STATE OF NEW JERSEY v. ANDRE M HORNE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is only binding on the parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4498-13T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANDRE M. HORNE, a/k/a ANDRES HORN,

ANDRI M. HORNE, ANDRI HORNE, ANDRE

Q. HORNE, MICHAEL CLOVER, ROBERT A.

HAYMAN, DRE, and DREY,

Defendant-Appellant.

______________________________

October 11, 2016

Submitted September 20, 2016 Decided

Before Judges Fasciale and Gilson.

On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 11-03-0238.

Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the briefs).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from his conviction for second-degree eluding, N.J.S.A. 2C:29-2(b). We affirm the conviction, but remand for re-sentencing.

A little past midnight, Officer Buerklin responded to a dispatch call indicating that a vehicle was driving erratically. While driving on Blue Bell Road, which had a speed limit of thirty-five miles per hour, Officer Buerklin noticed a vehicle speeding and swerving over the center line. Officer Buerklin activated his overhead lights and siren to signal the vehicle to pull over. Officer Buerklin increased his speed to fifty-five or sixty miles per hour and followed the vehicle. Blue Bell Road was "sparsely lit" and there were no other vehicles on the road. Officer Buerklin pursued the vehicle for a few minutes before defendant came to a stop.

Defendant's vehicle then sped through an intersection and collided with landscaping. Defendant exited his vehicle and ran towards the woods, where the officer found him on the ground. Officer Buerklin asked to see defendant's hands, and when he refused to comply, the officer struck defendant with his baton. After he secured defendant, the officer read him his Miranda1 rights, and defendant told Officer Buerklin that he "fucked up." Defendant then stated he consumed a few drinks.

The jury returned a guilty verdict. After the trial, the judge found defendant not guilty of driving under the influence, but guilty of careless driving. After merging the careless driving conviction into the conviction for eluding, the judge imposed a ten-year prison sentence with a period of five years of parole ineligibility.

On appeal, defendant raises the following arguments

POINT I

THE JURY CHARGE. . . PERMITTED THE JURY TO CONCLUDE THAT [DEFENDANT] HAD COMMITTED A SECOND-DEGREE ELUDING IF THEY INFERRED FROM MOTOR VEHICLE OFFENSES THAT HE CREATED A RISK OF PROPERTY DAMAGE. BECAUSE SUCH A RISK WOULD NOT SUPPORT A CONVICTION OF SECOND-DEGREE ELUDING, THE ERRONEOUS CHARGE DEPRIVED [DEFENDANT] OF DUE PROCESS AND A FAIR TRIAL. (Not raised below)

POINT II

BECAUSE OF THE ABSENCE OF CLEARLY STATED AGGRAVATING AND MITIGATING FACTORS SUPPORTING THE MAXIMUM TERM OF YEARS AND MAXIMUM PAROLE DISQUALIFIER IMPOSED, SHOULD THIS COURT AFFIRM [DEFENDANT]'S CONVICTION, THIS MATTER MUST BE REMANDED FOR RE-SENTENCING.

We begin by addressing defendant's contention raised for the first time that the judge gave a flawed jury charge.

The New Jersey Supreme Court has consistently emphasized "clear and correct jury instructions are essential for a fair trial." State v. Nelson, 173 N.J. 417, 446 (2002) (citation and internal quotation marks omitted). "A charge is a road map to guide the jury, and without [21] an appropriate charge a jury can take a wrong turn in itsdeliberations." State v. Martin, 119 N.J. 2, 15 (1990). Indeed, "[s]o critical is the need for accuracy that erroneous instructions on material points are presumed to be reversible error." Ibid.

Defendant did not object to the jury instruction at trial, and therefore we may "reverse on the basis of unchallenged error only if [we find] plain error clearly capable of producing an unjust result." State v. Afanador, 151 N.J. 41, 54 (1997) (citing R. 2:10-2). We conclude there was no error, let alone plain error.

Pursuant to N.J.S.A. 2C:29-2(b), second-degree eluding is committed when

Any person, while operating a motor vehicle on any street or highway in this State or any vessel . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude createsarisk of death or injury to any personif the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes.

[(Emphasis added).]

The Supreme Court has held that the court must instruct the jury "that the term 'injury' means bodily injury as defined in N.J.S.A.2C:11-1a." State v. Wallace, 158 N.J.552, 558 (1999); see alsoState v. Dorko, 298 N.J. Super.54, 58 (App. Div.), certif. denied,150 N.J.28 (1997). In Wallace, the Court failed to define "injury" to the jury, but instructed the jury on the underlying motor vehicle charges. State v. Wallace, supra, 158 N.J.at 559. The Court explained that the Legislature intended to limit "injury" in the definition of eluding to physical injury, and therefore, it must be defined to the jury. Id.at 558.

