STATE OF NEW JERSEY v. ISAIAH ISHOD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5794-04T45794-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISAIAH ISHOD,

Defendant-Appellant.

_________________________________

 

Submitted November 27, 2006 - Decided December 29, 2006

Before Judges Lintner and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

04-02-0093.

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

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

Appellant filed a pro se supplemental brief.

PER CURIAM

Following a three-day trial commencing on January 25 and ending on January 27, 2005, a jury convicted defendant, Isaiah Ishod, of second-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 Two). The third count charge of third-degree witness tampering was administratively dismissed on November 21, 2002.

On May 6, 2005, the trial judge granted the State's motion for an extended term, N.J.S.A. 2C:44-3a, and imposed a sixteen-year term with seven years of parole ineligibility on the eluding conviction. A concurrent eighteen-month term was imposed on the resisting arrest conviction. Defendant's motion to reconsider the sentence imposed was denied. Defendant appeals and we affirm defendant's judgment of conviction but remand for re-sentencing in conformity with State v. Pierce, 188 N.J. 155 (2006).

On May 17, 2002, Sheriff Officer Joseph Wallace, temporarily assigned to the Plainfield Police Department, proceeded in a marked police car to defendant's residence in order to speak with him about an ongoing police investigation. Wallace was accompanied by Detective Masuhr who parked his unmarked GMC truck across from defendant's residence. Wallace observed a person leave the residence with two suitcases in a hasty manner. The individual entered a blue Hyundai parked in front of the residence and placed the suitcases in the back seat. Wallace was able to identify the person as defendant when defendant turned as he was getting into the front seat of the Hyundai. Defendant was the only person in the vehicle. Wallace put on his overhead flashing emergency lights and pulled up directly behind the Hyundai. As Wallace attempted to get out of his car, defendant looked back and pulled away from the curb, accelerating at a fast rate of speed. Wallace radioed for assistance because Masuhr did not have emergency lights on his truck.

Defendant proceeded down Front Street and turned onto Sanford Avenue, going approximately ten miles over the twenty-five mile per hour speed limit. When defendant reached the intersection of Sanford Avenue and Brook Street, he entered the intersection at forty-two miles per hour without stopping at the stop sign. He proceeded on Brook Street at forty-five miles per hour to Norwood Avenue. From Norwood, he turned and drove through a nursing home parking lot without slowing down. He exited the parking lot onto East Front Street, traveling at forty-five miles per hour with Wallace behind him with the car siren blaring and overhead lights flashing.

Other police officers joined the pursuit with sirens and emergency lights on. Defendant then ran a red light, going approximately forty-eight miles per hour, as he turned from East Front Street to Leland Avenue. Defendant continued ignoring red lights as he turned onto East Third Street and then Terrill Road. He also ran stop signs at the intersections of East Third and Farley Avenue; Farley Avenue and Second Street; and Grant Avenue and East Front Street, traveling at approximately fifty miles per hour. Officer Jerry Plum became the lead pursuit vehicle. By the time defendant turned onto Terrill Road, there were seven police cars pursuing him. As defendant traveled on Terrill Road toward U.S. Route 22, Wallace entered the Sears parking lot in an attempt to cut defendant's vehicle off.

Defendant entered the jug handle at the intersection of Route 22 and Terrill Road, driving in the wrong direction. He collided with the concrete divider, stopped his vehicle, jumped out, and ran toward the Sears parking lot. Wallace, Plum, and Plum's partner, Troy Alston, had a clear view of defendant as he exited the Hyundai and ran towards the Sears parking lot. Defendant was tackled by Officer Alston and Detective Calvin and placed under arrest.

Defendant did not testify. He did, however, call his former attorney, Robert Ungvary, as a witness. Ungvary testified that on September 17, 2003, defendant came to his office accompanied by a person identified as Jahyde Perry. Perry told Ungvary that he was driving defendant's car during the pursuit. Perry claimed that he did not want to pull over because he did not possess a valid driver's license.

On appeal, defendant raises the following points:

POINT I.

OFFICER WALLACE'S TESTIMONY THAT THE DEFENDANT'S VEHICLE "WOULD HAVE HIT" ANYONE WHO MIGHT HAVE BEEN IN THE PARKING LOT OF THE NURSING HOME WAS SO PREJUDICIAL AND THE TRIAL COURT'S ATTEMPTED AMELIORATING, INSTRUCTION SO INEFFECTIVE, THAT THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED.

