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State v. Diferdinando

November 29, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LISA DIFERDINANDO, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 97-04-0382.

Before Judges Braithwaite, Coburn and Weissbard.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 22, 2001

Following a jury trial, defendant Lisa DiFerdinando was convicted of possession of cocaine, N.J.S.A. 2C:35-10a(1); third degree aggravated assault, N.J.S.A. 2C:12-1b(2); two counts of second degree eluding, N.J.S.A. 2C:29-2b; and the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a(1), a lesser-included offense of fourth degree resisting arrest. At sentencing, the trial judge merged one of the eluding convictions with the other and imposed an eight-year custodial term with a two- year parole bar on the surviving conviction. Concurrent five-year custodial terms, with two years of parole ineligibility were imposed on the possession of cocaine and aggravated assault convictions, and a six-month concurrent term was imposed on the resisting arrest conviction.

Defendant now appeals and contends:

POINT I

THE TRIAL JUDGE COERCED A VERDICT BY FAILING TO EXPLAIN TO THE POTENTIALLY DEADLOCKED JURORS THE CONSEQUENCES OF BEING ABLE TO ARRIVE AT A UNANIMOUS VOTE, AND THEN BY SETTING A DEADLINE FOR THE JURY TO REACH A VERDICT AFTER THEY HAD BEEN DELIBERATING FOR ELEVEN DAYS.

A. The Court Erred by Failing to Provide Instructions to the Potentially Deadlocked Jury. (Not Raised Below)

B. The Court's Decision to Set a Time Limit for the Jury's Verdict Was Unduly Coercive.

POINT II

THE TRIAL COURT'S FAILURE TO DEFINE THE TERM ATTEMPT TO THE JURY DURING HER INSTRUCTIONS ON SECOND AND THIRD DEGREE ELUDING DENIED DEFENDANT A FAIR TRIAL AND DUE PROCESS OF LAW, AND HER CONVICTION MUST THUS BE REVERSED. (Not Raised Below)

POINT III

DEFENDANT'S CONVICTION FOR POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV

DEFENDANT'S SENTENCE IS EXCESSIVE.

We reject these contentions and now affirm.

I.

The State produced the following evidence at trial. On February 13, 1997, Passaic County Sheriff's Officer Leonard Arcieri and his partner, Nick Casasanta, were on fugitive writ duty in Paterson. They were in plain clothes and in an unmarked car and were to apprehend persons sought on fugitive arrest warrants. Shortly after 4:00 p.m., the officers were on East 23rd Street when they observed a female, later identified as defendant, and a man talking on the corner approximately thirty feet from the officers. Defendant appeared to be a fugitive wanted on a warrant, one "Antonette Malavarca." Arcieri then witnessed the male hand something to defendant which appeared to be small square objects.

After receiving the items, defendant got into the driver's seat of a black car parked at the corner of the intersection. Anthony Spino was a passenger in the car. The car, originally believed to be a Pontiac Firebird, turned out to be a Chevrolet Camaro, a car similar in design to a Firebird. Defendant drove off and Arcieri and Casasanta followed to determine if defendant was the subject of the fugitive warrant.

After proceeding about a block and a half, defendant stopped at a red light on 11th Avenue and Madison, whereupon the undercover police car came up alongside defendant. Arcieri, driving the car, was alongside the passenger side of defendant's car, about five feet or less from defendant. The detective looked over to see defendant holding something in her right hand, against her stomach. It appeared she had small plastic baggies consistent with cocaine packages with which the officer was familiar from over four years experience on the narcotics squad. The passenger, Spino, was also looking in the direction of defendant's lap.

Arcieri then knocked on the Camaro's passenger side window, displaying the badge which hung on a chain around his neck. He advised defendant to shut off the car. Rather than complying, defendant drove out of the traffic lane, over a double yellow line and went around the car in front that was waiting at the red light. At that point, Arcieri activated the police lights and siren and followed defendant as she sped through several red lights and stop signs. Arcieri testified that there was heavy traffic in the area and defendant was traveling at a high rate of speed. After the detectives lost sight of defendant, they notified headquarters that the vehicle may be entering Route 80.

At that time, Sheriff's Department Detectives Raymond Mankovich and Kevin Huha were in the area of Route 80 in Totowa and were also in plain clothes and in an unmarked vehicle. They heard the radio transmission in which Arcieri related being involved in the pursuit of a black Firebird (or Camaro) that was possibly now on Route 80. They drove to the Union Boulevard overpass over Route 80, where Mankovich exited to scan the traffic in the westbound lanes. Mankovich spotted defendant's car weaving in and out of traffic at a much higher speed than the flow of other traffic.

The Camaro left Route 80 at the northbound Union Boulevard exit ramp near the detectives and they immediately followed the car. They stayed behind the car without lights or sirens in order to see if it was the vehicle in question. Defendant drove down a driveway in a retail shop parking lot toward the rear of the building. Mankovich and Huha followed and spotted the car in the rear parking area approximately twenty-five yards away facing the driveway entrance. Upon receiving confirmation from headquarters on the description and plate number, Huha activated the emergency lights.

Mankovich had started to exit the police vehicle when defendant observed the detectives' vehicle and accelerated head-on toward the officers. As Huha swerved to avoid a collision, defendant drove past the detectives' vehicle and went back up the driveway to turn onto Union Boulevard southbound. The officers went in pursuit using the flashing head lights, the emergency light on the dashboard and the siren. Defendant's vehicle was in the right lane and was attempting to get through the traffic to the left-turn lane. Huha pulled the ...


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