STATE OF NEW JERSEY v. LUIS COTTO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS COTTO, a/k/a LUIS R. COTTO,

JABDIEL RIVERA,

Defendant-Appellant.

__________________________________________

September 10, 2014

Argued October 9, 2013 Decided

Before Judges Grall and Waugh.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-0263.

Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).

Magdalen Czykier, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Carolyn A. Murray, Acting Essex County Prosecutor, attorney; Ms. Czykier, of counsel and on the brief).

PER CURIAM

A jury found defendant Luis Cotto guilty of second-degree eluding that created a risk of death or injury to any person, N.J.S.A. 2C:29-2b. The jury acquitted defendant of possession of a handgun without a permit, N.J.S.A. 2C:39-5b, and of possession of a handgun with a defaced serial number, N.J.S.A. 2C:39-3d. Prior to trial, the State dismissed other charges in the indictment based on events that immediately preceded defendant's eluding second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and possession of a handgun with an unlawful purpose, N.J.S.A. 2C:39-4a. And, following the verdict, the State dismissed a crime charged in a separate indictment, possession of a weapon as a person with a disqualifying conviction. N.J.S.A. 2C:39-7. Also following the verdict, defendant pled guilty to violating conditions of a probationary sentence that he was serving when he eluded the police.

On the State's motion the judge sentenced defendant, as a persistent offender, to an extended term of imprisonment fifteen years with a six-year term of parole ineligibility, N.J.S.A. 2C:44-3a; N.J.S.A. 2C:43-6a-b. The judge did not resentence defendant for the convictions underlying his probationary term; instead, the judge terminated the probationary term. The judge also imposed the mandatory penalties and assessments. N.J.S.A. 2C:43-3.1, -3.2, -3.7.

Shortly after 2:00 a.m. on August 27, 2009, defendant left a bar in Newark and was attacked by three men with whom he had argued while in the bar. They beat him and then took his wallet, and one of them had a gun. As defendant entered the red Malibu he had borrowed from his uncle to leave for home, the armed assailant tried to get inside. Defendant resisted and managed to get control of the gun, but not before the gun was accidentally discharged in the struggle. Planning to get rid of the gun later, defendant removed the bullets, replaced the magazine and took the gun with him.

Driving away from the scene, defendant saw the man who took his wallet driving a gold-colored minivan. Defendant demanded his wallet, but the man drove on. Defendant followed.

Two police officers in uniform were on patrol and driving west on Bloomfield Avenue in Newark in a marked police car. As they approached a gold-colored minivan travelling east, whose driver had just turned onto Bloomfield Avenue, the driver slowed down and through the open window yelled, "[H]elp. He's trying to kill me." At that point, the officers saw a red Malibu make the same turn onto Bloomfield Avenue. At that location, Bloomfield Avenue has two eastbound and two westbound lanes. After making a U-turn, the officers followed.

While they were following defendant, the minivan slowed and defendant drove the Malibu back and forth, side to side, "driving like directly at the minivan." During that maneuvering, defendant lost control of the Malibu, crossed the traffic, jumped the curb and ended up on the sidewalk adjacent to the westbound lanes.

At that point, the officers activated the patrol car's signaling lights, stopped and approached the car on foot. As they did, the driver of the minivan advised them that defendant had a gun. Defendant looked up and at the officers as they approached, put the car in reverse and again drove east on Bloomfield Avenue. With the patrol car lights still on and its siren now sounding, the officers followed in pursuit. Defendant drove through two red lights, drove the wrong way on three one-way streets and, after failing to navigate a turn, skidded the Malibu into an iron fence.

When the officers got to the car, defendant was climbing out of the window. Once out of the car, defendant ran and climbed over the fence he had knocked down. The officers, however, pursued defendant on foot and arrested him without further incident. They later found a handgun on the car's floor in the area beneath the steering wheel.

Defendant testified at trial and provided the evidence about the events preceding his trip home as described above, including the circumstances under which he acquired the handgun and his pursuit of the driver of the gold minivan to recover his wallet. In addition, during his direct testimony, defendant acknowledged his prior convictions and sentences for third-degree crimes five convictions for third-degree drug crimes and one for third-degree resisting arrest. On defense counsel's objection, the judge foreclosed the prosecutor's cross-examination about the prior convictions, noting that defendant had already disclosed all of the admissible information on the subject.

In the midst of trial and prior to defendant's decision to testify, the judge conducted a hearing outside the presence of the jury on the admissibility of defendant's prior convictions. He ruled the convictions admissible and inquired about whether the convictions should be "sanitized." Defense counsel advised that he saw no reason to sanitize the evidence. It is worth noting that this indictment did not include a charge of resisting arrest.

On appeal defendant raises these issues for our consideration:

I. DEFENSE COUNSEL WAS UNCONSTITUTIONALLY

INEFFECTIVE WHEN HE AGREED NOT TO SANITIZE MR. COTTO'S PRIOR CONVICTIONS. (Not Raised Below).

