWED TO INTRODUCE INTO EVIDENCE DEFENDANT'S USE OF A CONTROLLED DANGEROUS SUBSTANCE (NOT RAISED BELOW).

POINT II: THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

POINT III: THE DEFENDANT WAS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL DUE TO TRIAL COUNSEL'S FAILURE TO OFFER ANY EXPERT PROOFS ON THE EFFECT OF THE BLOOD-ALCOHOL READING AND THE DEFENDANT'S INEBRIATION IN SUPPORT OF HIS DEFENSE OF INTOXICATION (NOT RAISED BELOW).

POINT IV: THE SENTENCE OF EIGHT YEARS WITH THREE AND ONE-HALF YEARS OF PAROLE INELIGIBLITY WAS EXCESSIVE IN THAT THE COURT IMPROPERLY CONSIDERED THE STATE'S CHOICE NOT TO FILE A MOTION FOR AN EXTENDED TERM SENTENCE.

In his first point, defendant contends that it was error to admit evidence that he was under the influence of cocaine as that was not relevant to the eluding issue at all. No objection was made to the admission of this evidence. We disregard such an error "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2. Although we do not doubt that an objection to this evidence may well have been successful under Rules 403 or 404(b) and State v. Cofield, 127 N.J. 328, 338 (1992), any error in admitting this evidence was harmless in light of the defense presented that defendant was so intoxicated from alcohol and cocaine that he was not aware of being pursued by the police. Thus, we find no merit to this point.

Defendant next claims that the verdict was against the weight of the evidence. He did not make a motion for a new trial, a prerequisite to our review of the weight of the evidence. R. 2:10-1 ("[T]he issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court."). Although we may choose to address the issue in the interest of justice, State v. Smith, 262 N.J. Super. 487, 511-12 (App. Div.), certif. denied, 134 N.J. 476 (1993), we see no occasion for doing so here. The testimony of Ordille was not impeached whereas that of defendant, a convicted felon, was.

Defendant next claims that he received ineffective assistance from counsel, because his trial attorney failed to secure an expert to testify that defendant would not have known beyond a reasonable doubt that he was being pursued due to his intoxication and, thus, could not have had the requisite mens rea to convict him of eluding. This is not a claim of ineffective assistance of counsel that is cognizable on direct appeal. It requires evidence outside the record, that is, an affidavit or a report from a toxicologist opining on the effect of defendant's intoxication on his ability to comprehend pursuit, State v. Cummings, 321 N.J. Super. 154, 170 (App. Div.), certif. denied, 162 N.J. 199 (1999), and an explanation from defense counsel at an evidentiary hearing as to why no expert was called. The issue may be raised by a petition for post-conviction relief.

Defendant last contends that his sentence was excessive because the judge improperly considered the fact that the State had not sought an extended term, even though he was extended-term eligible. He urges the judge erred in sentencing him to eight years, which is three more years than the statutory minimum. The scope of our review of a sentence is whether the judge mistakenly exercised his discretion by imposing a manifestly excessive sentence. State v. Leggeadrini, 75 N.J. 150, 156-57 (1977).

The judge found aggravating factor (3), N.J.S.A. 2C: 44-1a(3), the risk that defendant will commit another offense. That factor was clearly appropriate because defendant has been found guilty of municipal and Superior Court offenses on five prior occasions between April 11, 1975, and May 13, 1997, and had been arrested on four other occasions. The judge found aggravating factor (6), N.J.S.A. 2C: 44-1a(6), the extent and seriousness of his prior criminal history. This is supported by defendant's convictions for aggravated assault, carrying a prohibited weapon, and homicide, for which he was given a life term. Last, the judge found aggravating factor (9), N.J.S.A. 2C:44-1a(9), the need to deter defendant and others, which was obviously appropriate. He balanced these aggravating factors against the mitigating factors of a ten-year crime-free status, his attendance at counseling, his payment of child support, his parole eligibility, and his employment history. Nonetheless, the judge found the aggravating factors substantially outweighed the mitigating factors and sentenced defendant to a term of eight years on a sentencing exposure of five to ten years. This is clearly a mid-range sentence, six months above the mid-point. We find no abuse of discretion in its imposition.

 
Affirmed.

(continued)

(continued)

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A-6070-07T4

July 14, 2010