Opinion
DOCKET NO. A-0368-11T3
05-28-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALMERTIS STEPHENS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief). Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 09-07-0684.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Remis Silver, Assistant Deputy Public Defender, of counsel and on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Almertis Stephens appeals from his conviction for second-degree eluding, N.J.S.A. 2C:29-2b. We reverse defendant's conviction and remand. The judgment of conviction (JOC) must be amended to reflect a conviction for third-degree eluding in conformity with the jury's verdict as modified, and defendant must be re-sentenced accordingly.
Defendant was charged with first-degree robbery, N.J.S.A. 2C:15-1a(2); third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and second-degree eluding, N.J.S.A. 2C:29-2b. A jury found defendant guilty of second-degree eluding, and acquitted him on the other counts.
On appeal, defendant raises the following contentions:
POINT I
THE JURY HAD INSUFFICIENT EVIDENCE TO FIND SECOND-DEGREE ELUDING BASED ON DEFENDANT'S CONDUCT IN NEW JERSEY.
POINT II
THE COURT ERRED WHEN IT FAILED TO INSTRUCT THE JURY ON THE ELEMENT OF TERRITORIAL JURISDICTION IN ITS INITIAL CHARGE, AND THE COURT COMPOUNDED THIS ERROR BY INARTFULLY ADDRESSING THE JURISDICTIONAL ELEMENT AFTER THE JURY RAISED THE ISSUE IN THE FORM OF A QUESTION. THUS, THE COURT'S OVERALL CHARGE ON THIS ELEMENT OF THE OFFENSE SERVED TO CONFUSE THE JURY RATHER THAN EXPLAIN THE LAW TO THEM.
POINT III
THE TRIAL COURT ERRED WHEN IT ALLOWED THE TWO [PENNSYLVANIA] POLICE OFFICERS TO TESTIFY ABOUT THE DEFENDANT'S CONDUCT IN PENNSYLVANIA AND ERRED IN ALLOWING THE PENNSYLVANIA POLICE TO REFERENCE THE DEFENDANT'S PRIOR CONTACT WITH THE POLICE.
We derive the following facts from the record. At approximately 11:00 p.m. on March 2, 2009, there was an armed robbery at a truck stop in Bordentown. The truck stop's manager testified that as soon as he opened the door to his office and stepped inside, a man came in, put a knife to the side of his throat, and then stole over $6000. The manager got a "good look" at the man, and described him to a dispatcher as being an African-American male, five feet, ten inches tall, weighing between 230 to 240 pounds, and wearing a black coat, black hat, and earrings. The manager later identified defendant from a photo array. The photo array was admitted into evidence at the trial, and the manager testified he was "positive" that the person who robbed the store was the person depicted in the photo he had selected from the photo array.
Defendant is African-American.
Police Officer Joseph Ciabattoni (Officer Ciabattoni) of the Bordentown Township Police Department (BTPD) was dispatched to the truck stop. As he approached in his marked patrol car, he saw a white Chevrolet Impala "jump over the curb median" and make an illegal U-turn. The officer made a U-turn as well, pursued the Impala, and saw that the driver was an African-American male. Officer Ciabattoni reported the Impala's Pennsylvania license plate number to the dispatcher, who responded that the license plate was not on file in Pennsylvania.
Officer Ciabattoni followed the Impala onto Route 130 North. After travelling approximately one hundred yards, the Impala made a jug handle turn and proceeded onto Route 130 South. The officer followed the Impala into Mansfield Township, and activated his overhead lights and siren, which then activated the patrol car's mobile vision recorder (MVR). The Impala continued into Florence Township, where the driver twice slowed down onto the shoulder, but then drove away. The Impala then proceeded onto the New Jersey Turnpike toward Pennsylvania, and passed through a toll booth without stopping or paying a toll.
Officer Ciabattoni pursued the Impala onto Route 13 South in Pennsylvania, a two-lane highway. Defendant reached a speed of up to ninety miles an hour and passed in between two vehicles. The pursuit continued onto Route 413, where defendant continued to speed and drove through a red light without slowing down. At that point, Officer Ciabattoni terminated the pursuit for public safety reasons. The MVR recording of the pursuit was played to the jury.
Detective Sergeant Daniel Lee Moonan (Det. Moonan) of the BTPD investigated the Impala's license plate number and found it was registered to defendant at an address in the Elkins Park section of Cheltenham, Pennsylvania. The detective also obtained the Impala's vehicle identification number (VIN), information from defendant's driver's license, and a photograph of defendant.
