STATE OF NEW JERSEY v. PONTELL C. BRYANT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5367-07T4
5367-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PONTELL C. BRYANT,

Defendant-Appellant.

 

Submitted: September 30, 2009 - Decided:

Before Judges Collester and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Number 03-05-0713-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).

Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Stephen E. Raymond, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Pontell C. Bryant appeals from his conviction and the sentence imposed. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.

Defendant was charged in Burlington County Indictment Number 2003-05-0713-I with second-degree eluding while creating a risk of death or injury to any person, contrary to N.J.S.A. 2C:29-2b (count one); and fourth-degree obstructing the administration of the law, contrary to N.J.S.A. 2C:29-1a (count two). Tried to a jury, defendant was convicted of both charges. On the second-degree eluding conviction on count one, the trial court sentenced defendant to a term of imprisonment of eight years, with a four-year period of parole ineligibility. The court merged the fourth-degree obstruction conviction on count two into count one. Mandatory fines and penalties were also assessed.

The charges against defendant arose from an incident occurring on March 15, 2003. The evidence adduced by the State at trial, if credited, disclosed the following. At approximately 10:56 p.m., Burlington City Police Officers Matthew Wiesniewski and Jonathan Fine were in a marked police vehicle on patrol in the New Yorkshire section of Burlington City, traveling eastbound on East Federal Street at approximately twenty-five miles per hour, the posted speed limit. Officer Wiesniewski was driving and Officer Fine was in the passenger seat. In his testimony, Officer Wiesniewski described the New Yorkshire section of East Federal Street as a residential neighborhood lit by continuous street lights, one lane in each direction, with parking on both sides of the street. At that time and place, they observed another vehicle traveling westbound on East Federal Street heading towards them, also driving within the speed limit. As the vehicle, a dark-colored Ford Expedition, approached and was passing within three to four feet of their patrol vehicle, both officers recognized the driver as defendant. Officer Wiesniewski stated although it was dark outside, both vehicles had their headlights on and the street lighting illuminated the area.

Officer Wiesniewski was familiar with defendant from prior contacts with him in the course of his care-taking functions in the community. Officer Fine testified he knew defendant because they had grown up together in Burlington City, living within a few blocks of each other. Officer Fine stated he also had contacts over the years with defendant in his capacity as a police officer. Once the officers recognized defendant, Officer Wiesniewski explained what next occurred during the following direct examination:

Q. What did you do when you saw Mr. Bryant operating that vehicle?

A. I proceeded to turn my vehicle around to effect a motor vehicle stop.

Q. And why did you want to conduct a motor vehicle stop?

A. To issue a motor vehicle summons.

Q. And, what did you want to issue a motor vehicle summons for?

A. Driving while suspended.

Q. Why did you want to issue a motor - and why did you want to issue that particular summons?

A. Because it was known to me that he was suspended.

Officer Wiesniewski stated that after turning his police vehicle around, he drove up behind defendant's vehicle, which was then traveling westbound on West Federal Street, and attempted to effectuate a stop by first turning on the overhead emergency lights of his vehicle and flashing his headlights, directing defendant to stop, whereupon defendant's vehicle accelerated and turned left onto Wood Street. Officer Wiesniewski then activated the police siren, and defendant pulled his vehicle into a parking lot at the corner of Route 130 South and Wood Street. Defendant at first slowed down, but then accelerated and went onto Route 130 South and continued to increase his speed, driving through a red traffic signal without stopping at the corner of Lincoln Avenue and Route 130 South.

Both officers explained that since they already knew defendant was the driver the vehicle, they did not want to engage him in a high-speed chase, so Officer Wiesniewski turned off the sirens and overhead lights, but continued to follow at a distance. They then observed defendant's vehicle come to a red traffic signal at Keim Boulevard, make a right turn on red without stopping, and go around a traffic circle onto Taylor Avenue, and stop on the right side of Washington Avenue at the location of an apartment building. The officers then observed defendant exit his vehicle on the driver's side, turn back to look at them in the police vehicle, and run around the front of his vehicle and then towards the rear of the apartment building.

