Opinion
DOCKET NO. A-4310-13T2
09-27-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. HAKEEM Y. ALLEN, a/k/a HAKEEM RAMSEY, a/k/a RAHEEM ALLEN, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Accurso and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 11-05-0567. Joseph E. Krakora, Public Defender, attorney for appellant (Alison Perrone, Designated Counsel, on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stephen K. Kaiser, Special Deputy Attorney General/ Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Hakeem Y. Allen appeals his conviction and sentence for second-degree eluding, N.J.S.A. 2C:29-2(b), and second-degree aggravated assault N.J.S.A. 2C:12-1(b)(6). Defendant contends the court erred by failing to provide an appropriate limiting instruction when evidence of alleged prior wrongs were admitted during the trial; by imposing consecutive sentences; and by failing to properly weigh the aggravating and mitigating factors at the time of sentencing. We affirm.
I
At the outset we note defendant's position throughout the trial was that this was a case of mistaken identity, that he was not the alleged perpetrator. The pertinent evidence that emerged during the trial was as follows. Detective Jose Martinez testified that at 10:50 p.m. on January 9, 2011, he and police officer Rui Xavier, both of the Elizabeth Police Department, were on patrol in a police vehicle when they noticed a blue Chevy Impala suddenly emerge from a driveway and proceed down the street at a rate of speed that exceeded the twenty-five mile per hour limit. The officers activated the lights and siren on their vehicle and followed the Impala. The driver immediately pulled over to the side of the road.
Both the detective and officer got out of the police car and approached the Impala. Martinez went to the front passenger window and Xavier to the driver's window. The driver, later identified as defendant, handed Xavier a non-driver identification card issued by the Motor Vehicle Commission, on which appeared defendant's name, his picture, and a driver's license number. Defendant then leaned over and opened the glove box in an attempt to find an insurance card and the registration for the car. As he did so, Martinez shined a flashlight on defendant so that he could examine his face.
Xavier handed to Martinez the identification card and Martinez compared defendant's face to the person pictured on the identification card. Martinez was satisfied the driver of the Impala was the same person whose picture appeared on defendant's identification card. At trial, Martinez identified defendant, stating he was one-hundred percent certain defendant was the same person the police pulled over on January 9, 2011.
After he compared defendant to the picture on the identification card, Martinez returned to the police car and checked defendant's record. Martinez discovered there was a warrant out for defendant's arrest for failing to appear in Newark Municipal Court and, for that reason, determined to place defendant under arrest. There was also evidence defendant's driver's license had been suspended, but Martinez did not testify about such fact until after he had been cross-examined and the court determined defendant had "opened the door" on this matter of defendant's license suspension.
Martinez returned to the Impala, informed Xavier of the warrant, and positioned himself by the front, driver's side tire. Martinez then instructed defendant to step out of the car. Instead of complying, defendant drove off at a high rate of speed. When defendant took off, the front left tire ran over Martinez's foot. Despite being injured, Martinez had the presence of mind to strike the windshield of the Impala with his flashlight and order defendant to stop.
Xavier and Martinez got into the police car, activated the lights and siren, and chased defendant. Other officers on patrol were alerted to the circumstances and joined in the pursuit. They, too, activated the lights and sirens on their vehicle. However, the police were unable to keep pace with defendant and he managed to get away. Another officer who participated in the chase testified that, while he was being pursued, defendant travelled at the rate of sixty miles per hour down roads where the speed limit was as low as twenty-five miles per hour, and that defendant was driving "very erratic," and "extremely dangerously."
When he and Xavier abandoned pursuing defendant, Martinez went to the hospital for treatment. Despite the mechanism of the injury, he sustained only a bruised foot and a sprained ankle and finger.
The Impala was later found abandoned. At that time, the police noted there was a crack on the driver's side of the windshield, and that there was no evidence the locks on the doors or the ignition had been tampered with or damaged, as might appear when a car is stolen. On January 17, 2011, the police went to defendant's home and arrested him.
Officer Xavier was also called by the State. His testimony about the motor vehicle stop was consistent with Martinez's. Xavier also testified that, during the stop, he compared defendant's face to the one that appeared on the identification card and concluded defendant was the same person. At trial, Xavier identified defendant as the person he and Martinez pulled over on January 9, 2011.