The BTPD contacted the Cheltenham Township Police Department (CTPD) in Pennsylvania, and advised them of the robbery and the warrant for defendant's arrest. The BTPD also provided the Impala's license plate number and defendant's address. Officer Michael Barone (Officer Barone) of the CTPD went to the address, but the Impala was not there. He testified that he then "ran [defendant's name] in [the CTPD] data base to see if we ever had contacts with him, and I did come up with a — we had a couple of contacts with him over at an address over in Linwood Gardens." The officer then went to Linwood Gardens, where he found a white Impala. The vehicle was missing its license plate, so Officer Barone entered the plate number the BTPD had provided into his computer and obtained the VIN. He then looked at the VIN on the Impala he had located and verified it was defendant's Impala.
Defendant had reported the license plate lost two days after the robbery and applied for a replacement plate.
Officer Barone subsequently saw defendant get into the Impala and proceed to drive away. Defendant ignored the officer's order to stop and "took off." The officer got a "good look" at defendant, and later identified him at trial as the driver of the Impala. Officer Barone pursued the Impala in his unmarked patrol car, and was joined by Sergeant Richard Schaeffer, who was driving a marked patrol car with its overhead lights and siren activated. Defendant pulled over but then "took off again." The officers eventually terminated the pursuit.
According to Lieutenant Brian Pesce of the BTPD, on March 19, 2009, defendant called the BTPD to inquire about motor vehicle summonses he had received in the mail for violations committed on the day of the robbery, including a summons for reckless driving, N.J.S.A. 39:4-96. Defendant admitted to the officer that he was the person who fled from the Cheltenham police.
According to Det. Moonan, when defendant came to the BTPD on March 20, 2009, he was driving the Impala. Defendant told the officer the Impala's license plate had been lost, and he was not in Bordentown and did not remember being there on the day of the robbery. Defendant also said he does not loan his car to anyone.
I.
Defendant contends in Point I that the judge erred in denying his motion for judgment of acquittal on the eluding charge at the close of the State's case, and his motion for a judgment of acquittal notwithstanding the verdict (n.o.v.). He argues the State failed to establish beyond a reasonable doubt that he owned or drove the Impala seen in Bordentown on the day of the robbery, or that the Impala's driver created a risk of injury.
We use the same standard as the trial judge in reviewing a motion for judgment of acquittal pursuant to Rule 3:18-1. State v. Bunch, 180 N.J. 534, 548-49 (2004). We must determine
whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459 (1967).]
Under Rule 3:18-1, the court "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. Muniz, 150 N.J. Super. 436, 440 (App. Div. 1977), certif. denied, 77 N.J. 473 (1978). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
The standard for deciding a Rule 3:18-2 motion for j.n.o.v. is the same as that used to decide a motion for acquittal made at the end of the State's case. See State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996).
We conclude that the evidence in this case, viewed in its entirety and giving the State the benefit of all favorable inferences therefrom, was insufficient for the jury to find defendant guilty of second-degree eluding beyond a reasonable doubt, but sufficient to convict him of third-degree eluding.
N.J.S.A. 2C:29-2b provides, in pertinent part,
Any person, while operating a motor vehicle on any street or highway in this State . . . 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 . . . 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 creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. . . .
To find defendant guilty of third-degree eluding, the jury had to find that: (1) defendant was operating a motor vehicle on a street or highway in this State; (2) Officer Ciabattoni was a police or law enforcement officer; (3) the officer signaled defendant to bring the Impala to a full stop; (4) defendant knew that the officer had signaled him to bring the Impala to a full stop; (5) defendant knew the officer was a police or law enforcement officer; and (6) defendant knowingly fled the officer. Model Criminal Jury Charge, Eluding an Officer (2004). The jury could infer that defendant was operating the Impala at the time of the offense if it found he was the vehicle's owner. Ibid.; see also State v. Kay, 151 N.J. Super. 255, 259 (Law Div. 1977).
To find defendant guilty of second-degree eluding, the jury had to additionally find that the flight created a risk of death or injury to any person. N.J.S.A. 2C:29-2b; State v. Wallace, 158 N.J. 552, 554 (1999). In making this determination, the jury could infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of this State during the chase. Wallace, supra, 158 N.J. at 558-59; State v. Dixon, 346 N.J. Super. 126, 135 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002); see also N.J.S.A. 2C:29-2b. The jury was not required to decide whether defendant was guilty or not guilty of the motor vehicle offense, but could consider the evidence that defendant committed such offense in deciding whether he created a risk of death or injury. Model Criminal Jury Charge, Eluding an Officer (2004).
