Before Judges Skillman, P.g. Levy and Lesemann.
The opinion of the court was delivered by: Lesemann, J.s.c. (temporarily assigned).
 Argued September 28, 1998
On appeal from the Superior Court of New Jersey, Law Division, Somerset County.
During the early morning hours on February 8, 1994, defendant fired two shots into the window of an unoccupied store. He then drove from the scene, ignoring police orders to stop while driving between twenty-five and forty miles per hour before stopping and surrendering. During the "chase" he threw away a gun later retrieved by the police.
As a result, defendant was indicted and, following trial, convicted of fourth degree criminal mischief, N.J.S.A. 2C:17-3a(1); second degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third degree eluding of police officers, N.J.S.A. 2C:29-2b; and (by a subsequent indictment and separate trial) a second degree violation of N.J.S.A. 2C:39-7, which prohibits possession of a weapon by someone who, like defendant, had been previously convicted of certain described offenses. He was sentenced to six months in prison on the criminal mischief conviction; to an extended term of fifteen years for possession of a weapon for an unlawful purpose; five years for eluding the police; and ten years for possessing a firearm notwithstanding his prior conviction, with all sentences to run concurrently.
At trial, defendant presented an insanity defense backed by psychiatric testimony. The trial Judge properly submitted the insanity issue to the jury which, by finding defendant guilty, rejected the defense.
On appeal defendant claims that the trial court should also have submitted to the jury the issue of whether he suffered from a "mental disease or defect" which resulted in his lacking the requisite state of mind to render him guilty of the offenses charged. At trial defendant did not request such a diminished capacity charge but he claims now that the trial court's inaction on that issue was prejudicial and constituted plain error. In the alternative, he argues that his counsel's failure to request the charge deprived him of effective assistance of counsel and thus his convictions should be reversed for that reason. He also claims error in the trial court's rejection of certain additional psychiatric evidence and contends that his sentence is excessive.
We find that the failure to deliver the diminished capacity charge did constitute plain error and does require reversal of defendant's convictions. Accordingly, there is no need to address the claimed deprivation of effective assistance of counsel. We also conclude that the trial court's rejection of the additional psychiatric evidence was not error, but that certain aspects of the sentencing were erroneous.
At approximately 1:30 a.m. on February 8, 1994, defendant drove to store premises owned and operated by Louis Ciardi, a man with whom he had both a business and social relationship. No one was in the premises and defendant fired two bullets through the window. He then returned to his car and, when entering the car, set off its alarm. Police responded and began following defendant, signaling him to stop as he drove from the scene. Defendant ignored the signals but did not speed up, nor did he make any attempt to lose the police car following him. Rather, he continued driving at approximately twenty-five miles per hour for a few minutes and then stopped. As the police approached his vehicle, however, he once again drove away, with the police again behind him, and with defendant still driving at a moderate speed of less than forty miles per hour. At one point defendant threw something - later identified as a gun - from the window of the vehicle. Eventually he pulled into a parking lot, stopped, and emerged from the car with his hands raised. He was then placed under arrest.
Defendant was polite and cooperative with the police. He said he had been having a "business relationship problem" with Mr. Ciardi, and he wanted to "let him know that he wasn't fooling around anymore, so he fired two shots into the business." He also said he had not stopped for the police because "he was scared."
At trial defense counsel submitted substantial evidence concerning defendant's mental condition. Defendant's mother described his attendance at a military academy at the age of eleven, after which his personality changed drastically. She said he became withdrawn and nervous and behaved erratically. She indicated that he had been physically abused at the academy but had insisted on remaining in the school because he wanted to pursue a military career.
She also described a serious motorcycle accident defendant suffered in 1976 which left him in a four-day coma and caused serious eye damage. She said his behavior also changed after that accident, and he sometimes became violent.
Louis Ciardi, the "victim" of the shooting also testified. He said he was unaware of any hostility between himself and defendant. He described a bizarre incident at his house, where defendant was a guest a few months before the shooting. Defendant wandered from the room where the two were sitting, returned with some milk he had apparently taken from Ciardi's refrigerator, told Ciardi he had thought he was in his mother's house and displayed an "emptiness" in his eyes and a vacant expression which made Ciardi uneasy.
Dr. Grigory Rasin, a psychiatrist, also testified on defendant's behalf. He referred to defendant's "traumatic adolescence," which involved physical and sexual abuse at the military academy. He also said that defendant had abused drugs and alcohol until 1991, and that conduct had adversely affected him and his personality. According to Dr. Rasin, however, the most significant factor relating to defendant's mental condition was his having previously suffered three severe head injuries. The first was the motorcycle accident in 1978, referred to by defendant's mother. He had suffered a second head injury when he was severely beaten sometime later, and finally, in 1993, he was in another accident in which he lost consciousness and was ...