Defendant's former girlfriend, K.W., was called by the State. She testified she had rented a blue Chevy Impala on January 7, 2011. No one else had permission to drive the car. When she came home from work on January 9, 2011, she put the keys to the car on the kitchen counter. During the evening defendant visited her when, feeling unwell from a cold, she fell asleep. Later in the evening she awoke and went to her car to retrieve some cold medicine, only to discover the car was missing. She also discovered defendant and the car keys were gone. She repeatedly called defendant on his cell phone to learn if he had taken her car, but he did not answer her calls.
Defendant's former girlfriend's name has been initialized to protect her privacy. --------
K.W. called the police that evening to report the car missing. The police officer who responded to her home testified that no lock debris or broken glass was on the ground where K.W.'s car had been parked, indicating no one had broken into the car. K.W. did advise the police her boyfriend might have borrowed the car. No action was taken by the police that night, but when K.W. still had not made contact with defendant the following morning and the car was still missing, K.W. contacted the police to report the car had been stolen.
As indicated above, there was evidence a warrant had been issued for defendant's arrest for his failure to appear in municipal court and, ultimately, that his driver's license had been suspended. When evidence of the latter alleged wrong was admitted, the court gave the jury the following limiting instruction:
Members of the jury, I'm going to give you what's called a limiting instruction. First I'm going to explain to you what a limiting instruction is. A limiting instruction is given by the court to a jury when they're allowed to hear evidence that can be considered for some purposes, but not other purposes. And there's been two occasions already in this case where that's the case.
One is that there was an active municipal court warrant out of the City of Newark for Mr. Allen at the time of this motor vehicle stop. And the second just testified to by the detective is that [defendant] had had driving privileges, but they were suspended. And there are reasons that you can hear that testimony.
But I want to caution you that you are not — when this case is over and you are deliberating — to consider the fact that he had a suspended license, to the extent that you accepted that evidence as true, or a warrant, to the extent that you accepted that evidence as true, as evidence of his guilt of the offenses charged in this case.
That's not the purpose they're being offered to you, so you're not to decide the case based on the fact that — if you believe the testimony when you hear all the testimony that there was a warrant and a suspended license as evidence of his guilt for the crime of eluding.
In the court's final charge, it again gave a limiting instruction, which was as follows:
You'll remember that during the trial I gave you what is called a limiting instruction and I'm now going to repeat it for you.
Once again, a limiting instruction is given where there is testimony that is relevant for your consideration for some purposes, but is not to be considered for others.
In this case, there was testimony that Hakeem Allen was the subject of an arrest warrant out of Newark Municipal Court, and that his driving privileges were suspended at the time of the incident.
As judges of the facts, it is up to you whether to accept these facts as true. Should you accept them as true, you may consider them for any purpose you deem appropriate. You may not, however, consider them as evidence of the defendant's guilt on these charges. There are any number of reasons a municipal court may issue an arrest warrant for someone.
And, thus, the fact that someone has a municipal warrant should not be used by you to assume that he committed this offense. Once again, should you accept this information, you may consider it for any other reason in your determination of the facts of this matter.
As previously mentioned, the jury found defendant guilty of second-degree eluding, N.J.S.A. 2C:29-2(b), and second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6). Defendant was sentenced to a seven-year term of imprisonment with no period of parole ineligibility on the conviction for eluding. On the conviction for aggravated assault, he was sentenced to a seven-year term of imprisonment, with an eighty-five percent period of parole ineligibility, to run consecutively to the other sentence.
The trial court found the act of eluding was separate from the act of committing the aggravated assault, and reasoned that:
harming [Martinez] as opposed to the potential victims and the other officers are separate and apart from each other. These were separate acts of violence.
Moreover, the crime of eluding speaks to the danger of the other officers and to the victims, while the aggravated assault speaks to a specific victim. I, thus, determine that [a] consecutive sentence . . . under our statute and our case law is appropriate in this case.
In fixing defendant's sentence, the court found the following aggravating factors: factor three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); factor six, the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and factor nine, the need to deter others, N.J.S.A. 2C:44-1(a)(9). The court determined there were no mitigating factors.
II
On appeal, defendant raises the following contentions for our consideration:
POINT I - THE TRIAL COURT FAILED TO PROPERLY INSTRUCT THE JURY ON THE LIMITED USE OF THE OTHER-CRIMES EVIDENCE.
POINT II - THE RECORD DOES NOT SUPPORT THE IMPOSITION OF CONSECUTIVE SENTENCES FOR ELUDING AND AGGRAVATED ASSAULT.