Here, there was sufficient evidence on which the jury could find that defendant was the Impala's owner. The evidence showed that the victim of the robbery identified defendant from the photo array, which was admitted into evidence, the license plate on the Impala Officer Ciabattoni pursued from the crime scene was registered to defendant, and defendant drove the Impala to the BTPD. There was no evidence that the Impala had been stolen or loaned to anyone on the day of the robbery. See Kay, supra, 151 N.J. at 260 (noting that the absence of evidence that the vehicle was stolen or loaned to another was significant). Thus, the jury could have reasonably inferred that defendant was operating the vehicle at the time of the chase in New Jersey. There also was sufficient evidence for the jury to find that Officer Ciabattoni was a police or law enforcement officer; the officer signaled defendant to bring the Impala to a full stop; defendant knew that the officer had signaled him to bring the Impala to a full stop; defendant knew the officer was a police or law enforcement officer; and defendant knowingly fled the officer.
However, there was no evidence on which the jury could have reasonably inferred that defendant's flight created a risk of death or injury to any person. This inference can arise from a violation of the motor vehicle laws of this State. The judge had charged the elements of reckless driving, N.J.S.A. 39:4-96, the applicable motor vehicle offense defendant allegedly committed after Officer Ciabattoni signaled him to stop. See State v. Wallace, 158 N.J. 552, 559 (1999). The jury could not have reasonably found that defendant violated N.J.S.A. 39:4-96 because there was no evidence that defendant drove recklessly in New Jersey after the officer signaled him to stop. Although defendant may have driven recklessly in Pennsylvania, the jury could not consider defendant's conduct in Pennsylvania to convict him of eluding in New Jersey. See N.J.S.A. 2C:29-2b (requiring proof that the defendant was operating a motor vehicle on a street or highway in New Jersey); see also Model Criminal Jury Charge, Eluding an Officer (2004). Thus, because of this lack of evidence, it was error to deny defendant's motions to dismiss the second-degree eluding charge.
N.J.S.A. 39:4-96 provides, in pertinent part, that "[a] person who drives a vehicle heedlessly, in willful or wanton disregard of the rights or safety of others, in a manner so as to endanger, or be likely to endanger, a person or property, shall be guilty of reckless driving[.]"
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Nonetheless, because there was sufficient evidence for a conviction for third-degree eluding, the judge should have molded the verdict to convict on the lesser-included offense. State v. Farrad, 164 N.J. 247, 265-66 (2000). "A guilty verdict may be molded to convict on a lesser-included offense even if the jury was not instructed on that offense if '(1) defendant has been given his day in court, (2) all the elements of the lesser included offense are contained in the more serious offense and (3) defendant's guilt of the lesser included offense is implicit in, and part of, the jury verdict.'" Id. at 266 (quoting State v. Hauser, 147 N.J. Super. 221, 228 (App. Div.), certif. denied, 75 N.J. 27, (1977)). In clear cases, such as the present case, this court "has the power to enter a judgment of conviction for a lesser included offense where the jury verdict, of necessity, constitutes a finding that all the elements of a lesser included offense have been properly established and no prejudice to the defendant will result." Hauser, supra, 147 N.J. Super. 221, 228 (App. Div. 1977).
Defendant had his day in court, all the elements of third-degree eluding were in the more serious second-degree offense, and defendant's guilt of the lesser included offense was implicit in, and part of, the jury verdict. Accordingly, we reverse defendant's conviction for second-degree eluding, and remand to the trial court for entry of an amended JOC to reflect a conviction for third-degree eluding, and for re-sentencing.
II.
We have reviewed defendant's remaining contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we make the following brief comments.
Officer Barone's testimony about prior contacts with defendant did not constitute inadmissible other crimes evidence. N.J.R.E. 404(b). His testimony was appropriate to explain how he obtained the Linwood Gardens address. The officer did not state or imply that defendant was a criminal or that he had a criminal past. See State v. Love, 245 N.J. Super. 195, 197 (App. Div.), certif. denied, 126 N.J. 321 (1991); State v. Ramos, 217 N.J. Super. 530, 537-38 (App. Div.), certif. denied, 108 N.J. 677 (1987).
Reversed and remanded for further proceedings consistent with this opinion.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION