STATE OF NEW JERSEY v. KENNETH D. GLASCO

NOT FOR PUBLICATION WITHOUT THE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.

KENNETH D. GLASCO, a/k/a

KENNETH GARNER, KENNETH GILASCO,

MICHAEL MOTLEY, KEVIN D. GILES,

KEVIN C. GILES,

Defendant-Appellant.

October 29, 2015

Submitted October 5, 2015 - Decided

Before Judges Messano and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 12-01-00225.

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the briefs).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Jane Deaterly Plaisted, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kenneth Glasco was charged in Essex County Indictment No. 12-01-00225 with second-degree aggravated assault, N.J.S.A.2C:12-1b(1) (count one); third-degree leaving the scene of a motor vehicle accident resulting in serious bodily injury, N.J.S.A.2C:12-1.1 (count two); and third-degree endangering an injured victim, N.J.S.A.2C:12-1.2 (count three). Following a jury trial, defendant was acquitted of count one, but he was convicted of the remaining counts. On June 28, 2013, the court granted the State's motion to sentence defendant to an extended term as a persistent offender. The court identified four aggravating factors: the gravity and seriousness of harm inflicted on the victim, N.J.S.A.2C:44-1(a)(2); the risk defendant will commit another offense, N.J.S.A.2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses, N.J.S.A.2C:44-1(a)(6); and the need to deter defendant and others from violating the law, N.J.S.A.2C:44-1(a)(9). The court found no mitigating factors. The court imposed concurrent seven year terms of imprisonment on counts two and three.

Defendant raises the following arguments on appeal

POINT I

THE TRIAL COURT IMPROPERLY DENIED THE DEFENSE THE OPPORTUNITY TO PRESENT EVIDENCE THAT THE BICYCLIST, NOT MR. GLASCO, CAUSED THE ACCIDENT, THEREBY DENYING GLASCO A FAIR TRIAL AND DUE PROCESS. U.S. Const. amend. V, VI, and XIV; N.J. Const. (1947), art. I, 10 (RAISED BELOW)

POINT II

THE FAILURE OF THE TRIAL COURT TO PROVIDE THE JURY WITH ANY INSTRUCTION ON HOW TO CONSIDER WHAT WEIGHT, IF ANY, TO ATTRIBUTE TO THE ALLEGED STATEMENT OF MR. GLASCO THAT HE HIT SOMEONE DENIED MR. GLASCO A FAIR TRIAL AND DUE PROCESS. U.S. Const. amend. V, VI, and XIV; N.J. Const. (1947), art. I, 10 (NOT RAISED BELOW)

POINT III

THE JUDGE'S TREATMENT OF DEFENSE COUNSEL NOT ONLY PREJUDICED MR. GLASCO BEFORE THE JURY, BUT DENIED HIM A FAIR TRIAL AND DUE PROCESS. U.S. Const. amend. V, VI, and XIV; N.J. Const. (1947), art. I, 10 (NOT RAISED BELOW)

POINT IV

EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED THE DEFENDANT DUE PROCESS AND A FAIR TRIAL. U.S. Const. amend. V, VI, and XIV; N.J. Const. (1947), art. I, 10 (NOT RAISED BELOW)

POINT V

THE SENTENCE WAS EXCESSIVE AS THE COURT IMPOSED TWO EXTENDED TERM SENTENCES AND FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS

For the reasons that follow, we affirm defendant's conviction and sentence on count two. We reverse and remand for a new trial on count three, and for resentencing on that count should defendant again be convicted. Because we conclude that the arguments raised in Points III and IV lack sufficient merit to warrant discussion in a written opinion, Rule2:11-3(e)(2), we confine our discussion to Points I, II, and V of defendant's brief.

I.

Defendant testified that around 1:00 a.m. on August 3, 2011, while driving through the intersection of Chapman Place and Elmwood Avenue in Irvington, he "saw the front wheel of a [ten]-speed bike come across Chapman Place the wrong way, right in front of me." He then felt a "jolt" and saw "the bike going up over [his] windshield." Defendant explained that he stopped his car but did not exit it because he was in a high-crime area. He then drove to his home in Newark. He did not immediately call the police to report the accident because he did not have his cell phone with him.

David Fields resided near the intersection where the collision occurred. He heard a car with its motor running "real loud" speeding up the hill. He also heard tires "screeching, like skidding," and then he heard "the boom." He looked out the window and observed that "the car stopped and . . . [the driver] turned the lights off and then proceeded up Elmwood and then off on Sanford." Fields went outside to check whether his vehicles had been damaged. While doing so he recognized Carl Russell, a "neighborhood guy," unresponsive and "almost inside the sewer." He also noticed that Russell's bicycle was lodged in the broken rear window of a parked SUV. Fields then called 9-1-1.

