STATE OF NEW JERSEY v. SANDRA L. NOLLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2943-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SANDRA L. NOLLEY,

Defendant-Appellant.

_______________________________

November 19, 2012

Submitted November 8, 2012 - Decided

Before Judges Sapp-Peterson and Haas.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 09-12-4094.

Joseph E. Krakora, Public Defender, attorney for appellant (William J. Sweeney, Designated Counsel, on the briefs).

Warren W. Faulk, Camden County Prosecutor, attorney for respondent (Patrick D. Isbill, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried before a jury on a one-count indictment, defendant was convicted of third-degree eluding a law enforcement officer while operating a motor vehicle, N.J.S.A. 2C:29-2b. The trial judge sentenced defendant to five years probation, conditioned upon her serving sixty days in the county jail. However, the custodial sentence could be served in any program for which defendant qualified, including home electronic monitoring. Defendant was also assessed appropriate fines and penalties.

On appeal, defendant has raised the following contentions:

POINT I

THE TRIAL COURT ERRONEOUSLY DENIED

DEFENDANT'S MOTION FOR ACQUITTAL.

POINT II

DEFENDANT'S SENTENCE WAS EXCESSIVE.

After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's conviction and sentence.

I.

The State developed the following proofs at trial. On September 13, 2009, Sergeant Joseph McNally of the Waterford Township Police Department was on patrol. At approximately 1:00 p.m., he was dispatched to a liquor store on the White Horse Pike to investigate a possible assault. He was joined there by a second police officer, Patrolman Timothy Lyons. Both officers were dressed in uniform and were driving marked police vehicles.

At the liquor store, the officers found two women who had been involved in an incident, the nature of which is not clear from the record. Patrolman Lyons spoke to one of the women, who had a child with her. The woman told Patrolman Lyons she did not want to press any charges.

Sergeant McNally attempted to speak separately to the other woman, who was identified as defendant. Although Sergeant McNally asked defendant several times to stop speaking on her cell phone, she initially refused to do so and she was "very belligerent" toward the officer. Eventually, however, she got off the phone and agreed to speak to Sergeant McNally about the incident.

At the conclusion of the interview, Sergeant McNally gave defendant a ticket because her car, a Jeep Wrangler, was parked in front of the liquor store in a no parking zone. He then told her she was "allowed to go on her way." Sergeant McNally and Patrolman Lyons noted that defendant's Jeep had a "soft top," with nothing covering the side windows or the rear windshield.

The officers stood in the parking lot to confer about the preparation of their incident report. As they did, Sergeant McNally observed defendant driving out of the parking lot onto Route 30. She was talking on her cell phone. Just as she turned out of the parking lot onto the highway, she made eye contact with Sergeant McNally, and "gave [him] the finger." Both officers noticed that defendant had not used a turn signal when she made her turn onto the highway.

Sergeant McNally got into his police car, activated his overhead lights, and left the parking lot to pursue defendant. He testified his intent was to give her "another summons" because "[o]ne, she pulled out of the liquor store without using her signal. Number [t]wo, she had given me the finger in front of another female and a young child. And I felt she deserved another ticket." Patrolman Lyons got in his police car and followed behind Sergeant McNally's vehicle.

Sergeant McNally caught up to defendant and was behind her car. They were driving approximately fifty miles per hour, which was the posted speed limit. Defendant did not pull over in response to the police car's overhead lights. She continued to speak on her cell phone. After driving about thirty yards, Sergeant McNally activated his siren "because she was not stopping." Patrolman Lyons then turned on his overhead lights and siren. Still, defendant failed to pull over.

Sergeant McNally observed defendant looking at him in her rearview mirror and she "kind of shaked [sic] her head like she wasn't stopping." Sergeant McNally then began "hitting the air horn as well as the siren," but defendant still refused to pull over. Both officers identified "perhaps a dozen spots" where defendant could have safely pulled over as she continued to drive down the highway with the officers behind her.

After driving for about a mile, defendant finally pulled into a restaurant parking lot and stopped her vehicle. The officers then arrested her.

At the conclusion of the State's case, defendant made a motion for acquittal. The trial judge denied the motion, finding a reasonable jury could, on the basis of the evidence presented by the State, find defendant guilty of the eluding charge beyond a reasonable doubt.

Defendant then testified. She admitted she had not used a turn signal when she left the parking lot and agreed she had given Sergeant McNally "the finger," because she was not satisfied with how he handled the incident at the liquor store. Defendant denied she was speaking on the cell phone while she was driving.

Defendant claimed she did not notice Sergeant McNally's vehicle or his overhead lights. She testified Sergeant McNally's car was "far enough behind me that the lights meant absolutely nothing." Defendant stated she never noticed Patrolman Lyons' car at all and alleged she did not hear the sirens or the air horn when they were activated "because I had my music up rather loud." She denied making "any faces" at Sergeant McNally or that she shook her head, indicating a refusal to stop. Defendant explained she "was kind of like maybe dancing or something or other." She pulled into the restaurant parking lot "[b]ecause at that point it was clear for me to pull in and I did not want to be issued another improper parking ticket so I figured it would be smart to park in another parking space."

II.

Defendant argues the trial judge erred in denying her motion for acquittal at the end of the State's case. Defendant asserts there was insufficient evidence in the record to support a finding that she knew Sergeant McNally had signaled her to stop her car or that she knowingly fled or attempted to elude the officers. We disagree.

A defendant's motion for acquittal must be granted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. On a motion for judgment of acquittal, the governing test is

whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged.

[State v. D.A., 191 N.J. 158, 163 (2007) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).]

We have stated that "'the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State.'" State v. DeRoxtro, 327 N.J. Super. 212, 224 (App. Div. 2000) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)).

Our review of a trial court's denial of a motion for acquittal is "limited and deferential[,]" and is governed by the same standard as the trial court. State v. Reddish, 181 N.J. 533, 620 (2004). "We give no consideration to evidence or inferences from defendant's case." Ibid. (citing Reyes, supra, 50 N.J. at 459).

Under N.J.S.A. 2C:29-2b, "the offense of eluding consists simply of 'knowingly' fleeing or attempting to elude a law enforcement officer by motor vehicle after receiving a signal to stop." State v. Mendez, 345 N.J. Super. 498, 506 (App. Div. 2001), aff'd, 175 N.J. 201 (2002). "A person acts knowingly with respect to the nature of [her] conduct . . . if [she] is aware that [her] conduct is of that nature, or that such circumstances exist, or [she] is aware of a high probability of their existence." N.J.S.A. 2C:2-2b(2).

The evidence here was more than sufficient to enable a jury to properly find defendant guilty of eluding a law enforcement officer. The officers testified defendant was operating a motor vehicle on the highway. There was no dispute that Sergeant McNally and Patrolman Lyons were police officers, in uniform and driving official police vehicles. Both officers testified they activated their overhead lights and sirens to signal defendant to bring her Jeep to a full stop. Sergeant McNally also used an air horn to signal to her. The officers followed defendant in this fashion for approximately one mile.

Both officers testified there were no side windows or rear windshield in defendant's vehicle. Sergeant McNally testified defendant looked at him in the rearview mirror of her car and shook her head, indicating she saw him and was not going to pull over. There were ample, safe spots along the route for defendant to have pulled over.

Under these circumstances and contrary to defendant's argument, a jury could reasonably conclude defendant knew the officers had signaled her to stop her car. She was driving in an open vehicle and both officers used their sirens and lights to signal her to pull over during a mile-long pursuit. She refused to do so and shook her head at Sergeant McNally to make it clear she was not going to stop. Given the strength of the evidence, a reasonable jury could have found defendant guilty beyond a reasonable doubt. Therefore, the trial judge properly denied defendant's motion for acquittal.

III.

Defendant also argues that her sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J. 494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, an appellate court should not overturn the sentence unless it is so clearly unreasonable as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, an appellate court is obligated to affirm. State v. Cassady, 198 N.J. 165, 180 (2009).

The judge found that aggravating factors three, six and nine applied, N.J.S.A. 2C:44-1a(3), (6) and (9). The judge also determined that mitigating factors ten was present. N.J.S.A. 2C:44-1b(10). The judge explained there was a risk that defendant would commit another offense under aggravating factor three because she refused to acknowledge she had done anything wrong. Aggravating factor six applied because defendant had three prior convictions, for third-degree distribution of a controlled dangerous substance, N.J.S.A. 2C:35-5b(2); third-degree theft by deception, N.J.S.A. 2C:20-4; and an aggravated assault charge, N.J.S.A. 2C:12-1a(1), that was handled in municipal court. The judge also found aggravating factor nine because there was a need to deter defendant from violating the law in the future.

The judge found defendant would respond affirmatively to probationary treatment under mitigating factor ten, and gave that factor great weight. Thus, the judge determined a State prison sentence was not required. However, he found "the message will not be properly sent if there is not some period of loss of freedom." Thus, he sentenced defendant to five years probation, conditioned upon sixty days in county jail, which could be served in any program for which defendant qualified. He gave defendant twenty days to apply to the home electronic monitoring program.

There was competent credible evidence in the record to support the judge's findings and sentencing decision. We perceive no abuse of discretion either in the judge's consideration of the aggravating and mitigating factors or in the sentence imposed in this case, which was well within the applicable sentencing guidelines for the offense.