STATE OF NEW JERSEY VS. JOSE PINTO (16-07-2162, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not “constitute precedent or be binding upon any court.”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-1622-17T2 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSE PINTO, a/k/a JOSE E. PINTO, JR., JOSE N. PINTO, and MUNCHO, Defendant-Appellant. ____________________________ Submitted November 12, 2019 – Decided February 27, 2020 Before Judges Moynihan and Mitterhoff. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 16-07-2162. Joseph E. Krakora, Public Defender, attorney for appellant (Brian P. Keenan, Assistant Deputy Public Defender, of counsel and on the briefs). Jill S. Mayer, Acting Camden County Prosecutor, attorney for respondent (Linda Anne Shashoua, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM Defendant Jose Pinto was charged in a four-count indictment arising from a motor-vehicle police pursuit, much of which was captured on dash-cam video, ending in a crash that injured a third party; a controlled dangerous substance (CDS) was found in defendant’s vehicle. Defendant appeals from his conviction by jury for second-degree eluding, N.J.S.A. 2C:29-2(b) (count one), second- degree aggravated assault, N.J.S.A. 2C:12-1(b)(6) (count two), and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count four);1 and from his extended-term, fourteen-year prison term on count two, concurrent seven-year sentence on count one and consecutive three-year term on count four. In his merits brief, he argues: POINT I DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO COUNSEL OF CHOICE WHEN THE JUDGE REFUSED TO GRANT A CONTINUANCE SO THAT HE COULD RETAIN PRIVATE COUNSEL PRIOR TO THE TRIAL WITHOUT CAREFULLY CONSIDERING EACH OF THE FACTORS SET FORTH IN CASES SUCH AS STATE V. KATES. 1 Count three of the indictment charging second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6), was dismissed before trial. A-1622-17T2 2 POINT II THE JUDGE IMPOSED A MANIFESTLY EXCESSIVE SENTENCE REQUIRING REVERSAL. A. ALTHOUGH SUPPORTED BY AMPLE EVIDENCE IN THE RECORD, THE JUDGE F[A]ILED TO FIND MITIGATING FACTOR ELEVEN. B. THE SENTENCING JUDGE ERRED IN DETERMINING THE EXTENDED-TERM SENTENCING RANGE FOR A SECOND-DEGREE OFFENSE. C. THE SENTENCING JUDGE ERRED IN FAILING TO CONSIDER THE YARBOUGH FACTORS WHEN IMPOSING A CONSECUTIVE TERM ON THE UNLAWFUL POSSESSION OF CDS CHARGE. In a pro se brief, he adds: POINT I THE TRIAL COURT ERRED BY FAILING TO DECLARE A MISTRIAL AFTER THE JURY WAS TAINTED. POINT II THE TRIAL COURT ERRED BY PERMITTING THE STATE TO REVEAL THE NATURE OF DEFENDANT’S PRIOR CRIMINAL CONVICTIONS IN CONTRAVENTION TO [N.J.R.E.] [] 609 (A)(2)(II). A-1622-17T2 3 POINT III THE TRIAL COURT ABUSED IT[S] DISCRETION IN IMPOSING A[] [FOURTEEN] YEAR EXTENDED TERM BECAUSE THE TRIAL COURT FAILED TO EXPLAIN HOW HE ARRIVED AT SETTING THE TERM WITHIN THE EXTENDED TERM RANGE. Because of errors committed in excusing a deliberating juror, we are constrained to reverse and …Original document