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State v. Thomsen

December 01, 1998


Before Judges Kestin, Wefing and Carchman.

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

[9]    Argued: September 29, 1998

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

Based on evidence of defendant's conduct on November 27, 1993, a jury found him guilty of eluding the police in a motor vehicle. The verdict sheet required the jury, upon a finding of guilt, "to indicate whether it is a 4th degree crime or a disorderly persons offense." The jury found "eluding (4th degree crime) creating a risk of death or injury to any person." See N.J.S.A. 2C:29-2b.

The indicated grading of the crime was erroneous. Although the offense was charged, prosecuted and given to the jury as a fourth degree matter, N.J.S.A. 2C:29-2b had been amended effective August 2, 1993 to classify it as a second-degree crime. None of the lawyer participants in the trial- - - -not the Judge, not the assistant prosecutor, not defense counsel- - - -was aware of the effective date of the amendment until sentencing. As a result, the lay participants- - - -the jurors and defendant- - - -were misinformed that a fourth degree grading applied. When the error was discovered and presented to the trial Judge, he considered the questions involved and entered a judgment of conviction memorializing defendant's conviction for a second degree crime, with a five-year prison sentence. Defendant appeals. We reverse.

Defendant had also been charged in the indictment with two other crimes, both of the third degree: aggravated assault, N.J.S.A. 2C:12-1b(5)(a), and criminal mischief, N.J.S.A. 2C:17-3(a)(1). The jury acquitted him of those charges. The trial court adjudicated defendant guilty on several related motor vehicle charges. All but one were merged with each other and into the eluding conviction; a separate fine was assessed on the remaining offense, operating an unsafe motor vehicle.

The incident giving rise to the charges related to the issuance of a temporary restraining order against defendant pursuant to the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -33. By the terms of the order, entered on November 24, 1993, defendant was prohibited from having any contact with his wife and was restrained from the marital home in Ringwood. Later that day, defendant appeared at the home of his wife's brother in Lincoln Park, where she was visiting. Defendant was arrested for violating the order and was released on bail. That charge was subsequently withdrawn.

Two days later, on the evening of November 26, defendant's wife saw him in the family car in front of the marital home. During the course of the evening, defendant made several attempts to telephone her. Defendant's mother-in-law, Mary Infantino, answered the phone each time and refused to permit defendant to speak with his wife. Because of defendant's presence in the vicinity of the home and the telephone calls, a report was made to the police.

Ringwood Police Officer Anthony Calabrese responded by coming to the home. Soon after arriving, he answered the ringing telephone but received no reply. Infantino answered the next call and told Calabrese that it was defendant calling. Calabrese communicated with his police colleagues, requesting that they look for defendant's car near any pay phone in the area.

Officer John Sowakinas, also of the Ringwood police, located defendant in the parking lot of a convenience store, talking on a pay phone from the driver's seat of his car. Defendant identified himself and stated that he was speaking with his girlfriend. Sowakinas ordered defendant out of the car. Defendant, testifying at trial that he was unnerved by Sowakinas's demeanor and use of profanity, responded by rolling up his car windows and locking the door. Sowakinas attempted to call for backup assistance.

According to Sowakinas's testimony, while he was reaching into the patrol car to use the radio, defendant backed up his car and struck Sowakinas. Noticing that the back-up lights on defendant's car were lit, Sowakinas got into the police car and pulled out of the way. Defendant then rammed the police car, injuring Sowakinas further, and drove out of the lot with Sowakinas in pursuit. Sowakinas gave up the chase because of his concern for the condition of the patrol car, and communicated his difficulty by radio.

Defendant's account differed considerably from Sowakinas's. He testified that he moved his car only in an attempt to leave the lot, and that Sowakinas twice rammed it. Distraught and afraid, defendant then drove out of the lot in an attempt to reach his father's house in neighboring Wanaque.

Wanaque Police Lieutenant William Sullivan also testified. Responding to a radio dispatch shortly after midnight, he pursued defendant's car in a southerly direction, noting that it had a nonfunctioning headlight. At one point, Sullivan's radar device indicated defendant was traveling at seventy-one miles per hour in a thirty-mile-per-hour zone; thereafter, defendant increased his speed to 104 miles per hour. Sullivan testified that defendant was using the entire road during the chase, including the opposite, northbound, lane, forcing other cars off the road. After briefly losing sight of defendant's car, Sullivan relocated it, parked and empty, at the end of a side road. The left front wheel lacked a tire. According to Sullivan, "[i]t was ground right down to the road." While Sullivan was contacting his dispatcher to obtain a tracking dog, defendant emerged from nearby woods and surrendered. Defendant, in his testimony, conceded that he had knowingly eluded the police, but he denied traveling at an excessive rate of speed or creating a risk of death or injury to anyone. He also denied striking either Sowakinas or the police car. Defendant testified that his tire had been flattened when Sowakinas rammed his car, and that, therefore, he could not have exceeded the speed limit by much. He estimated his top speed to have been less than fifty miles per hour. Defendant also testified that two cars had pulled to the roadside in response to his flashing lights, but that no cars were forced off the road to avoid an accident.

During pretrial motions, the prosecutor asserted that although, by the time of trial, eluding by motor vehicle in a manner creating a risk of death or injury had been upgraded by amendment to a second degree crime, it was a fourth degree offense when it was committed. This misstatement elicited no comment from either the court or defense counsel. During a charge conference after the close of testimony in the five-day November 1996 trial, the court and counsel discussed the amendment to N.J.S.A. 2C:29-2b, but none of the participants was yet aware that it ...

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