STATE OF NEW JERSEY v. JEROME SMITH

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0262-04T40262-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JEROME SMITH,

Defendant-Appellant.

__________________________________________________________

 

Submitted December 13, 2005 - Decided

Before Judges R. B. Coleman and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-02-00182-I.

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

Theodore Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Jerome Smith appeals from convictions for third-degree eluding, N.J.S.A. 2C:29-2(b) (count one) and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four). Defendant was sentenced to a term of four years in prison on count one and a concurrent term of one year in prison on count three.

On this appeal, defendant makes the following assertions of error:

POINT I: THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION CONCERNING THE JACKET FOUND BY THE POLICE (NOT RAISED BELOW).

POINT II: COMMENTS MADE BY THE PROSECUTOR IN SUMMATION CONCERNING THE JACKET FOUND BY THE POLICE MADE IT NECESSARY THAT THE TRIAL COURT SUA SPONTE ISSUE A JURY INSTRUCTION ON LOST EVIDENCE (NOT RAISED BELOW).

POINT III: THE TRIAL COURT COMMITTED PLAIN ERROR BY FAILING TO INSTRUCT THE JURY THAT IT COULD REJECT THE STIPULATION THAT WAS READ INTO THE RECORD (NOT RAISED BELOW).

POINT IV: IMPOSITION OF A FOUR (4) YEAR CUSTODIAL SENTENCE ON THE DEFENDANT'S CONVICTION FOR THIRD DEGREE ELUDING ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE SENTENCING COURT'S DISCRETION.

We have considered defendant's arguments in light of the record and applicable law and we find them to be without sufficient merit to warrant reversal or remand.

On October 4, 2002, Roselle Police Officer Kevin Tempalsky was in a marked patrol car in full uniform on Spruce Street, near the corner of White Street. This is a mixed residential and commercial area. Officer Tempalsky was present at the intersection to provide aid to Officer Juan Papica, who was conducting a motor vehicle stop at the time. Both marked police cars were positioned on Spruce Street facing southbound on the west side of the street. At 7:40 p.m., while Officer Tempalsky was standing outside Officer Papica's vehicle, he heard a car that sounded as if it was approaching at a high rate of speed down Ninth Avenue.

When Officer Tempalsky turned to face Ninth Avenue, he observed a blue Acura traveling at a high rate of speed toward Spruce Street. The car fishtailed slightly and proceeded in the direction of Officer Tempalsky. When the Acura made the turn, several people on the corner of the intersection jumped back up on the curb. Tempalsky moved out into the middle of the street, threw up his hands and yelled loudly for the Acura to stop. Tempalsky estimated that the Acura came towards him at a rate of speed between forty-five to fifty miles per hour. The posted speed limit was twenty-five miles per hour. To avoid being hit, Officer Tempalsky jumped into his patrol car.

Officer Tempalsky immediately activated his overhead lights and siren, notified headquarters and pursued the Acura on Spruce Street. The Acura made a left turn onto Tenth Avenue and fishtailed. In making the next turn, the Acura hit a parked Blazer. Tempalsky pulled up to the Acura. He saw defendant open the door of the car, jump out and flee. Tempalsky advised back-up units that he was going to pursue defendant on foot and he went into the nearby yards to look for him. He described the suspect as a black male approximately six feet tall wearing dark clothing.

Fellow Roselle Police Officer Mark Conforti responded to Tempalsky's radio transmission for assistance and set up a perimeter around the block with Officer Papica. Conforti exited his vehicle and observed defendant, a black male who fit the height description that Tempalsky provided, but who was not wearing a dark upper garment. As Conforti moved closer, he grabbed defendant by the arm and walked him to the patrol car. One minute later, Tempalsky responded and made a positive identification of defendant as the driver of the Acura. Defendant was then handcuffed and placed in a patrol car.

Tempalsky returned to the location from which defendant was exiting when he was observed by Conforti. He and other officers searched that area. They recovered a jacket tucked underneath a parked car in the driveway of the yard defendant had exited. Conforti does not remember what he did with the jacket.