POINT II.

THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE PROSECUTOR IMPROPERLY VOUCHED FOR THE CREDIBILITY OF THE POLICE OFFICERS IN SUMMATION. (NOT RAISED BELOW).

POINT III.

THE TRIAL COURT ABUSED ITS DISCRETION IN RULING THAT THE DEFENDANT'S PRIOR CONVICTIONS WERE ADMISSIBLE TO IMPEACH CREDIBILITY.

POINT IV.

IMPOSITION OF A SIXTEEN (16) YEAR EXTENDED TERM SENTENCE WITH SEVEN (7) YEARS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE ELUDING ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING THE DEFENDANT TO AN EXTEND TERM AS A PERSISTENT OFFENDER.

(B)

IMPOSITION OF THE DISCRETIONARY EXTENDED TERM VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON.

(C)

IMPOSITION OF THE BASE EXTENDED TERM OF SIXTEEN (16) YEARS VIOLATED THE DEFENDANT'S RIGHTS UNDER STATE V. NATALE.

(D)

THE TRIAL COURT FAILED TO ARTICULATE ITS REASONS FOR IMPOSING A SEVEN (7) YEAR PERIOD OF PAROLE INELIGIBILITY.

In his pro se brief, defendant raises the following point:

THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED AND ABRIDGED WHEN MOTION TO DISQUALIFY THE COURT WAS FILED AND THE TRIAL COURT REFUSED TO RECUSE ITSELF THUS VIOLATING THE DEFENDANT'S 4TH, 5TH, 6TH, 8TH AND 14TH AMENDMENT RIGHTS TO THE UNITED STATES CONSTITUTION.

We first consider defendant's pro se argument that the judge erred in denying his motion for recusal. The only record properly before us is the transcript of the June 3, 2004, hearing when the judge denied defendant's motion. The June 3, 2004, transcript reveals that there was no argument from defendant's counsel concerning defendant's grounds for recusal, only a statement that his former attorney had not complied with a request by defendant's present counsel to submit a letter or certification in support of the motion. The judge then summarized the motion before him.

I can give you a basic outline [of] what happened. On a given date that we were in court the defendant was not here. I issued a warrant for his arrest. There was a debate, confusion, issue about was he coming back into the courthouse when he was arrested or not. Any way, he was remanded for a while. Eventually the bail was reinstated, if memory is correct, and he's out on bail now.

Now if I recuse myself for everybody I issued a warrant for, I would be doing nothing than recusing myself. I bear your client no ill will personally. This is not personal to him, and I see no reason to recuse myself in this case, so that motion is denied.

On appeal, defendant now claims that the trial judge violated his rights "for an accumulation of several other violations as outlined in the original motion to recuse the trial judge." Those motion papers, however, are not provided.

Defendant asserts that three months prior to the June 3 hearing he filed a complaint against the judge in Federal District Court, alleging various civil rights violations. In support of this claim he attached a hand written Civil Court Action caption page for "A MOTION TO CHANGE VENUE, AND RECOVER MONETARY DAMAGES AS TO MY CIVIL RIGHTS HAVE BEEN VIOLATED," naming the Union County Superior Court, the Judge, the Union County Prosecutor's Office, the Assistant Prosecutor assigned to his case, and his former attorney as defendants. He also attached a "Docket Report" from the U.S. District Court for the District of New Jersey, containing a civil docket number and indicating the complaint was filed on March 5, 2004. There is no indication in the record whether the judge had been served with defendant's federal court complaint at the time he denied defendant's recusal motion, whether he was aware of the existence of the complaint, or whether it was still pending at the time of the recusal motion.

Allegations that involve assertions and evidence beyond the trial record are best addressed on an application for post-conviction relief. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Ospina, 239 N.J. Super. 645, 656 (App. Div.), certif. denied, 127 N.J. 321 (1990). Because defendant's pro se argument concerning the judge's refusal to recuse himself necessitates a review of evidence beyond the record before us, we defer further consideration without prejudice to his right to file for post-conviction relief.

During Wallace's direct examination, when asked to describe what defendant did upon reaching the nursing home parking lot, Wallace testified:

He pulled up in the driveway and he kept straight across it with no slowing down or anything, just -- thank God nobody was out there, any elderly people or whoever might be visiting them, because he, probably, would have hit them. (emphasis added).

