deeming a contention waived when the party failed to include any arguments supporting the contention in its brief
How later courts described this case
- deeming a contention waived when the party failed to include any arguments supporting the contention in its brief
Written by the judges who cited it.
The 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NOT FOR PUBLICATION WITHOUT THE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-2958-17T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN L. WORSLEY,
Defendant-Appellant.
____________________________
Submitted March 12, 2020 –
Decided September 1, 2020.
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.
PER CURIAM
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.
I.
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 a
A-2958-17T2
2
traffic 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.
A-2958-17T2
3
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:
Headquarters, he's taking off here.
322.
Headquarters he's just, uh, crashed on Brighton. He's
running, headquarters. Victor, 2, 4, [E]cho, Nancy,
Kilo.
....
Going north on Westwood. North on Westwood.
....
A-2958-17T2
4
Going north on Bath now. Slowing down.
Speed check? Speed?
All right. We're uh – (inaudible).
324, speed?
....
Joe, where you at now?
We're in front of 317 Bath.
....
325, where you guys at?
....
Headquarters, we got him stopped. We got him in
custody. 10-4. One under 02:10:58.
"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 State
A-2958-17T2
5
as 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.
A-2958-17T2
6
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 the
A-2958-17T2
7
aggravating 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.
POINT I
DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL DUE TO THE JURY HEARING THE
ACCUMULATION OF INADMISSIBLE EVIDENCE
DESPITE THE COURT'S INSTRUCTIONS TO
DISREGARD SUCH EVIDENCE.
A. DEFENDANT'S MOTION FOR [A] NEW
TRIAL SHOULD HAVE BEEN GRANTED: THE
FAILURE OF THE STATE TO DISCLOSE AN
EYEWITNESS'[S] PRETRIAL STATEMENTS
REGARDING STATEMENTS MADE TO HIM BY
THE DEFENDANT AND HIS OBSERVATIONS OF
DEFENDANT CONSTITUTED A VIOLATION OF
THE DISCOVERY RULES AND THE WITNESS'[S]
SUBSEQUENT TESTIMONY DEPRIVED
DEFENDANT OF A FAIR TRIAL.
B. DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL DUE TO THE PLAYING OF
INADMISSIBLE POLICE RADIO
TRANSMISSIONS.
C. THE COURT COMMITTED REVERSIBLE
ERROR WHEN, WHILE ATTEMPTING TO
INSTRUCT THE JURY TO DISREGARD
TESTIMONY THAT THE DEFENDANT WAS ON A
1
The court also sentenced defendant to two concurrent custodial terms of five
years following his guilty pleas to third-degree possession of a controlled
dangerous substance and violation of probation under separate indictments.
A-2958-17T2
8
BAR'S BANNED LIST, THE COURT REPEATED
THAT DAMAGING PHRASE THREE TIMES.
POINT II
THE SENTENCE OF EIGHT YEARS [IN A] NEW
JERSEY PRISON WAS EXCESSIVE.
A. THE DEFENDANT SHOULD NOT HAVE
BEEN SENTENCED TO AN EXTENDED TERM
SENTENCE BECAUSE THE COURT FAILED TO
TAKE THE NECESSARY STEPS IN MAKING THAT
DETERMINATION.
B. THE COURT ENGAGED IN DOUBLE-
COUNTING OF DEFENDANT'S TWO PRIOR
CONVICTIONS WHEN GRANTING THE STATE'S
APPLICATION FOR AN EXTENDED TERM
SENTENCE AND ALSO CONSIDERING THOSE
SAME CONVICTIONS IN SUPPORT OF
AGGRAVATING FACTOR NUMBER THREE [SIC]:
THE EXTENT OF DEFENDANT'S PRIOR RECORD.
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.
II.
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 for
A-2958-17T2
9
a new trial following the return of a guilty verdict. The rule provides in relevant
part:
A motion for a new trial based on the ground of newly-
discovered evidence may be made at any time . . . . A
motion for a new trial based on a claim that the
defendant did not waive his or her appearance for trial
shall be made prior to sentencing. A motion for a new
trial based on any other ground shall be made within 10
days after the verdict or finding of guilty, or within such
further time as the court fixes during the 10-day period.