Inside the Acura were defendant's insurance card and a backpack, which contained books and papers with defendant's name on them. The Acura was towed and impounded. On November 27, 2002, defendant came to headquarters and signed for the release of his vehicle.

Defendant testified and acknowledged he was the driver of the Acura. He denied driving at an excessive speed or aiming his car at Officer Tempalsky. Defendant insisted he did not hear Tempalsky's order to stop since his Acura had a loud muffler on it and the windows were closed. Defendant explained that he believed Tempalsky was waving his hands to tell him to slow down. Defendant denied hearing the siren until he reached Tenth and Warren Streets, at which point, defendant turned around and observed the patrol car. Defendant asserted that turning around to see the patrol car caused him to hit the Blazer.

Defendant admitted he ran from the police but said he did so because he was "scared of cops." Defendant acknowledged he had been being previously convicted of three crimes: third-degree receiving stolen property, fourth-degree exhibiting a false insurance card and third-degree attempted burglary of a car. He had received probationary sentences for each conviction.

Both attorneys stipulated that Officer Tempalsky issued defendant a motor vehicle summons for reckless driving. Defendant was also charged with second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5) (count two); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count three). The jury returned a verdict of not guilty of second-degree eluding on count one but found defendant guilty of the lesser-included offense of third-degree eluding on that count; not guilty of fourth-degree aggravated assault on count two; and guilty of count three, fourth-degree resisting arrest. Defendant was sentenced on the third-degree eluding charge to a term of four years in prison. On the fourth-degree conviction for resisting arrest, defendant was sentenced to a concurrent term of one year in prison.

Defendant contends the prosecutor made improper comments regarding the dark colored jacket found beneath a car in the driveway of the yard where he was apprehended and that those comments deprived defendant of a fair trial. Because defendant did not object at trial, the claimed error must be reviewed under the plain standard of review. R. 2:10-2. State v. Daniels, 182 N.J. 80, 95 (2004). Under that standard, we disregard an error unless it is "clearly capable of producing an unjust result." Ibid. "[T]he error 'must be sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Daniels, supra, 182 N.J. at 95 (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

Defendant argues that the prosecutor's comments were (a) not accurate and (b) without a factual basis since the State never produced the jacket. At issue is the following statement made by the prosecutor:

I submit to you when somebody - I leave you with this: This is a young person in his car and he just crashed. This is a young person that flees the car after the crash, flight. I submit to you flight here - you heard testimony about losing the jacket. A young person leaving his car, what does a young person really appreciate in life? Very few possessions, perhaps the car he owns. Yet he leaves his car, keys in the ignition, car running and flees. The State submits to you that's consciousness of guilt here because he knew what he had done. He knew that the police wanted to stop him. He knew he had almost run that police officer over.

(emphasis added).

"[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In the appellate court's assessment, it should look at such factors as: "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 323 (1987). However, failure to object during the prosecutor's statements, shows that "in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial." State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997), certif. denied, 150 N.J. 25 (1997) (citing State v. Wilson, 57 N.J. 39, 51 (1970)).

A prosecutor "should not make inaccurate legal or factual assertions." Frost, supra, 158 N.J. at 85. A prosecutor, however, does have the ability to comment on the evidence and extract any "reasonable inferences" the evidence supports. Ibid.

Here, the prosecutor's comment appears to have been an attempt to explain why the State failed to produce the jacket at trial. The police had lost it. The comment itself was very brief and not totally clear. Defense counsel did not object to it, presumably because it was not perceived to be improper or prejudicial at the time. Moreover, the comment had no discernible impact on the outcome of the case. After all, defendant admitted that it was his car involved in the chase and that he was the driver. It is, therefore, difficult to fathom how the prosecutor's reference to "testimony about losing the jacket" could have led the jury to a result it otherwise might not have reached.

For the same reason, defendant's second argument on appeal must fail since the court's failure to provide a "lost evidence" instruction to the jury, even if erroneous, was of no consequence to the jury's verdict. The jacket was simply not necessary to support the verdict. Moreover, defense counsel did not request a charge or a curative instruction. The trial court was not obliged to give such an instruction and the failure to do so sua sponte does not satisfy the plain error requirement under R. 2:10-2.

