STATE OF NEW JERSEY v. JOSEPH EVERETT

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2024-06T52024-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH EVERETT,

Defendant-Appellant.

______________________________________

 

Argued December 4, 2007 - Decided

Before Judges Fuentes and Grall.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Indictment Number

99-07-00915.

Merrill Rubin argued the cause for appellant.

William Kyle Meighan, Assistant Ocean County

Prosecutor, argued the cause for respondent

(Thomas F. Kelaher, Ocean County Prosecutor,

attorney for respondent; Mr. Meighan, on the

brief).

PER CURIAM

Defendant Joseph Everett appeals from the order of the Law Division denying his post-conviction relief (PCR) petition. Defendant was tried before a jury and convicted of second-degree eluding, N.J.S.A. 2C:29-2b; second-degree aggravated assault by causing bodily injury while fleeing or attempting to elude, N.J.S.A. 2C:12-1b(6) and N.J.S.A. 2C:2C:29-2b; second-degree aggravated assault by recklessly causing serious bodily injury under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1b(1); and fourth-degree assault by auto by recklessly causing serious bodily injury, N.J.S.A. 2C:12-1c(1).

On February 9, 2001, the court sentenced defendant to an aggregate extended term of eighteen years. Under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2c, defendant had to serve 85% of his sentence prior to becoming eligible for parole. The court also imposed the corresponding fines and penalties. On direct appeal, we affirmed the conviction, and remanded the sentence for the trial court to limit the NERA parole disqualifier to the ordinary term, and to reduce the NERA parole supervision period to three years. State v. Everett, Docket No. A-3755-00T3 (App. Div. April 16, 2003).

In this petition, defendant argued that his trial counsel was ineffective in failing to "adequately pursue a defense relating to [his] voluntary intoxication." Specifically, defendant argues that trial counsel "should have engage[d] the services of an expert witness to evaluate the degree of intoxication and determine whether or not such a level of intoxication was inconsistent with [defendant] acting knowingly and with purpose with respect to the circumstances set forth in the State's case against him."

The trial court denied defendant's petition. On appeal, defendant's now raises the following arguments:

POINT ONE

THE AMENDED SENTENCE SHOULD BE VACATED AND A RESENTENCING HEARING HELD WITH DEFENDANT AND COUNSEL PRESENT.

POINT TWO

THE AMENDED SENTENCE SHOULD BE VACATED, BECAUSE IT EXCEEDED THE PRESUMPTIVE TERM AND VIOLATES BLAKELY AND NATALE II.

POINT THREE

THE CONVICTION SHOULD BE VACATED, BECAUSE THE APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL.

Defendant's arguments as to Points One and Two lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). The legal principles established in State v. Natale, 184 N.J. 458, 494 (2005), were given "pipeline retroactivity" effect: (1) to defendants with cases on direct appeal as of the date of the decision; and (2) to those defendants who raised Blakely claims at the trial or on direct appeal. Here, defendant was sentenced on February 9, 2001, and his direct appeal was decided in 2003. Thus, defendant is not within the class of litigants entitled to raise this issue.

The argument raised in Point Three was squarely rejected in our opinion upholding defendant's conviction. There, we described the following chain of events that led to defendant's arrest.

Patrolman Matthew Azzarone of the Ocean Township Police Department was parked in a marked police car at the rear of Clam Diggers Restaurant located on the northbound side of Route 9. While sitting at that location, Azzarone observed a Firebird, which he later learned was driven by defendant, back out of a parking spot, "spin" its wheels, and bolt onto Route 9 North at a high rate of speed. The posted speed limit on Route 9 throughout the area was 45-miles-per-hour.

Azzarone followed the Firebird. When he entered Route 9, he saw the Firebird's tail lights. With its excessive speed, it was already about a quarter of a mile away. However, when another vehicle made a right turn in front of the Firebird, defendant slowed down. This enabled Azzarone, who had not yet activated his lights or siren, to catch up with the Firebird.