Defendant objected. Sustaining the objection, the judge immediately told the jury, "The answer, he, probably, would have hit them is struck from the record. You are to disregard it."

On appeal, defendant asserts that Wallace's comment was so prejudicial that the judge's instruction could not cure the error. Relying on State v. Landeros, 20 N.J. 69, 74-75 (1955), defendant argues that the Wallace statement was equivalent to saying that defendant was "as guilty as Mrs. Murphy's pig." We disagree.

In determining the adequacy of a curative instruction, we must focus on the capacity that the offending remark has "to lead to a verdict that could not otherwise be justly reached." State v. Winter, 96 N.J. 640, 647 (1984); see also State v. Witte, 13 N.J. 598, 611 (1953), cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954). Even in the face of constitutional error, a curative instruction will suffice absent a real possibility that the error led the jury to a result it otherwise might not have reached. Winter, supra, 96 N.J. at 647. Here, the judge gave an immediate curative instruction to disregard the offending comment. The judge's instructions were "adequate to ameliorate any significant prejudice to defendant." 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). Moreover, there is no reason to believe that the jury was unwilling or unable to follow the curative instruction as given. See State v. Manley, 54 N.J. 259, 270 (1969). Given the significant evidence concerning the reckless nature of the driver's actions, a jury could reasonably conclude that any pedestrian in the area may have been in danger during the chase. Considering the curative instruction and overwhelming evidence of defendant's guilt, we are satisfied that the offending remark was harmless.

Defense counsel's closing argument concentrated on the contention that the police version lacked credibility and they were lying about the chase. In his closing remarks, the prosecutor responded:

[Defense counsel] in his closing essentially talked about a lot of different things, but everything he talked about really boils down to one essential thing and it's something the Judge talked about in the beginning of the case when he talked to all of us. It's something when I'm done speaking to you the Judge will talk to you again about, and that is credibility and, essentially, one of the first things I suggest to you doing when you get back into the jury room is to ask yourselves, "Do I believe the word of three different police officers all who came before me over the past two days . . . ." What would this person's motive be for lying to us?

I think in this case you should start out looking at the motive. What is the motive for these three police officers to come in here, get up on the witness stand and lie to everyone? I think you should start out by looking at who are these three police officers? . . . Do you think they came up with false police reports, lied in front of the Grand Jury, came in here two and a half years later and lied to get some guy who wasn't doing anything? Does that make sense to you? (emphasis added).

On appeal, defendant asserts that the emphasized portion of the prosecutor's closing argument amounts to improper vouching for the credibility of the police. Again, we disagree.

"A prosecutor may argue that a witness is credible," so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility. State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997); see also State v. Frost, 158 N.J. 76, 85-86 (1999) (improper for prosecutor to imply that police had no motive to lie); State v. Staples, 263 N.J. Super. 602, 605 (App. Div. 1993) (prosecutor may not express a personal belief or opinion regarding the truthfulness of his or her witness's testimony). The prosecutor's argument asking the jury to focus on whether the officers had a motive to lie was not improper vouching for the credibility of the police testimony. The credibility of the police was put in focus by defendant's challenge to the accuracy of the officers' testimony. Defendant argued that the police misidentified him and lied about the manner in which the chase took place. Consequently, the prosecutor's summation was in direct response to defense counsel's summation. Moreover, unlike Frost, the prosecutor did not suggest that the police officers would not lie because of the charges that could be brought against them or because of their status as police officers or because there would be adverse consequences. See Frost, supra, 158 N.J. at 85-86. In the context of the trial, the prosecutor's comments were not improper nor did they deprive defendant of a fair trial. Simply stated, there was no error, much less plain error.

Defendant was convicted of unlawful possession of a weapon in 1984; third-degree aggravated assault in 1986; and third-degree unlawful possession of a weapon, together with second-degree unlawful possession of a weapon for an unlawful purpose, second-degree burglary, and two counts of fourth-degree aggravated assault in 1990. Defendant's last conviction was in 1991 when he was convicted of first-degree kidnapping, for which he received a fifteen-year sentence, and he was paroled in 1996. Permitting the State to introduce these convictions to impeach defendant's credibility, the judge stated:

[Defendant] has four significant events. The last two in '91, where he did 6 and a half, 7 years and got out in '96. Since '96, he's had, at least, four arrests; prostitution, the assault vis- -vis his wife. I know, of course, last year the witness tampering event and the cashing checks that you referenced.