Next, defendant asserts he was denied a fair trial because the trial court failed to give an explicit instruction to the jurors that they could disregard the stipulation of the parties regarding the issuance of a motor vehicle violation for reckless driving to defendant. Defendant contends our decision in State v. Wesner, 372 N.J. Super. 489 (App. Div. 2004), requires a trial court to direct the jury by instruction that they are not "bound" to the stipulation. The judge communicated the stipulation as follows:

Now, occasionally the parties can agree a fact is true. In this case, they have done so. They will both agree that Officer Tempalsky issued the gentleman a summons for a motor vehicle violation. That summons being for reckless driving. So we won't have to have Officer Tempalsky come in and tell us that.

Defendant misinterprets Wesner. In Wesner, we observed that the trial judge "used a poor choice of words" by instructing the jury that they "were 'bound' by the stipulated facts." Wesner, supra, 372 N.J. Super. at 494. We stated that jurors are free to reject any evidence, even that which is stipulated to by both parties. Ibid. We, however, did not reverse the conviction in Wesner since the instruction did not "constitute directing a verdict" against defendant. Ibid.

Here, the trial judge did not issue a mandate. He informed the jury that a summons had been issued but he did not direct the jury to find that defendant had committed a motor vehicle violation. On the contrary, the judge instructed the jury:

Whether the defendant is guilty or not guilty of those particular offenses of reckless driving or speeding would be determined by an appropriate court. In other words, it is not your job to determine his guilt or innocence of the motor vehicle charges themselves; however, you may consider that evidence that he committed a motor vehicle offense. In this case, perhaps reckless driving or speeding in determining whether he created a risk of causing death or injury to people. At the same time, remember you are never required or compelled to draw this inference. I have already explained to you it is your province to determine whether the facts and circumstances shown by the evidence support any inference at all. You are free to accept or reject the inference if you wish.

(emphasis added).

The instruction did not direct a verdict against defendant nor did it dilute the State's burden of proof. Defendant's argument does not establish an error, much less meet the plain error requirement under R. 2:10-2.

Finally, defendant asserts that the sentence imposing the presumptive term of four years was excessive and an abuse of the trial court's discretion. Pursuant to N.J.S.A. 2C:44-7, we have the authority "to review findings of fact by the sentencing court in support of its findings of aggravating and mitigating circumstances and to modify the defendant's sentence upon his application where such findings are not fairly supported on the record before the trial court." "An appellate court may modify a sentence only if the sentencing court was 'clearly mistaken.'" State v. Kromphold, 162 N.J. 345, 355 (2000) (citations omitted). Our Supreme Court in State v. Roach, 146 N.J. 208 (1996) observed that:

An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65, (1984). Only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" should a sentence be modified on appeal. Id. at 363-64.

Here, N.J.S.A. 2C:44-1(f)(1)(d) set the presumptive term of imprisonment for a third-degree offense at four years. The trial court observed that defendant had eight arrests, three of which resulted in convictions for indictable offenses. In 2001, defendant was sentenced to probation for theft. In 2002, defendant was convicted twice, first for simulation of a motor vehicle insurance card, a fourth-degree offense; and then a second conviction for receiving stolen property, a third-degree offense. Based on that criminal record, the trial court found, pursuant to N.J.S.A. 2C:44-1(a), that three aggravating factors applied: (3) risk of recidivism, (6) prior criminal record, and (9) need to deter.

 
The trial court's imposition of the presumptive term of four years based on a finding of three aggravating factors was neither clearly mistaken nor does it shock this court's judicial conscience. The trial court applied the applicable law and determined defendant should be sentenced to the middle of the range rather than to the statutory minimum. The trial court acted within its discretion and we will not disturb the sentence, even after State v. Natale, 184 N.J. 458, 487 (2005), which eliminated presumptive sentences from the statutory sentencing process.

Affirmed.

(continued)

(continued)

12

A-0262-04T4

 

January 9, 2006