STATE OF NEW JERSEY VS. JAMAR B. COCKREN (15-01-0049, MIDDLESEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 12, 2018
• Docket: A-1511-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1511-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMAR B. COCKREN,

Defendant-Appellant. ______________________________

Submitted January 16, 2018 – Decided June 12, 2018

Before Judges Ostrer and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 15-01-0049.

Joseph E. Krakora, Public Defender, attorney for appellant (Molly O'Donnell Meng, Assistant Deputy Public Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for respondent (Evgeniya Sitnikova, Deputy Attorney General, of counsel and on the brief).

PER CURIAM Defendant Jamar Cockren appeals from his September 11, 2015

judgment of conviction for second-degree eluding, fourth-degree

resisting arrest, and numerous motor vehicle violations. For the

reasons that follow, we affirm in part and reverse in part.

I.

On the evening of July 30, 2014, defendant and his friend,

Raul Colon, were drinking alcohol at another friend's house in

Carteret. More than once that night, Colon gave defendant the

keys to his vehicle, a Honda CRV, so defendant could "go get

something." While returning to the vehicle for a third time,

defendant told Colon "he was going to be right back." Defendant

drove to a friend's house, and after she got in the passenger

seat, they drove around aimlessly while talking.

At approximately four a.m. on July 31, 2014, a Woodbridge

Township Police Sergeant was on patrol in his marked police SUV.

He came to a stop at a red light and noticed defendant's vehicle

across the intersection, straddling the solid white line that

separates the straight lane from the left hand turn lane. After

the light turned green, the officer drove through the intersection

and observed that defendant remained stopped and was using his

cell phone. The officer then ran the vehicle's license plate,

which the computer flagged because the vehicle's owner had a

2 A-1511-15T2 suspended driver's license. The officer turned around to follow

defendant but lost sight of him.

Soon thereafter, the officer located defendant and observed

him make an improper turn onto Route 35. The officer activated

his overhead lights, and defendant eventually pulled over.

However, as the officer approached the driver side of the vehicle,

defendant sped away. The officer broadcasted the pursuit over the

police radio and followed. He trailed defendant as defendant sped

through a residential area, proceeded through two stop signs,

generally drove recklessly, and suddenly slowed his vehicle to a

roll next to a church. Defendant then, while the car was still

in motion, exited the driver door and fled. Around this time,

other officers arrived and began to establish a perimeter.

Two Woodbridge officers heard the broadcast and joined the

pursuit. They watched as defendant's vehicle slowed down next to

the church, and defendant exited the still moving vehicle.

Noticing the passenger screaming hysterically in the passenger

seat of the vehicle, the officer jumped in the driver's seat and

put the vehicle in park.

While this was happening, another officer chased defendant

on foot. Throughout the pursuit, the officer ordered defendant

to stop, but defendant ignored the commands. Eventually, defendant

3 A-1511-15T2 approached a high fence, abandoned his attempt to flee, and laid

on the ground, placing his hands behind his back.

In November 2014, a Middlesex County Grand Jury indicted

defendant on the following charges: second-degree eluding an

officer, N.J.S.A. 2C:29-2(b); third-degree unlawful taking of

means of conveyance, N.J.S.A. 2C:20-10; and fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(2).

On July 9, 2015, the trial judge heard oral argument on the

defendant's motion in limine to exclude evidence of his suspended

driving license at the time of the incident. After conducting a

State v. Cofield, 127 N.J. 328 (1992), analysis, the judge allowed

evidence of defendant's suspended license and gave a limiting

instruction to the jury. At trial, defendant argued that the

conditions present during the early hour chase did not create a

risk of injury or death – an element necessary for a second-degree

eluding conviction. Instead, defendant sought a conviction for a

lesser charge of third-degree eluding.

Ultimately, a jury found defendant guilty of second-degree

eluding an officer, N.J.S.A. 2C:29-2(b), and fourth-degree

resisting arrest, N.J.S.A. 2C:29-2(a)(2), but acquitted him of

third-degree unlawful taking of means of conveyance, N.J.S.A.

