Opinion
DOCKET NO. A-3284-10T4
08-26-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. FAUSTO CAMACHO, a/k/a SPARKS, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Grall, Koblitz and Accurso. On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-07-01362. Joseph E. Krakora, Public Defender, attorney for appellant (Susan Brody, Deputy Public Defender II, on the brief). Jeffrey S. Chiesa, Attorney General, attorney for respondent (Ashlea D. Thomas, Deputy Attorney General, of counsel and on the brief). PER CURIAM
We revisit this matter after a remand from our Supreme Court. Defendant Fausto Camacho appealed his March 26, 2010 conviction for second-degree eluding, N.J.S.A. 2C:29-2(b). We reversed the conviction because the trial judge failed to charge the jury that it could not draw an adverse inference from defendant's failure to testify after defendant requested the charge. We determined that this error was per se reversible error. The Supreme Court disagreed, deciding that a failure to give the requested charge was subject to a harmless error analysis, which in this case resulted in a determination that the error was harmless. State v. Camacho, ___ N.J. ___, ___ (2014) (slip op. at 5). The Court reversed our decision and remanded to us. Ibid. We now decide the remaining issue raised by defendant on appeal: whether the verdict was against the weight of the evidence. We affirm.
We need not repeat the facts adduced at trial. We note only the following. With patrol car lights and siren activated, Clifton Detective Joshin Smith pursued a stolen blue Audi A4. The Audi hit a curb twice, turned abruptly into Riverfront Plaza, a shopping center, struck a car and stopped. The two occupants ran out of the car. Detective Smith chased and captured the bearded driver, who was later identified as defendant.
Although defendant did not have a beard at trial, both Fair Lawn Police Officer Luis Vasquez, who initiated the chase and had an opportunity to look at the driver for fifteen seconds, and Detective Smith, who pursued defendant on foot from the car, identified defendant as the driver of the blue Audi.
Defendant raised only one issue on appeal that was not considered by the Supreme Court:
POINT II: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO SET ASIDE THE ELUDING VERDICT, BECAUSE THE OFFICER NAMED IN THE INDICTMENT AS THE SUBJECT OF THE ELUDING NEVER SAW DEFENDANT DRIVING THE CAR.
The indictment charged that defendant "did, while operating a motor vehicle on any street of highway in this State, knowingly flee or attempt to elude a law enforcement officer, specifically Police Officer J. Smith of the Clifton Police Department[.]" Defendant argues that the trial judge erred in denying defendant's motion to set aside the guilty verdict and grant a new trial pursuant to Rule 3:20-1 because the verdict was against the weight of the evidence. State v. Reyes, 50 N.J. 454, 458-59 (1967). He does not argue that the State's evidence was generally inadequate to support a conviction for eluding. As the Supreme Court noted:
Moreover, the State presented overwhelming evidence that defendant was the driver of the blue Audi when it eluded police. Although at the time of trial defendant no longer had a beard, both Detective Smith and Officer Vasquez testified and identified defendant as the driver of the Audi. Most significantly, Detective Smith testified
that he arrested defendant after observing him exit the driver's side door of the vehicle.
[Camacho, supra, ____ N.J. at ___ (slip op. at 32).]
Defendant argues, however, that because the indictment specifically charged him with eluding Detective Smith, and Smith testified that he did not see who was driving the Audi when the car was taking evasive actions, the jury was presented with insufficient evidence of an element of the crime as charged in the indictment. He argues that the trial judge should therefore have granted him a new trial as the jury verdict was against the weight of the evidence. Rule 3:20-1 provides in pertinent part that
The trial judge shall not, however, set aside the verdict of the jury as against the weight of the evidence unless, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law.
We must examine the evidence, both direct and circumstantial, in the light most favorable to the State. State v. Scott, 398 N.J. Super. 142, 149 (2006), aff'd o.b., 193 N.J. 227 (2008). The evidence clearly supported the charge that defendant eluded Detective Smith. Smith chased and captured defendant as he fled the driver's side of the Audi after it crashed, providing strong circumstantial evidence that defendant drove the Audi. Vasquez actually saw defendant driving the Audi, providing direct evidence to that effect.
Defendant further argues that he had insufficient notice that he had to defend against evidence that he eluded Officer Vasquez because Vasquez was not named in the indictment. A particular officer need not be named in an indictment charging eluding. See State v. Lopez, 276 N.J. Super. 296, 307 (App. Div.) (holding that the particular weapon need not be specified in an indictment charging armed robbery), certif. denied, 139 N.J. 289 (1994). "An indictment is merely a pleading device and never an end in itself[.]" Id. at 303. While an indictment must be specific enough to notify the jury and the trial court of the charge before it, the interpretation of the charge "cannot be permitted to deteriorate into a mere game . . . on the basis of some arcane notion of pleading." Ibid. (citations and internal quotation marks omitted). Thus, "courts have refused to construe the language of an indictment rigidly in the absence of any indication that a case was presented to a trial jury on a different basis than to the grand jury or a showing of other prejudice to the defendant." Ibid.
An indictment need not specify every officer from whom a defendant fled. Defendant was on notice that he was charged with eluding the police during a high-speed motor vehicle chase. As no "manifest denial of justice" occurred, the judge did not err in denying this motion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office. CLERK OF THE APPLLATE DIVISION