STATE OF NEW JERSEY VS. ELIJAH ANTHONY (16-05-0413, PASSAIC COUNTY AND STATEWIDE) ( 2019 )

NOT FOR PUBLICATION WITHOUT THE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-0940-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ELIJAH ANTHONY,
Defendant-Appellant.
______________________________
Submitted February 12, 2019 – Decided February 22, 2019
Before Judges Fisher and Hoffman.
On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 16-05-0413.
Joseph E. Krakora, Public Defender, attorney for
appellant (John W. Douard, Assistant Deputy Public
Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Chief
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
At 3:00 a.m., on February 23, 2015, a Passaic County Sheriff's Department
detective encountered a minivan stopped in the middle of Kuller Road in Clifton.
The vehicle's lights were off but its engine running, and defendant was observed
urinating on a nearby building. The detective stopped his vehicle and , in
response to his inquiry, defendant said he was waiting for AAA. The detective
asked for defendant's identification and noticed defendant had bloodshot and
watery eyes; the detective also smelled alcohol. Defendant failed a field sobriety
test and was arrested for driving while under the influence, N.J.S.A. 39:4-50
(DWI). Further investigation revealed that defendant's driving privileges were
suspended; he was charged with operating a motor vehicle during a period of
license suspension, N.J.S.A. 2C:40-26(b).1
In his opening statement, defense counsel argued to the jury that earlier
than the detective's encounter with defendant, other officers had arrived at the
scene. According to defense counsel's opening, these other officers "waited
there for about a half an hour, and then, they drove away" without issuing a
summons or making an arrest. The prosecutor objected and, at the close of the
1
N.J.S.A. 2C:40-26(b) makes it a fourth-degree offense, with a mandatory
incarceration period, "to operate a motor vehicle during the period of license
suspension in violation of [N.J.S.A. 39:3-40], if the actor's license was
suspended or revoked for a second or subsequent violation of [N.J.S.A. 39:4-50]
or [N.J.S.A. 39:4-50.4(a)]."
A-0940-17T2
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State's case, the judge conducted a N.J.R.E. 104 hearing. At the hearing, one of
the officers who arrived earlier testified he had no recollection but
acknowledged police records revealed he arrived at the location at 1:19 a.m.,
and stayed twenty-two minutes before leaving without taking action. Another
officer testified at the N.J.R.E. 104 hearing that he also had no recollection but
records revealed he arrived at 1:30 a.m. and stayed fourteen minutes without
taking action. Finding no connection between these other officers' earlier
uneventful encounters with defendant and any conceivable defense to the
N.J.S.A. 2C:40-26(b) charge, the judge denied defendant the opportunity to call
those two officers to testify before the jury.
Defendant was convicted as charged and sentenced to a 180-day jail term,
a two-year probationary period, a ten-year license suspension, and other
monetary penalties. He appeals, arguing in a single point:
THE JUDGE DEPRIVED DEFENDANT OF HIS
RIGHTS TO PRESENT A DEFENSE, TO DUE
PROCESS, AND TO A FAIR TRIAL BY
IMPROPERLY PRECLUDING DEFENSE COUNSEL
FROM INTRODUCING EVIDENCE THAT POLICE
OFFICERS HAD EARLIER ARRIVED AT THE
SCENE AND FOUND NO CRIME WAS BEING
COMMITTED.
We find insufficient merit in this argument to warrant further discussion in a
written opinion. R. 2:11-3(e)(2).
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3
We add only that the offense for which defendant was convicted required
proof of defendant's prior DWI convictions and the existing suspension period,
as well as defendant's operation of a vehicle during the suspension period. That
defendant was not seen behind the wheel of his vehicle did not preclude a finding
that he was operating the vehicle. State v. Ebert, 377 N.J. Super. 1, 11 (App.
Div. 2005) (holding that operation may be established "by observation of the
defendant in or out of the vehicle under circumstances indicating that the
defendant had been driving"); see also State v. Mulcahy, 107 N.J. 467, 476
(1987). Defendant was alone and near the vehicle in the early morning hours,
the vehicle was stopped in the middle of the road with its engine running, and
defendant stated his reason for being there was that he was waiting for AAA.
That was more than sufficient for a jury to find that he had operated the vehicle
that night and had a further intention of operating as soon as AAA resolved
whatever problem the vehicle had. The fact that these two other officers arrived
at the same scene an hour or more earlier does not call into question whether
defendant had been operating the vehicle while suspended, nor would it have
had any arguable relevance to the other elements of the offense for which he was
convicted.
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In short, defendant forcefully argues he was entitled to present a defense.
That, of course, is true. But even now, defendant has not been able to articulate
a defense to this particular charge that would be supported by the other officers'
anticipated testimony that they were at the scene a short time earlier and had no
recollection of the circumstances, although they acknowledged that no arrest
was then made by them. These circumstances had no bearing on whether
defendant violated N.J.S.A. 2C:40-26(b).
Affirmed.
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