STATE OF NEW JERSEY v. MARCUS BYRON

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3297-04T43297-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARCUS BYRON,

Defendant-Appellant.

_________________________________________________

 

Submitted March 27, 2007 - Decided July 3, 2007

Before Judges Payne and Lihotz.

On appeal from Superior Court of New Jersey,

Law Division, Union County, Indictment No.

02-09-1111.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Philip Lago,

Designated Counsel, on the brief).

Theodore J. Romankow, Union County

Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, of counsel).

PER CURIAM

Defendant, Marcus Byron, charged with third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1), fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1, and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a), appeals from a jury verdict finding him guilty of obstructing the administration of law by fleeing arrest.

On appeal, defendant makes the following legal arguments:

POINT I

THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN FAILING TO SUA SPONTE GRANT A JUDGMENT OF ACQUITTAL.

(NOT RAISED BELOW.)

POINT II

THE CONVICTION MUST BE REVERSED SINCE THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT EIGHT WAS INCONSISTENT, ILLOGICAL AND THE RESULT OF COMPROMISE.

(NOT RAISED BELOW.)

POINT III

THE CONVICTION MUST BE REVERSED SINCE THE TRIAL COURT ERRED IN FAILING TO GRANT SUA SPONTE A NEW TRIAL.

(NOT RAISED BELOW.)

POINT IV

THE CONVICTION MUST BE REVERSED SINCE DEFENDANT WAS DENIED A FAIR TRIAL DUE TO THE ADMISSION OF IRRELEVANT EVIDENCE OF DEFENDANT'S POST-ARREST SILENCE AND BEHAVIOR.

(NOT RAISED BELOW.)

Defendant was indicted and tried with co-defendant Lucmane Dazilme. The evidence, viewed most favorably to the State, demonstrates that, after observing a series of hand-to-hand drug sales by Dazilme to various purchasers, including defendant, plain-clothes police officers moved in on the two. Defendant, who was riding a bicycle, took off through a park, with an officer in pursuit, on foot, calling "police, stop." When defendant reached the street, he was pursued by an unmarked police car with lights and siren on, but again he declined to stop. Eventually, penned in, he attempted to jump the curb on his bike, failed, and after flying over the handlebars and hitting a fence or the sidewalk, he attempted to continue his flight on foot. Once tackled, he resisted handcuffing by keeping his arms under his body and "flaring."

Upon arrest, defendant was found to possess one red-capped vial of cocaine with a street value of five to ten dollars, and one dollar in currency. At police headquarters, defendant was noted to have been verbally abusive, nasty and uncooperative. Upon recognition that defendant had been injured in the course of the affray, he was transported by the police to the hospital for treatment of injuries to his face. He returned for further treatment later that day and, after posting bail, for a third time on the following day.

In contrast to the State's version of events, defendant, who testified on his own behalf, explained his encounter with Dazilme as an unsuccessful attempt to sell Dazilme incense and oils, which defendant wholesaled. Defendant further claimed that he had run from the scene, following the arrival of the plain-clothed police, to avoid the allegedly unidentified men carrying guns. He denied that he had been ordered to stop as he crossed the park, and he stated that the mishap with the bike occurred when he was purposefully hit by a car, later identified as a police cruiser. Additionally, defendant stated that injuries to his face occurred when, after being handcuffed and confined in a police car, an officer had hit him with a walkie-talkie, while stating: "I tell you about running away from us when I call you." Defendant denied any effort to avoid arrest or lack of cooperation, and he claimed that the vial of cocaine found in his back-pack had been planted by the police.

Defendant's arguments on appeal center in large measure on the fact that he was acquitted of resisting arrest, although convicted of obstructing the administration of law. In this regard, defendant notes that to sustain a charge of resisting arrest in the factual circumstances presented, the State was required to prove that he had avoided or attempted to avoid arrest through flight - the same evidence underlying his conviction for obstruction. The fact that the jury acquitted defendant of resisting arrest, defendant contends, demonstrates that there was an insufficient factual foundation for the charge of obstruction and that the jury's verdict was fatally inconsistent.

We do not accept either of defendant's arguments. We note first that defendant's failure to move for a new trial bars his arguments insofar as they are based upon an evaluation of the weight of the evidence. R. 2:10-1. Moreover, our review of the evidence under standards set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967), satisfies us that there was more than ample evidence to sustain the charge against defendant for obstructing the administration of law, and for that matter, to sustain the charge of resisting arrest. See State v. Crawley, 187 N.J. 440, 460 (2006) (discussing flight provision of the obstructing statute). Issues of credibility were for the jury's resolution; not ours.

Defendant's argument that his conviction must be vacated because of the inconsistent nature of the jury's verdict is equally unsupportable. See State v. Banko, 182 N.J. 44, 53-56 (2004). As the Supreme Court held in that decision, when the reason for inconsistent verdicts cannot be determined, as here, such verdicts - whether the product of mistake, compromise or lenity - are acceptable and non-reviewable. Ibid. (citing, e.g., State v. Grey, 147 N.J. 4 (1996)).

As a final matter, defendant claims plain error in the admission of evidence of his "post-arrest silence and behavior."

The argument is premised upon testimony by police officer Daniel Merten, in response to the prosecutor's question as to the meaning of Merten's statement in his supplemental report that defendant "was uncooperative." Merten testified in this regard that at police headquarters: "[Defendant] didn't want to give his name, didn't want to give us his property, refused to answer our questions." When asked, "What was he doing," Merten again responded: "Just what I said, refusing to answer our questions, didn't want to give us his property, being very nasty towards us, calling us names."

Following defendant's testimony, the State presented, as a rebuttal witness, Officer Joseph Gramiak. The officer, likewise, testified that defendant was "upset [and] very verbally abusive" at headquarters, explaining further:

When I was asking [defendant] for his pedigree, for our arrest cards - we have a procedure. We fill out an arrest card. He was refusing to give me any information, using obscenities and stuff like that.

Rebuttal witness, Officer John Lyons, testified similarly that when defendant came into headquarters, "he was refusing to do specific things that the officers were asking him to do," such as "[g]ive his name, sign a property slip, stuff of that nature."

The officers' testimony, viewed in context, clearly demonstrates that the only questions asked of defendant were ones designed to obtain "pedigree" information for booking purposes, and thus "ministerial in nature and beyond the right to remain silent." State v. Bohuk, 269 N.J. Super. 581, 593 (App. Div.), certif. denied, 136 N.J. 29 (1994)(quoting State v. Mallozzi, 246 N.J. Super. 509 (App. Div.), certif. denied, 126 N.J. 331 (1991); see also, e.g., Rosa v. McCray, 396 F.3d 210, 221 (2d Cir.), cert. denied, 546 U.S. 889, 126 S. Ct. 215, 163 L. Ed. 2d 201 (2005). Thus, no constitutional violation or other error requiring reversal occurred as the result of the admission of the testimony.

 
Affirmed.

(continued)

(continued)

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A-3297-04T4

July 3, 2007