STATE OF NEW JERSEY v. DERRICK YOUNGER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3962-09T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DERRICK YOUNGER,

Defendant-Appellant.

October 19, 2012

Submitted September 11, 2012 - Decided

Before Judges Fisher, Alvarez and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-12-3753 and 07-05-1601.

Joseph E. Krakora, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury in absentia on August 7, 8, and 9, 2007, defendant Derrick Younger was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b). Almost a year later, on June 9, 2008, defendant entered a guilty plea to third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and second-degree employing a juvenile to distribute drugs, N.J.S.A. 2C:35-6, on an unrelated indictment.

On July 25, 2008, he was sentenced on all outstanding matters, including the eluding as well as the drug offenses. A term of five years imprisonment was imposed in accord with the negotiated plea agreement on the drug charges, subject to two years of parole ineligibility, concurrent on each. Appropriate fines and penalties were also imposed. After granting the State's application to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3(a), the court separately sentenced defendant on the eluding conviction to a concurrent ten years. A probation term defendant had been serving on a third indictment was terminated without improvement.

Defendant appeals his eluding conviction and sentence, as well as the negotiated sentence imposed on the drug offenses. We affirm.

The judge conducted a pretrial conference on the eluding indictment, and defendant signed the pretrial memorandum on May 4, 2007. See R. 3:9-1(e). In accord with the pretrial conference rule, defendant was advised of his July 30, 2007 trial date and the fact that the trial would proceed even if he failed to appear. The judge also explained that if the matter was adjourned, defendant was nonetheless expected to appear, and that the trial would go forward on the adjourned date even in his absence. The form defendant signed, required by the pretrial conference rule, states in bold print:

1. I have been advised of my right to be present at the trial of this case. If I fail to appear for trial on the date scheduled for trial, the Court has the right to conduct the trial in my absence. If my case is not reached for trial on that date the judge will schedule a new date for trial. If I am not present on the original trial date, or any rescheduled trial date, the trial will proceed without me and I will be bound by the jury's verdict.

After jury selection, prior to opening statements, counsel informed the court that defendant had failed to respond to "four or five different correspondence [sic] . . . subsequent to the May 4 pretrial . . . ." The court responded that defendant had been advised of his obligation to appear on the scheduled trial date during the course of the pretrial conference, and had signed a pretrial memo memorializing that understanding.

The facts can be briefly summarized. On August 18, 2006, at approximately 11:40 p.m., East Orange Police Department Sergeant Larry Martin was dispatched to the area of Park and North Fourteenth Streets because of a report that a stolen motor vehicle, a red minivan, had crashed into a wall. As the officer approached the abandoned minivan, he saw a black Toyota Supra, occupied by a male driver and a female passenger, backing away from the intersection down the street at about twenty miles per hour for an entire block. Sergeant Martin gave chase through several intersections, deploying his lights and siren. He observed the motor vehicle run a stop sign immediately before speeding onto Route 280 West. Once on Route 280 West, the driver turned off his lights and began to weave in and out of traffic.

Eventually, Sergeant Martin turned off his siren and lights, fearing that the driver's manner of operation would just "continue to put everybody at risk." Since the officer could not exit from Route 280 at that location, he continued following the car and saw it swerve from the far left to the far right, hitting a curb in the process, causing sparks to fly out from beneath the vehicle. The right front tire bent, the axle snapped, and the car became immobilized. The officer quickly pulled up alongside, blocking the driver's side door, drew his weapon, and told the vehicle occupants to stay in the car with their hands raised until backup arrived. Defendant, who was the driver, was issued a summons for careless driving and for driving without a license in addition to the eluding charge.

Defendant raises the following points of error for our consideration:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR JUDGMENT OF ACQUITTAL; THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE

POINT II

THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS OPENING STATEMENT AND HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (PARTIALLY RAISED BELOW)

POINT III

THE COURT ERRED IN FAILING TO FULLY INQUIRE OF COUNSEL THE REASON DEFENDANT WAS ABSENT FOR THE TRIAL; A DETERMINATION WHETHER HIS ABSENCE WAS VOLUNTARY WAS NOT MADE PART OF THE RECORD

POINT IV

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED

I

Defendant asserts that the trial court erred in denying defendant's motion for judgment of acquittal, and that the verdict was against the weight of the evidence. Rule 3:18-1 instructs that a motion for acquittal should be granted "if the evidence is insufficient to warrant a conviction." In reviewing an appeal from the denial of a motion for acquittal based on a claim that the proofs were insufficient, we apply the same standard as does the trial court. State v. Bunch, 180 N.J. 534, 548-59 (2004). That standard is set forth in State v. Reyes:

[t]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[ 50 N.J. 454, 458-59 (1967) (citation omitted).]

In this case, the State's proofs were clear and unrefuted. The officer testified that he pursued defendant through several residential streets onto a busy highway until defendant's car became disabled and he could go no further. Giving the State the benefit of the testimony presented at trial and all the favorable inferences which can be reasonably drawn therefrom, a reasonable jury could only find guilt of the charge beyond a reasonable doubt. Hence the trial court did not err by denying defendant's motion for acquittal as the evidence indisputably satisfied the Reyes standard.

Rule 2:10-1 states that: "the 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." See also State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). No motion for a new trial was made in this case. Defendant nonetheless asserts that we should consider his weight-of-the-evidence argument "in the interests of justice." Having reviewed the record and considered defendant's arguments, we do not agree that the interests of justice would be served by consideration of the point because the State's proofs were so overwhelming. See State v. Love, 245 N.J. Super. 195, 198 (App. Div. 1991) (the sufficiency of the evidence can be taken into account when deciding whether to consider a weight-of-the-evidence argument in the absence of a motion for a new trial). We will therefore not address the point further.

II

Defendant also contends that the prosecutor made prejudicial remarks in opening and closing statements which denied him a fair trial. In his opening, the prosecutor said that defendant failed to pull over even after he saw the officer's lights and heard the sirens. In closing, the prosecutor said that items, never identified or recovered, were thrown out of the car window because defendant was attempting to avoid being caught with them in his possession.

We are mindful that prosecutors are "afforded considerable leeway in closing arguments as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). The State is entitled to summarize its case "graphically and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div.), certif. denied, 114 N.J. 314 (1988). But prosecutors must refrain from "inflammatory and highly emotional" appeals having the capacity to divert the jury from a fair consideration of the evidence of guilt. State v. Marshall, 123 N.J. 1, 161 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).

In order to constitute a ground for reversal of a criminal conviction, however, a prosecutor's misconduct must be "so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 322 (1987).

Defendant's assertion that the remarks the prosecutor made in his opening statement were unduly prejudicial and deprived him of a fair trial is unconvincing. Although there is no direct evidence that defendant actually saw the patrol car lights and heard the siren, such as an admission that he did so, it is a reasonable inference from the evidence, as an explanation for his evasive driving.1 See State v. Carter, 91 N.J. 86, 125 (1982); State v. Michaels, 264 N.J. Super. 579, 640 (App. Div. 1993), aff d, 136 N.J. 299 (1994). Accordingly, the statement was not unduly prejudicial.

The prosecutor's reference to Sergeant Martin's testimony regarding objects being thrown out of the window as he followed defendant's vehicle, presumably because the occupants did not want to be caught with them, was arguably also a reasonable inference from the testimony; it explains the conduct. Nonetheless, the trial judge sustained counsel's objection to the statement. He did not strike it from the record, but his failure to do so was not error. The statement was not so egregious as to require that additional step. Counsel did not even request such an instruction. See State v. Mays, 321 N.J. Super. 619, 633 (App. Div.), certif. denied, 162 N.J. 132 (1999).

Both these points concern inferences from the evidence which the jury was free to either accept or reject. See Carter, supra, 91 N.J. at 125; Michaels, supra, 264 N.J. Super. at 640. Accordingly, we see no prejudicial error in the prosecutor's opening or closing remarks.

III

Defendant also challenges the trial judge's failure to make additional findings regarding defendant's absence before proceeding with the trial. We do not agree.

Defendant was notified of the consequences of a failure to appear in the manner delineated by Rule 3:9-1(e). The entire purpose of the warnings is to insure that a defendant cannot control the scheduling of his trial, but rather, understands that if he fails to appear, the trial will proceed in his absence. See State v. Hudson, 119 N.J. 165, 179-80 (1990). That defendant's trial was actually conducted on an adjourned date does not affect his waiver, since he was told about that possibility as well, and proffered no justification for his absence. See State v. Finklea, 147 N.J. 211, 213 (1996), cert. denied, 522 U.S. 837 (1997). We are therefore satisfied that the trial judge was not required to do more. See id. at 220. This claim also lacks merit.

IV

We note that the notice of appeal addresses both the eluding and drug indictments, however, the sentence for the drug charges was not discussed in the brief. Litigants must provide an adequate legal argument with appropriate references to the record before they are entitled to appellate review. See State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Because the arguments were only directed to the sentence imposed on the eluding we will only address that sentence, which we do not perceive to be manifestly excessive.

In reviewing sentencing decisions we do not substitute our judgment for that of the trial court. State v. Bieniek, 200 N.J. 601, 607-08 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Id. at 608-09.

Defendant claims that because his conduct did not cause actual harm and he did not contemplate that it would cause serious harm, additional mitigating factors should have been found. See N.J.S.A. 2C:44-1(b)(1) and (2). We disagree. That defendant sped through residential streets onto a busy highway on a high-speed chase is not conduct which warrants those mitigating factors.

Defendant's imprisonment will no doubt cause hardship to his daughter and grandmother, but that is no different in this case than in any other where a defendant facing imprisonment leaves family behind. See N.J.S.A. 2C:44-1(b)(11).

The sentence was within legal limits and does not shock our conscience.

1 We also note that the judge followed the Model Jury Charge, instructing the jury that opening statements and summaries are "not evidence." Model Jury Charge (Criminal), "Instructions After Jury is Sworn" (2012). The concept that statements by the attorneys in the case, prosecutors and defense counsel, are "not evidence" was reiterated during the charge. See Model Jury Charge (Criminal), "Criminal Final Charge" (2002).