Judges Havey, Skillman and Lesemann.
The opinion of the court was delivered by: Lesemann, J.s.c. (temporarily assigned).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Bergen County.
On appeal following his guilty plea to a number of charges related to a carjacking, defendant raises two issues: first, that a charge of hindering apprehension by running from the police did not state an offense, and should have been dismissed; and second, that his sentence was excessive. The State acknowledges that the hindering apprehension charge should have been dismissed. With respect to the sentencing, it acknowledges some errors in the proceeding but argues that the sentence imposed--twenty years imprisonment with ten years parole ineligibility-- was unaffected by those errors and should stand. We agree that the conviction for hindering apprehension based on defendant's running from the police must be set aside, but we also conclude that because of a number of errors and questionable procedures, the matter should be remanded for re-sentencing. Accordingly, we reverse.
Defendant's cousin, Anthony Lopez, and his aunt, Inez Osario, were the principal actors in the carjacking which forms the heart of this case. The victim was Louis Lodato and the motive was revenge for Lodato's having fired Osario from her job. Defendant's participation consisted of his stealing a handgun from his uncle and giving it to one of the carjackers, together with acting as a look-out while Lopez and Osario got into Lodato's car and held him at gun point. Lodato managed to escape, after which defendant joined Osario and Lopez in the car and all drove off. Later they left the car and went their separate ways. Defendant was stopped by a police officer and, when questioned, attempted to run from the officer but was soon apprehended.He was indicted on seven counts including first-degree carjacking (N.J.S.A. 2C:15-2); second-degree attempted kidnaping (N.J.S.A. 2C:5-1 and 2C:13- 1b); first-degree robbery (N.J.S.A. 2C:15-1); fourth-degree aggravated assault (N.J.S.A. 2C:12-1b(4)); second-degree possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a); third-degree unlawful possession of a weapon (N.J.S.A. 2C:39-5b); and third-degree hindering apprehension (N.J.S.A. 2C:29-3(b). Lopez and Osario were charged under the same counts (except for the hindering apprehension charge), and another aunt of defendant, Angelina Lopez, was charged in an eighth count with violating N.J.S.A. 2C:39-3a, hindering the apprehension of another.
Defendant initially rejected a plea agreement but shortly after trial began, he changed his mind and pleaded guilty to all the charges against him, without a plea agreement. He then testified as a State's witness against Osario and, according to the prosecutor, was instrumental in securing Osario's conviction. Both Osario and Anthony Lopez, who had not yet been tried, thereafter became fugitives and have not yet been apprehended. The fourth defendant, Angelina Lopez, pleaded guilty to the charge against her, was sentenced to three-years probation, and thereafter received a 364-day jail sentence for violation of that probation.
The State acknowledges that count seven of the indictment, which charged defendant with hindering apprehension of a fugitive by running from the police, did not charge an offense and a finding of guilt thereunder was in error. We agree.
Count seven charges a violation of N.J.S.A. 2C:29-3b(1) which states that one commits an offense if "with purpose to hinder his own apprehension, prosecution, conviction, or punishment," he:
"(1) suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which aids in his discovery or apprehension or in the lodging of a charge against him[.]"
The indictment charges that defendant violated that provision by concealing evidence of the crime, "specifically himself;" i.e., that defendant himself constituted evidence of the crime and by running away (or concealing himself) he violated N.J.S.A. 2C:29-3b(1).
N.J.S.A. 2C:29-3 is part of Chapter 29 of the Criminal Code, which is entitled "Obstructing Governmental Operations; Escapes". N.J.S.A. 2C:29-1 is also part of that chapter and sub-section a thereof reads as follows:
"A person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of intimidation, force, violence or physical interference or obstacle, or by means of any independently unlawful act. This section does not apply to flight by a person charged with crime, refusal to submit to arrest, . . or any ...