Based upon all of what is in front of me this jury has a right to know [defendant] stands before them as a convicted person to evaluate testimony vis- -vis that issue.

Defendant asserts on appeal that the judge abused his discretion in denying defendant's motion to exclude evidence of defendant's prior convictions because of remoteness.

N.J.R.E. 609 provides, "[f]or the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes." It is within a trial judge's discretion whether to admit a prior conviction. State v. Hutson, 211 N.J. Super. 49, 53 (App. Div. 1986), aff'd, 107 N.J. 222 (1987). Absent an abuse of discretion, the decision of the trial judge should not be disturbed. MacKay v. CSK Publ'g Co., 300 N.J. Super. 599, 617-18 (App. Div. 1997). We are satisfied from our review of the record that the trial judge properly exercised his discretion in admitting defendant's prior convictions.

Lastly, we address defendant's multiple contentions raised concerning the sentence imposed. After reviewing defendant's prior criminal history, the judge determined that defendant was a persistent offender. The judge found aggravating factors N.J.S.A. 2C:44-1a(3), (6), and (9), and no mitigating factors, and imposed a sixteen-year term, one year above the then presumptive term under N.J.S.A. 2C:43-7d, with a seven-year period of parole ineligibility, N.J.S.A. 2C:43-6b.

Although acknowledging in his appellate brief that he "was statutorily eligible to be sentenced to an extended term as a persistent offender" under N.J.S.A. 2C:44-3a, defendant argues that the imposition of an extended-term sentence was manifestly excessive. Defendant also asserts that the imposition of an extended-term sentence one year above the then presumptive term was illegal under Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) and State v. Natale (Natale II), 184 N.J. 458 (2005). He argues that the judge erred in disregarding the mitigating factors.

In Pierce, supra, 188 N.J. at 162-63, the Court determined that, like mandatory enhanced sentences under N.J.S.A. 2C:43-6f, a sentencing court's objective consideration that a defendant's prior record qualifies him as a persistent offender is not violative of the Sixth Amendment. See also State v. Thomas, 188 N.J. 137, 151-52 (2006). The Pierce Court addressed those considerations required for imposing a discretionary extended-term sentence, so as to pass constitutional muster under Blakely. It observed that, prior to Blakely and Natale II, it was necessary for a sentencing court to determine if an extended term was necessary in order to protect the public under State v. Dunbar, 108 N.J. 80 (1987) and State v. Pennington, 154 N.J. 344 (1998). Recognizing that the determination of the "need to protect the public" represented "a finding beyond the pure fact of the prior conviction," the Court held that a sentencing court is now required to determine first whether a defendant's prior record qualifies that defendant for a discretionary extended term. Pierce, supra, 188 N.J. at 169. The sentencing court must then make a "separate and distinct" determination of the sentence to be imposed, "start[ing] at the minimum of the ordinary-term range and end[ing] at the maximum of the extended-term range." Ibid. In reaching the sentence, the court is to assess "the aggravating and mitigating factors, including the consideration of the deterrent need to protect the public." Ibid.

The State concedes that under Natale II the criminal code's presumptive terms have been eliminated and defendant is entitled to a remand under Pierce. In light of the new "expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range," we must remand for resentencing in accordance with Pierce. Id. at 171. On remand, defendant may not be subject to a sentence above the sentence previously imposed. Id. at 174. Further, on remand, the sentencing judge should reconsider the mitigating factors as well as the need to protect the public as they apply to a sentence beginning at the bottom of the range of the ordinary term (five years) and extending, in this case, to the sixteen-year term previously imposed.

We remand for resentencing in accordance with this opinion. Because of defendant's purported federal lawsuit, the remand should be assigned to a different judge. In all other respects, the judgment of conviction is affirmed. We do not retain jurisdiction.

 

The trial judge granted defendant's motion to represent himself and ordered assigned counsel to act as defendant's advisor. During the first day of trial, the judge granted defendant's motion to relinquish his pro se status and have assigned counsel represent him.

(continued)

(continued)

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A-5794-04T4

December 29, 2006