STATE OF NEW JERSEY v. MATTHEW J. BREWER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NOS. 0A-4312-13T3

A-3745-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MATTHEW J. BREWER,

Defendant-Appellant.

__________________________

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

MATTHEW J. BREWER,

Defendant-Respondent.

____________________________________

December 14, 2016

Submitted November 28, 2016 Decided

Before Judges Sabatino, Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-05-0961.

Joseph E. Krakora, Public Defender, attorney for appellant in A-4312-13 and respondent in A-3745-13 (Alison Perrone, Designated Counsel, on the briefs).

Esther Suarez, Hudson County Prosecutor, attorney for respondent in A-4312-13 and appellant in A-3745-13 (Erin M. Campbell, Assistant Prosecutor, on the brief).

PER CURIAM

In these consolidated appeals, defendant Matthew J. Brewer seeks relief from his conviction of second-degree eluding, N.J.S.A.2C:29-2(b), and five-year custodial sentence for that offense. The State separately appeals the trial court's grant of bail to defendant pending his appeal. We affirm the conviction but remand for reconsideration of the sentence with explicit reference to the appropriate legal criteria. Pending that decision on remand, we reject the State's request to revoke bail.

I.

The State's proofs showed that at about 4:30 a.m. on New Year's Day in 2012, two Jersey City police officers observed two males suspiciously run out of a chicken restaurant. The running males were being chased by a man who appeared to be a store employee. The police saw the males hop into a white Impala, in which defendant was behind the wheel and another passenger was seated. The police perceived that the men may have robbed the store, although no robbery was ever reported or charged.

According to a testifying officer's account, the police signaled with the lights and sirens of their marked squad car for the Impala to halt. Defendant did not heed the signal. He instead sped off in the Impala in the opposite direction, along with his three passengers.

A high-speed chase ensued, with the Impala going as fast as an estimated 70 to 80 mph in a 25 mph zone. According to the officer's testimony, defendant drove through five red lights and one stop sign during the chase. Eventually, the police turned off their car's lights and sirens for safety reasons, but continued to pursue the Impala.

The officers caught up with the Impala at a jughandle by Routes 1 and 9. The police reactivated their patrol car's lights and stepped out of their vehicle. They drew their weapons and ordered defendant and his occupants to get out of the Impala. Another patrol car arrived and blocked the Impala in the rear.

At that point, defendant maneuvered the Impala around the police vehicles and began driving in the jughandle in reverse. The Impala and one of the police cars collided, although defendant's witnesses disputed who caused the collision. No one was hurt by the impact, although it did damage a squad car's headlight.

Defendant then sped off again, merging on Routes 1 and 9. The police followed. After about ten blocks, defendant lost control of the Impala, and it crashed into a fence. Defendant ran off on foot, while the police detained his three passengers. Defendant later returned to the scene and voluntarily surrendered. He was placed under arrest.

In his trial testimony, defendant contended that he had driven his three friends from a New Year's party to the chicken store. An argument ensued inside the store between one of defendant's friends and the manager, who chased them outside. His friends got back in the Impala, and he began driving them towards a relative's house. He claimed he was not going "extremely fast," and denied driving through any red lights.

Defendant testified that, while waiting at a jughandle light to turn onto Routes 1 and 9, he saw a police car suddenly stop on a slant in front of his car. He claimed he did not hear sirens but did see the patrol car's lights flashing. According to defendant, he became scared when he saw one of the officers point a gun at him. Allegedly out of fear, defendant put the Impala in reverse and drove away, merging onto Routes 1 and 9. He admitted that he lost control of the Impala, crashed into a fence, and got out. He ran a few blocks, and then began walking back, when he was apprehended by the officers. One of his passengers who testified rendered a similar account of the events.

The State charged defendant with second-degree eluding, along with third-degree aggravated assault and fourth-degree resisting arrest. Defendant, who was a father attending college and a member of the military reserves, moved for admission into the Pretrial Intervention Program ("PTI"). Although the prosecutor's office acknowledged defendant's personal circumstances and his lack of a prior criminal record, it rejected his PTI application. The trial court denied the application in a written opinion.

The case was tried in December 2013 before a jury and different judge. Prior to charging the jury, the resisting arrest count was dismissed. The jury found defendant guilty of second-degree eluding but acquitted him of the assault charge.