Irvington Police Officer Stephen Woodard, a fifteen-year veteran, responded to the scene at 1:17 a.m. On arriving he observed Russell was "unconscious" and "laying face down on the ground." Woodard recovered a bicycle "maybe between [ten] and fifteen feet, up [] facing westbound on Elmwood Avenue maybe three car lengths up from where [Russell] was at." He also observed a license plate on the ground, which was then used to identify defendant as the registered owner of the vehicle associated with the plate.

Irvington Police Officer Richard Santiago responded to defendant's home. He observed that defendant's Mercury Cougar was parked in the driveway with a missing front license plate. Santiago checked the rear license plate and found that it matched the plate found at the accident scene. Defendant's mother answered the door. When she asked defendant why the police were at their home, defendant replied that "he struck someone on Elmwood Avenue."

Irvington Police Officer Daniel Peton arrived at the accident scene shortly after 3:00 a.m. He photographed "skid marks left at the scene at the time of the accident." He noticed that "[t]he bicycle [was] laying on the street, the rear tire, rear wheel area [was] all bent out of shape and the seat from the bicycle [was] detached from the bicycle itself." He also photographed an "SUV with damage to the taillights, the back window and also the passenger side vent window." In addition, he saw a license plate and bracket on the ground.

Peton later took photographs at 1:00 p.m. that showed damage to the front windshield of defendant's car and a "fresh" dent to its frame. Scratches and dents appeared on the hood and the headlight area. There were also white scratches on the driver's side front bumper and fender that corresponded to the color of Russell's bike.

After receiving treatment at the accident scene for multiple injuries, Russell was hospitalized for approximately eight weeks. He was discharged to a rehabilitation facility, where he remained for approximately five months. He sustained "a severe traumatic brain injury," and ultimately never regained his ability to walk.

II.

Defendant first argues that the trial court improperly prevented him from presenting evidence that the cyclist, Russell, caused the collision. Citing N.J.R.E.701 and State v. LaBrutto, 114 N.J.187, 199-200 (1989), he asserts that the trial judge should have permitted Peton to offer lay opinion testimony that Russell was traveling the wrong way down a one way street, thereby causing the accident that resulted in his injuries. Defendant further argues that the court then erred in denying his request for a one-day adjournment to retain an expert to examine the evidence and render an opinion on Russell's direction of travel consistent with that expressed in Peton's report.

On direct examination, Peton testified about his factual observations of the accident scene and the accuracy of photographs he took of the scene, the bike, and the damage to defendant's vehicle, some of which appeared "fresh". The State did not proffer Peton as an accident reconstruction expert or seek to qualify him as such. It then objected to defendant's attempt on cross-examination to elicit Peton's opinion about the cyclist's direction of travel, arguing that it exceeded the bounds of proper lay opinion testimony and called for the opinion of a qualified reconstruction expert.

In sustaining the State's objection, the trial judge agreed that the question posed to Peton implicated expert testimony and that Peton had not been called as an expert witness. To minimize any prejudice to defendant engendered by Peton's testimony on direct examination, the judge instructed the jury

Ladies and gentlemen of the jury, to the extent Officer Peton testified as to his opinion of what caused any particular damage to the bicycle or to any vehicles that were elsewhere or other evidence on the road, [and] the freshness of any damage, it is to be disregarded insofar as he has not been qualified to answer those kinds of questions as an expert.

"The admissibility of opinion evidence rests within the discretion of the trial court." LaBrutto, supra, 114 N.J. at 197. Lay opinions are governed by N.J.R.E. 701, which provides

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact in issue.

In LaBrutto, a death by automobile case, the investigating officer was permitted to give non-expert opinion testimony as to the point of impact of two vehicles involved in a collision. The officer's opinion was based on his personal observations of tire tracks, scuff marks, debris, the position of the two vehicles, and the nature of the vehicles' damage. Id. at 193. In allowing the opinion testimony, the Court noted that it met the requirement that "a lay witness must have actual knowledge, acquired through his or her senses, of the matter to which he or she testified." Id. at 197.

In State v. McLean, 205 N.J. 438, 456-57 (2011), the Court reaffirmed that "[t]he first requirement of the lay opinion Rule, limiting it to the perceptions of the testifying witness, . . . rests on the acquisition of knowledge through use of one's sense of touch, taste, sight, smell, or hearing." Conversely, a police officer may not testify about his opinion if it is not based on actual knowledge. See, e.g., Neno v. Clinton, 167 N.J. 573, 581-85 (2001) (a police officer's lay opinion regarding proximate cause of pedestrian injuries was based entirely on hearsay and therefore inadmissible).

