STATE OF NEW JERSEY v. CARLOS SILVA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4609-05T44609-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

CARLOS SILVA,

Defendant-Appellant.

_______________________________

 

Submitted March 7, 2007 - Decided March 29, 2007

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

No. 05-07-1384.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Michael B.

Jones, Assistant Deputy Public Defender,

of counsel and on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (John J. Scaliti,

Assistant Prosecutor, of counsel and

on the brief).

PER CURIAM

Following a bench trial, defendant was convicted of one count of escape, N.J.S.A. 2C:29-5a, and sentenced to three years of incarceration. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

On March 30, 2005, defendant was committed to the Bergen County Jail for failure to remain current in his court-ordered child support payments. On April 5, 2005, defendant was approved for participation in the Sheriff's Work Release Program. He was given a copy of the rules and regulations governing his participation, which he signed, indicating he understood those terms. Paragraph 1 of the rules and regulations states:

I agree to industriously work at my employment, training or education program. I will go to and from its location by the most direct route in the least amount of time. If any situation occurs that prevents me from returning to my assigned custody location at the prescribed time, I will immediately call the Bergen County Jail, namely the Work Release Staff, for instructions. I will not be absent from the approved activities of the day without the approval of the Work Release Staff.

Paragraph 6 states:

I agree not to leave the Bergen County Jail without prior authorization from the Work Release Staff. I understand that should I FAIL TO RETURN TO THE BERGEN COUNTY JAIL, I WILL BE CHARGED AS AN ESCAPEE AND CRIMINALLY CHARGED WITH N.J.S. (2C:29-5) ESCAPE.

Defendant's initials immediately followed this provision.

Under this Work Release Program, defendant was permitted to leave the jail at 6:30 a.m. to go to his place of employment, East Coast Windows in Keansburg. He was required to return by 8:00 p.m.

Sheriff's Officer Daniel Marro was the administrator of the Work Release Program, and on May 1 defendant advised Officer Marro that his employer was not giving him his paychecks, and he asked Officer Marro to call the employer on his behalf. Marro was unable to reach him. Defendant then left, ostensibly to his job at East Coast Windows, but he did not return that evening. He was apprehended two days later at the Royal Motel in Elmwood Park. Defendant was returned to custody and indicted for escape.

Defendant testified on his own behalf. He said that on May 1 he had gone to a roofing job in Oradell, not East Coast Windows. He said that when he finished work in Oradell, he tried to call his employer at East Coast about the paychecks that were due him, but he was unable to reach the employer. He testified that he then decided to drive to his employer's house to confront him about the money that he was owed but said he got lost on the way and then ran out of gas. He said that he borrowed five dollars from someone and put one dollar's worth of gas in the car. He made no attempt to contact the Work Release Staff in accordance with paragraph 1 of the rules and regulations governing the work release program.

He said that after he put the dollar's worth of gas in the car he intended to drive to his father's house, but when he contacted his father he learned that detectives from the warrant squad had been at his father's house looking for him. He knew he was in trouble, and he panicked. He said he started drinking and ended up at the motel where the officers found him two days later.

Defendant raises but one argument on appeal:

THE COURT ERRED IN FAILING TO ORDER A JUDGMENT OF ACQUITTAL AT THE CLOSE OF THE STATE'S CASE (Not Raised Below).

The basis of defendant's argument is that the State did not prove that his failure to return to the jail on the evening of May 1, 2005, was a knowing act. The offense of escape is defined in N.J.S.A. 2C:29-5a which provides in pertinent part:

A person commits an offense if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.

Absent the use of force, threat, deadly weapon or dangerous instrumentality, which did not occur in the present matter, escape is a crime of the third degree. N.J.S.A. 2C:29-5e. Because the statute does not specify the requisite mental state, and does not indicate a legislative intent to impose strict liability, the appropriate mental element is "knowingly," N.J.S.A. 2C:2-2c(3), which is defined in N.J.S.A. 2C:2-2b(2).

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence. A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. "Knowing," "with knowledge" or equivalent terms have the same meaning.

An individual rarely announces his or her mental state of mind; thus jurors are regularly instructed that they may infer a defendant's mental state from his conduct, words or actions. Model Jury Charge (Criminal), "State of Mind" (1993).

Having reviewed this record we are satisfied that the State established beyond a reasonable doubt that defendant acted "knowingly" when he did not return to the Bergen County Jail on the evening of May 1, 2005. Defendant's argument to the contrary is without merit. R. 2:11-3(e)(2).

Affirmed.

 

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A-4609-05T4

March 29, 2007