Opinion
DOCKET NO. A-2224-14T1
01-06-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MELVIN COLLINS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Reisner and Koblitz. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-04-0817. Joseph E. Krakora, Public Defender, attorney for appellant (Margaret McLane, Assistant Deputy Public Defender, of counsel and on the brief). Gurbir S. Grewal, Bergen County Prosecutor, attorney for respondent (Elizabeth R. Rebein, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Melvin Collins appeals from his conviction for second-degree eluding, N.J.S.A. 2C:29-2(b), and his sentence to an extended term of twelve years in prison with a four-year parole disqualifier. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On November 9, 2010, between 1:30 and 1:45 a.m., Ridgefield Park Police Officer Morton pulled into an Exxon gas station on the eastbound lane of Route 46. He noticed a gray, four-door Hyundai parked in the fire zone of the gas station. From looking up the license plate number, the officer learned the car was registered to a rental car company. He decided to monitor the Hyundai, and positioned himself "to the east of the convenience store, in between the two pumps" in order to "see the vehicle as it passed [him]." Morton described the area as well-lit from street lights in front of the Exxon station and the light from his car's headlights.
Approximately fifteen seconds after parking, Morton observed the driver, whom he described as "a light skinned black male" drive past him. Morton estimated the Hyundai was going around three to four miles per hour in the parking lot. The driver did not look at Morton as he passed.
Once on the two-lane divided highway, the Hyundai accelerated quickly to a speed of around fifty-five to sixty miles an hour in a zone with a speed limit of fifty. Morton followed the Hyundai from a distance of two to three car lengths so as not to "spook" the driver; he did not have his overhead lights or sirens on, but was in his marked police car. While following the vehicle, Morton received information that the Hyundai was "wanted out of Hackensack for an incident earlier in the day."
The driver of the Hyundai made a U-turn, taking the first exit, and executing two left turns to head back on 46 westbound. After getting back onto 46 West, Morton observed the Hyundai pull into the first exit, where a Days Inn was located, and park.
Morton also pulled into the parking lot and observed the Hyundai from thirty to fifty feet away. After thirty seconds, the Hyundai pulled back out of its parking spot and headed toward the exit where Morton was parked. The car pulled within fifteen feet of Morton, who observed "a black male driver . . . wearing a white shirt . . . black knit cap . . . and black glasses." While pulling out, the driver looked left to check for traffic and made "face-to-face contact" with Morton. Morton was "[o]ne hundred percent sure" that this was the same person he had observed leaving the Exxon station. Morton indicated there was lighting from the street lights, his headlights, and residual lights from the hotel that "illuminated enough [so Morton] could see."
Morton followed the Hyundai, this time activating the sirens as he pulled out of the parking lot. The Hyundai did not stop. As the two cars entered a banking curve to the right, the Hyundai turned left going off the road and through a ten feet-wide grass median and back onto Route 46 westbound; footage of the maneuver was caught on Morton's dashboard camera. Ridgefield Park Police Officer Powell saw the exchange and joined in the chase behind Morton's car.
The chase went through a commercial area of Ridgefield Park to Little Ferry, South Hackensack, and Teterboro with speeds varying from seventy to ninety-five miles an hour. Some of the traffic lights were green, several yellow, and at least one was red during the chase. Morton eventually lost sight of the Hyundai and called off the chase around the area of Route 17 northbound.
Morton then immediately returned to the Exxon station "to see if they caught anything on the video cameras." An extremely clear video from a camera set up inside the Exxon convenience store depicted two customers, one of whom was a black male wearing a white shirt and black knit hat, who left the store shortly before the pursuit started. The camera was aimed at the counter of the store and shows the face of this individual. After this customer leaves, a Ridgefield Park police car can be seen driving by the store window. Morton identified that customer as the driver of the gray Hyundai.
We were able to view this video, as was the jury. --------
Footage of the suspect from the Exxon station was conveyed to the Bergen County Prosecutor's office in Paramus where Detective Lieutenant Stefanacci and "other members of [the] squad" viewed it for identification purposes. Stefanacci stated at trial that he recognized the individual in the video as defendant, and knew him because he had a local business in Hackensack. Stefanacci contacted the Ridgefield Park police department and "made arrangements for a photo array." He personally delivered the photo array to Ridgefield Park Sergeant Hippe. Nine days after the police chase, on November 18, 2010, Morton was called into headquarters and shown that photo array by Hippe. Morton identified defendant from the photo array, stating: "That's definitely him."
