On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Shebell, Baime and Keefe. The opinion of the court was delivered by Shebell, J.A.D.
Defendant Cecil Lamarr Brown appeals from his jury conviction for escape (N.J.S.A. 2C:29-5), a crime of the third degree. He was sentenced to two years probation with a $30 Violent Crimes Compensation Board penalty.
In this appeal defendant argues that his "motion for a judgment notwithstanding the verdict should have been granted as the elements of escape under N.J.S.A. 2C:29-5 were not proved." We have not been supplied with a transcript of any argument on the issue that may have occurred during the course of trial; however, it was agreed on the record at the time of the argument on the motion for judgment n.o.v. that the issue was raised and "the court decided it at the end of the State's case. . . ." In any event, R. 3:18-2 permits a motion for judgment of acquittal after a jury verdict of guilty even if a motion is not made earlier pursuant to R. 3:18-1. The gist of defendant's argument on appeal is that "he was not subject to
official detention at the time he escaped and thus his conduct did not fall within the purview of the escape statute."
There is little factual dispute. On September 11, 1987, at about 7:30 p.m., a uniformed New Jersey state trooper, while patrolling the New Jersey Turnpike, came upon a motor vehicle parked on the right shoulder of an access ramp to the southbound lanes at Interchange 14. He pulled behind the stopped vehicle and activated the police vehicle's overhead lights. He then approached the passenger side of the vehicle and observed three occupants. A woman was behind the wheel, defendant was in the right passenger seat and another man appeared to be sleeping in the back seat.
The trooper inquired of the driver as to whether there was a problem with the vehicle but received no response. He noted that she stared straight ahead and clenched the steering wheel so tightly that her knuckles appeared white. He repeated the question at which time the defendant answered that he had been driving the automobile, but had gotten tired and therefore switched places with the woman found behind the wheel. The trooper asserted that he asked both occupants of the front seats to produce their credentials. As the woman looked through her pocketbook, the trooper observed a marijuana cigarette fall from her wallet and come to rest in the hinge portion of the pocketbook. He ordered her to hand him the pocketbook at which time he found two more marijuana cigarettes. All three occupants of the vehicle denied to the trooper that the marijuana cigarettes were theirs. Defendant testified that no cigarette fell from the woman's wallet. He claimed that the trooper grabbed the handbag, searched it and discovered the first marijuana cigarette inside.
The trooper ordered all three occupants to place their palms on the ceiling of the car's interior and returned to his patrol car to radio his position and request backup. The trooper left the purse in the patrol car and returned to the vehicle where he ordered all of the occupants out of the vehicle. The trooper
then patted down each defendant for weapons and ordered them to sit on the front hood of their vehicle telling them "you're in enough trouble as it is. Don't move." Defendant denied being told not to move.
The trooper reached into the vehicle under the right front passenger seat and retrieved a brown, paper bag in which he found a loaded .22 caliber revolver together with 250 glassine envelopes containing heroin. Upon making this discovery, the trooper became aware that the two male defendants had gotten off the hood of the car and were running away. The trooper attempted to pursue the fleeing defendants but noted that the woman then began making her way towards the driver's side of the vehicle. He immediately returned, handcuffed her and placed her in the back of his patrol car and again radioed for assistance. A search was begun for the two males and in approximately one hour both were found. It was defendant's position at trial that he did not understand that he was under arrest and ran only because of a panic reaction as he saw the trooper get out of the vehicle holding handcuffs following the search. The trooper testified that after having found the marijuana cigarettes he acted with the intention to arrest all three occupants.
In this appeal defendant has not challenged the trial court's instruction to the jury on the escape charge. Indeed the charge was most favorable to him. During the course of deliberations the jury sent the court the following request: "[need] a definition of lawful custody and control." The judge responded noting that he was giving the jury "something a little bit more than what I gave you." In pertinent part the trial judge further instructed the jury as follows:
Now, by definition a person commits this crime if without lawful authority the person removes himself from official detention.
Now, in order for the State to obtain a conviction on this charge the State must prove each of the following elements beyond a reasonable doubt:
They are that the defendant or defendants were or was a subject of official detention.
And that two, that the defendant or defendants removed themselves or himself from official detention.
And three, that the defendant or defendants acted without lawful authority and that they, the defendant or ...