STATE OF NEW JERSEY v. DAVID G PADILLA-BUSTAMANTE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2345-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID G. PADILLA-BUSTAMANTE,

Defendant-Appellant.

_____________________________________________

October 26, 2011

 

Submitted January 31, 2011 Decided

 

Before Judges A. A. Rodr guez and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-03-00419.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Frank M. Gennaro, Designated Counsel, on the brief).

 

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Tried to a jury, defendant David G. Padilla-Bustamante was convicted of third-degree eluding, N.J.S.A. 2C:29-2b; and the disorderly persons offense of simple assault on Marvin Mejia, N.J.S.A. 2C:12-1a, as a lesser-included offense of aggravated assault.1 The jury found defendant not guilty on aggravated assault and unlawful possession of a weapon, namely a box cutter. Following the verdict, defendant moved for permission to apply to the Pre-Trial Intervention Program (PTI), R. 3:28. The judge denied the motion and imposed concurrent probationary four-year terms. We reverse the eluding conviction and the denial of defendant's motion to apply for admission to PTI.

These are the relevant facts. In the early morning hours of September 2, 2007, defendant went to a tavern where he remained until approximately 2:00 a.m. At the tavern, he met with Kevin, an acquaintance. Defendant agreed to give Kevin a ride home. Two other young men, who were Kevin's friends, also asked for a ride. Defendant agreed. All four men entered defendant's white Ford Explorer.

Around 2:14 a.m., defendant stopped to buy gasoline at an Exxon station at the intersection of George Street and Commercial Avenue in New Brunswick. Parked in front of the Explorer was a red vehicle that defendant knew belonged to a man nicknamed "Flaco." There were other people in the red vehicle. A young man, later identified as Mejia, exited the red vehicle, stood in front of defendant's Explorer, gestured to the occupants and said, in Spanish, "come on." Defendant remained inside the Explorer. He wanted to avoid an altercation and tried to pull away from the gas station. Before he could do so, Kevin's friends, who were seated in the Explorer's back seat, exited and approached Mejia. A fight ensued and moved into the middle of Commercial Avenue. At least four young men were fighting in the street.

Defendant and Kevin, who never left the Explorer, drove away from the area. However, Kevin persuaded defendant to return to pick up his two friends. Defendant drove back to the gas station. The men were still fighting.

Rutgers University Police Sergeant Rowland Johnson heard a dispatch and responded to the scene. Johnson saw four young men near the intersection of George Street and Commercial Avenue stomping a person on the ground. Johnson yelled "police, stop." The fighting stopped. Johnson then saw defendant's Explorer arrive at the intersection. The stomping victim ran towards the Explorer and his attackers chased him. The stomping victim entered the Explorer's passenger side door. According to Johnson, when defendant tried to leave Mejia jumped in front of the Explorer to prevent it from driving away. Defendant drove forward and hit Mejia, then sped away.

At this point, Rutgers University Police Officer Emerson Ghee approached the scene in a patrol car. He saw the Explorer hit Mejia. Ghee pursued the Explorer, which was traveling at fifty-miles-per-hour. Ghee activated his overhead lights and siren. Defendant did not stop. After approximately thirty seconds of driving, the Explorer struck a telephone pole about a half a mile away on Ryders Lane. Defendant, Kevin, and the stomping victimexited the Explorer and ran toward a wooded area. Defendant ran straight through the woods until he came out on the other side. Ghee found defendant sitting on the front porch of a house on Gibbons Street.

New Brunswick Police Officer Emma O'Flanagan arrived at the Gibbons Street location shortly thereafter. She asked defendant why he was sweating. Defendant replied, "I'll be truthful with you, I was driving the white SUV [Explorer] that you were trying to stop." Defendant was arrested. He told the police he had a box cutter in his pocket, which he used at work at his stepfather's "bodega," which is essentially a grocery and convenience store. The police seized the box cutter. Defendant admitted to Ghee that he had hit a man with the Explorer unintentionally and had left the scene because he was afraid.

New Brunswick Police Officer Keith Walcott responded to the site where the fight had occurred. He encountered Mejia and Selbin Hernandez. They were bleeding and very agitated. Mejia had a cut on his arm, and contusions and abrasions on his face. Hernandez had a cut on his face.

Neither Mejia nor Hernandez testified at trial; nor did any of the other fight participants testify. The State presented the testimony of Officers Johnson, Ghee and Walcott. In addition, Middlesex County Prosecutor's Investigator Latonya Miles testified about her unsuccessful attempts to locate Mejia prior to trial. After introducing security videotapes from the gas station's surveillance camera and from Officer Ghee's patrol car security camera, the State rested.

Defendant presented his stepfather Alfonso Nunez as a witness. Nunez testified that defendant worked at his bodega and regularly used a box cutter during the course of the day.