[R. 3:20-2.]
"That ten-day limit is one of the few time limit restrictions which may not be
relaxed by the court even in the face of extenuating circumstances." Jonax v.
Allstate Ins. Co., 244 N.J. Super. 487, 491 (Law Div. 1990) (citing Moich v.
Passaic Terminal, 82 N.J. Super. 353 (App. Div. 1964)); accord State v.
Wiggins, 291 N.J. Super. 441, 452 (App. Div. 1996); R. 1:3-4(c).
There is no doubt defendant's motion was untimely. The jury delivered
its verdict on November 3, 2017. Defendant moved for a new trial eleven days
later. Defendant did not ask for an extension of the ten-day period prior to its
expiration.2
2
Notably, defendant's brief does not address the untimeliness of his motion for
a new trial. "[A]n issue not briefed is deemed waived." Pressler & Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020); Telebright Corp. v. Dir.,
A-2958-17T2
10
We also agree with the trial court's conclusion defendant's motion was
substantively meritless. Rule 3:20-1 provides in relevant part that "[t]he trial
judge on defendant's motion may grant the defendant a new trial if required in
the interest of justice." Defendant argues that he was entitled to a new trial
because of the State's discovery violations.
Discovery in a criminal proceeding informs the defendant of "the extent
of the State's case against him . . . ." State v. Kearny, 109 N.J. Super. 502, 506
(Law Div. 1970). This allows defense counsel to "intelligently advise as to the
defense and properly prepare for trial." State v. Cook, 43 N.J. 560, 569 (1965).
"A trial judge is not limited to dismissal as a remedy" for a discovery violation.
State v. Clark, 347 N.J. Super. 497, 509 (App. Div. 2002). The court has broad
discretion to determine the appropriate sanction for a discovery violation. State
v. Marshall, 123 N.J. 1, 130 (1991).
The State concedes that it should have turned over the October 15, 2017
report detailing Lundy's verbal exchange with defendant. The trial court,
however, cured the State's error by striking the part of Lundy's testimony not
N.J. Div. of Taxation, 424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a
contention waived when the party failed to include any arguments supporting
the contention in its brief). We address the trial court's decision for the sake of
completeness.
A-2958-17T2
11
detailed in the earlier report and instructed the jury twice not to consider the
stricken testimony. "The simple response to defendant's argument is that the
judge sustained the objection, struck the testimony, and the jury presumably
followed the instruction." State v. Castoran, 325 N.J. Super. 280, 287 (App.
Div. 1999); accord State v. Winder, 200 N.J. 231, 256 (2009); State v. Manley,
54 N.J. 259, 271 (1969).
In addition, the jury was presented with overwhelming evidence of
defendant's guilt through the testimony of the two officers, which established
the elements of eluding: defendant's knowing failure to stop his vehicle when
signaled to do so by law enforcement officers. See State v. Seymour, 289 N.J.
Super. 80, 87 (App. Div. 1996). Lundy's stricken testimony was relevant only
to the factual context in which the police were dispatched to the bar.
III.
For the first time on appeal, defendant argues the trial court erred when it
admitted the recording of Officer Kennedy's radio transmissions with the
dispatcher on the night of the pursuit. Because defendant did not object to the
admission of the recording, we review the record under the plain error standard
for an error "clearly capable of producing an unjust result . . . ." State v.
Whitaker, 200 N.J. 444, 465 (2009) (quoting R. 2:10-2). "Not any possibility of
A-2958-17T2
12
an unjust result will suffice as plain error, only 'one sufficient to raise a
reasonable doubt as to whether the error led the jury to a result it otherwise might
not have reached.'" State v. Coclough, 459 N.J. Super. 45, 51 (App. Div. 2019)
(quoting State v. Macon, 57 N.J. 325, 336 (1971)). We see no such error here.
Defendant argues the recording was inadmissible hearsay under N.J.R.E.
801(c). However, the recording is evidence of Officer Kennedy's present sense
impressions, an exception to the rule against hearsay. N.J.R.E. 803(c)(1); State
ex rel. J.A., 385 N.J. Super. 544, 550 (App. Div. 2006), rev'd on other grounds,
195 N.J. 324 (2008).
A present sense impression is "[a] statement describing or explaining an
event or condition, made while or immediately after the declarant perceived it
and without opportunity to deliberate or fabricate." N.J.R.E. 803(c)(1). 3 The
officer reported to the dispatcher what he was observing as the pursuit was
unfolding. He had no opportunity to deliberate or fabricate his transmissions.
