                                NOT FOR PUBLICATION WITHOUT THE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-5307-15T3

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

DAVID BAKER,

     Defendant-Appellant.
__________________________

                    Submitted October 4, 2018 – Decided November 21, 2018

                    Before Judges O'Connor and Whipple.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Passaic County, Indictment No. 13-02-0100.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Rochelle Watson, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Camelia M. Valdes, Passaic County Prosecutor,
                    attorney for respondent (Marc A. Festa, Senior
                    Assistant Prosecutor, of counsel and on the brief).

PER CURIAM
       Defendant David Baker appeals from an April 28, 2016 judgment of

conviction following a bench trial for second-degree death by auto, N.J.S.A.

2C:11-5a, and driving while intoxicated, N.J.S.A. 39:4-50. We affirm.

       At around 10 p.m. on August 25, 2012, two eyewitnesses saw a truck

driven by defendant make a left turn at an intersection and strike a pedestrian.

An officer responded to the scene, identified defendant as the driver of the truck,

smelled alcohol on his breath, and believed him to be intoxicated after

conducting field sobriety tests.     At police headquarters, an Alcotest was

administered and the test revealed defendant had a .28 blood alcohol content.

The next day, defendant confessed to hitting the victim with his truck. The

victim succumbed to her injuries and died on August 27, 2012.

       Defendant was indicted for second-degree death by auto and received

summonses for driving while intoxicated and driving with an open alcoholic

beverage.1 In a pre-trial hearing on September 29, 2015, defense counsel told

the court defendant wanted to testify in order to advance a misidentification

defense, despite counsel's advice to present a different defense. Acknowledging

his client's right to choose whether to testify, defense counsel advised his client

to seek a bench trial because defendant wanted to present legally inconsistent


1
    This open container charge was dismissed at sentencing.
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defenses. Defense counsel made it clear to the trial court this was not his

preferred strategy but still planned to zealously advocate on his client's behalf.

In responding to the trial judge raising the fact that defense counsel did not want

defendant to testify, defense counsel stated:

            [I]t’s been our advice to Mr. Baker to proceed strictly
            on the—on the issue of recklessness and not on the
            issue of identification. . . . Mr. Baker . . . strongly feels
            that he wants the issue of identification, and he feels,
            strongly feels that he wants the opportunity to explain
            in testimony why it was not him that stuck this woman
            . . . . And he has the right to that, and even though it
            was not my advice to him to proceed in that manner, I
            am his attorney and so I will advocate zealously on his
            behalf regardless of whatever ultimate choice he makes.
            And that includes if he’s going to take the witness
            stand. But either way, for him to—for him to have that
            defense, which is specifically it was not me, an
            identification defense, the only witness that we have is
            Mr. Baker.

      On October 1, 2015, at defendant’s hearing to waive his jury trial, the trial

judge questioned defendant and found him to be “cogent, rational, unpressured,

relaxed, knowing and voluntary in-his-actions.” Defendant stated he sought a

bench trial in part due to his intention to raise alternative arguments, both that

he was not the driver that struck the victim, and he was not reckless in hitting

the victim with his vehicle. A bench trial proceeded to conclusion wherein the




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judge heard testimony from the two eyewitnesses, the arresting officers and the

medical examiner.

      Defendant testified over two days.       Defendant testified he only took

responsibility previously in order to coax the police into revealing "their lies."

He testified he stopped in front of a woman lying on the road, walked over to

her and saw that she was injured, and then ran back to his car to call 9-1-1, while

one of the witnesses in the car behind him came running, using racially charged

language.    Defendant additionally testified he saw the eyewitnesses who

testified against him exit a Jeep, already in the intersection when he arrived,

which then drove off before the police arrived. Defendant denied performing a

field sobriety test, claimed he only breathed into the Alcotest machine once, in

contrast to the two breath samples the machine recorded, and that his signature

on the Alcotest form was forged.

      On November 2, 2015, when announcing his verdict, the trial judge stated:

            Indeed, [defendant asserting that it was an accident]
            was an otherwise viable defense that is incurably
            undermined by his alternate, untenable version of
            events that bleeds into and infects the credibility of his
            subsequent self-serving statements as to lack of
            intoxication and/or recklessness.

The trial judge referred to defendant's revised version of events as "fantastical,

conspiratorial, and finally, regrettable."      Additionally, he characterized

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                                        4
defendant’s argument as maintaining "a fantastical conspiratorial take on this

whole incident." However, the trial judge specified:

            Mr. Baker's initial formal statement is found to be
            credible for several reasons: It was given with minimal
            time available to contrive an elaborate defense of the
            kind Mr. Baker set forth years afterward with the
            benefit of discovery . . . .

      Finding defendant's testimony not credible, the trial judge found

defendant guilty of second-degree vehicular homicide pursuant to N.J.S.A.

2C:11-5, after inferring the recklessness required from defendant's intoxication.

