STATE OF NEW JERSEY v. BILL ALEXIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2571-09T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BILL ALEXIS,

Defendant-Appellant.

________________________________________

April 11, 2012

Submitted February 27, 2012 - Decided

Before Judges Parrillo and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-10-1907.

Joseph E. Krakora, Public Defender, attorney for appellant (Steven J. Sloan, Designated Counsel, on the brief).

Edward J. De Fazio, Hudson County Prosecutor, attorney for respondent (Melissa Szymansky, Assistant Prosecutor, on the brief).

PER CURIAM

Tried by a jury, defendant Bill Alexis was convicted of fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a), and was found not guilty of second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b). He was sentenced to probation for a period of three years, with conditions, and mandatory fines and penalties. Defendant appeals both his conviction and sentence.

Defendant raises the following points on appeal:

I. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE (NOT RAISED BELOW).

II. THE FINDING OF GUILT MUST BE REVERSED BECAUSE THE EVIDENCE DOES NOT SUPPORT FINDINGS THAT ALEXIS RESISTED ARREST OR OBSTRUCTED JUSTICE.

III. THE TRIAL JUDGE MISAPPLIED HIS DISCRETION AND SHOULD HAVE PERMITTED THE READ-BACK OF ALL TESTIMONY FROM OFFICER LATELLA AND [OFFICER] QUISH INSTEAD OF ONLY THEIR DIRECT TESTIMONY.

IV. THE TRIAL JUDGE MISAPPLIED THE LAW BY IMPOSING AN EXCESSIVE SENTENCE.

We reject these arguments and affirm.

I.

According to the State's proofs, in the early hours of July 4, 2008, Jersey City Police Officer Jim Latella received information that defendant had a handgun in his possession. Minutes later, Officer Latella, who was in full uniform and driving a marked police car, saw defendant standing on the corner of Kennedy Boulevard and Glenwood Avenue. Defendant was wearing a white t-shirt and blue jeans and was holding his hands over a "large bulge" under his shirt near the waistband of his pants.

When Officer Latella and defendant made eye contact, defendant immediately started to run down the street. At that point, Officer Latella exited his car and ordered defendant to stop. He complied, momentarily, and then continued to run while still holding something under his t-shirt with both hands. Officer Latella radioed for backup and was joined by Officer Roy Quish, who saw defendant, with his hands still holding a large bulge in his waistband, run north on Kennedy Boulevard. At trial, Officer Quish testified to what occurred next:

A. Well, I continued to follow him in my vehicle, keeping my observations on him until I could find a location where I could try and stop him.

Q. And then what happened?

A. In front of an apartment building there was a large flowerpot with a rather large plant in it. I observed the defendant stop in front of it. He turned his back, came to a complete stop for maybe two or three seconds, and then he turned again facing north and began to run back towards Highland Avenue.

. . . .

Q. Now, about two, three seconds, he then left the flowerpot area and what did he do?

A. He turned and began to run in the same direction he initially started, but this time I observed that he was running in a normal fashion, with his hands pumping up and down as if he were normally running.

Q. What about the bulge?

A. I no longer saw that and, again, like I said, his hands were free and they were moving back and forth, up and down.

At that point, Officer Quish turned his vehicle onto Highland Avenue, cutting off defendant's path, and arrested him.

Officer Quish then instructed another officer to search the area around the flowerpot, about fifty to sixty feet from the spot of the arrest. The search produced a .45 caliber handgun resting on top of dirt inside the flowerpot. The gun contained a magazine holding five rounds, and another round in the gun's chamber.

Defendant was indicted on October 8, 2008, and charged with second-degree unlawful possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count one); second-degree unlawful possession of a handgun for an improper purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree resisting arrest by flight, creating a substantial risk of physical injury, N.J.S.A. 2C:29-2(a) (count three); fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1 (count four); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count five). Counts two and five were dismissed prior to trial.

At trial, defendant testified on his own behalf and explained that he ran because another man, "the guy with the Steelers shirt," "dropped [a] gun," and defendant "got scared." He admitted that he saw Officer Latella get out of his vehicle and heard his command to stop. Defendant testified that he continued to run because he "thought [Officer Latella] was going to shoot [him]."

II.

Defendant first asserts that the jury s verdict finding him guilty of resisting arrest and obstructing the administration of law was against the weight of the evidence. Because defendant did not move for a new trial before the trial court on this ground, this claim is procedurally barred. R.2:10-1; State v. Saunders, 302 N.J. Super.509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). Nevertheless, "we can proceed to the merits, if we choose, in the interest of justice." State v. Smith, 262 N.J. Super. 487, 511 (App. Div.), certif. denied, 134 N.J.476 (1993). We will do so here.

N.J.S.A. 2C:29-1, "Obstructing administration of law or other governmental function," provides:

A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act.

[Ibid.]