The Court distinguished Dorko because in Wallace, the jury was instructed to decide if the motor vehicle statutes were violated, whereas in Dorko, they were not. Id. at 559. The Court found that the trial court committed harmless error and properly applied the permissive inference contained in N.J.S.A. 2C:29-2(b). Id. at 558-60.

In addition, we have held that a court commits reversible error when it fails to define reckless driving and careless driving because "the jury would not have known that there would be a distinction between personal injury and property damage in these offenses." Dorko, supra, 298 N.J. Super. at 60. In Dorko, the defendant appealed from a second-degree eluding conviction. Id. at 56. We concluded that the trial court committed reversible error when it failed to explain to the jury the applicable motor vehicle offenses after the jury was properly instructed about the statutory permissible inference. Id. at 58-60.

Here, the judge properly explained the permissible inference and defined the applicable motor vehicle offenses as instructed by Dorko and Wallace. In addition, the court clearly explained that injury referred to injury of any person and not injury to property.

The judge properly charged the jury on the seven elements of eluding that the state needed to prove. And as to the seventh element, the judge stated

The State must prove beyond a reasonable doubt that the flight or attempt to elude created a risk of death or injury to any person. Injury means physical pain, illness or any impairment of the physical condition. In order to find this element, you must determine that there was at least one person put at risk by the [d]efendant's conduct and that could include the [d]efendant himself.

[(Emphasis added).]

The judge then instructed the jury that it could "infer the risk of injury to any person if the [d]efendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of this State, after the signal to stop." (Emphasis added). The judge read the jury the definitions of reckless driving, careless driving, and driving while intoxicated. Both the reckless driving and careless driving definitions contained the terms "endanger a person or property."

Although defendant argues that the definitions of reckless driving and careless driving impermissibly allowed the jury to find that defendant committed second-degree eluding based on injury to property, the jury was properly instructed on the permissible inference prior to being given the definitions of reckless driving and careless driving. Thus, the judge properly charged the jury that injury was only to a person and not to property.

We agree with defendant's remaining argument, that the court failed to make sufficient findings at sentencing. The State concedes that the matter should be remanded for re-sentencing because of the lack of a clear record supporting the sentence imposed.

In sentencing, the trial court must consider the relevant aggravating factors and may consider the relevant mitigating factors. See N.J.S.A. 2C:44-1(a) and -1(b). The New Jersey Supreme Court has emphasized that judges must "explain [their] analysis of N.J.S.A.2C:44-1's aggravating and mitigating factors with care and precision." State v. Fuentes, 217 N.J.57, 81 (2014); see alsoR.3:21-4(g). If a sentencing court imposes a period of parole ineligibility, the judge must "clearly and convincingly determine[] that 'the aggravating factors substantially outweigh the mitigating factors.'" State v. Case, 220 N.J.49, 54 (2014) (quoting N.J.S.A.2C:43-6(b)).

An appellate court will "not substitute its judgment for the judgment of the sentencing court." State v. Lawless, 214 N.J. 594, 606 (2013); see also Case, supra, 220 N.J at 65. However, if the sentencing court fails to "identify relevant aggravating and mitigating factors, or merely enumerates them, or forgoes a qualitative analysis, or provides little 'insight into the sentencing decision,' then the deferential standard will not apply." Case, supra, 220 N.J at 65 (quoting State v. Kruse, 105 N.J. 354, 363 (1987)).

Here, defense counsel stated that the following aggravating factors apply to the case: N.J.S.A.2C:44-1(a)(3) ("[t]he risk that the defendant will commit another offense"), N.J.S.A.2C:44-1(a)(6) ("[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted") and N.J.S.A.2C:44-1(a)(9) ("[t]he need for deterring the defendant and others from violating the law"). Defense counsel also stated that N.J.S.A.2C:44-1(b)(11) ("[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents") was a mitigating factor. The State did not articulate any aggravating or mitigating factors at sentencing.

The court reviewed defendant's extensive criminal record; determined that defendant committed the "same kind of offense all the time," reasoned that the court could not let defendant "on the street"; and stated that defendant is a "law breaker." The court did not, however, specifically identify or explain the relevant aggravating factors in its analysis. Furthermore, the court did not address any mitigating factors it examined in reaching its decision to impose the ten-year prison sentence with five-years of parole ineligibility.

We therefore affirm the conviction, but remand for re-sentencing. We do not retain jurisdiction.

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