In his report, Peton detailed the location and measurement of the skid marks along with his other observations of the accident scene, the damaged bike, and defendant's vehicle. Based on these observations he opined that

The []cyclist was traveling south on Chapman Place going [the] wrong way [on] a one way street. They both entered the intersection at about the same time. [Defendant's] vehicle . . . started to veer left trying to avoid the []cyclist.

We are satisfied that, as in Labrutto, Peton's personal observations of the accident scene qualified him to render an opinion as to the point of impact and Russell's direction of travel at that spot. We do not believe that this determination "involves such complicated technical and scientific evidence that only a qualified reconstruction expert could rationally form an opinion" on it. See LaBrutto, supra, 114 N.J. at 199.

This does not end our discussion because, under the second prong of N.J.R.E. 701, to be admissible the witness' opinion testimony must also "assist in . . . determining a fact in issue." We therefore look to the elements of each offense to determine whether Peton's opinion testimony satisfies this second prong.

Defendant was convicted of leaving the scene of an accident resulting in personal injury to another, contrary to N.J.S.A. 2C:12-1.1, which provides in pertinent part

A motor vehicle operator who knows he is involved in an accident and knowingly leaves the scene of that accident . . . shall be guilty of a crime . . . if the accident results in serious bodily injury to another person.

Under this statute, causation is completely irrelevant. As long as a party is aware of their involvement in an accident that results in serious bodily injury to another, no matter who causes it, he or she is guilty if they then knowingly leave the scene of the accident. Thus, Peton's opinion regarding the bike's direction of travel, even if it could be said to have caused the accident, is of no moment under N.J.S.A. 2C:12-1.1. The judge's decision to exclude it under this statute was entirely correct, as it would not have assisted the jury in determining a fact in issue. N.J.R.E. 701.

We reach a different conclusion, however, with respect to the judge's decision to preclude Peton's opinion testimony as it pertains to the charge of endangering an injured victim.

N.J.S.A. 2C:12-1.2(a),

as applied to this case, has three elements: (1) that defendant knowingly caused bodily injury to any person; (2) that the injured person was physically helpless, mentally incapacitated, or otherwise unable to care for herself; and (3) that the defendant left the scene of the injury knowing or reasonably believing that the injured person was in that condition.

[State v. Munafo, ___ N.J. ___, ___ (2015) (slip op. at 19).]

Under the first element, the State must prove that defendant knowingly caused the injury.1 A person acts knowingly as to result within the meaning of N.J.S.A. 2C:2-2b(2) if he is aware that his conduct will cause the result or he is practically certain that his conduct will cause the result. See State v. Clausell, 121 N.J. 298, 316 (1990). The causation component of the first element is underscored in the model jury charge that provides, "[a]s to causation, the State must prove beyond a reasonable doubt that but for (defendant's) conduct, the victim would not have suffered bodily injury." See Model Jury Charge (Criminal), "Endangering Injured Victim" (N.J.S.A. 2C:12-1.2) (Apr. 18, 2005).

Here, defendant testified that the bike was going "the wrong way." Peton's opinion that the bicycle was travelling the wrong way on a one way street, if allowed, would have corroborated defendant's version. Moreover, the testimony was essential to the jury's understanding that the State was required to establish defendant's awareness that his conduct would cause the cyclist's injury.

Nor can we conclude that the error was harmless. Rule 2:10-2 provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result . . ." In State v. Bankston, 63 N.J. 263, 273 (1973), the Court stated the "test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict[]" and "led the jury to a result it otherwise might not have reached." See also State v. Lazo, 209 N.J 9, 26 (2012). As noted, Peton's opinion testimony arguably would have had the effect of bolstering defendant's credibility. This in turn stood to increase the likelihood that a jury might find that defendant was not aware that it was practically certain that his conduct would cause Russell's injuries. Accordingly, defendant's conviction on count three is reversed and a new trial ordered on that count.

III.

Defendant's second point derives from his statement to his mother that the police were at their home because he had "struck a man on a bicycle." Defendant argues that the trial court erred in failing to provide the jury with limiting instructions pertaining to this inculpatory statement pursuant to State v. Hampton, 61 N.J. 250, 271-72 (1972), and State v. Kociolek, 23 N.J. 400, 421 (1957). Since defendant did not request such instructions or otherwise object to the jury charge, we consider this argument under the plain error standard, Rule 1:7-2, and disregard any error or omission by the trial court "unless it is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; see also 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) (noting the "legal impropriety in the charge" must be "sufficiently grievous . . . to convince the court that of itself the error possessed a clear capacity to bring about an unjust result").

