STATE OF NEW JERSEY VS. JEFFREY W. TROXELL (16-10-1696, 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NOT FOR PUBLICATION WITHOUT THE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-4780-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY W. TROXELL,
Defendant-Appellant.
_____________________________
Submitted March 4, 2019 – Decided July 3, 2019
Before Judges Sumners and Mitterhoff.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Indictment No. 16-10-
1696.
Law Office of Howard S. Teitelbaum, LLC, attorney
for appellant (David A. Parinello, of counsel and on the
brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Nancy Anne Hulett, Assistant
Prosecutor, of counsel and on the brief).
PER CURIAM
In this appeal we are asked to determine whether defendant Jeffrey W.
Troxell should have been granted his motion to withdraw his guilty plea for
eluding and aggravated assault against a police officer during a high-speed chase
prior to sentencing because of misconduct charges – falsifying reports and
assaulting an arrestee – filed against the officer for an incident not involving
defendant that occurred after the defendant's offenses.
Defendant argues:
POINT I
THE TRIAL COURT IMPROPERLY APPLIED THE
TAYLOR1 AND SLATER2 STANDARDS IN
DENYING THE MOTION.
POINT II
THE TRIAL COURT IMPROPERLY CONSIDERED
EVIDENCE IN THIS MOTION HEARING BY
VIEWING A VIDEO IN CAMERA AND NOT
CONDUCTING AN EVIDENTIARY HEARING.
POINT III
THE TRIAL COURT IMPROPERLY CONSIDERED
EVIDENCE IN THIS MOTION HEARING BY
USING INFORMATION ALLEGEDLY PROVIDED
IN THE PRESENTENCE INVESTIGATION TO
RENDER ITS DECISION.
1
State v. Taylor, 80 N.J. 353, 365-66 (1979).
2
State v. Slater, 198 N.J. 145, 157-58 (2009).
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We conclude the motion judge did not abuse his discretion in denying
defendant's motion and did not commit plain error in viewing a video of
defendant eluding the police and driving his car into the officer. Nor was there
prejudicial error in the judge's consideration of the presentence report prior to
denying the motion to withdraw the guilty plea. Accordingly, we affirm.
I
Defendant was driving his vehicle in New Brunswick when he disregarded
an order by the Rutgers University Police to stop and pull over. Reaching a
speed of 85 miles per hour, he drove down Route 18 in the wrong direction and
onto the sidewalk bordering the highway. Like a scene out of an action movie,
defendant continued his high-speed elusion through several municipalities,
ending up in a Piscataway cemetery in the midst of a burial ceremony. After
driving recklessly over the cemetery's grass and hitting tombstones, defendant's
vehicle came to a stop. When Piscataway Police Detective Todd Ritter
approached the passenger's side with his service gun pointed down and moved
towards the driver's side window, defendant accelerated the vehicle, hitting and
injuring Det. Ritter. Det. Ritter fired his gun to deter defendant's actions.
Defendant was apprehended and placed under arrest. A limousine driver at the
cemetery captured the incident on video.
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Defendant was indicted on two counts of second-degree eluding, N.J.S.A.
2C:29-2(b), first-degree attempted murder of Det. Ritter, N.J.S.A. 2C:5-1(a)(1),
2C:11-3(a)(1), second-degree aggravated assault against Det. Ritter, N.J.S.A.
2C:12-1(b)(1), and two counts of third-degree aggravated assault against Det.
Ritter, N.J.S.A. 2C:12-1(b)(2), -1(b)(5)(a).
A week before trial, defendant reached a plea agreement with the State in
which he pled guilty to one count of eluding and second-degree aggravated
assault against Det. Ritter.
In his plea colloquy, defendant admitted to eluding the Rutgers University
Police, driving in the wrong direction on Route 18 and into a Piscataway
cemetery. He further admitted that after stopping his vehicle, he drove the
vehicle forward when Det. Ritter tried to detain him and drove into him, causing
injury. The State agreed to drop the remaining charges against defendant and to
recommend that he receive an aggregate prison sentence of seven years subject
to the No Early Release Act, N.J.S.A. 2C:43-7.2.
About a week prior to defendant's sentencing, the State notified defense
counsel that Det. Ritter was indicted for simple assault, falsification of records,
and tampering with government records, for an incident that occurred almost
two years after defendant's offenses. In response, defendant moved to withdraw
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his guilty plea claiming that the charges against Det. Ritter showed "concerns
about [his] character" and lack of veracity.
At oral argument, defense counsel acknowledged that defendant did not
have a colorable claim of innocence with respect to eluding but argued he did as
to the aggravated assault charge. He asserted that the video of the incident
showed defendant's vehicle was at a complete stop when Det. Ritter "comes
around the front [of the vehicle] and fires a shot, and the [vehicle] goes forward
and clips [Det.] Ritter."
The State disagreed, explaining that there was no colorable claim of
innocence. The State, which had provided a copy of the video to the judge with
its opposition to the motion, took a different stance on the video, arguing it
showed that "defendant accelerated [his vehicle], striking [Det.] Ritter, who
fired at him."
After momentarily retreating to chambers to look "at the video again," the
judge returned to the courtroom and rendered his oral decision denying the
motion. The judge stated neither the video nor the motion papers established a
colorable claim of innocence. In summarizing the video, the judge remarked:
The video is pretty clear . . . and it's a very good
video, though sideways, which makes it difficult to
look at. [Defendant] is accelerating and driving at a
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high rate of speed through the cemetery and, at some
point, for whatever reason, comes to stop, okay?
But, while he stopped, the officer with the - - with
the beige shirt - - who I'm going to assume is [Det.]
Ritter, since I've never met him - - comes along the
passenger side, has his weapon in hand, but pointed
down. And, as soon as he passes almost the driver's
side window, that's when the white car starts to
accelerate.
And, the officer with the beige shirt tries to get in
front of the vehicle to either get the vehicle to stop by
him being there - - but he certainly pulls out his gun and
starts shooting at the vehicle while the vehicle is
already moving.
Thus, the judge rejected defendant's argument of self-defense that he drove away
and hit Det. Ritter to avoid his gunshot. In turn, the judge found that Slater was
not satisfied.
After the judge decided to schedule sentencing three weeks later, he
commented that in denying the motion he also considered the pre-sentence
report regarding defendant's statement that he was driving under the influence
of OxyContin, Xanax, and marijuana when he committed the offenses, and that
his behavior was due to a head injury he sustained in the past.
I
We first address defendant's argument in Point I that the trial judge
misapplied Taylor and the Slater factors in denying his motion to withdraw his
guilty plea. In particular, defendant argues he has a colorable claim of innocence
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to the aggravated assault plea because Det. Ritter's statement concerning the
incident should be viewed differently, given that the detective's veracity was
questionable as he was charged with falsifying reports and assaulting an arrestee
in a subsequent unrelated matter.
To grant a defendant's request to withdraw a defendant's guilty plea, the
trial court must consider and balance the four-factor Slater test, which provides,
(1) whether the defendant has asserted a colorable
claim of innocence; (2) the nature and strength of
defendant's reasons for withdrawal; (3) the existence of
a plea bargain; and (4) whether withdrawal would result
in unfair prejudice to the State or unfair advantage to
the accused.
[Slater, 198 N.J. at 157-58.]
The standard to withdraw a guilty plea prior to sentencing is in the interest
of justice. State v. Howard, 110 N.J. 113, 123-24 (1988) (citation omitted).
"'[T]he burden rests on the defendant, in the first instance, to present some
plausible basis for his request, and his good faith in asserting a defense on the
merits.'" Slater, 198 N.J. at 156 (quoting State v. Smullen, 118 N.J. 408, 416
(1990)). "Generally, representations made by a defendant at plea hearings
concerning the voluntariness of the decision to plead, as well as any findings
made by the trial court when accepting the plea, constitute a 'formidable barrier'
which defendant must overcome before he will be allowed to withdraw his plea."
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State v. Simon, 161 N.J. 416, 444 (1999) (quoting Blackledge v. Allison, 431
U.S. 63, 74 (1977)). Accordingly, "courts are to exercise their discretion
liberally to allow plea withdrawals[]" and "[i]n a close case, the 'scales should
usually tip in favor of defendant.'" State v. Munroe, 210 N.J. 429, 441 (2012)
(quoting Slater, 198 N.J. at 156); Taylor, 80 N.J. at 365. Nevertheless, the
Munroe Court explained that "[l]iberality in exercising discretion does not mean
an abdication of all discretion, and, accordingly, any plea-withdrawal motion
requires a fact-specific analysis[.]" Id. at 441-42 (citations and internal
quotation marks omitted). Thus, we will reverse the trial court's determination
of whether to allow a defendant to withdraw a guilty plea "only if there was an
abuse of discretion which renders the lower court's decision clearly erroneous."
Simon, 161 N.J. at 444 (citing Smullen, 118 N.J. at 416).
