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

NOT FOR PUBLICATION WITHOUT THE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
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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
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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.
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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.
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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;
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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
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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.
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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
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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.
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