STATE OF NEW JERSEY v. NELSON OLAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2933-04T42933-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NELSON OLAN,

Defendant-Appellant.

__________________________________

 

Submitted October 26, 2005 - Decided

Before Judges Wefing and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

No. 04-03-0575.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Jacqueline E.

Turner, Assistant Deputy Public Defender,

of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney

for respondent (Hillary Horton, Deputy Attorney

General, of counsel and on the brief).

PER CURIAM

Defendant was indicted for second-degree eluding, N.J.S.A. 2C:29-2; third-degree resisting arrest, N.J.S.A. 2C:29-2a; and third-degree hindering apprehension of oneself, N.J.S.A. 2C:29-3b. A jury found him guilty of eluding and hindering apprehension. It also found him not guilty of third-degree resisting arrest but guilty of the lesser-included offense of fourth-degree resisting arrest. The trial court sentenced defendant to a custodial term of eight years for eluding. It imposed concurrent terms for the two remaining convictions, eighteen months for resisting arrest, five years for hindering apprehension. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions and sentence but remand for entry of a corrected judgment of conviction.

Police Officer James Arnold was on routine patrol in Bradley Beach on the evening of December 3, 2003. He turned on the overhead lights on his patrol car to signal the driver of a white van to pull over; Officer Arnold had observed the driver pull out of a parking lot and onto Main Street without having turned on the van's headlights. The driver of the van did not comply, however. Rather, he accelerated, entered the oncoming lane, and drove off, disregarding a red light. Arnold turned on his siren and followed. The van still did not pull over. After pursuing the van for several blocks, Arnold saw it parked on the street and a man, later identified as defendant, was standing next to it. Officer Arnold radioed for help and got out of his patrol car to place the man under arrest. The man, however, fled on foot. Officer Arnold and several other Bradley Beach policemen who had responded to the radio call pursued the man on foot. One of the officers, Edward Scott, injured his knee while trying to scale a fence the man had jumped over. The man was eventually apprehended but struggled with the arresting officers, who had to use pepper-spray to subdue him. At the police station, defendant gave a name other than his own but a subsequent check revealed his identity.

Defendant's trial was brief. The only witnesses who testified were Officers Arnold and Scott. After hearing the attorneys' summations and the trial court's instructions, the jury deliberated and found defendant guilty as we noted at the outset of our opinion.

On appeal, defendant raises the following contentions:

POINT I THE TRIAL JUDGE ERRED IN FAILING TO TAILOR THE JURY CHARGE TO THE PECULIAR FACTS OF THIS CASE. (Not Raised Below)

POINT II DEFENDANT'S SENTENCE, BASED ON A JUDICIAL FINDING WHICH ELEVATES IT ABOVE THE PRESUMPTIVE, VIOLATES HIS RIGHT TO DUE PROCESS AND HIS RIGHT TO A JURY FINDING. (Not Raised Below)

POINT III THE DEFENDANT'S SENTENCE IS EXCESSIVE.

According to defendant, the trial court committed plain error in its charge when it failed to point out to the jury potential weaknesses in the identification testimony offered by the State. We disagree.

In State v. Robinson, 165 N.J. 32 (2000), the Supreme Court found no reversible error in the trial court's failure to pinpoint for the jury weaknesses that might exist in the prosecution's evidence on identification. In the course of its opinion, the Court stated:

To ensure that a defendant is not convicted unless guilt is proven beyond a reasonable doubt, the jury must be assisted in critically evaluating the State's evidence. However, our judicial system confers this responsibility upon defense counsel rather than the trial court. We look to defense counsel, not the court, to probe the State's evidence with vigor and diligence, and our adversarial system depends on counsel for that purpose.

As a general rule, then, we believe that summarizing the strengths and weaknesses of the evidence is more appropriately left for counsel.

[Id. at 44-45 (internal quotation marks and citations omitted).]

Here, as with Robinson, the trial court, after referring to Officers Arnold and Scott as having identified defendant, told the jury that it was their

[f]unction to determine whether the witness's identification of the defendant is reliable and believable or whether it is based on a mistake or for any reason is not worthy of belief.

You must decide whether it is sufficiently reliable evidence upon which to conclude that this defendant is the person who committed the offense charged.

This language closely tracks the language approvingly cited by the Supreme Court in Robinson when it rejected that defendant's assertion that the charge was unbalanced for having referred only to the State's evidence. Id. at 46-47. And, as with Robinson, the trial court here repeatedly reminded the jury it was to decide the facts of the matter. Ibid. We have reviewed the court's charge here, and just as defense counsel at trial found no basis to object, we can find no basis upon which to reverse defendant's convictions.

We also reject defendant's contention that the trial court deprived him of due process when it imposed a sentence beyond the then-extant presumptive term of seven years. Defendant rests his argument upon Blakely v. Washington, 542 U.S. 296, 303, 124 S. Ct. 2531, 2537, 159 L. Ed. 2d 403, 413 (2004), in which the United States Supreme Court ruled that the maximum term a sentencing court may impose is determined "solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." The Court recognized, however, the continued validity of the so-called "recidivist" exception it had earlier noted in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), indicating that a defendant's sentence could be increased based upon that defendant' criminal history without violating a defendant's constitutional rights. Blakely, supra, 542 U.S. at 301-04, 120 S. Ct. at 2536-37, 159 L. Ed. 2d at 412-14

Our Supreme Court, in State v. Natale, 184 N.J. 458 (2005) and State v. Abdullah, 184 N.J. 497 (2005), addressed the implications for our sentencing procedures in the wake of Blakely. The Court determined that our existing sentencing structure, based upon presumptive terms, with judicially-crafted upward and downward departures, was no longer viable. Natale, supra, 184 N.J. at 484. The Court struck down presumptive terms and mandated that in the future, a sentencing court must select an appropriate term within a permissible range, without reference to a presumptive term. Id. at 487. The Court also recognized, however, the recidivist exception permitted in Apprendi and continued in Blakely. Abdullah, supra, 184 N.J. at 506 n.2. Here, the trial court, in imposing sentence, relied upon defendant's criminal history, citing solely aggravating factors (3), (6) and (9), N.J.S.A. 2C:44-1a. Further, it made no mention of a "presumptive" term as the base from which it started its analysis. In such a context, we perceive no violation of the principles enunciated in Blakely, supra, 542 U.S. at 301-04, 124 S. Ct. at 2536-38, 159 L. Ed. 2d at 412-13, and Natale, supra, 184 N.J. at 484, 487-88.

Defendant's final contention is that his sentence is manifestly excessive. In conjunction with this appeal, we have reviewed defendant's presentence report, which reveals that this represents defendant's third conviction for eluding. Defendant's challenge to his sentence as excessive lacks sufficient merit to warrant discussion in a written opinion for it would have no precedential value. R. 2:11-3(e)(2).

We have noted, however, that the judgment of conviction describes defendant's conviction for resisting arrest as a third-degree offense. The jury, however, acquitted defendant of third-degree resisting arrest and convicted him of fourth-degree resisting arrest. We remand the matter to the trial court to enter a corrected judgment of conviction.

 
Defendant's convictions and sentence are affirmed. The matter is remanded for entry of a corrected judgment of conviction.

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A-2933-04T4

November 29, 2005