The patrol vehicle being operated by Officer Wiesniewski was equipped with a mobile video recorder (MVR), consisting of a camera mounted on the front windshield with the recording unit located in the trunk. Officer Wiesniewski explained that the MVR records audio and visual and is activated automatically when the vehicle's overhead emergency lights are turned on; it can also be activated manually from inside the vehicle. Officer Wiesniewski stated the MVR recorded the incident, and the tape was played for the jury from the point it was activated when the vehicle's overhead lights were turned on; however, no image of defendant's face was captured on the videotape.

After defendant ran around to the rear of the apartment building, Officer Fine pursued him on foot but was unable to locate him. After they broke off the search, the vehicle being driven by defendant was impounded. The vehicle's registration was checked through the police dispatcher and determined to be a stolen vehicle registered to a Mr. Loringer of Willingboro.

Caroline Strong was also called by the State as a witness. However, prior to opening statements, and outside the presence of the jury, the trial court conducted a hearing to determine whether there was an adequate basis for an in-court identification of defendant by Ms. Strong. During that hearing, Ms. Strong testified that on March 15, 2003, she was living with her three children in an apartment on Mount Holly Road in Burlington City. She stated that during the early afternoon hours of March 15, 2003, her friend Donna Loringer came to her apartment for a visit, arriving in a dark-colored sports utility vehicle. Later in the afternoon, defendant and two of his friends also arrived at her apartment. She testified that, as of that date, she had known defendant for about a year. Prior to their arrival, Ms. Strong and Ms. Loringer had been consuming alcohol and crack cocaine. Ms. Strong stated defendant and his friends stayed at her apartment about an hour. During her direct examination at the hearing, the following colloquy ensued:

Q. Now, let me ask you this. Ms. Strong, do you see - you said you saw - identified one of those individuals as Pontell. Is the person who you're identifying as Pontell here in this courtroom?

A. I don't believe so.

Q. Excuse me? Sorry?

A. What did you say?

Q The person who you've identified as Pontell, you said -

A. Oh, okay.

Q. -- Pontell was - ma'm, just let me ask the question, okay?

A. Yeah.

Q. You said one of the individuals who was at your residence you identified by the name of Pontell; is that correct?

A. Yes.

Q. Do you see the person who you said was Pontell at your apartment that day, March 15th, 2003, do you - is that person in the courtroom?

A. I'm not sure. I believe so. I believe he's sitting right there.

Ms. Strong went on to state that defendant's hair was longer and he was a little heavier than on March 15, 2003.

On cross-examination, Ms. Strong insisted defendant was the man who had visited her apartment with his friends on March 15, 2003. When asked what would make her remember that specific date, she testified: "Because my friend was having sex with him and fucking around with him and then her car - she lent him her car[,]" further explaining: "I had to put up with her for five hours waiting for her car to come back until she got a phone call saying it wasn't." When asked why she told the investigator from the prosecutor's office that the person who had been at her apartment, who she had referred to as "P," was a dark-skin individual, whereas defendant was light-skin, she stated she did not recall saying that, but sometimes she made mistakes when she was nervous.

Defense counsel argued that Ms. Strong should be precluded from making an in-court identification at trial as her testimony during the hearing established a potential for a misidentification. In ruling that Ms. Strong's testimony would be permitted, the trial judge stated, in pertinent part:

In my mind the purpose of this haring was twofold: number one, for the court to establish that there was a basis for an in-court identification of this defendant based upon observations made by this witness on March 15, 2003. She did that. The second, quite frankly, [defense counsel], was to give you an idea as to what this woman was going to say, and that's another reason why I . . . wanted the [N.J.R.E.] 104 hearing.

I find nothing, no violation of due process here in this particular identification. I had some concerns. Those concerns are addressed through this [N.J.R.E.] 104 hearing. And, in fact, from what I -- my understanding was the question - I had a question as to whether she was going to be able to identify him. Well, she can identify him. She had a prior contact with him, at least one, probably more than that.

Yes, she did say she was not sure, but then upon further examination on direct and then on cross-examination she said she was sure, but that's a credibility issue.

The discrepancy between the description that she gave to whomever she spoke to and whatever description she gives in court or the description of Mr. Bryant, that's a credibility issue. She's had the ability to view him. She knew him ahead of time. I'm satisfied. I'm satisfied that the threshold finding of - of her ability to identify him in court based upon what she saw that night, which is corroborated by a prior contact, I'm satisfied that that has been - that threshold has been met, and this woman will be able to testify in this trial, and if during the trial she identifies Mr. Bryant, she can identify Mr. Bryant.