Defendant appeals the pretrial rejection of his PTI application as well as his conviction and sentence, raising the following arguments in his brief

POINT ONE

SINCE THE TRIAL COURT INSTRUCTED THE JURORS ON TWO DISTINCT FACTUAL VERSIONS OF ELUDING WITHOUT A SPECIFIC UNANIMITY INSTRUCTION, DEFENDANT'S CONVICTION SHOULD BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL.

POINT TWO

THE PROSECUTOR'S REJECTION OF DEFENDANT'S ADMISSION INTO PTI IS AN ARBITRARY, PATENT, AND GROSS ABUSE OF DISCRETION, WHICH MUST BE CORRECTED BY THIS COURT.

POINT THREE

UNDER ALL RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN REFUSING TO SENTENCE DEFENDANT AS A THIRD-DEGREE OFFENDER.

REPLY BRIEF POINT ONE

THE TRIAL COURT PROPERLY GRANTED DEFENDANT'S MOTION FOR BAIL PENDING APPEAL.

The State, meanwhile, appealed the stay of the sentence. Subsequently, the State conceded that this court's disposition on the merits of defendant's own appeal will render its own appeal "essentially" moot.

II.

We address defendant's arguments in chronological order in a manner consistent with the case's procedural history.

A.

Defendant urges reversal of the trial court's decision to uphold the prosecutor's rejection of his PTI application. He maintains that the prosecutor grossly abused her discretion over PTI matters. He stresses in this regard his lack of a prior criminal record, his exemplary record as a military veteran, and his respected status as a father and college student. He also stresses that his conduct in eluding the police only lasted approximately three minutes, and that it caused no actual bodily injury to anyone.

As the pretrial judge correctly recognized, a defendant bears a very heavy burden under the law in seeking to overturn a prosecutor's denial of PTI admission. To overcome such a PTI denial, a defendant must "clearly and convincingly" show that the prosecutor's decision was based "on a patent and gross abuse of discretion." State v. Wallace, 146 N.J. 576, 582 (1996); see also State v. Negran, 178 N.J.73, 82 (2003) (underscoring the "wide latitude" afforded to prosecutors in deciding which defendants to divert from trial into the PTI program). The scope of judicial review of such prosecutorial decisions is severely limited, and is confined to correcting only the "most egregious examples of injustice and unfairness." State v. Leonardis, 73 N.J. 360, 384 (1977).

Applying these principles here, we affirm the trial court's ruling, substantially for the sound reasons expressed in the pretrial judge's eleven-page written opinion dated November 19, 2013. We disagree with the State's procedural argument that defendant's present appeal of the PTI ruling is barred because he now has been convicted.

We do not find applicable here the Supreme Court's opinion in State v. Bell, 217 N.J.336, 338 (2014), a distinguishable case involving a defendant who did not apply for PTI until after his conviction. Defendant in the present case did apply for PTI, albeit unsuccessfully, before trial. His right of appeal of the pretrial judge's ruling in the State's favor was preserved. He had no obligation to seek this court's discretionary interlocutory review of that ruling by a motion for leave to appeal.

On the merits, however, defendant has not shown that the prosecutor failed to consider all of the applicable factors for PTI admission codified at N.J.S.A.2C:43-12(e)(1) through (17) and the related Rule3:28 guidelines. Although some of those factors do weigh in his favor, we agree with the pretrial judge that the record does not "clearly and convincingly" establish that the prosecutor grossly and patently abused her discretion in concluding that defendant's circumstances do not warrant a diversionary disposition. We therefore affirm the PTI denial.

B.

Defendant further asserts that the trial judge erred in rejecting his request to provide the jury with a special instruction on unanimity. He theorizes that the sequence of events on New Year's morning essentially involves two, not one, police chases one occurring before the police deactivated their lights and sirens and a second one occurring when those signals were reactivated at the jughandle. Based on that theory, he maintains that the jurors should have been instructed that they had to be unanimous with respect to either or both instances in order to find him guilty of eluding. Because that instruction was not provided, he asserts that it is possible that less than twelve jurors might have found him guilty of the first alleged eluding and a different mix of less than twelve jurors might have found him guilty of the second alleged eluding, with twelve jurors in total adopting one or both theories.

We reject defendant's theory and his assertion that a special unanimity instruction was required in this case. To be sure, a jury verdict must be unanimous to convict a defendant of a crime. State v. Parker, 124 N.J.628, 633 (1991), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992); see alsoR. 1:8-9. "[T]he unanimous jury requirement impresses on the trier of fact the necessity of reaching a subjective state of certitude on the facts in issue." Ibid.(quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)).