2C:20-10.

4 A-1511-15T2 On September 11, 2015, defendant was sentenced to nine years

imprisonment with a four year period of parole ineligibility for

the second-degree eluding an officer charge and concurrently to

eighteen months for the fourth-degree resisting arrest charge.

After a subsequent bench trial, defendant was found guilty of nine

motor vehicle violations, including reckless driving, N.J.S.A.

39:4-96; two counts for disregarding a traffic control device,

N.J.S.A. 39:4-81; and two counts for improper turns, N.J.S.A.

39:4-123. The judge imposed monetary fines and jail time to run

consecutive to his other sentences for these motor vehicle

violations. This appeal followed.

On appeal, Defendant raises the following issues:

POINT I:

THE TRIAL COURT IMPROPERLY ALLOWED THE STATE TO INTRODUCE EVIDENCE OF COCKREN'S LICENSE SUSPENSION FOR NO LEGITIMATE PURPOSE.

POINT II:

THE TRIAL COURT ERRED IN FAILING TO MERGE FIVE OF THE MOTOR VEHICLE CONVICTIONS INTO THE ELUDING CONVICTION.

POINT III:

THE TRIAL JUDGE IMPROPERLY CONVICTED COCKREN OF LEAVING THE SCENE OF AN ACCIDENT.1

1 Defendant withdrew this argument on appeal, and therefore, it does not warrant discussion.

5 A-1511-15T2 POINT IV:

THE TRIAL JUDGE ERRED IN IMPOSING A NEAR- MAXIMUM BASE TERM WITH A NEAR-MAXIMUM PAROLE DISQUALIFIER.

II.

Defendant argues the trial judge improperly allowed evidence

of his suspended driver's license because it had no legitimate

purpose and constituted impermissible other bad acts evidence. He

contends motive was not in dispute because he essentially conceded

he eluded the police, and the only issue left for the jury was the

degree of the eluding conviction.

"[T]he decision to admit or exclude evidence is one firmly

entrusted to the trial court's discretion." State v. Scott, 229

N.J. 469, 479 (2017) (quoting Estate of Hanges v. Metro. Prop. &

Cas. Ins. Co., 202 N.J. 369, 383-84 (2010)). A trial court's

evidentiary ruling will be upheld "absent a showing of an abuse

of discretion, i.e., there has been a clear error of judgment."

State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero,

148 N.J. 469, 484 (1997)). "The trial court, because of its

intimate knowledge of the case, is in the best position to engage

in this balancing process." Marrero, 148 N.J. at 483 (quoting

State v. Ramseur, 106 N.J. 123, 266 (1987)) (discussing the

admissibility of other-crime evidence). An appellate court

"should not substitute its own judgment for that of the trial

6 A-1511-15T2 court, unless 'the trial court's ruling was so wide of the mark

that a manifest denial of justice resulted.'" State v. Perry, 225

N.J. 222, 233 (2016) (quoting Marrero, 148 N.J. at 484).

Pursuant to N.J.R.E. 404(b):

evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

"One of the well-recognized dangers inherent in the admission of

so-called 'other-crimes evidence' is that a jury may convict a

defendant not for the offense charged, but for the extrinsic

offense." State v. Garrison, 228 N.J. 182, 193-94 (2017) (citing

State v. Skinner, 218 N.J. 496, 514 (2014)). Accordingly, such

evidence must be "examined cautiously because it 'has a unique

tendency' to prejudice a jury." Skinner, 218 N.J. at 514 (quoting

State v. Reddish, 181 N.J. 553, 608 (2004)).

In State v. Cofield, our Supreme Court established a four-

part test "to avoid the over-use of extrinsic evidence of other

crimes or wrongs" pursuant to N.J.R.E. 404(b). 127 N.J. at 338.