At a Wade hearing, when asked if viewing the video of the individual inside the Exxon station prior to viewing the photo array effected his ability to independently evaluate it, Morton stated it "had zero effect." The court found that the photo array shown to Morton was not "impermissibly suggestive." It noted that "this case does not come under State v. Henderson, [208 N.J. 208 (2011)] because it occurred prior to Henderson," but even if Henderson controlled, he would have come to the same conclusion. Defense counsel conceded that he "[thought] he lost" on this point. Counsel stated, "Judge, I don't see the suggestibility once we vetted out with the two officers, I don't see an overly suggestive process."
At trial, Morton also identified defendant in the courtroom as the individual who was the driver of the Hyundai on November 9. The State also offered the testimony of one of defendant's friends who stated that defendant gave her the money to rent a four-door "silver" Hyundai, which she then lent to defendant one day during the second week of November 2010. The friend testified that she did not think defendant borrowed the car the day of the incident. Defendant did not testify at trial, called no witnesses and made no objections to the jury charges.
Defendant raises the following issues on appeal:
POINT I: THE ERRORS WITH THE IDENTIFICATION EVIDENCE DEPRIVED DEFENDANT OF A FAIR TRIAL AND REQUIRE REVERSAL OF HIS CONVICTION[]. (NOT RAISED BELOW)
A. THE COURT ERRONEOUSLY FAILED TO PROVIDE THE SHOW-UP IDENTIFICATION INSTRUCTION.
B. THE TRIAL COURT ERRONEOUSLY PERMITTED LIEUTENANT STEFANACCI TO PROVIDE INADMISSIBLE LAY OPINION TESTIMONY THAT COULD NOT BE CROSS-EXAMINED.
POINT II: THE COURT ERRONEOUSLY FAILED TO PROVIDE THE ELEMENTS OF THE MOTOR VEHICLE VIOLATIONS, REQUIRING REVERSAL OF DEFENDANT'S CONVICTION[]. (NOT RAISED BELOW)
POINT III: THE JURY INSTRUCTIONS INCORRECTLY FAILED TO SPECIFY THAT FOR THERE TO BE A CONVICTION FOR SECOND-DEGREE ELUDING, THE JURY WOULD HAVE TO UNANIMOUSLY AGREE ON THE VICTIM
OF THAT CRIME, I.E., THE "PERSONS" FOR WHOM THE DEFENDANT'S CONDUCT CREATED A "RISK OF DEATH OR INJURY." (NOT RAISED BELOW)
POINT IV: THE DEFENDANT'S SENTENCE OF TWELVE YEARS, WITH A FOUR-YEAR PAROLE DISQUALIFIER IS MANIFESTLY EXCESSIVE.
The three substantive issues raised on appeal were not raised by trial counsel. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result." R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, reversal of defendant's conviction is required if there was error "sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Green, ___ N.J. Super. ___, ___ (App. Div. 2016)(slip op. at 12)(quoting Macon, supra, 57 N.J. at 336).
In Point I defendant argues as plain error that because "Officer Morton's identification of the person on the Exxon security video as the driver of the car that eluded him was a show-up identification," the "court was required to instruct the jury on how to scrutinize the show-up identification" and "[i]ts failure to do so requires reversal of [defendant's] convictions." Defendant states that this failure to instruct the jury deprived him of a fair trial and asks this court to reverse and remand for a new trial with proper jury instructions.
"Showups are essentially single-person lineups: a single suspect is presented to a witness to make an identification. Showups often occur at the scene of a crime soon after its commission." Henderson, supra, 208 N.J. at 259. In the most recent version of the Model Jury charges, showups are described as identifications in which:
the defendant was the only person shown to the witness at that time. Even though such a procedure is suggestive in nature, it is sometimes necessary for the police to conduct a "showup" or one-on-one identification procedure. Although the benefits of a fresh memory may balance the risk of undue suggestion, showups conducted more than two hours after an event present a heightened risk of misidentification. Also, police officers must instruct witnesses that the person they are about to view may or may not be the person who committed the crime and that they should not feel compelled to make an identification. In determining whether the identification is reliable or the result of an unduly suggestive procedure, you should consider how much time elapsed after the witness last saw the perpetrator, whether the appropriate instructions were given to the witness, and all other circumstances surrounding the showup.
[Model Jury Charge (Criminal), "Identification: In-Court and Out-of-Court Identifications" (2012) (quoting Henderson, supra, 208 N.J. at 259-61).]