The consensus of a jury requires "substantial agreement as to just what a defendant did[.]" State v. Frisby, 174 N.J.583, 596 (2002) (quoting Gipson, supra, 553 F.2d at 457). However, the concept of jury unanimity does not require jurors to agree whether the defendant acted as a principal or accomplice, or when "a statute embodies a single offense that may be committed in a number of cognate ways." Frisby, supra, 174 N.J.at 597. In most such instances, a general unanimity instruction will suffice without any special additional instructions. Id.at 597. Such a special instruction only may be needed in situations where

(1) a single crime could be proven by different theories supported by different evidence, and there is a reasonable likelihood that all jurors will not unanimously agree that the defendant's guilt was proven by the same theory; (2) the underlying facts are very complex; (3) the allegations of one count are either contradictory or marginally related to each other; (4) the indictment and proof at trial varies; or (5) there is strong evidence of jury confusion.

[State v. Cagno, 211 N.J.488, 517 (2012), cert. denied, ___ U.S. ___ 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013) (citing Parker, supra, 124 N.J.at 635-36)].

As the Court explained in Parker, when a series of alleged criminal acts committed by a defendant involves acts that are "conceptually-similar," no special jury instruction on unanimity is required to segregate those acts. Parker, supra, 124 N.J. at 639.

The series of acts of defendant here on New Year's morning involves such similar and continuous behavior in eluding the police who were pursuing him, first in driving the Impala away in a high-speed chase and then on foot. The entire episode was estimated to have taken only a few minutes. The fact that the police briefly deactivated their patrol car's lights and sirens while in traffic does not fundamentally change the nature of the situation. They were still chasing defendant, and he was still driving away from them.

The circumstances here are unlike those in Frisby, supra, 174 N.J.at 598-600, a case relied upon by defendant. In Frisby, the State had proffered "two entirely distinct factual scenarios" to establish the charged offense, and where the State allegations were "contradictory, conceptually distinct, and not even marginally related to each other." Id.at 599, 600 (internal quotes omitted). Here, the proofs depicted a continuous police chase that only ended after defendant crashed his car into a fence and then was arrested nearby on foot. No special unanimity instruction was required.

C.

We lastly consider defendant's argument that he should have been sentenced as a third-degree offender on his second-degree eluding offense and accordingly have received a less stringent sentence than the five-year term imposed by the trial court. Our consideration of this argument involves several legal principles and definitions.

Eluding occurs when any person who operates a motor vehicle in New Jersey "knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree." N.J.S.A.2C:29-2(b). A person commits second-degree eluding when during an eluding, the person "creates a risk of death or injury to any person." N.J.S.A.2C:29-2(b). The eluding statute also contains a permissive inference where if the accused violates Chapter 4 of Title39 of the motor vehicle code the jury may infer "a risk of death or injury." N.J.S.A.2C:29-2(b); see alsoState v. Wallace, 158 N.J. 552, 558 (1999).

As a second-degree offense, eluding carries with it a presumptive sentencing range of five to ten years. N.J.S.A.2C:43-6(a)(2). In addition, a second-degree offense, unlike a third-degree offense, triggers a presumption of incarceration. N.J.S.A. 2C:44-1(d).

In sentencing, the court normally imposes the presumptive sentence, as set forth in N.J.S.A.2C:44-1(f). State v. Balfour, 135 N.J. 30, 35 (1994). To deviate higher or lower from the presumptive sentencing range, the court must find "a preponderance of aggravating or mitigating factors." N.J.S.A.2C:44-1(f). Balfour, supra, 135 N.J.at 35.

Here, defendant's trial counsel urged at sentencing that the court impose a non-custodial sentence of probation because of various mitigating factors. Defense counsel specifically invoked to the court N.J.S.A.2C:44-1(d), a provision which allows a court to sentence a defendant to a probationary disposition where it is shown that "imprisonment would be a serious injustice which overrides the need to deter such conduct by others." N.J.S.A.2C:44-1(d). Under this particular exception, the presumption of imprisonment may be overcome and replaced with probation only in "truly extraordinary and unanticipated circumstances." SeeState v. Johnson, 118 N.J. 10, 16 (1990). Probation should not be awarded in lieu of presumptive incarceration except in all but the most "idiosyncratic" of cases. State v. Lebra, 357 N.J. Super. 500, 508-10 (App. Div. 2003) (applying N.J.S.A. 2C:44-1(d)).

Here, the sentencing judge was unpersuaded by defense counsel's request for probation. Although the judge acknowledged several mitigating factors in defendant's favor, the judge stated that she could not find that under the law defendant is "the idiosyncratic defendant," a category she described "reserved for very select" offenders.