Defendant testified that he intended to leave the area because he feared for his safety. His intention was to escape the attackers, not to elude the police. He also testified that during his flight from the scene, he did not look in his rearview mirror. Thus, he was unaware that Ghee was attempting to stop him.

On appeal, defendant contends:

THE TRIAL COURT'S JURY INSTRUCTION TO THE JURY ON THE DOCTRINE OF FLIGHT WAS PLAIN ERROR.

 

We agree with this contention, and conclude that the judge's failure to limit the application of the flight doctrine to the assault and weapons offenses was plain error.

At the charge conference, the State requested a jury instruction that evidence of flight may create an inference of consciousness of guilt. Although there was no objection, defendant requested a charge on the absence of flight, pursuant to State v. Sullivan, 43 N.J. 209, 238 (1964), cert. denied, 382 U.S. 990, 86 S. Ct. 564, 15 L. Ed. 2d 477 (1966). Defendant's argument was grounded on his testimony that when Ghee pursued him, defendant did not intend to flee. The judge rejected the request and gave the standard flight charge to the jury. The judge said in part:

Now, there has been some testimony in this case from which you may infer that the [d]efendant fled shortly after the alleged commission of the offense. The [d]efendant denies that these acts constituted flight.

 

The question of whether the [d]efendant fled after the commission of a crime is another question of fact for your determination.

 

Throughout the rest of the charge, the judge referred to flight after the commission of "an offense" or "a crime." The judge did not specify which offense or crime. This omission was an error, which was clearly capable of producing an unjust result. R. 2:10-2.

Because evidence of consciousness of guilt carries with it an inherent potential of prejudice to the accused, and has a marginal probative value, the trial judge must give careful consideration to the nature of the evidence to be admitted and the manner in which it is presented. State v. Mann, 132 N.J. 410, 420 (1993).

The charges submitted to the jury were: eluding, aggravated assault on Mejia and Hernandez, and unlawful possession of a weapon. The flight charge was not applicable to eluding, but did apply to the other charges. Such a charge is applicable to a flight from the scene, which occurs subsequent to the commission of an offense for which defendant is charged. Id. at 418.

Here, the jury acquitted defendant of possession of a weapon, and rejected the charge of aggravated assault, finding defendant guilty of simple assault on Mejia only, as a lesser-included offense. The most serious conviction against defendant was eluding in the third-degree. Because the judge did not limit the flight charge, the jury could have inappropriately considered evidence of flight as tending to prove that defendant acted knowingly in his attempt to flee from Ghee. N.J.S.A. 2C:29-2b.

We turn briefly to defendant's remaining claims of trial error, namely:

THE TRIAL COURT IMPROPERLY EXCLUDED EVIDENCE OF GOOD CHARACTER OFFERED BY THE DEFENDANT.

 

THE PROSECUTOR'S COMMENTS DURING HIS OPENING STATEMENT AND SUMMATION CONSTITUTED PROSECUTORIAL MISCONDUCT.

 

THE TRIAL COURT'S ADMISSION OF TESTIMONY FROM WITNESSES WHO LACKED PERSONAL KNOWLEDGE OF THE FACTS TO WHICH THEY TESTIFIED WAS PLAIN ERROR.

We conclude that these contentions are clearly without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

The third issue above relates to a witness' commentary about the contents of the videotapes played for the jury. We direct that at a retrial, if the State introduces videotapes in evidence, there should be no commentary while the tapes are played to the jury, unless such testimony comes from a witness who has personal knowledge, based on observations at the time of the event.

At a retrial, the prosecutor should refrain from referring to defendant, who is presumed innocent, as a "criminal."

Defendant also contends:

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO BE PERMITTED TO FILE AN APPLICATION FOR PRE-TRIAL INTERVENTION AFTER TRIAL.

 

We conclude that on remand defendant shall be permitted to apply for admission into the PTI program. Defendant moved to apply to PTI immediately prior to sentencing. He stated that he did not move pre-trial because he faced second-degree offenses and knew he would be disqualified on that basis. Defendant relied on State v. Halm, 319 N.J. Super. 569, 579-80 (App. Div.), certif. denied, 162 N.J. 131 (1999). We express no view as to the merits of defendant's PTI application.

T

he conviction for eluding the police is reversed and remanded for a new trial. The denial of defendant's motion for leave to apply to PTI is also reversed. In all other respects, the judgment is affirmed.

1 At a simultaneous bench trial, defendant was found guilty of three motor vehicle violations: reckless driving, N.J.S.A. 39:4-96; leaving the scene of an accident, N.J.S.A. 39:4-129; and failure to report an accident, N.J.S.A. 39:4-130. Defendant was sentenced to a $200 fine and driver's license revocation of six months for leaving the scene of an accident. He was fined $100 for failure to report an accident. The reckless driving charge merged with the eluding conviction.