POINT III - QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT THE IMPOSITION OF AN AGGREGATE FOURTEEN-YEAR TERM.
As for his first argument point, defendant contends the court's limiting instructions failed to explain that the warrant and the driver's license suspension were admitted for the limited purpose of providing defendant's motive for wanting to elude the police. Further, although the jury was informed it could not use these two alleged wrongs as evidence of defendant's guilt on the charged offenses, defendant also contends the jury was not advised it could not use these wrongs to conclude defendant had a propensity to commit crimes.
When N.J.R.E. 404(b) evidence is admitted, the court is required to provide a limiting instruction that is "formulated carefully to explain precisely the permitted and prohibited purposes of the evidence, with sufficient reference to the factual context of the case to enable the jury to comprehend and appreciate the fine distinction to which it is required to adhere." State v. Stevens, 115 N.J. 289, 304 (1989). A court should "'state specifically the purposes for which the evidence may be considered and, to the extent necessary for the jury's understanding, the issues on which such evidence is not to be considered.'" State v. Fortin, 162 N.J. 517, 534 (2000) (citing Stevens, supra, 115 N.J. at 309).
Here, defendant failed to object to the limiting instruction issued during the trial and during the court's final charge. Accordingly, we review defendant's claim under a plain error standard. See R. 2:10-2; State v. Angoy, 329 N.J. Super. 79, 88 (App. Div.), certif. denied, 165 N.J. 138 (2000). Plain error is reversible only if it is "clearly capable of producing an unjust result." R. 1:7-2; R. 2:10-2. The test is whether the possibility of injustice is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Because of the insurmountable proof of defendant's guilt, we are satisfied any deficiency in either limiting instruction was not clearly capable of producing an unjust result, and thus there was no plain error. The evidence is undisputed that defendant's girlfriend had rented a Chevy Impala and that such car was missing from her home, along with the car keys, the evening defendant was pulled over by the police. When he was stopped, defendant was driving a Chevy Impala which, upon subsequent examination, bore no signs of tampering, suggesting the driver used the keys to gain access to and start the car.
But most important, during the stop both Martinez and Xavier examined defendant's face for the specific purpose of comparing it to that which appeared on the identification card that bore defendant's face and name, and both were satisfied the person in the Impala was the same person pictured on the identification card. At trial, both officers were able to unequivocally identify defendant as the driver of the vehicle they had stopped.
There is also no dispute defendant ran over Martinez's foot when he fled the scene, failed to obey Martinez's order to stop, and failed to pull over when pursued by other officers who had activated the lights and sirens on their respective vehicle. Further, given the reckless manner in which defendant drove during his flight, defendant created a risk of death or injury to these other officers and members of the public. See N.J.S.A. 2C:29-2(b). Given the overwhelming evidence against defendant, we need not determine whether the limiting instructions were inadequate, as any flaw in these instructions was not clearly capable of producing an unjust result.
We next turn to defendant's contention the imposition of the consecutive sentence was error. We reject this contention. In State v. Yarbough, the Court set forth the factors to be considered when deciding whether to impose consecutive or concurrent sentences. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986). The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989) (internal quotation marks omitted)).
Applying these criteria, the trial court properly imposed consecutive sentences upon defendant for aggravated assault and eluding. While defendant committed the acts of aggravated assault upon Martinez and eluding simultaneously, thereafter, he eluded the other police officers who pursued him, putting them and members of the public at risk of being injured or killed because of his reckless operation of the Impala. See N.J.S.A. 2C:29-2(b). These latter acts involved "separate acts of violence," occurred in "separate places," and involved "multiple victims." See Yarbough, supra, 100 N.J. at 643-44. We cannot say the court abused its discretion when it imposed a consecutive sentence in this matter. See State v. Blackmon, 202 N.J. 283, 297 (2010) (review of sentencing decisions governed by an abuse of discretion standard).
Defendant's final contention is that the court's weighing of the aggravating and mitigating factors did not support the imposition of an aggregate fourteen-year term. We disagree. If a sentencing judge has identified and balanced the aggravating and mitigating factors and their existence is supported by sufficient credible evidence in the record, we are obliged to affirm. State v. Grate, 220 N.J. 317, 337 (2015).
In this case, the court explained the reasons it found the subject three aggravating factors applied, and determined there were no mitigating factors. We are satisfied there was credible evidence to support the court's findings and discern no abuse of its discretion in imposing, in the aggregate, a fourteen-year sentence.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION