Opinion
DOCKET NO. A-3326-10T1
06-25-2012
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ANTHONY CLAY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief). Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-12-1160 and 07-10-0895.
Joseph E. Krakora, Public Defender, attorney for appellant (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Derek T. Nececkas, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
In this appeal, defendant argues that the trial judge erred with regard to the admission of "other crimes" evidence and that the sentence he received was excessive. We find no merit in these arguments and affirm.
In 2007, defendant was indicted and charged with third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1). Defendant entered a guilty plea and was sentenced to three years of probation. In November 2009, defendant was charged with violating the terms of probation and was indicted the following month and charged with: 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).
Indictment No. 07-10-0895.
Indictment No. 09-12-1160.
--------
Prior to trial on the offenses charged in the 2009 indictment, the trial judge conducted an evidentiary hearing regarding the State's ability to offer into evidence a police officer's testimony that when defendant was arrested with regard to the 2009 offenses, he was in possession of a small amount of marijuana and had a suspended driver's license. The trial judge determined, in applying the four factors set forth in State v. Cofield, 127 N.J. 328, 338 (1992), that: this evidence was relevant to show that defendant had a motive or intent to elude police; the events were performed simultaneously with the alleged act of eluding; the officer's testimony at the hearing clearly and convincingly established that defendant was in possession of marijuana and his license was suspended; and a weighing of the probative value of the proffered testimony outweighed any prejudice. With regard to this last factor, the judge recognized that the "other crimes" in question were "relatively minor" and not likely to "inflame the jury against defendant."
At the conclusion of the trial, the jury acquitted defendant of aggravated assault but convicted him of eluding. The judge later denied the State's motion for the imposition of an extended term and sentenced defendant to a ten-year prison term. The judge also found that defendant violated the terms of his earlier probationary term and sentenced defendant to a four-year prison term. The sentences were ordered to run consecutively.
Defendant appeals, raising the following arguments for our consideration:
I. THE TRIAL COURT SHOULD HAVE SANITIZED THE "OTHER CRIMES" EVIDENCE OFFERED AGAINST MR. CLAY AS THE PREJUDICIAL VALUE OF THE SPECIFIC NATURE OF THOSE OFFENSES OUTWEIGHED ITS PROBATIVE VALUE AND THE PROFFER OF SANITIZED EVIDENCE WOULD HAVE BEEN SUFFICIENT TO OFFER AS EVIDENCE OF MOTIVE AND INTENT (Not Raised Below).
II. THE TRIAL COURT'S IMPOSITION OF THE MAXIMUM SENTENCE FOR THIS ELUDING WAS EXCESSIVE AND UNDULY PUNITIVE, THEREFORE IT MUST BE REDUCED.
With regard to Point I, we affirm the judge's discretionary decision to admit the "other crimes" evidence, State v. Rose, 206 N.J. 141, 165 (2011), substantially for the reasons set forth in the trial judge's oral opinion.
We also find insufficient merit in Point II to warrant discussion in a written opinion. R. 2:11-3(e)(2). Appellate review of sentencing decisions is "narrow and is governed by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 (2010). We do not find that the sentence shocks the judicial conscience and, therefore, conclude it is immune from appellate intervention. State v. Hudson, 209 N.J. 513, 528 (2012); State v. Roth, 95 N.J. 334, 363-65 (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