II. THE CONVICTION SHOULD BE VACATED

BECAUSE THE JURORS WERE NOT INSTRUCTED THAT THEY MUST UNANIMOUSLY AGREE AS TO WHICH INCIDENT ESTABLISHED SECOND-DEGREE ELUDING. (Not Raised Below).

III. THE TRIAL COURT ERRED BY FAILING TO

INSTRUCT THE JURY AS TO THE LESSER-INCLUDED OFFENSE OF RESISTING ARREST BY FLIGHT WHEN THE BASIS FOR THAT CHARGE WAS CLEARLY INDICATED BY THE RECORD BEFORE THE COURT. (Not Raised Below).

IV. THE TRIAL WAS SO INFECTED WITH ERROR

THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. COTTO A FAIR TRIAL. (Not Raised Below).

V. MR. COTTO'S SENTENCE IS MANIFESTLY

EXCESSIVE AND UNDULY PUNITIVE AND VIOLATES THE LAWS OF NEW JERSEY WITH RESPECT TO THE IMPOSITION OF THE DISCRETIONARY EXTENDED TERM.

A. The Trial Court Erred In Restricting The Range Within Which To Sentence Mr. [Cotto] To Only The Extended Range In Violation Of State v. Pierce.

B. The Trial Court Erred By Failing To Find A Mitigating Factor Clearly Within The Record.

C. Mr. Cotto's Sentence Is Otherwise Excessive, Unduly Punitive, and Requires Reduction.

D. A Period Of Parole Ineligibility Is Not Warranted In This Matter.

It would be improvident to address defendant's claim that his trial attorney provided constitutionally deficient assistance. Claims of ineffective assistance that cannot be resolved on the trial record are best left for resolution on an application for post-conviction relief. State v. Preciose, 129 N.J. 451, 460-63 (1992). The strategic use to which trial counsel put evidence of defendant's convictions the explanation for why defendant did not report the assault and theft and surrender the firearm instead of resorting to self-help is apparent on the record. What is not obvious from the record, however, is counsel's reason for declining to request an order precluding reference to the fact that one of defendant's convictions was for resisting arrest, which was not necessary to explain his reluctance to contact the police. See State v. Brunson, 132 N.J. 377, 391 (1993).

For the forgoing reasons, we preserve the issue of ineffective assistance for resolution by way of a petition for post-conviction relief in conformity with Preciose, supra, 129 N.J. at 460-63.

Before turning to the other issues defendant raises, we comment on an argument made by the State. The State is wrong to urge us to forego consideration on the question of sanitizing defendant's conviction on the ground that any error was invited by the defense. See State v. A.R., 213 N.J. 542, 561-62 (2013). For reasons too obvious to state, where a defendant's claim is that trial counsel's performance was deficient because counsel chose a course that led to error, the State's reliance on the doctrine of invited error is sorely misplaced.

Defendant's second and third claims of error are based on objections to the jury instructions that defendant did not assert in the trial court. Because there was no objection at the time, our review is for plain error. R. 2:10-2. Absent objection, courts reverse only if there 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. Jordan, 147 N.J. 409, 422 (1997) (quoting State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970)). Applying that standard, we see no error warranting relief. Indeed, we see no error at all.

Defendant contends that a special charge on the need for a unanimous verdict on eluding should have been given. This claim has insufficient merit to warrant discussion beyond the brief comments that follow. R. 2:11-3(e)(2).

Defendant characterizes the evidence pertinent to this claim as follows: "In this matter there were three separate, discrete acts, only one of which could be potentially construed as eluding." Although the three discrete "acts" are more easily understood as three separate segments of the conduct involving defendant and the police, appellate counsel's characterization is fair.

Three separate segments of defendant's interaction with the police are readily discernible: 1) defendant's driving with the police behind him before he jumped the curb and stopped on the sidewalk and before they made any effort to signal or direct him to stop; 2) defendant's backing up and continuing to drive away after he had driven onto the sidewalk and the police had stopped their patrol car, activated its lights and approached the car and then activated their sirens while they pursued him as he drove away; and 3) defendant's climbing through the window of his car and running from the police after he skidded his uncle's car into the fence.

A special instruction on unanimity, by which we mean one beyond the general model charge covering the point that was given in this case, is required "'in cases where there is a danger of a fragmented verdict.'" State v. Parker, 124 N.J. 628, 637 (1991) (quoting United States v. North, 910 F.2d 843, 875 (D.C. Cir.) (North I), vacated in part and rev'd in part on rehearing, 920 F.2d 940 (D.C. Cir. 1990) (North II), cert. denied, ___ U.S. ___, 111 S. Ct. 2235, 114 L. Ed. 2d 477 (1991)), cert. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). Such a possibility exists, for example, where "the state [has] proffered two entirely distinct factual scenarios to support" a conviction. State v. Frisby, 174 N.J. 583, 599 (2002). As we understand defendant's argument, his claim is based on the State's presentation of distinct factual scenarios that could have led to a fragmented or patchwork verdict based on different findings by various jurors.