      On April 28, 2016, after finding aggravating factors three, six, and nine

applicable, see N.J.S.A. 2C:44-1, the trial judge sentenced defendant to a term

of ten years subject to an eighty-five percent parole ineligibility period, along

with $1,505 in restitution, and one year suspended driver's license, in a ddition

to accompanying fees. This appeal followed.

      Defendant raises the following issues on appeal:

            Point I:

            DEFENDANT WAS DEPRIVED OF HIS RIGHT TO EFFECTIVE
            COUNSEL WHEN HIS ATTORNEY (1) ABDICATED HIS DUTY
            TO MAKE CRITICAL STRATEGIC DECISIONS; AND (2)
            PREEMPTIVELY AND REPEATEDLY DECLARED TO THE
            TRIAL JUDGE, WHILE REQUESTING A BENCH TRIAL, THAT
            DEFENDANT'S MISIDENTIFICATION DEFENSE WAS
            SPECIOUS AND AGAINST COUNSEL'S ADVICE.


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                                       5
             Point II:

             BECAUSE THE SENTENCING PROCEDURE WAS RIFE WITH
             ERROR, DEFENDANT IS ENTITLED TO A RESENTENCING.

             A. The Trial Judge's Personal Belief That Defendant's Trial Defense
             and Testimony Were "Conspiratorial" and "Fantastical" Pervaded
             the Sentencing Decision.

             B. The Judge Placed Undue Weight On Defendant's Prior Criminal
             Record Failing To Give Adequate Consideration To The Severity
             Of The Offense.

             C. The Court's Indignation At Defendant's Trial Defense And Its
             Disparaging Remarks About Defendant's Constitution Seriously
             Undermined Any Confidence That The Sentence Was Imposed
             Impartially.

      "Assessing I[nneffective] A[ssistance of] C[ounsel] claims involves

matters of fact, but the ultimate determination is one of law and . . . 'a trial court's

interpretations of law and the legal consequences that flow from established

facts are not entitled to any special deference.'" State v. Harris, 181 N.J. 391,

419 (2004) (quoting Manalapan Realty, LP v. Twp. Committee, 140 N.J. 366,

378 (1995)).

      "Our courts have expressed a general policy against entertaining

ineffective-assistance-of-counsel claims on direct appeal because such claims

involve allegations and evidence that lie outside the trial record."           State v.

Preciose, 129 N.J. 451, 460 (1992). But we acknowledge a "defendant should


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                                           6
not be required to wait until post-conviction relief to raise the issue [if] the trial

record discloses the facts essential to his ineffective assistance claim." State v.

Allah, 170 N.J. 269, 285 (2002).

      Defendant alleges trial counsel abdicated his role as counsel by failing to

investigate potential defenses, manage the trial and decide which defenses to

raise. Having reviewed the record, we conclude it does not disclose facts

essential to defendant's ineffective assistance claim. Defendant assails strategic

decisions and discussions between himself and defense counsel that occurred

outside of the courtroom, the contents of which are not in the record. Due to the

insufficiency of the record, and the preference for hearing ineffective assistance

claims on PCR rather than through direct appeal, we decline to hear defendant's

ineffective assistance claim.

      We next consider defendant's challenge to his sentencing. Based on our

review of the record, we affirm the sentence imposed by the trial judge.

      We review the imposition of sentence under an abuse of discretion

standard. In re Hendrickson, No. A-12-17, slip op. at 18 (N.J. Sept. 18, 2018).

"[W]e will always require that an exercise of discretion be based upon findings

of fact that are grounded in competent, reasonably credible evidence." State v.

Roth, 95 N.J. 334, 363 (1984).


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                                          7
      Defendant asserts bias because the trial judge called his testimony

"conspiratorial" and "fantastical." The trial judge used these words twice, once

when evaluating defendant's testimony during the bench trial and the other in

assessing aggravating factor three, the risk of reoffending. The first comment

was when the trial judge was acting as a fact finder and determined defendant's

testimony was not credible. The second comment was when the trial judge was

considering whether defendant posed a risk of recidivism, stating defendant's

"failure to come to terms with his conduct, not his lack of remorse, but failure

to come to terms with his conduct that makes this Court highly concerned that

he's likely to repeat it." We discern no abuse of the court's discretion in the

court's findings or rationale.

      Defendant next argues the trial judge overweighed his criminal record in

assessing aggravating factors three, six, and nine.     The trial judge noted

defendant's substance abuse history, emphasized this was defendant's second

driving-while-intoxicated offense, and listed a litany of defendant's traffic

offenses. Moreover, the trial judge viewed the fact defendant's violent past was

behind him to be a mitigating factor. Considering the nature of defendant's

current conviction, we discern no abuse of the court's discretion for weighing




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                                       8
defendant's criminal history, particularly his driving offenses and we reject

defendant's charge the trial judge was biased.

      Affirmed.




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