N.J.S.A. 2C:29-2(a), "Resisting arrest, eluding officer," provides, in pertinent part:

(2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph . . . (2) of subsection a. is a crime of the third degree if the person:

. . . .

(b) Uses any . . . means to create a substantial risk of causing physical injury to the public servant or another.

[Ibid.]

The facts established at trial bear a striking similarity to the facts in State v. Crawley, 187 N.J. 440 (2006). In that case, two Newark police officers on patrol shortly after midnight received a dispatch that a person was armed with a gun outside a bar. Minutes later, the officers saw a man near the bar matching the description given in the dispatch and approached him for questioning. At that point, the man, later identified as the defendant Saleem Crawley, ran. Following a pursuit, the defendant was arrested and convicted of the disorderly persons offense of obstructing the administration of law, N.J.S.A. 2C:29-1(a). 187 N.J. at 443.

The defendant appealed his conviction, and the Court held that "a defendant may be convicted of obstruction under N.J.S.A. 2C:29-1 when he [or she] flees from an investigatory stop." 187 N.J. at 460. As explained by the Court, there are "compelling public safety reasons" that require a defendant to submit to an investigatory stop, even if illegal. Id. at 455. The Court found that in responding to the dispatch, the officers were "lawfully performing an official function" within the meaning of N.J.S.A. 2C:29-1(a). 187 N.J. at 443-44.

Here, defendant does not challenge the constitutionality of the police stop.1 There is no question that Officer Latella, who received information that defendant had a handgun in his possession, was "lawfully performing an official function" when he sought to stop and question defendant. N.J.S.A. 2C:29-1. Having failed to comply with Officer Latella's instruction to stop, there is also no question that defendant's flight constituted an attempt "to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a).

The jury was entirely free to reject defendant's version that he was simply scared and instead credit the officers' version of events. See State v. Coleman, 46 N.J. 16, 43 (1965), cert. denied, 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966). The record provided ample support for the conclusion that a uniformed officer ordered defendant to stop, that defendant heard the order, and that he continued to run despite that order. By its verdict, the jury obviously rejected defendant's claim of innocence on the obstruction and resisting arrest charges. Defendant's claim that the verdict was against the weight of the evidence clearly lacks substantive merit.

Defendant next contends that the trial court erred in reading back only the direct examination portions of the trial testimony of Officers Latella and Quish. During deliberations, the jury sent the following request to the court: "We would like to hear the direct testimony of Lieutenant Latella and Sergeant Quish played back."

"It is well-established that 'the reading of all or part of the testimony of one or more of the witnesses at a trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court.'" State v. Wilson, 165 N.J. 657, 660 (2000) (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). The general rule is that if a jury requests a readback of the testimony of a witness, the readback should include both direct and cross-examination. Ibid. However, "where a request is clearly circumscribed, the trial court has no obligation to compel jurors to hear testimony they have not asked for." Id. at 660-61.

In light of the clearly circumscribed nature of the jury's request, the judge's decision to play back the direct testimony, without playing the accompanying cross-examination, was not a mistaken exercise of discretion. The reading back of a portion of a witness's testimony is clearly within the sound discretion of the trial court. See State v. Ciniglio, 57 N.J. Super. 399, 403 (App. Div. 1959), certif. denied, 31 N.J. 295 (1960).

Finally, defendant asserts that the trial court erroneously weighed the aggravating and mitigating factors, N.J.S.A. 2A:44-1(a), in imposing defendant's sentence. In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1(a)(3) (the risk that the defendant will commit another offense), and N.J.S.A. 2C:44-1(a)(9) (the need for deterring the defendant and others from violating the law), and mitigating factors N.J.S.A. 2C:44-1(b)(6) (defendant will participate in a program of community service), and N.J.S.A. 2C:44-1(b)(7) (this was defendant's first indictable offense).2

A careful review of the record, including the sentencing transcript, leads us to conclude that the findings of fact regarding aggravating and mitigating factors were based on competent and credible evidence in the record; that the judge did not incorrectly apply the sentencing guidelines enunciated in the Code; and that in applying the facts to the law, the judge reached a conclusion that could have been made upon a weighing of the relevant factors. See State v. O'Donnell, 117 N.J. 210, 215 (1989). Accordingly, the trial court did not abuse its discretion in sentencing defendant to three years probation.

We discern no basis to disturb defendant's conviction or the sentence imposed by the trial court.

1 Moreover, we see nothing improper about the conduct of the officers during the encounter. As noted in Crawley, the report of a man walking the streets with a gun "is a clear and present danger that requires prompt investigation. The failure to act would have constituted a dereliction of duty." 187 N.J. at 462.

2 At sentencing, the judge mistakenly referred to mitigating factor 7 as mitigating factor 14. A review of the transcript clearly shows the judge intended to reference factor 7, relating to prior criminal history.