The State argues that Morton viewed the Exxon surveillance video as part of his investigation function as a police officer and thus it was not a traditional showup. We agree. Morton was investigating when he discovered the video, he was not viewing a photo provided by another law enforcement officer for the purpose of making an identification. He immediately returned to the station to ensure the video was preserved. He saw two people on the surveillance video who had been in the Exxon station around the time the car chase began. He recognized one of them as the man who was driving the Hyundai. Because this was not a showup, no specific identification charge was required.
Although erroneous jury instructions are "poor candidates for rehabilitation under the harmless error philosophy," when an appellant fails to object to a jury charge at trial, Rule 1:7-2 requires a showing of plain error on appeal. State v. Simon, 79 N.J. 191, 206 (1979); see also R. 1:7-2 (stating "no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict").
Here, the jury was given an identification charge explaining the jury's role in determining the credibility of Morton's identifications. These instructions referred to the photo array that Morton was given on November 18, 2010, but also included a reference to "whether the prior description matched the photo or person picked out later, whether the prior description provided details or was just general in nature, and whether the witness's testimony at trial was consistent with, or different from his or her prior description of the perpetrator." The instructions also included warnings about the nature of identifications:
Eye witness identification evidence must be scrutinized carefully. Human beings have the ability to recognize other people from past experiences and to identify them at a later time, but research has shown that there are risks of making mistaken identification. That research has focused on the nature of memory and factors that affect the reliability of eyewitness identifications.
Because no traditional showup occurred, the case was tried prior to the Henderson decision, and the issue is raised as plain error, the identification charge given sufficed.
Defendant also argues as plain error in Point I that the failure of the court to instruct the jury to evaluate the reliability of Morton's show-up identification was further compounded by two mistakes related to Lieutenant Stefanacci's testimony. First, defendant argues for the first time that Stefanacci was permitted to give improper lay witness testimony identifying defendant in the Exxon video. Second, defendant argues, again for the first time, that because Stefanacci's testimony identifying defendant on the Exxon tape was based on knowledge of him from prior arrests, it prevented defense counsel from effectively cross-examining him. Defendant argues that this impermissibly forced him to choose between two fundamental rights, "his due process right to cross examine Stefanacci . . . and his right to a fair trial."
N.J.R.E. 701 states:
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."Opinion testimony . . . is not a vehicle for offering the view of the witness about a series of facts that the jury can evaluate for itself or an opportunity to express a view on guilt or innocence." State v. McLean, 205 N.J. 438, 462 (2011).
"Courts evaluating whether a law enforcement official may offer a lay opinion on identification . . . consider, among other factors, whether there are additional witnesses available to identify the defendant at trial." State v. Lazo, 209 N.J. 9, 23 (2012). "[W]hen there is no change in a defendant's appearance, juries can decide for themselves -- without identification testimony from law enforcement -- whether the person in a photograph is the defendant sitting before them." Ibid. In Lazo, the Court held that an officer's testimony that defendant's arrest photo resembled the composite sketch given by the victim — when his opinion was not based on prior knowledge and there was no change in defendant's appearance since the incident — constituted reversible error. Id. at 27.
Here, unlike in Lazo, Stefanacci did have prior dealings with defendant. Furthermore, Stefanacci did not testify he knew defendant from prior arrests, rather he testified that he knew defendant "from having a local business in Hackensack." Stefanacci testified he was "one hundred percent" sure that the person on the Exxon surveillance video was defendant. Such a lay opinion might be prejudicial in other circumstances, such as if the video were hazy and unclear. The jury here had the ability to compare defendant with the individual depicted on the video, which contained a clear and detailed depiction of the individual's face. Thus any error in allowing Stefanacci to identify defendant in the security video was harmless.
Defendant also argues that he was denied his due process right to cross-examine Stefanacci about the basis of his familiarity without giving up his right to a fair trial. Defendant cites to State v. Short, 177 N.J. 47, 60 (1993) for the proposition that it was a "fundamental injustice [to force] a defendant to choose between two critical substantive rights." The rights in Short involved a valid statute of limitations defense and the right to a fair trial in the form of advising the jury about lesser-included offenses. Ibid.
Defendant, however, had come to an agreement with the State prior to Stefanacci's testimony that Stefanacci would testify that he knew defendant from "seeing him around town and owning a local business." After hammering out this agreement as to Stefanacci's testimony, defendant cannot now complain that he was forced to forgo a constitutional right.