Nevertheless, the trial judge did address, albeit in an incomplete fashion, the downgrading criteria under a different sentencing provision that might not have been cited to her by defendant's trial counsel during the sentencing proceeding.1 The downgrading provision implicated by the judge's comments, although it is not specifically cited in the transcript, is N.J.S.A.2C:44-1(f)(2). That statute permits the following

In cases of convictions for crimes of the first or second degree where the court is clearly convincedthat the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted.

[N.J.S.A.2C:44-1(f)(2)].

In State v. Megargel, 143 N.J. 484, 493 (1996), the Supreme Court explained that in order to downgrade a second-degree offense under this section, the sentencing judge

must be "clearly convinced" that the mitigating factors "substantially" outweigh the aggravating ones, and second, the court must find that the "interest of justice" demands that the sentence be downgraded. The reasons justifying a downgrade must be "compelling," and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors.

[Id.at 504-05].

Here, the sentencing judge made such findings, at least in part. The judge first noted that, despite the jury's ultimate conclusion of guilt, which she did not disturb, she personally had found defendant's trial testimony to be "credible." In addition, the judge found that mitigating factor two (lack of defendant's contemplation that his conduct would cause or threaten serious harm), N.J.S.A.2C:44-1(b)(2), applied, accepting defendant's testimony that he had "panicked" when he saw the police officers coming toward him at the jughandle. The judge also found mitigating factor seven (lack of prior criminal history), N.J.S.A.2C:44-1(b)(7), applied. In addition, the judge found that mitigating factors eight (conduct resulting from circumstances unlikely to recur), N.J.S.A.2C:44-1(b)(8); and nine (character and attitude indicating he is unlikely to commit another offense), N.J.S.A.2C:44-1(b)(9), applied. Although it is not per se a numbered mitigating factor, the judge also underscored that defendant "has served our country in the National Guard."

Despite these findings that support mitigation, the judge also remarked that "at the end of the day we do sentence crimes", even if we also consider the status of the individual defendant. The judge noted that "[o]n balance," aggravating factor nine, N.J.S.A.2C:44-1(a)(9), is present, because "there is a need to deter you [defendant] and others from violating the law."

The judge then concluded her oral sentencing analysis with the following words

Now, notwithstanding the fact that I do find that the mitigating factors substantially outweigh the [aggravating] factor[], I am clearly convinced that they outweigh the aggravating factor, I cannot find under the law that Mr. Brewer was the idiosyncratic defendant.

[(Emphasis added).]

The judge then proceeded to impose a five-year custodial term, the lowest permissible duration within the second-degree range. SeeN.J.S.A.2C:43-6(a)(2).

It appears from the transcript that the sentencing judge may have inadvertently conflated the "idiosyncratic defendant" standard for a probationary sentence under N.J.S.A.2C:44-1(d) with the separate criteria for a sentencing downgrade under N.J.S.A.2C:44-1(f)(2). The elements of N.J.S.A.2C:44-1(f)(2) that the judge did comment upon do appear, at least in part, to support a downgrade of the sentence to a third-degree range. Such a permissible downgrade would not necessarily have to call for a probationary sentence, but perhaps might justify a custodial sentence at or closer to the bottom of the third-degree range, i.e. three years. SeeN.J.S.A.2C:43-6(a)(3).

Because of this apparent conflation of standards and the resultant incompleteness of the trial court's sentencing analysis, we remand this case to afford the trial court the opportunity to reconsider defendant's sentence with a full analysis of the pertinent factors under the downgrading provision, N.J.S.A.2C:44-1(f)(2). At such resentencing, the trial court may take into account any updated facts that bear upon defendant's circumstances, including his conduct in the past two years since the April 2014 sentencing hearing. SeeState v. Randolph, 210 N.J. 330, 350 (2012).

Although the State's appeal is not entirely moot, we find it appropriate to maintain the status quo, which has been in place for over two years. Therefore, we deny the State's request to lift defendant's stay. The status of defendant's bail may be addressed anew by the trial court on remand.

Affirmed as to defendant's conviction and PTI denial; remanded for reconsideration of the sentence. We do not retain jurisdiction.

1 The sentencing transcript reflects that defense counsel orally alluded to "N.J.S.A. 2C:44-2" (a provision dealing with fines and restitution) but not N.J.S.A. 2C:44-1(f)(2). We recognize that counsel's words might have been incorrectly transcribed or that she inadvertently misspoke.