Ms. Strong's trial testimony was similar to that given during the N.J.R.E. 104 hearing, and she was vigorously cross-examined concerning inconsistencies in her testimony regarding descriptions given of defendant's physical appearance, and whether her consumption of alcohol and drugs had clouded her memory. Defendant's maternal grandmother, Paulette Bryant, testified concerning defendant's physical appearance on March 15, 2003, stating it was essentially the same as it was at trial.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS (Not Raised Below).

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INCOMPLETE, ERRONEOUS, AND PREJUDICIAL INSTRUCTION ON THE LAW OF ELUDING (Not Raised Below).

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF SUGGESTIVE AND UNRELIABLE IDENTIFICATION EVIDENCE.

POINT IV

THE TRIAL COURT ERRED BY ADMITTING HEARSAY EVIDENCE.

POINT V

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS WITNESSES HAD FIRST-HAND KNOWLEDGE OF THE FACTS (Not Raised Below).

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF EVIDENCE THAT THE DEFENDANT HAD COMMITTED PRIOR MOTOR VEHICLE OFFENSES.

POINT VII

THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.

POINT VIII

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

B. THE COURT MADE FINDINGS OF FACT TO ENHANCE THE SENTENCE.

For the first time on appeal, defendant argues the trial judge erred by failing to instruct the jury on the law of prior inconsistent statements. More specifically, defendant contends that because of the prior inconsistent accounts given by Ms. Strong during her testimony, "it was imperative that the trial court instruct the jurors completely and accurately on the law of credibility[,]" and "to incorporate the prior inconsistencies into the model jury instruction." At trial, defendant did not request such an instruction. Because defendant did not object to the jury instructions at trial, we must apply the plain error standard. R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005). We will reverse on the basis of unchallenged error if we find error that was "clearly capable of producing an unjust result." R. 2:10-2. In the context of a jury charge, plain error requires demonstration of "[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result." State v. Jordan, 147 N.J. 409, 422 688 (1997) (citations omitted). Additionally, we consider alleged error in light of "the totality of the entire charge, not in isolation." State v. Chapland, 187 N.J. 275 289 (2006).

Here, although the trial judge did not formally charge the jury on prior inconsistent statements, the judge did provide the jury with extensive instructions concerning witness credibility and identification, including informing the jurors they were to judge witness credibility by taking into consideration, inter alia, "whether the witness made any inconsistent or contradictory statements[.]" It should be noted that Ms. Strong's prior statement during the N.J.R.E. 104 hearing concerning the identification of defendant was that she was "unsure," but did "believe he's sitting right there." Viewing the charge in its totality in the context of the actual statements contained in Ms. Strong's testimony, we conclude that the omission of specific inconsistent-statement charge did not have the capacity to bring about an unjust result. Defense counsel's cross-examination of Ms. Strong concerning the credibility and accuracy of her identification testimony was thorough and intensive, and the instructions concerning the evaluation of her credibility clearly focused the jury on the statements the defense claimed to have been inconsistent.

Defendant also asserts the jury charge on the law of eluding was incomplete, erroneous and prejudicial. Again, there was no objection lodged concerning the charge and we evaluate this argument, as well, under our plain error standard of review. R. 2:10-2. Specifically, defendant asserts the judge should have instructed the jurors that the risk of death or injury to any person must have been significant or substantial in order to differentiate between third-degree and second-degree eluding. We disagree. The plain language of N.J.S.A. 2C:29-2b makes clear that "any risk" of death or injury elevates the conduct to a second-degree offense.