In Point II, also as plain error, defendant raises the issue that the court did not explain to the jury the elements of the traffic violations charged. As a result of the November 9, 2010 incident, defendant was issued motor vehicle tickets. As part of its jury charges, "the court instructed the jury that [defendant's] guilt as to the motor vehicle infractions would 'be determined by an appropriate court,' but that they could 'consider the evidence that he committed motor vehicle offenses in deciding whether he created a risk of death or injury.'" Defendant argues that the trial court committed plain error when it did not include the elements of the motor vehicle violations as part of the jury charges. Defendant asserts that "once the jury was presented with this alternative way to find the element of risk of injury, the court was required to provide complete injury instructions."
N.J.S.A. 2C:29-2(b) states:
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 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. . . . 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.The statute essentially allows for a finding of "risk of death or injury" either directly, or by inference through a finding that the defendant violated the motor vehicle laws.
The State contends that "Detective Morton's dashcam video shows numerous other vehicles on the road during the chase" providing "categorical proof that at least one person was put at risk by defendant's conduct." Furthermore, the State notes that "the jury was presented with compelling evidence that this high-speed chase lasted for several minutes on a major Bergen County thoroughfare through multiple towns." Because evidence of direct "risk of death or injury" was presented, the State contends "the trial court's failure to sua sponte charge the jury on each element of the motor vehicle offenses is not fatal to defendant's conviction for second-degree eluding." We agree. Had defendant sought a charge on the elements of the motor vehicle infractions, in all likelihood the court would have provided them. Evidence was presented that defendant was traveling up to ninety miles per hour on a commercial street racing, through at least one red light.
Defendant argues in Point III, also as plain error, that the trial court erred in issuing jury charges that did not require the jury "to unanimously find that a particular person" was put at "risk of death or injury" by defendant's eluding. According to defendant, "[t]he failure to instruct the jury that they had to unanimously agree on which person was put at risk was thus clearly capable of producing the unjust result because it opened up the possibility that twelve jurors never found [defendant] guilty of endangering the same person with the alleged eluding."
Under N.J.S.A. 2C:29-2(b) the third-degree crime of eluding is raised to second degree in cases that involve a "risk of death or injury to any person." Our Supreme Court has determined that the phrase "any person" in this section of the statute should be ascribed its ordinary meaning and is not ambiguous on its face. State v. Bunch, 180 N.J. 534, 546 (2004). Furthermore, it has extended the meaning of any person to include not only the "police officers occupying the chasing vehicle," but also the defendant in the eluding car. Ibid. (quoting State v. Wallace, 158 N.J. 552, 560 (1999)). The plain language of the statute does not require that a particular individual be put at risk, but rather than any individual be put at risk.
The court properly instructed the jury that it "must determine that there was at least one person put at risk by the defendant's conduct, which could include himself, any person along the chase route, any police officer in a chasing vehicle, or anyone in the eluding vehicle."
Finally, defendant asserts in Point IV that the court's sentence was manifestly excessive and should be vacated and the case should be remanded for resentencing. Defendant argues that the court focused on defendant's prior record and did not afford enough weight to mitigating factor eleven, that imprisonment would cause excessive hardship to his dependents. N.J.S.A. 2C:44-1(b)(11). Defendant was married and had a fourteen-year-old son at the time of sentencing.
We are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Cassady, 198 N.J. 165, 180-81 (2009). The court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3(a) and Rule 3:21-4(e). Defendant, who was forty-six years old at the time of sentencing, had a lengthy criminal record and does not deny that he was eligible to be sentenced as a persistent offender. For second-degree crimes, an extended term is between ten and twenty years. N.J.S.A. 2C:43-7(a)(3).
The court found by clear and convincing evidence that mitigating factor eleven was substantially outweighed by aggravating factors three, "[t]he risk that the defendant will commit another offense," six, "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted," and nine, "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1(b)(11) and N.J.S.A. 2C:44-1(a)(3), (6), (9).
Defendant was facing a sentence of between five and twenty years. N.J.S.A. 2C43-6(a)(2). The court's decision to grant a twelve-year sentence is within the midrange of potential terms. See State v. Natale, 184 N.J. 458, 488 (2005) (recognizing the "midpoint [as] an appropriate sentence" from which to balance the factors). The sentencing court "follow[ed] the Code and the basic precepts that channel sentencing discretion," and "the sentence does not 'shock the judicial conscience.'" State v. Case, 220 N.J. 49, 65 (2014) (quoting State v. Roth, 95 N.J. 334, 365 (1984)).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPELLATE DIVISION