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 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PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court . " A lthough 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.

June 12, 20182 A - 1511
- 15T2

Defendant Jamar Cockr en appeals from his September 11 , 2015 judgment of conviction for second
- degree eluding, fourth
- degree resisting arrest, and numerous motor vehicle violations . For t he 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 a nother 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, t hey 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 offic er then ran the vehicle's license plate, which the computer flagged because the vehicle's owner had a3 A - 1511
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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 ob served him make an improper turn onto Route 35 . The officer activated his overhead lights , and defendant eventually pulled over. However, a s 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. Defe ndant then , while the car was still in motion, exited the driver door and fled. Around this time , other officers arrived and be gan 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 d efendant 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 thi s was happening , another officer chased defendant on foot. Throughout the pursuit, the officer ordered defendant to stop, but defendant ignored the commands . Eventually, de fendant4 A - 1511
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approached a high fence, abandoned his attempt to flee, and laid on the gr ound, 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 a rrest, 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 suspen ded license and g a ve 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, d efendant sought a conviction for a lesser charge of third
- degree eluding. Ultimately, a jury found defendant guilty of second
- degree eluding a n 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
t hird
- degree unlawful taking of means of conveyanc e, N.J.S.A. 2C:20
- 10 .5 A - 1511
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On September 11, 2015, defendant was sentenced to nine year s imprisonment with a four year period of parole ineligibility for
the s econd
- degree eluding an officer charge and concurre ntly 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 CONVICT IONS 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.6 A - 1511
- 15T2 POINT IV : THE TRIAL JUDGE ERRED IN IMPOSING A NEAR MAXIMUM BASE TERM WITH A NEAR - MAXIMUM PAROLE DISQUALIFIER.
II. Defenda nt 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 el uded 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 Esta te 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 trial7 A - 1511
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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
S tate 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. Cofie ld , 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 rele vant to a material issue;8 A - 1511
- 15T2 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 driv er's license was r elevant 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 driv er'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 St ate v. Williams , 190 N.J. 114, 131 (2007) .9 A - 1511
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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, m otive was a critical issue for the jury. Accordingly, f or 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 disrega rding 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 punishment s for the
same conduct. Ibid. N.J.S.A. 2C:1
- 8(a)(1) provides, in pertinent10 A - 1511
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part, that "[w]hen the same conduct of a defendant may establish the commissio n 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 categ ory 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 crimin al offenses." State v. Frank , 445 N.J. Super. 98, 108 (App. Div. 2016) (citing Stanton , 176 N.J. at 99). Nevertheless, motor vehicle violation s 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 merg e 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:11 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 inten t 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, b ecause 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 violation s 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.12 A - 1511
- 15T2 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 af forded undue weight to aggravating factors three, six, and nine , and failed to find mitigating factors one and two.
R eview of the trial court's "sentencing decisions is relatively narrow and is governed by an abuse of discretion
standard." State v. Blac kmon , 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 ex ercising 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 u pon 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).13 A - 1511
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The trial judge sentenced d efendant to nine year s, with four
year s of parole ineligibility , for se cond
- 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 se rious harm[.]" N.J.S.A. 2C:44
- 1(b)(1) and (2).
D efendant 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 m otion with a passenger inside. Lastly, de fendant'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, and14 A - 1511
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nine, he doe s not assert they are un supported by the r ecord . Thus, the issue is simply whether the aggravating factors substantially outweigh ed the mitigating factors. See N.J.S.A. 2C:43
- 6(b) ("[W]here the court is clearly convinced that the aggravating
factors subs tantially 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, i t was within the trial court's sentencing di scretion 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 ineligib ility on a nine year sentence. Affirm in part, reverse and remand for res entencing.