Guided by these principles, we cannot conclude the trial judge abused his
discretion in denying defendant's motion. Defendant failed to establish a
colorable claim of innocence that he did not drive his vehicle into Det. Ritter in
a further attempt to avoid apprehension. His counsel's reliance on the video is
misplaced. As the judge detailed, the video supports the State's position that
defendant drove into Det. Ritter not in self-defense, but to continue eluding law
enforcement. In evaluating a claim of innocence, courts "may look to evidence
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that was available to the prosecutor and to the defendant through our discovery
practices at the time the defendant entered the plea of guilt." Slater, 198 N.J. at
158 (quoting Smullen, 118 N.J. at 418). As part of our review of the record on
appeal, we have seen the video. Nothing in the video materially contradicts the
judge's findings. See State v. S.S., 229 N.J. 360, 374-81 (2017) (clarifying the
limited scope of appellate review of factual findings based on video evidence).
The video does not warrant a grant of withdrawal of defendant's guilty plea. See
State v. O'Donnell, 435 N.J. Super. 351, 369 (App. Div. 2014) (denying a motion
to withdraw a guilty plea is "'clearly erroneous' if the evidence presented on the
motion, considered in light of the controlling legal standards, warrants a grant
of that relief.") (quoting State v. Mustaro, 411 N.J. Super. 91, 99 (App. Div.
2009)). From our perspective, this is not a close call.
While there is no indication in the record that withdrawal of the
defendant's guilty plea would create unfair prejudice to the State or unfair
advantage to defendant under Slater factor four, factors two and three do not
weigh in defendant's favor. Under factor two, defendant has not shown that he
has adequate reasons for withdrawal of his plea. He relied on Det. Ritter's
subsequent indictment. However, he makes no showing that the charges against
Det. Ritter would have been admissible to undermine the detective's credibility.
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He also relied on the video, which, as noted, supports the State's position that
he intentionally drove his vehicle into Det. Ritter and caused him injury. As for
factor three, defendant bargained for the plea – which resulted in other charges
being dismissed – fully aware of what the video revealed.
II
In Point II, defendant argues that the judge should not have viewed the
video in chambers because it was: hearsay under N.J.R.E. 802, not authenticated
under N.J.R.E. 901, and not relevant under N.J.R.E. 401. He also contends the
judge should not have viewed the video outside the presence of counsel because
it denied defendant his due process rights.
Initially, we are compelled to point out that it was not until defendant
argued that the video supported his self-defense claim that the judge was
prompted to leave the courtroom to view the video. Thus, if it was an error for
the judge to view the video, the doctrine of invited error would bar defendant's
argument. Under invited error, "trial errors that 'were induced, encouraged or
acquiesced in or consented to by defense counsel ordinarily are not a basis for
reversal on appeal . . . .'" State v. Bailey, 231 N.J. 474, 490 (2018) (quoting
State v. A.R., 213 N.J. 542, 561 (2013)). Our Supreme Court declared, "[t]o
justify reversal on the grounds of an invited error, a defendant must show that
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the error was so egregious as to 'cut mortally into his substantive rights . . . .'"
State v. Ramseur, 106 N.J. 123, 282 (1987) (quoting State v. Harper, 128 N.J.
Super. 270, 277 (App. Div. 1974)). Defendant did not do so.
Prior to argument, the State presented the video to the judge with its
opposition to the motion to show that there was no factual basis to support
defendant's request to withdraw his guilty plea. In fact, the video confirmed the
factual basis defendant provided at his plea colloquy. Thus, we do not agree
with defendant that his substantive rights were denied.
Further, at no point prior to or at the motion's argument, did defendant
object to the judge viewing the video. When there is a failure to object, the
defendant must establish the conduct constitutes plain error under Rule 2:10-2.
State v. Feal, 194 N.J. 293, 312 (2008). Plain error to reverse a conviction is
warranted when the error is "of such a nature as to have been clearly capable of
producing an unjust result[.]" R. 2:10-2.
For the same reasons noted above, we conclude there was no unjust result
in the judge's viewing the video or viewing it in chambers. The judge mentioned
that he had viewed the video when the State submitted its opposition to the
motion, and he wanted to view it again based on defendant's argument that it
supported his claim that he was innocent of aggravated assault for driving into
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Det. Ritter. Significantly, while defendant commented on how the video
supported his innocence, he made no request to the judge to show the video in
open court in support of his motion.
III
Finally, defendant contends that the judge should not have considered his
comments in his presentence report in deciding the motion to withdraw his guilty
plea. The purpose of the presentence report is for sentencing. See N.J.S.A.
2C:44-6. Thus, the judge should not have considered it when deciding the
motion. Nevertheless, the error was harmless as the defendant's statement to the
probation officer, who prepared the report, was no different than the factual
basis that defendant provided at his plea colloquy. See R. 2:10-2 ("Any error or
omission shall be disregarded by the appellate court unless it is of such a nature
as to have been clearly capable of producing an unjust result . . . .").
Affirmed.
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