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State v. Wallace

July 02, 1998

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
WAYNE WALLACE, DEFENDANT-APPELLANT.



Before Judges Muir, Jr., Kestin and Steinberg.

The opinion of the court was delivered by: Kestin, J.A.D.

[9]    Submitted: December 3, 1997

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County.

Defendant appeals from his conviction for second degree eluding a police officer. He was also convicted of unlawfully possessing a handgun (third degree), possessing hollow nose bullets (fourth degree), and disorderly persons resisting arrest, as well as various motor vehicle statute violations, including careless driving. All charges, criminal and motor vehicle, had been tried to a jury.

Defendant also appeals from the sentence for the criminal convictions and the disorderly persons offense, an aggregate eight-year term consisting of concurrent sentences, respectively, of eight years, four years, eighteen months, and six months. Appropriate fines, assessments and fees were also ordered.

On appeal, defendant raises the following issues:

POINT I THE CONVICTION FOR RESISTING ARREST SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR ELUDING A POLICE OFFICER.

POINT II THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

POINT III THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE DEFINITION OF INJURY EVEN THOUGH THE RISK OF INJURY WAS AN ESSENTIAL ELEMENT OF SECOND DEGREE ELUDING. (NOT RAISED BELOW)

POINT IV 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 A MOTOR VEHICLE LAW, AND SUCH RISK IS AN ELEMENT OF SECOND- DEGREE ELUDING, THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO DELIMIT THE UNDERLYING MOTOR VEHICLE OFFENSES. (NOT RAISED BELOW).

POINT V DEFENDANT'S MOTION FOR ACQUITTAL ON THE SECOND-DEGREE ELUDING CHARGE SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT'S CONDUCT DID NOT CREATE A RISK OF DEATH OR INJURY TO ANY PERSON.

At about 10:45 p.m. on October 15, 1994, Paterson police officers Brian DeProspo and Orlando Robinson were on routine patrol in a marked police vehicle. Officer Robinson was driving.

Officer DeProspo testified at trial. In response to a radio dispatch regarding a blue Honda driven by a black male, the officers proceeded to the vicinity of East 23rd Street. While travelling south, they passed a blue Honda proceeding north on East 23rd Street. The officers turned their vehicle around and activated the lights and siren. They attempted to stop the Honda, but it accelerated. It circled the block twice, travelling erratically, in an apparent effort to evade the police vehicle.

DeProspo testified that he and his partner pursued the Honda for about a mile, covering about thirteen or fourteen city blocks. During the course of the pursuit, according to the detail of DeProspo's testimony, the driver of the Honda, later identified as defendant, proceeded through stop signs six times, sometimes slowing down and sometimes not. At one time, he drove on the left of the roadway; at another, he drove the wrong way on a one-way street. The vehicles traveled no faster than 30 miles per hour throughout the chase.

Eventually, the path of defendant's vehicle was blocked and he was apprehended. The Honda was stopped at the intersection of Broadway and 23rd Street where, according to DeProspo, defendant "jumps out, leaves the door open and attempts to run." The police officers left their vehicle and "immediately grabbed him," placing him under arrest.

During the chase, defendant had thrown an object from his car, which landed in front of a yellow house. After the chase ended, the officers returned to the particular location and recovered a .38 caliber handgun loaded with hollow nose bullets.

In the circumstances established, the conviction for disorderly persons resisting arrest should have been merged with the conviction for second degree eluding. All of the elements of the lesser offense are contained in the greater. N.J.S.A. 2C:1-8a(1); State v. Johnson, 203 N.J. Super. 127, 134-35 (App. Div.), certif. denied, 102 N.J. 312 (1985) ("N.J.S.A. 2C:1-8[a(1)] . . . provides that a defendant may not be convicted of two offenses if one is a lesser included offense of the other."). Moreover, the proofs established no separate crime as a matter of fact. Defendant was arrested immediately upon the Conclusion of the vehicular chase as he "attempted" to run from his automobile. The chase was the factual predicate of the eluding conviction. At its conclusion, ...


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