State v. Worsley
| Decision Date | 01 September 2020 |
| Docket Number | DOCKET NO. A-2958-17T2 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN L. WORSLEY, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.
Before Judges Suter and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Nos. 13-03-0508, 15-02-0352 and 16-01-0045 and Accusation No. 13-06-1033.
Joseph E. Krakora, Public Defender, attorney for appellant (Richard Sparaco, Designated Counsel, on the brief).
Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney for respondent (Lisa Sarnoff Gochman, of counsel and on the brief).
Appellant filed a supplemental pro se brief.
Defendant Steven L. Worsley appeals from a January 5, 2018 judgment of conviction of second-degree eluding, N.J.S.A. 2C:29-2(b), as well as the sentence imposed for that conviction. We affirm.
The following facts are derived from the record. In the early morning hours of December 10, 2014, defendant left a Long Branch bar and backed his vehicle into an unoccupied car, damaging its bumper. He drove away and pulled into a strip mall across the street from the bar. Larry Lundy, Jr., an off-duty police officer working as a bouncer, saw the accident and called 911. Defendant walked back to the bar and paced back and forth on the sidewalk, muttering to himself.
Officer Joseph Kennedy responded to the scene in a marked police vehicle. As the patrol car headed toward the bar, defendant got back into his car and exited the strip mall parking lot. He went the wrong way through a one-way entrance, nearly hitting another vehicle.
When Officer Kennedy was three to five car lengths behind defendant's vehicle, he activated his overhead and grille emergency lights and attempted atraffic stop. The officer could see the emergency lights reflecting off the surrounding area and defendant's car.
Defendant did not stop. He instead sped up and nearly collided with another parked car. Defendant drove onto a curb then continued down a road that transitioned from commercial to residential. Traveling approximately forty miles per hour in a twenty-five-mile-per-hour zone, defendant's car drifted back and forth between the center line and the curb. Officer Marco Rodrigues joined the pursuit in a marked police vehicle.
At a bend in the road, defendant's car spun 360 degrees, crossed the double yellow line into opposing traffic, went onto a curb, and struck a utility pole. The car came to rest on the sidewalk facing perpendicular to the street. The emergency lights from both police vehicles were "bouncing off" defendant's car and illuminating the area.
Defendant sped away. Officer Kennedy activated his siren and followed defendant's car. Officer Rodrigues also activated his siren and continued the pursuit. Defendant did not pull over.
After running a red light and making a few turns, defendant stopped his car. The officers' emergency lights and sirens had been activated for sixty to ninety seconds and defendant traveled more than a mile before he stopped.
The officers arrested defendant and transported him to a police station. His blood alcohol content was determined to be 0.14 to 0.15, almost twice the legal limit to drive. A grand jury indicted defendant, charging him with second-degree eluding, N.J.S.A. 2C:29-2(b).
Prior to trial, the State moved to admit eight recordings of radio transmissions between Officer Kennedy and a police dispatcher. After an objection by defendant, the State agreed that two of the recordings contained inadmissible hearsay because the dispatcher repeated to the officer what Lundy had said on the 911 call. See State v. Bankston, 63 N.J. 263, 271 (1973). Defendant's counsel had no objection, however, to the admissibility of the remaining recordings.
At trial, the following audio recording was played for the jury:
"322" refers to Officer Rodrigues's badge number. "Victor 2, 4, [E]cho, Nancy, Kilo" refers to defendant's license plate number. "324" refers to Officer Kennedy's badge number. "10-4" is code for "okay." "One under 02:10:58" means one person was placed under arrest at 2:10:58 a.m.
Lundy testified that when defendant was pacing in front of the bar, he asked him, "you realize you hit a car, right?" Defendant responded, "don't mess with me." Defendant objected because Lundy's verbal exchange with defendant was not mentioned in the October 4, 2017 police report turned over by the Stateas discovery. The trial court granted the motion and instructed the jury to disregard Lundy's testimony about his verbal exchange with defendant. The court repeated the instruction in its final instructions to the jury.
Shortly thereafter, defense counsel established through cross-examination of Lundy that he met with the assistant prosecutor and a detective approximately two weeks after October 4, 2017. During the second meeting, Lundy revealed his verbal exchange with defendant. The second meeting was summarized in an October 15, 2017 police report not produced in discovery.
Lundy also testified that he knew defendant's name because he had been placed on the bar's "banned list" for the events in question. The court sua sponte struck that testimony and instructed the jury to disregard any mention of "a so-called banned list."
The following day, defendant moved to strike all of Lundy's testimony because of the State's failure to produce the October 15, 2017 report. The trial court denied the motion. Noting that it had stricken Lundy's testimony with respect to his verbal exchange with defendant, the court held that the remainder of Lundy's testimony regarding him witnessing the accident and defendant's demeanor was admissible because defendant's counsel was aware of the encounter between Lundy and defendant outside the bar.
After the jury delivered its verdict, defendant moved for a new trial based on the State's discovery violations. The trial court denied the motion on both procedural and substantive grounds. The court concluded the motion was procedurally barred because it was filed beyond the ten-day limit established in Rule 3:20-2. With respect to the substance of the motion, the court held that a new trial was not warranted because: (1) it struck the testimony relating to Lundy's verbal exchange with defendant and gave limiting instructions; and (2) the record contained overwhelming evidence of defendant's guilt apart from Lundy's stricken testimony.
At sentencing, the trial court granted the State's motion to sentence defendant to a discretionary extended term as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a) and N.J.S.A. 2C:43-7(a). The court found aggravating factor three, N.J.S.A. 2C:44-1(a)(3), the risk of re-offense, aggravating factor six, N.J.S.A. 2C:44-1(a)(6), the extent of defendant's record, and aggravating factor nine, N.J.S.A. 2C:44-1(a)(9), the need to deter defendant and others from violating the law. The court found no mitigating factors. After weighing theaggravating and non-existent mitigating factors, the court sentenced defendant to an eight-year term of imprisonment with no period of parole ineligibility.1
This appeal followed. Defendant raises the following arguments.
Defendant submitted a pro se brief raising additional arguments that Officer Rodrigues improperly refreshed his memory with Officer Kennedy's report, the indictment should have been dismissed pursuant to the Interstate Agreement on Detainers (IAD), N.J.S.A. 2A:159A-1 to -15, and that the court should have awarded jail credits for his pre-conviction detention in Florida.
The trial court correctly determined defendant's motion for a new trial was time barred. Rule 3:20-2 establishes a ten-day deadline for filing a motion fora new trial following the return of a guilty verdict. The rule provides in relevant part:
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