A trial court should provide a "Kociolek" charge whenever a witness at trial testifies regarding oral statements made by a defendant. Kociolek, supra, 23 N.J.at 421. In such cases, the trial judge should provide the jury with an instruction that it "should receive, weigh and consider such evidence with caution, in view of the generally recognized risk of inaccuracy and error in communication and recollection of verbal utterances and misconstruction by the hearer." Ibid.(internal quotation marks omitted). "[T]he Kociolekcharge should be given whether requested or not." State v. Jordan, 147 N.J.409, 428 (1997).

In addition, a trial court should provide a "Hampton" charge "whenever a defendant's oral or written statements, admissions, or confessions are introduced in evidence" regardless of "[w]hether [the charge is] requested or not[.]" Jordan, supra, 147 N.J. at 425 (referencing Hampton, supra, 61 N.J. at 272). A jury "shall be instructed that they should decide whether . . . the defendant's [statement] is true[,]" and if they conclude that it is "not true, then they must . . . disregard it for purposes of discharging their function as fact finders on the ultimate issue of guilt or innocence." Hampton, supra, 61 N.J. at 272.

The failure to give the charges, however, is not always reversible error. Jordan, supra, 147 N.J.at 425, 428. A reviewing court will only reverse when their omission is clearly capable of producing an unjust result in the context of the entire case. Id.at 425, 429. If the statements are unnecessary to prove the defendant's guilt "because there is other evidence that clearly establishes guilt, or [] the defendant has acknowledged the truth of his statement," the failure to give a Hamptoncharge will not require reversal. Id.at 425-26. Likewise, whether the failure to give the Kociolekcharge constitutes plain error, "will depend on the facts of each case." Id.at 428.

Here, defense counsel did not cross-examine Officer Santiago about defendant's statement to his mother that "he struck someone on Elmwood Avenue." Similarly, defendant's mother was not questioned about this statement during her testimony, although defendant's testimony acknowledged hitting someone. Further, defendant withdrew his application to suppress the statement. Thus, it appears that defendant sought to minimize the statement as a matter of trial strategy.

Defendant was the registered owner of the vehicle whose license plate was found at the scene, and neither his operation of the vehicle or the fact that it collided with a bicycle was ever placed in issue at trial. Moreover, the court gave detailed instructions on assessing the general credibility of witnesses. SeeModel Jury Charge (Criminal), "Criminal Final Charge" (May 12, 2014).

Defendant neither challenged the making of the statement or its accuracy. He did not request the Hamptonand Kociolekinstructions, or object to the court's detailed jury instructions pertaining to credibility. Combined with the strength of the State's proofs that defendant left the scene of the accident, we do not conclude that the court's failure to give the instructions sua sponte was clearly capable of producing an unjust result.

IV.

In his final point, defendant challenges his sentence. Defendant does not contest the trial court's finding of aggravating factors two, three, six, and nine. Rather, he argues that the court erred in failing to find mitigating factor eight, N.J.S.A.2C:44-1b(8), that his "conduct was the result of circumstances unlikely to recur."

Our review of sentencing determinations is limited. State v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily disturb a sentence imposed that is not manifestly excessive or unduly punitive, does not constitute an abuse of discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16, 220 (1989). In sentencing, the trial court "first must identify any relevant aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v. Case, 220 N.J. 49, 64 (2014). The court must then "determine which factors are supported by a preponderance of [the] evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are "bound to affirm a sentence, even if [we] would have arrived at a different result, as long as the trial court properly identifie[d] and balance[d] aggravating and mitigating factors that [were] supported by competent credible evidence in the record." Ibid.

Here, the judge granted the State's request to treat defendant as a persistent offender and provided an adequate factual basis for finding aggravating factors two, three, six, and nine. See Case, supra, 220 N.J. at 66 (citing State v. Fuentes, 217 N.J. 57, 73 (2014) (noting that a sentencing court must state a factual basis supporting a finding of particular aggravating or mitigating factors affecting the sentence)). Notably, at sentencing, defendant did not argue that mitigating factor eight applied. Defendant's criminal history included twenty indictable and five disorderly persons convictions, a probation violation, and a parole violation. Based on the nature and extent of defendant's record, we are not persuaded that mitigating factor eight applies, or that his seven-year extended term sentence was excessive.

The court did, however, impose extended term sentences on both counts two and three, in violation of the proscription against imposing multiple discretionary extended terms. N.J.S.A. 2C:44-5(a)(2). In our decision today we vacate defendant's conviction and sentence for endangering an injured victim and order a new trial on that charge. However, should defendant again be convicted, we caution the trial court that imposition of a discretionary extended term on count three would be improper.

Affirmed in part, reversed in part, and remanded for further proceedings on count three consistent with this opinion. Jurisdiction is not retained.

1 The Supreme Court "rel[ied] on the gap-filler provision at N.J.S.A. 2C:2-2(c) to add the mental state of 'knowingly' to the first element." Munafo, supra, ___ N.J. at ___ (slip op. at 19).