STATE OF NEW JERSEY v. PETER A. KOVI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5814-08T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PETER A. KOVI,

Defendant-Appellant.

_____________________________

March 30, 2011

Submitted October 12, 2010 Decided

Before Judges Rodr guez and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-06-0389.

Yvonne Smith Segars, Public Defender, attorney for appellant (Suzannah Brown, Designated Counsel, on the brief).

A. Peter DeMarco, Jr., Acting Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of second-degree eluding, in violation of N.J.S.A. 2C:29-2(b). He was sentenced to a term of seven years imprisonment. On appeal, defendant raises claims of trial error and excessive sentence. Finding no error warranting either reversal or modification of sentence, we affirm.

The essentially unrebutted trial evidence established that at approximately 1:00 a.m. on May 12, 2007, defendant led police officers on a high-speed motor vehicle chase through five towns along Route 22 at speeds reaching ninety-eight miles per hour. Bridgewater Township Police Officer Joseph Dailey initiated pursuit of defendant whose vehicle passed Dailey s marked police cruiser at the side of the highway at very close range and at high speed. During his pursuit, Dailey activated his flashing lights and siren. Defendant s vehicle continually swerved between the highway shoulder and the traffic lanes. As the chase entered the town of Readington, two Readington police vehicles joined pursuant, also with their lights and sirens activated. Dailey had also activated the video recording equipment in his police vehicle and captured the pursuit with the exception of "roughly [eighteen] seconds." The State introduced that video recording at trial.

Upon entering Clinton Township, Dailey received instructions from his sergeant to stop pursuit because the chase had become too dangerous. Dailey thereupon decreased his speed, shut off his lights and siren and used radar to clock defendant who was then traveling at ninety-eight miles per hour. Dailey continued to follow defendant from a "safe distance," noting that he was still "way over the posted speed limit, and he continued to swerve throughout the lanes of travel, nearly hitting another vehicle . . . and nearly rear-end[ing] a tractor-trailer."

The chase ended when defendant crashed his car into a vehicle driven by Somerset County Prosecutor s Detective Kevin Sicola, who was on his way home from work. Sicola testified that defendant s car struck his vehicle causing it to roll over itself from the right shoulder to the center median. Sicola required shoulder surgery as a result.

Upon witnessing the collision, Dailey re-activated his emergency lights to "secure the vehicles." Defendant, who had been ejected from his vehicle upon impact with Sicola s car, suffered a broken jaw and lacerations. He was flown by helicopter to Morristown Memorial Hospital. A toxicology test conducted on defendant s blood at the hospital revealed that his blood alcohol level was 0.184 percent.

Trooper Eric McNeel went to the hospital from the collision scene and spoke to defendant in the emergency room. McNeel testified that "there was an odor of alcohol on [defendant s] breath. Also his eyes were watery, bloodshot." McNeel advised defendant that he was under arrest for "suspicion of driving while intoxicated," and read defendant his Miranda1rights at that point. Defendant responded to each question by "[t]he physical nodding of the head, as well as a verbal yes." McNeel did not ask defendant to sign the Miranda form because of his injuries.

After being advised of his rights, defendant told McNeel "he didn t remember anything." McNeel then asked defendant "what kind of alcoholic drinks [he had had] that night." Defendant responded that he had consumed two Long Island Iced Teas within "about a half hour."

Defendant testified, and admitted to consuming far more alcohol on the night in question than he had reported to McNeel. Defendant was bowling with friends; he testified that he drank a six-pack of Smirnoff Raw Tea behind the bowling alley before entering. Once inside, he consumed four Long Island Iced Teas. He began to bowl erratically and stated that he "d[id]n t remember anything after the fourth frame of the second game."

Defendant further testified that he did not recall getting into his car, driving on Route 22, or colliding with Sicola s vehicle. He also had no memory of his conversation with McNeel at the hospital, recalling only that he woke up in the hospital the following morning; upon his release from the hospital two hours later, defendant was taken to the Bridgewater Police Department. Defendant stated that because of his "history of alcoholism" he knew that if he had "been drinking and driving," there would be a risk that he "could be involved in a collision and injure somebody."

