On appeal from the Superior Court of New Jersey, Law Division, Monmouth 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
Defendant appeals from convictions of second- and third-degree eluding, N.J.S.A. 2C:29-2b; third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10a(1); and fourth-degree hindering apprehension, N.J.S.A. 2C:29-3b(1). Defendant was acquitted of possession of a prohibited weapon, N.J.S.A. 2C:38-3, and an additional count of fourth-degree unlawful possession of a weapon was severed and then dismissed. After merging the third-degree into the second-degree eluding conviction, the court sentenced defendant to a ten-year term with a three and one-half year parole disqualifier. Defendant also received a concurrent five-year term for the possession of CDS and a concurrent term of eighteen months for hindering apprehension.
Defendant and a woman were legally parked in a parking lot in the Cedar Street Park in Keyport over an hour before the park was scheduled to be closed. The suspicions of two policemen in an unmarked car were aroused because they saw a car parked in the lot at nearly 9:00 p.m. at the end of December. They therefore turned off the lights of their car and drove toward the parked car. The officers then got out of their car and walked up to defendant's car, suddenly shining their flashlight on defendant's and his companion's faces (and presumably into their eyes). Defendant testified that all he could tell at that point was that a brown car that he did not think was a police car had pulled up next to him and at least one person with a flashlight was exiting the vehicle. Defendant, fearing a robbery because he had money and other belongings with him that he had just picked up from his deceased mother's house, rapidly fled from the lot. (Defendant testified that he drove forward; one of the officers said he was in reverse.) The officers got back in their car and gave chase. While being chased for between one and one-half to two miles, defendant passed at least three cars by going into the path of oncoming traffic. At one point, defendant slowed the car enough, or stopped, to let his companion exit. The police contended that at the beginning of the chase, they had immediately activated their grill lights and the rotating red light on their dashboard, and later their siren. Defendant asserted that he did not hear the siren or see the light while driving. He said that he did not hear the siren until after he eventually parked his car, as he left the scene.
The police searched the abandoned vehicle and discovered a small amount of marijuana on the front floor and a blackjack in the door panel of the passenger side of the vehicle.
Defendant's companion was arrested. Later that day, defendant called her and allegedly then first determined that they had been chased by the police. Defendant then called the police to inquire whether there was a warrant for his arrest. The police traced the call and arrested him. At headquarters, defendant was searched and a package of cocaine was discovered in his socks.
Defendant raises four points on this appeal, with some sub-points.
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON TWO ELEMENTS OF THIRD AND SECOND DEGREE ELUDING DENIED DEFENDANT A FAIR TRIAL. (Partially Raised Below).
THE JURY CHARGE, WHICH IMPROPERLY DEFINED REASONABLE DOUBT, DENIED HIM DUE PROCESS OF LAW. (U.S. Const. Amend XIV; N.J. Const. (1947), Art. I, P 1). (Partially Raised Below).
A. THE JURY CHARGE, WHICH IMPLICITLY TOLD THE JURORS THAT THEY NEEDED AN ARTICULABLE REASON TO ACQUIT DEFENDANT, DEPRIVED HIM OF THE FULL BENEFIT OF THE STATE'S OBLIGATION ...