In State v. Wallace, 158 N.J. 552, 558 (1999), the Supreme Court held "that in a second-degree eluding case, the jury must be instructed that the term 'injury' means bodily injury as defined in N.J.S.A. 2C:11-1(a)." The Court found, however, that "[t]he failure to define the term 'injury' for the jury . . . was harmless error" because "[t]he case was tried on the theory that because defendant violated our traffic laws, his eluding created a rebuttable inference that the flight or attempt to elude posed a risk of death or injury to any person within the meaning of N.J.S.A. 2C:29-2(b)," and the trial court had "instructed the jury on each element of the . . . motor vehicle offenses with which defendant had been charged." Id. at 558-59. While the eluding statute allows "a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of" motor vehicle statutes, it does not require references to specific motor vehicle offenses. N.J.S.A. 2C:29-2(b). The Court in Wallace indicated that either the N.J.S.A. 2C:11-1(a) definition of "injury" or the motor vehicle offenses was sufficient for a jury charge on second degree eluding, stating in pertinent part:

We are satisfied that the Legislature intended to protect all persons by the eluding statute, including the police officers occupying the chasing vehicle and any persons in the eluding vehicle, as well as any people who could potentially be exposed to injury or death along the chase route. In our view, the statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others.

[Id. at 560.]

Where a defendant fails to object to a jury charge at trial, we may presume that defense counsel perceived no prejudice in the charge as given. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Macon, 57 N.J. 325 337 (1971). In the absence of an objection, we will reverse only if we find plain error. R. 2:10-2. Plain error, in the context of a jury charge, is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). Generally, "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Afanador, supra, 151 N.J. at 54. However, when ultimately passing upon the propriety of a trial judge's instruction, we must examine the entire charge to see if it was ambiguous or misleading in the context of the trial, thereby prejudicing defendant. State v. Hipplewith, 33 N.J. 300, 317 (1960).

Here, the evidence, if credited by the jury, demonstrated that defendant drove his vehicle at a high speed, drove through one red traffic signal, failed to stop before turning at another red traffic signal, used public property to avoid a traffic signal, and was driving recklessly. The judge properly instructed the jury on both the definition of "injury" contained in N.J.S.A. 2C:11-1(a), as well as the allegations of the commission of specific motor vehicle offenses. We find no error in that charge.

Defendant also argues that the trial judge erred by allowing the presentation of suggestive and unreliable identification evidence in the form of Ms. Strong's testimony. We disagree. The testimony of Ms. Strong was introduced to demonstrate that on the night of March 15, 2003, prior to his encounter with the police officers, defendant had been at her apartment and had received Ms. Loringer's keys to the vehicle that was involved in the eluding incident, and abandoned following the police pursuit. There was no out-of-court identification of defendant by Ms. Strong that called into question the reliability of her in-court identification. As noted by the trial judge, the purpose of the N.J.R.E. 104 hearing was to determine whether there was a basis for Ms. Strong's in-court identification testimony. The fact that there were some inconsistencies in her testimony upon which the defense could focus on cross-examination does not, at least in these circumstances, equate to her testimony being inadmissible. Here, as opposed to the circumstances in State v. Michaels, 136 N.J. 299, 316 (1994) or State v. Chen, 402 N.J. Super. 62, 74-87 (App. Div. 2008), there were no highly-suggestive circumstances that posed a significant risk of misidentification that would substantially outweigh the probative value of Ms. Strong's testimony.

Defendant further argues that the trial judge erred by admitting hearsay testimony from Ms. Strong to establish that defendant was the driver of the eluding vehicle. Specifically, defendant cites to Ms. Strong's testimony that Ms. Loringer had loaned the vehicle to defendant. In her testimony, Ms. Strong did state that Ms. Loringer "told him he could borrow it[,]" which was clearly hearsay. There was, however, no objection to that testimony and we thereby evaluate this argument under our plain error standard of review. R. 2:10-2. Upon reviewing the entirety of the testimony of Ms. Strong on both direct and cross-examination, we conclude that the admission of that statement did not clearly have the capacity to produce an unjust result. As to Ms. Strong's testimony, the focus of defense counsel's cross-examination was on her identification of defendant as the person who had been in her apartment on the evening of March 15, 2003, not on whether that person had borrowed Ms. Loringer's vehicle; that latter fact had not even been contested. In fact, during the cross-examination of Ms. Strong during the N.J.R.E. 104 hearing, defense counsel specifically elicited the fact that she had witnessed Ms. Loringer give her car keys to defendant. We therefore find no plain error in the admission of that statement.

We find insufficient merit in defendant's arguments in Point V and Point VII to warrant discussion in a written opinion. R. 2:11-3(e)(2).