Having reviewed the video produced by Dailey, defendant could not deny that he had been pursued by "a law enforcement officer" whose "lights were on and [who] was trying to get [him] to stop that night[.]" He had "no reason to dispute" that it was his vehicle shown on the video and that he had been the driver.

At sentencing, the judge found applicable aggravating factors three (the risk that defendant will commit another offense), six (the extent and seriousness of defendant s prior record), and nine (the need for deterrence). N.J.S.A. 2C:44-1(a)(3), (6) and (9). The judge denied the State s request to sentence defendant to a term of eight years, concluding instead that a term of seven years was warranted. The judge found no mitigating factors applicable.

On appeal, defendant raises the following contentions for our consideration:

POINT I

THE DEFENDANT'S STATEMENT TO POLICE SHOULD HAVE BEEN SUPPRESSED BECAUSE IT WAS NOT MADE VOLUNTARILY, INTELLIGENTLY AND KNOWINGLY

POINT II

THE DEFENDANT WAS DEPRIVED OF HIS RIGHT TO A FAIR TRIAL WHEN THE TRIAL COURT PERMITTED HIM TO APPEAR BEFORE THE JURY IN HANDCUFFS AND FAILED TO PROVIDE A CURATIVE INSTRUCTION TO THE JURY (NOT RAISED BELOW)

POINT III

PROSECUTORIAL MISCONDUCT DURING SUMMATION DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT IV

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)

POINT V

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING MANIFESTLY EXCESSIVE SENTENCES BASED UPON UNSUPPORTED AGGRAVATING FACTORS AND BY FAILING TO CONSIDER APPLICABLE MITIGATING FACTORS (NOT RAISED BELOW)

We note that other than defendant s Miranda argument, none of his claims of trial error was raised below.

We turn first to the Miranda issue. McNeel was the only witness to testify at the hearing. His testimony was consistent with his trial testimony noted above. In addition, McNeel testified that while he was reading defendant his rights from the Miranda card, defendant was "pretty much just listening. There wasn't any response that [he] specifically recall[ed] until [he] completed reading the card." When McNeel asked defendant if he understood those rights, defendant both nodded affirmatively and sad "yes."

At the conclusion of McNeel's testimony, defense counsel "agree[d] with" the prosecutor's contentions that defendant understood his rights and "answered appropriately, which indicates that he understood the question that was posed to him and was able to verbalize an appropriate answer." Counsel stated that he "concur[red] that the statements are admissible."

The judge thereupon found defendant's statements "admissible by consent[,]" but went on to make the following findings:

[Defendant] was given his Miranda rights before custodial interrogation, and the State has proven that fact, as well as the voluntariness of the statement made to him and the statements made by him and his waiver of his Miranda . . . rights beyond a reasonable doubt.

On appeal, defendant contends that "[g]iven the level of [his] intoxication, the nature of his injuries, and the setting in which the questioning occurred, the trial court's finding that the State had met its burden of proving [he] knowingly, intelligently, and voluntarily waived his right to remain silent was error." We are satisfied, however, that the judge's findings were "supported by sufficient, credible evidence in the record." State v. Yohnnson, 204 N.J. 43, 62 (2010). Those findings, therefore "must be sustained." Ibid.

In determining the voluntariness of a defendant's confession, we traditionally look to the totality of the circumstances to assess whether the waiver of rights was the product of a free will or police coercion. In the totality-of-the-circumstances analysis, we consider such factors as the defendant's "age, education and intelligence, advice as to constitutional rights, length of detention, whether the questioning was repeated and prolonged in nature and whether physical punishment or mental exhaustion was involved."

State v. Nyhammer, 197 N.J. 383, 402 (quoting State v. Presha, 163 N.J. 304, 313 (2000)), cert. denied, __ U.S. __, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009).]

McNeel testified that he spoke to defendant at approximately 3:00 a.m. Defendant "believe[d] he was released from the hospital at "about 7:30 or 8:30 that morning[,]" directly into police custody. There is no evidence that McNeel's questioning was "repeated" or "prolonged in nature" or that "physical punishment or mental exhaustion was involved." Ibid. Nor was there any showing that the emergency room setting was in some way "coercive," as defendant claims. Defendant essentially told the trooper that he had no recollection of the accident. Defendant did, however, respond directly and substantively to McNeel's questions about the amount of alcohol he had consumed. Under the totality of the circumstances, we are satisfied that defendant's statements were properly admitted into evidence.