This framework requires:

1. The evidence of the other crime must be admissible as relevant to a material issue;

7 A-1511-15T2 2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Ibid. (citation omitted).]2

The trial judge made the following findings, pursuant to

Cofield, in determining that evidence of defendant's suspended

driver's license was admissible. As to factor one, he found a

lack of a driver's license was relevant to defendant's motive and

intent because it explained his actions that night. As to factor

two, he found while not having a license is not necessarily similar

to eluding, it was temporally related and if anything, reduces the

prejudicial effect of introducing such evidence. As to factor

three, at trial, the State presented and had authenticated

defendant's driver's abstract, showing his driver's license was

suspended at the time of the incident. As to factor four, he

found the probative value outweighed its prejudice, noting "there

is no similarity in the types of crimes that are being charged

here and license suspension is not really a crime." In addition,

2 We should note that "[t]he second prong of the Cofield test, addressing the similarity and temporality of the evidence, is not found in Rule 404(b), and is not universally required." State v. Rose, 206 N.J. 141, 163 (2011) (citations omitted); see also State v. Williams, 190 N.J. 114, 131 (2007).

8 A-1511-15T2 the jury was given a limiting instruction that the evidence could

only be used to establish motive, not guilt on the underlying

offenses.

Even assuming for the sake of argument that defendant conceded

he eluded the police, he continued to challenge this conviction,

albeit in a lesser eluding charge. Therefore, motive was a

critical issue for the jury. Accordingly, for the same cogent

reasons set forth detailed above, we affirm the trial judge's

decision to allow the jury to consider evidence of defendant's

suspended driving license.

III.

Defendant next asserts the trial court erred when it failed

to merge five of the motor vehicle violations into the eluding

conviction. Defendant argues the following motor vehicle

violations should have been merged: reckless driving, N.J.S.A.

39:4-96; two violations for disregarding a traffic control device,

N.J.S.A. 39:4-81; and two violations for improper turns, N.J.S.A.

39:4-123. We agree.

"Merger is based on the principle that an accused who has

committed only one offense cannot be punished as if for two."

State v. Miller, 108 N.J. 112, 116 (1987) (citation omitted).

Essentially, merger seeks to avoid multiple punishments for the

same conduct. Ibid. N.J.S.A. 2C:1-8(a)(1) provides, in pertinent

9 A-1511-15T2 part, that "[w]hen the same conduct of a defendant may establish

the commission of more than one offense, the defendant may be

prosecuted for each such offense" but not "convicted of more than

one offense" unless "[o]ne offense is included in the other."

However, Title 39 "[m]otor vehicle offenses . . . fall within

the generic category of petty offenses that do not fit within the

Code's definition of a lesser-included criminal offense." State

v. Stanton, 176 N.J. 75, 98 (2003) (citations omitted).

Accordingly, "N.J.S.A. 2C:1-8 does not apply to motor vehicle

violations, only criminal offenses." State v. Frank, 445 N.J.

Super. 98, 108 (App. Div. 2016) (citing Stanton, 176 N.J. at 99).

Nevertheless, motor vehicle violations are "consolidated for

trial with indicted offenses, not because they are lesser-included

criminal offenses of the crimes charged in an indictment, but

because our jurisprudence and Rule 3:15-3(a)(1) require

consolidation of even Title 39 offenses to avoid double jeopardy

problems." Stanton, 176 N.J. at 100-01 (citations omitted). Thus,

"it is appropriate to merge the conviction of an offense and motor

vehicle violation where their elements and the evidence presented

to establish these elements correspond." Frank, 445 N.J. Super.

at 108 (citation omitted). In examining merger, we consider the

following factors:

10 A-1511-15T2 the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[State v. Allison, 208 N.J. Super. 9, 23-24 (App. Div. 1985) (quoting State v. Davis, 68 N.J. 69, 81-82 (1975)).]