Just as Azzarone called in the Firebird's license plate number, defendant passed the vehicle in front of him by crossing the double-yellow line, a "no passing" zone. At that point, Azzarone activated his overhead lights to pass the overtaken vehicle. The Firebird was pulling away by then. After passing this other vehicle, Azzarone again caught up with the Firebird. However, defendant did not make any attempt to stop, slow down, or pull to the side, but began to accelerate. Azzarone estimated his speed at about 62 m.p.h.

As the chase neared the south gate of the Oyster Creek Power Plant, Azzarone activated his siren. At this point, defendant again accelerated. Azzarone advised his dispatcher that the Lacey Township Police should be told that he was attempting to stop a vehicle, which had just entered their jurisdiction, and was not responding to a police signal to pull over.

Upon approaching a traffic light for the main gate too the power plant, just over one mile from Claim [sic] Diggers, Azzarone saw two cars near the light; one was stopped to make a left turn into the power plant, the other was attempting to pass on the right shoulder. As defendant rapidly approached these two vehicle [sic], he maneuvered the Firebird in an "S-type" manner, weaving through the gap between the two cars.

After Azzarone passed the location of the two vehicle [sic], he observed defendant again accelerate. Realizing he was not going to gain on the Firebird, which was moving away fast, Azzarone, now traveling about 75 m.p.h., decided to "shut down" the pursuit. He turned off his overhead lights and siren because they only exacerbated the situation. The officer notified the dispatcher he was discontinuing the chase and requested assistance from the Lacey Police. During the pursuit, Azzarone had observed, in addition to the improper passing and failure to yield to his emergency vehicle, that defendant's car was weaving over the white lines, as well as the double-yellow center lines.

Meanwhile, Lillian Britton, the injured victim, was driving on Route 9 North in her 1990 Suburban, returning home to Bayville from Barnegat. She had left sometime between 9 and 9:30 p.m. At the same time, Patrolman Azzarone, who had slowed down to 60-65 m.p.h. continued north. After losing sight of the Firebird's tail lights at an "S-curve" for about ten seconds, Azzarone again noticed the Firebird about one-quarter-mile away. Azzarone observed another vehicle's tail lights in front of the Firebird, which was now rapidly closing the gap between the two vehicles. Azzarone then saw the Firebird's brake lights, the car slightly "fishtail," and smoke, presumably from its tires. Because the Firebird was lower to the ground, it went underneath the Suburban and crashed into its rear.

. . . .

Azzarone questioned the driver, the defendant, who was conscious and coherent, concerning his medical condition and identity. While they conversed, Azzarone detected the strong odor of alcohol on defendant's breath. He also noticed that defendant's face was flushed, and his eyes were bloodshot, watery, and droopy. He believed that defendant "knew what was going on at the time," but he did not appear concerned and was generally indifferent.

[State v. Everett, supra, slip op at 5-7.]

Against these facts, we reached the following legal conclusion:

In order to satisfy the condition that intoxication is not a defense unless it negates an element of the offense, the intoxication must be of an "extremely high level." Cameron, 104 N.J. at 54; State v. Johnson, 309 N.J. Super. 237, 266 (App. Div.) certif. denied, 156 N.J. 387 (1998). A jury issue, and therefore, the neccessity for an instruction, arises only "if there exists a rational basis for the conclusion that defendant's 'faculties' were so 'prostrated' that he or she was incapable of forming an intent to commit the crime." Mauricio, 117 N.J. at 418-19; Cameron, 104 N.J. at 54; State v. Green, 318 N.J. Super. 361, 170 (App. Div. 1999), affirmed, 163 N.J. 140 (2000); Johnson, 309 N.J. Super. at 266.

We see nothing in this case to demonstrate that defendant reached this "extremely high level" threshold so that his voluntary intoxication constituted a defense to the mental element.

[Id. at 14.]

In this light, there is no rational basis to question trial counsel's conduct in not retaining an expert to bolster or otherwise present to the jury the defense of involuntary intoxication.

Affirmed.

 

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

(continued)

(continued)

7

A-2024-06T5

December 31, 2007