The difficulty is that defendant is correct in his observation that "only one of [the factually discrete segments in this case] could be potentially construed as eluding." Because that is the case, there was no possibility for confusion or a fragmented verdict based on the individual jurors assigning guilt on different facts.

A consideration of the elements of the crime in relation to the three segments makes the point clear. To establish second-degree eluding, the State was required to prove that defendant 1) "while operating a motor vehicle on any street or highway in this State"; 2) "knowingly fle[d] or attempt[ed] to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop; and 3) that his "flight or attempt to elude create[d] a risk of death or injury to any person." N.J.S.A. 2C:29-2b.

No juror could have found guilt based on the first segment of the interaction between defendant and the police, because the critical element of continuing to drive despite a signal to bring the vehicle to a full stop was missing. No juror could have found guilt based on defendant's exiting his crashed car through the window and fleeing on foot because he was not driving a motor vehicle at the time.

The only evidence supporting defendant's conviction for eluding was based on the second segment of his interaction with the police during that segment he was signaled to stop, and the evidence supported the inference that he was aware he was being directed to stop and continued to drive until he crashed into the fence. Thus, this eluding posed a risk of injury to at least one person, himself. That is sufficient to establish second-degree eluding. State v. Bunch, 180 N.J. 534, 543-47 (2004). The only element of eluding common to the first and second segment of the interaction was that both involved defendant's loss of control over the car that resulted in the car leaving the roadway twice and being on the sidewalk twice. In short, there was no apparent potential for a verdict being returned by the several jurors who disagreed about what defendant did. Thus, no special instruction was required here.

In support of his claim for a need of special instruction on juror unanimity, defendant objects, for the first time on appeal, to the judge directing the jurors that they could consider evidence of defendant's flight from the car on foot to support an inference of defendant's consciousness of guilt. First, we fail to see any relevance that an instruction on flight as evidence of consciousness of guilt has the need for a special instruction on juror unanimity. Moreover, we discern nothing confusing, improper or misleading about the instruction the judge gave on this point of law.

Defendant's claim that the judge erred by declining to charge resisting arrest as a lesser-included offense of eluding is wholly lacking in merit. First, resisting arrest is not a lesser-included offense of eluding within the meaning of N.J.S.A. 2C:1-8d, which identifies the circumstances under which a defendant "may be convicted of an offense included in an offense charged." Pursuant to N.J.S.A. 2C:1-8d,

An offense is so included when:

(1) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or

(2) It consists of an attempt or conspiracy to commit the offense charged or to commit an offense otherwise included therein; or

(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest or a lesser kind of culpability suffices to establish its commission.

Resisting arrest requires proof that the defendant "purposely prevent[ed] or attempt[ed] to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2a. Action to prevent an arrest is not required to prove eluding; all that is required is proof that defendant received and did not comply with an officer's direction to bring a car to a stop.

True evidence of defendant's conduct after his final crash was admitted at trial, but the grand jurors did not indict defendant for this separate and distinct crime. Given the terms of the indictment and the absence of a request for the charge from defendant, it would have been error to submit the crime of resisting for the jurors' consideration. See State v. Thomas, 187 N.J. 119, 129-33, 135-36 (2006) (discussing the problem of absence of notice that is present where a less-serious offense with different elements than the crimes charged in the indictment and that is based on factual allegations not charged in the indictment is submitted to the jury).

Having found no error based on the claims raised in defendant's first three points, we have no occasion to consider defendant's claim that reversal is warranted because of the cumulative prejudice of the multiple errors he alleged. State Orecchio, 16 N.J. 125, 134 (1954).

We have also considered the several arguments defendant presents to establish that his sentence is manifestly excessive and found none warranting relief. Defendant claims that the judge failed to consider the full range of prison terms available when a defendant convicted of a second-degree crime is sentenced as a second offender, as required by State v. Pierce, 188 N.J. 155 (2006). The record of the sentencing proceeding does not support that claim, however. Although the judge made some statements suggesting a misunderstanding of Pierce, in response to defense counsel's argument, the judge considered Pierce anew and acknowledged that the Court's decision required him to consider a sentence between five and twenty years.

The judge's findings on and balancing of the aggravating and mitigating factors are supported by adequate evidence in the record, and the sentence is consistent with the applicable sentencing provisions of the Code of Criminal Justice, including those governing discretionary extended terms and periods of parole ineligibility, N.J.S.A. 2C:44-3a; N.J.S.A. 2C:43-6a-b. Moreover, this sentence is not shocking to the judicial conscience. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).