Here, because the five above-mentioned motor vehicle

violations are part of one integral scheme, they should have been

merged into the second-degree eluding conviction. See e.g., State

v. Wallace, 313 N.J. Super. 435, 438-39 (App. Div. 1998), aff’d,

158 N.J. 552 (1999). The reckless driving, improper turns, and

disregarding a traffic control device violations all arose out of

the same facts and were presented under the same evidence of the

second-degree eluding conviction, which requires a danger to life.

N.J.S.A. 39:4-96 ("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."). Indeed, these motor vehicle violations served as a

factual predicate for the higher degree of eluding conviction.

Accordingly, we reverse and remand for the trial court to

amend the judgment of conviction consistent with this opinion.

11 A-1511-15T2 IV.

Lastly, defendant argues the trial judge erred in imposing a

near-maximum base term sentence with a near-maximum parole

disqualifier. In particular, defendant avers the trial judge

applied the wrong standard in imposing a discretionary period of

parole ineligibility. He further argues the trial judge afforded

undue weight to aggravating factors three, six, and nine, and

failed to find mitigating factors one and two.

Review of the trial court's "sentencing decisions is

relatively narrow and is governed by an abuse of discretion

standard." State v. Blackmon, 202 N.J. 283, 297 (2010). When

reviewing a sentence, we consider "whether the trial court has

made findings of fact that are grounded in competent, reasonably

credible evidence and whether the 'factfinder [has applied]

correct legal principles in exercising its discretion.'" Ibid.

(quoting State v. Roth, 95 N.J. 334, 363 (1984)).

We will not set aside a trial court's sentence "unless: (1)

the sentencing guidelines were violated; (2) the findings of

aggravating and mitigating factors were not 'based upon competent

credible evidence in the record;' or (3) 'the application of the

guidelines to the facts' of the case 'shock[s] the judicial

conscience.'" State v. Bolvito, 217 N.J. 221, 228 (2014)

(alteration in original) (quoting Roth, 95 N.J. at 364-65).

12 A-1511-15T2 The trial judge sentenced defendant to nine years, with four

years of parole ineligibility, for second-degree eluding,

concurrent to eighteen months for fourth-degree resisting arrest.

Defendant's argument that the trial judge failed to find

mitigating factor one and two is without merit. Mitigating factor

one requires "[t]he defendant's conduct neither caused nor

threatened serious harm," and mitigating factor two requires

"[t]he defendant did not contemplate that his conduct would cause

or threaten serious harm[.]" N.J.S.A. 2C:44-1(b)(1) and (2).

Defendant was convicted of second-degree eluding, which

requires the "flight or attempt to elude created a risk of death

or injury to any person." Model Jury Charges (Criminal), "Eluding

an Officer, N.J.S.A. 2C:29-2b" (rev. Nov. 15, 2004) (emphasis

added). Certainly risk of serious harm encompasses "risk of death

or injury to any person." Furthermore, the record demonstrates

defendant's flight caused potential harm to others, despite his

contentions no one was at risk of harm. He greatly exceeded posted

speed limits, made two improper turns, drove recklessly, and left

the vehicle running and in motion with a passenger inside.

Lastly, defendant's contention the trial judge did not recite

the proper standard in imposing a near-maximum parole disqualifier

is also unavailing. While defendant contends the trial judge

attributed undue weight to aggravating factors three, six, and

13 A-1511-15T2 nine, he does not assert they are unsupported by the record. Thus,

the issue is simply whether the aggravating factors substantially

outweighed the mitigating factors. See N.J.S.A. 2C:43-6(b)

("[W]here the court is clearly convinced that the aggravating

factors substantially outweigh the mitigating factors, . . . the

court may fix a minimum term not to exceed . . . one-half of the

term set pursuant to a maximum period of incarceration for a crime

. . . ."). In this case, it was within the trial court's sentencing

discretion to conclude that in this case, the three aggravating

factors substantially outweighed the mitigating factors, so as to

warrant the imposition of four years of parole ineligibility on a

nine year sentence.

Affirm in part, reverse and remand for resentencing.

14 A-1511-15T2