In Point VI, defendant argues that the court erred by permitting evidence that defendant had committed prior motor vehicle offenses, i.e., that defendant's driving privileges had been suspended. We disagree. The trial judge conducted a hearing to determine whether such evidence would be permitted under N.J.R.E. 404(b), and we are in full agreement with the judge's oral decision permitting the admission of such evidence to demonstrate a possible motive to elude the police. The judge carefully analyzed the factors set forth in State v. Cofield, 127 N.J. 328, 338 (1992), and then provided the jurors with a carefully-constructed charge that clearly informed them of the limited purpose of its admissibility.

Lastly, defendant argues that the sentence imposed is excessive because the sentencing judge improperly balanced the aggravating and mitigating factors, and improperly made findings of fact to enhance the sentence. These arguments lack merit. After reciting defendant's long and extensive juvenile and criminal record and his familiarity with defendant and the many unsuccessful attempts to rehabilitate him, the trial judge stated in pertinent part:

As to count one of 03-05-713-I, which is a second-degree eluding, the court finds aggravating factor number three, the risk the defendant will commit another offense. That's based upon his prior adult and juvenile record which includes two state prison sentences where he spent time in two state prisons.

The court's also [going to] find aggravating factor number six, the extent of the defendant's prior criminal record. Again, numerous adult convictions, two of which ended up in the Department of Corrections, one as a juvenile, and one as an adult.

The court's also [going to] find aggravating factor number nine, the need for deterring this defendant and others from violating the law. That's specific deterrence for Mr. Bryant, and general deterrence for the public at large.

The court does not find any mitigating factors.

The court finds that the aggravating factors exist and are of sufficient weight to sustain the presumption of incarceration for a second-degree offense.

Due to Mr. Bryant's extensive prior criminal record, there would be no serious injustice incarcerating Mr. Bryant that would override the need to deter such conduct on the part of others.

The court also finds that the aggravating factors substantially outweigh the lack of mitigating factors. And, therefore, I will sentence him as follows.

He'll be sentenced to a term of eight years in the care and custody of the Department of Corrections. He will have to serve . . . four years of that eight year sentence before he's eligible for parole.

As noted, the fourth-degree obstruction conviction was merged into the second-degree eluding conviction, and applicable mandatory fines and penalties were assessed.

We are satisfied the judge followed the correct sentencing guidelines; there is substantial evidence in the record to support the findings of fact upon which the judge based the application of those guidelines; and, in applying those guidelines to the relevant facts, the judge reached a conclusion that could have reasonably been made upon a weighing of the relevant factors. State v. Roth, 95 N.J. 335, 365-66 (1984).

We also note that defendant contends there was a mitigating factor under N.J.S.A. 2C:44-1(b)(1) because "the defendant did not cause actual harm[,]" and that "[s]ince this mitigating factor qualitatively outweighs the lone aggravating factor, the defendant should be sentenced to a term of five years." However, defendant misreads N.J.S.A. 2C:44-1(b)(1), which states, "[t]he defendant's conduct neither caused nor threatened serious harm[.]" Clearly, his eluding conduct "threatened" serious harm. Moreover, the judge properly found three aggravating factors, not one, and we conclude there is substantial evidence in the record to support the findings on each of those three aggravating factors. The judge's findings were not simply based on his prior record. The trial judge was uniquely familiar with defendant and the many attempts to rehabilitate him, defendant having appeared before him on multiple occasions as both a juvenile and an adult.

Lastly, there is no basis for defendant's argument that the "sentence is illegal because the judge, not the jury, made findings of fact to support the imposition of an enhanced eight-year sentence." The judge sentenced defendant within the sentencing range set forth in N.J.S.A. 2C:43-6(a)(2), and thereby did not impose an "enhanced" sentence. See State v. Natale, 184 N.J. 458, 487-88 (2005).

 
Affirmed.

Prior to the commencement of trial, the trial court conducted a hearing pursuant to N.J.R.E. 404(b), concluding the knowledge by Officer Wiesniewski of defendant's prior driving record went to the issue of motive, and was probative to explaining the actions of the defendant, outweighing any prejudicial effect. See State v. Cofield, 127 N.J. 328, 338 (1992).

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A-5367-07T4

October 30, 2009