These circumstances, therefore, are unlike those in State v. Luna, 193 N.J.
202, 217 (2007), on which defendant relies. There, the Court held that a police
3
We quote the version of the rule "effective July 1, 2020 as part of the 'restyling
amendments' designed to make the rules of evidence simpler and easier to
understand without effecting any substantive changes." Biunno, Weissbard &
Zegas, Current N.J. Rules of Evidence, cmt. on N.J.R.E. 803(c)(1) (2020 Gann).
A-2958-17T2
13
officer "cannot repeat specific details about a crime relayed to them by a radio
transmission or another person without running afoul of the hearsay rule." Ibid.
(citing Bankston, 63 N.J. at 268-69).
We reject defendant's argument that the recording was improperly used to
bolster Officer Kennedy's testimony through introduction of prior consistent
statements. The recording was admissible as an exception to the rule against
hearsay under N.J.R.E. 803(c)(1). It was not, as defendant suggests, admitted
pursuant to N.J.R.E. 803(a)(2), as an exception to the rule against hearsay as
prior consistent statements of a witness expressly or impliedly alleged to have
recently fabricated his testimony or to be under an improper influence of motive.
We have carefully considered defendant's remaining arguments regarding
Lundy's testimony and conclude they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(2).
IV.
We review sentencing decisions for an abuse of discretion. State v.
Blackmon, 202 N.J. 283, 297 (2010). We affirm a sentence, even if we would
have imposed a different one, so long as the sentencing court "properly identifies
and balances aggravating and mitigating factors that are supported by competent
A-2958-17T2
14
credible evidence in the record." State v. Natale, 184 N.J. 458, 489 (2005)
(quoting State v. O'Donnell, 117 N.J. 210, 215 (1989)).
Our Code of Criminal Justice "provides for ordinary sentences, N.J.S.A.
2C:43-6[(a)], as well as extended-term sentences that carry greater punishment
for the same crime." State v. Pierce, 188 N.J. 155, 161 (2006). Although some
extended terms are mandatory, others are within the discretion of the trial court
when statutory requirements are met. Ibid.
Defendant concedes his criminal history at the time of the eluding
qualified him as a persistent offender under N.J.S.A. 2C:44-3(a), giving the
court the discretion, at the State's request, to sentence him to a broader
sentencing range, with the maximum sentence being the top of the range for a
crime one degree higher than the crime of which he was convicted. See Pierce,
188 N.J. at 166-69. He argues, however, that under State v. Dunbar, 108 N.J.
80 (1987), the trial court erred because it did not make a determination of the
need to protect the public in finding him extended-term eligible. Db19.
Defendant's argument is misplaced because in Pierce, the Court overruled
Dunbar to the extent that its "reference to a finding of 'need to protect the public'
is not a precondition to a defendant's eligibility for [extended-term] sentencing"
and "is not a necessary condition . . . to the court's determination whether
A-2958-17T2
15
defendant is subject to a sentence up to the top of the extended-term range." 188
N.J. at 170.
We have carefully reviewed the trial court's sentencing decision and find
no abuse of the court's discretion. The ordinary term of imprisonmen t for a
second-degree crime is between five and ten years. N.J.S.A. 2C:43-6(a)(2). The
extended term for a second-degree crime is between ten and twenty years.
N.J.S.A. 2C:43-7(a)(3). As a persistent offender convicted of a second-degree
crime, defendant was subject to a range of five to twenty years imprisonment.
See Pierce, 188 N.J. at 169.
After balancing the aggravating factors, which were well supported by the
record, and the absence of mitigating factors, the court imposed a sentence above
the mid-point for a second-degree offense, but well below the ten to twenty year
range applicable to a first-degree offense for which defendant was eligible. The
court found that a sentence in that range "would be wholly inappropriate and an
excessive sentence here."
We have reviewed defendant's remaining arguments, including those
raised in his pro se brief, and conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-2958-17T2
16