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State v. Dorko

February 27, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
RUSSELL J. DORKO, JR. DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Somerset County.

Before Judges Dreier, Newman and Villanueva. 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 a conviction of second-degree eluding, N.J.S.A. 2C:29-2b. He was sentenced to an extended term of twelve years with a six-year parole disqualifier. Since the charges also included defendant's alleged commission of seven motor vehicle offenses, the Judge adjudicated these offenses following the jury's verdict and imposed the appropriate motor vehicle penalties, after merging the reckless driving conviction into the eluding conviction.

Defendant was observed shortly after 3:00 a.m. in downtown Somerville making an illegal right turn at a red light. He was stopped by a police officer, who asked defendant for his license, registration and insurance certificate, and inquired whether the car belonged to defendant. Defendant stated that the car belonged to a friend and then sped away. He was chased by the officer through the streets of Somerville. The officer testified that defendant went through five stop signs without stopping, although he did slow down at each, and also proceeded through a red light without slowing down at all. Defendant exceeded the speed limit by some twenty miles an hour on most streets, and then when he reached East Main Street and headed toward Bound Brook, he operated his vehicle at a speed of up to sixty-five miles per hour. He finally turned into the Bound Brook driveway of the owner of the vehicle and then ran away down a railroad track. The officer attempted to pursue, but lost defendant. Defendant was not arrested until months later when his location in Florida was discovered by the police.

Defendant raises four points on this appeal, all of which have some merit.

POINT I

THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE DEFINITION OF INJURY EVEN THOUGH THE RISK OF INJURY WAS AN ESSENTIAL ELEMENT OF THE OFFENSE. (Not raised below).

POINT II

BECAUSE THE JURY WAS PERMITTED TO INFER THAT DEFENDANT'S CONDUCT CREATED "A RISK OF DEATH OR INJURY" IF IT DETERMINED THAT HIS CONDUCT VIOLATED ANY OF THE MOTOR VEHICLE OFFENSES SET FORTH IN CHAPTER 4 OF TITLE 39, AND SUCH RISK IS AN ELEMENT OF THE SECOND-DEGREE CRIME OF ELUDING, THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO DEFINE AND DELIMIT THE UNDERLYING MOTOR VEHICLE OFFENSES. (Not Raised Below).

POINT III

DEFENDANT'S MOTION FOR A NEW TRIAL SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT'S CONDUCT DID NOT CREATE A RISK OF ...


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