Defendant's next two points are raised as plain error. Pursuant to the plain error standard of review, a conviction will be reversed only if the error was "clearly capable of producing an unjust result." Rule 2:10-2. "In other words, was the possibility of injustice 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached'?" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Defendant must prove that the claimed error was clear and obvious and that it affected his substantial rights. State v. Chew, 150 N.J. 30, 82 (1997), cert. denied, 528 U.S. 1052, 120 S. Ct. 593, 145 L. Ed. 2d 493 (1999). With this standard in mind, we turn to defendant's remaining claims of trial error.

As for defendant's claim that his right to a fair trial was prejudiced when the jury was permitted to see him in handcuffs, the record reveals the following. At the end of the first day of trial, after the jury had exited the courtroom, the following exchange occurred between the judge and one of the sheriff's officers assigned to his courtroom:

[Judge]: All right. Officers, I noticed that . . . the jury was brought up. We need to make sure that [defendant] is at the seat, at the table, and without shackles before the jury is en route.

[Officer]: Yes, sir. We (indiscernible) via radio sir. We took care of it.

[Judge]: Okay. Very good. Thank you. . . . All right. I just want[ed] to remind everybody of that.

Nothing further was said about this matter during the remainder of the trial.

Based upon this brief exchange, defendant contends that "it appears that the jury was inadvertently permitted to observe [him] in restraints." The record, however, is devoid of any evidence that this definitely occurred. Under the circumstances, the judge's words could have been an instruction meant to prevent such an occurrence, rather than a comment on an actual event.

Even assuming, however, that the jury inadvertently saw defendant in handcuffs, we are satisfied that it was not "prejudicial" to the extent that it was "likely to have led to an unjust result," as he contends. In light of the overwhelming evidence of defendant's guilt, we are hard-pressed to discern how this issue even remotely satisfies the "plain error" standard.

As for the claim of prosecutorial misconduct, again raised as plain error and subject to the same standard of review, Taffaro, supra, 195 N.J. at 454; R. 2:10-2, defendant asserts that the prosecutor impermissibly "suggested that [defendant] had a burden of proof, and failed to meet it. He points to the following comments in the prosecutor's summation as evidence of such impropriety: in discussing the elements of the offense of eluding, the prosecutor "suggest[ed]" to the jury that (1) "so far there's been no contradiction to either of those elements [just mentioned] by any testimony or documentary evidence in this case"; (2) "most of these [elements] are not in dispute whatsoever"; and (3) "there was a risk, uncontroverted, he was the cause of that risk . . . [b]ecause of his intoxication and his speed."

"To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Harris, 181 N.J. 391, 495 (2004) (citation, internal quotations and alterations omitted). Where, as here, there was no objection to the summation at trial, defendant must demonstrate prosecutorial excess sufficient to raise "a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached." State v. Feal, 194 N.J. 293, 312 (2008) (citation and internal quotations omitted).

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.

[State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted).]

We are satisfied that defendant has not made the showing essential for relief on this point.2

Finally, we address defendant's sentencing point. We note, initially, that defendant has been paroled.3 Because his maximum release date is September 1, 2012, however, and he therefore faces the possibility of additional time in prison in the event he violates parole, we briefly address his contentions.

"[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted).

Given the limited scope of our review, the arguments presented in support of defendant's claim of excessiveness of sentence lack sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2). The judge did not misapprehend or misapply the statutory factors; the factual findings underlying the judge's conclusions on the relevant aggravating and mitigating factors are supported by the record. State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.

1 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

2 Because we reject as without merit all of defendant's trial error claims, we deem his "cumulative errors" argument to be "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

3

State of New Jersey, Department of Corrections, Offender Search, http://www6.state.nj.us/DOC_Inmate/details?x=1419095&n=0 (last visited March 21, 2011).