On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
Approved for Publication February 16, 1996.
Before Judges Dreier, A.m. Stein and Kestin. The opinion of the court was delivered by Dreier, P.j.a.d.
The opinion of the court was delivered by: Dreier
The opinion of the court was delivered by DREIER, P.J.A.D.
Defendant appeals from convictions of fourth-degree theft of property of $200 or more, N.J.S.A. 2C:20-3a, and of the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a, a lesser-included offense of the fourth-degree crime originally charged. Defendant was sentenced to a term of eighteen months with a nine-month parole disqualifier for the theft and to a 180-day concurrent sentence in the county jail for resisting arrest.
Defendant and his sister's fiancee, Jack Ensel, were seen loading plywood into Ensel's van at a residential construction site in Warren at 11:00 p.m. One of the partners in the construction company developing the site and a friend of his had noticed the van earlier in the evening and then again saw the van there at 11:00 p.m. Becoming suspicious because all other workers had left the site, they called the police. The owner later discovered that twenty or thirty sheets of plywood were missing.
As the police arrived at the site, they observed the van with its lights off and its door open. When the two individuals outside the van became aware of the presence of the police car, they jumped inside the van and drove away with their headlights off. When the police attempted to stop the vehicle by activating their overhead lights, the driver then turned on the van's lights and sped away. The police car followed with its lights and siren activated. After a four-mile chase through Warren, Watchung, and Greenbrook the van stopped in the opposite lane of traffic. Both occupants exited through the driver's side and began to run away. The officers pursued the suspects and eventually caught defendant, who had been the passenger in the van. The driver could not be found, but was later arrested. There was a question concerning the amount of resistance defendant gave to his arrest. One officer sprained his knee and elbow and the other officer broke his left index finger and sprained his wrist. Defendant contended that when the van stopped, he stepped out of the van on the driver's side so that he would not walk into the middle of the street, but before he moved two steps, he was tackled and everything became "foggy and blurry." He denied running or struggling.
Ensel, the driver of the van, entered into a plea agreement and testified for the State in return for a non-custodial sentence. He asserted that defendant had "asked me to come and pick him up and take a ride to get some plywood." He picked up defendant in a rented van and followed his directions to the development where they began loading the van with wood. When Ensel saw the police he "panicked and just drove away, with the police car chasing ...." He finally "stopped the van and ran" when he "realized that [he] wasn't going to get away." He hid under a bush and waited until everyone left before walking out of the woods. Before making his plea agreement, he had submitted a false alibi statement to the court, claiming he was at a motel the entire evening with his fiancee.
Defendant gave contrary testimony. He stated that he was employed as a carpenter at the time of the robbery and also did independent carpentry work, but he had never worked in any developments in Warren. On the night of the robbery, Ensel pulled his van up to defendant's home and asked him to take a ride to talk about problems between Ensel and defendant's sister. They drove to a job site where Ensel said his "boss okayed him to take some lumber and move it." The defendant was unsure how Ensel was employed at the time, but he was aware that Ensel had had various jobs as a building laborer and a security guard. Defendant testified that he thought what they were doing was proper because he saw people "walking around and stuff . . . ." When he became aware that the police were pursuing them, he repeatedly asked Ensel to pull over. When Ensel finally stopped, the defendant stepped out of the van only to be tackled by the police.
Defendant raises two principal problems concerning the jury charge, as well as a claim of ineffective assistance of counsel:
THE CONVICTION AND SENTENCE IMPOSED FOR FOURTH DEGREE THEFT MUST BE REVERSED BECAUSE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE JURY WAS NOT INSTRUCTED ON THE AFFIRMATIVE DEFENSE OF CLAIM OF RIGHT SET FORTH IN N.J.S.A. 2C:20-2c AND WAS GIVEN AN IMPROPER, CONFUSING AND INCOMPLETE INSTRUCTION ALLOWING IT TO INFER GUILT OF THEFT FROM DEFENDANT'S "UNEXPLAINED" POSSESSION OF STOLEN PROPERTY.
A. Failure to Charge on Claim ...