On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 98-08-00319.
Before Judges Skillman, Wallace, Jr. and Wells.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
OPINION CORRECTED 02/04/02
Submitted October 10, 2001
This appeal presents significant issues concerning the culpability requirement of the offense of eluding a law enforcement officer by motor vehicle and the kind of evidence required to support a conviction for tampering with physical evidence.
Defendants Jose and Timothy Mendez, who are brothers, were found guilty, after a joint trial before a jury, of various criminal offenses arising out of a police chase of their car during the evening of May 8, 1998. State troopers Jay Miller and Brian Mulholland testified that while on routine patrol in Alloway Township, Salem County, they observed a car straddling the center line of the roadway approaching in the opposite direction. After the troopers were forced to pull to the shoulder to avoid a collision, they made a U-turn, activated their overhead lights and siren, and began to follow the Mendez car. The driver, Jose, accelerated and went through several stop signs without stopping, swerved into the opposing lane of traffic, drove in excess of the speed limit, and crossed the lawn of a corner property. While the troopers were chasing the Mendez car, they observed Timothy in the front passenger seat discarding various items out the car window, including a piece of paper, a round object the size of a baseball, a beer bottle and what appeared to be a white powdery substance in a plastic bag. After the pursuit had continued for approximately five miles, defendants drove their car into the driveway of a private home. The troopers then placed defendants under arrest and searched the car, which resulted in the discovery of a police radio scanner and two glassine bags containing white powder that tested positive for cocaine.
Shortly thereafter, the troopers returned to the route of their pursuit of defendants to search for the items they had seen Timothy throw out the car window. They found a lottery ticket with a glassine bag and small straw inside it, which they deduced had been thrown from the car because it was dry and the ground was wet from rain earlier in the evening. However, the troopers were not able to find any white powder or the other items they had seen Timothy throw from the car.
Testifying on his own behalf, Jose denied going through stop signs or committing any other motor vehicle infractions during the troopers' pursuit of the car. However, he admitted recognizing the troopers at the outset of the chase, seeing their overhead lights go on, knowing that they wanted him to stop, and deliberately failing to do so. When asked why he did not stop immediately after the troopers activated their overhead lights, Jose responded:
Well, all the streets that we were on were all dark roads, and there's no I don't -- with the cops, me and the cops, they don't get along with me, period.
Timothy did not take the stand.
Based on this evidence, the jury found Jose guilty of second degree eluding a police officer, in violation of N.J.S.A. 2C:29- 2b, and possession of a police scanner while in the course of committing or attempting to commit a crime, in violation of N.J.S.A. 2C:33-22. The jury found Timothy guilty of tampering with physical evidence, in violation of N.J.S.A. 2C:28-6(1), possession of a police scanner while in the course of committing or attempting to commit a crime, and the disorderly persons offense of resisting arrest, in violation of N.J.S.A. 2C:29-2a. The jury acquitted both defendants of possession of cocaine charges.
The court sentenced Jose to a seven year term of imprisonment for eluding and a concurrent nine month term for unlawful possession of a police scanner. The court sentenced Timothy to eighteen month terms of imprisonment for tampering with evidence and unlawful possession of a police scanner and six months for resisting arrest, all to be served concurrently.
Defendants filed separate appeals from their convictions, which we now consolidate. We reject the arguments raised in both appeals, and affirm defendants' convictions.
Jose Mendez's primary argument is that the trial court did not properly instruct the jury with respect to the charge of eluding. N.J.S.A. 2C:29-2b states in pertinent part:
Any person, while operating a motor vehicle on any street or highway in this State . . ., who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person.*fn1
Defendant argues that because eluding may consist of an "attempt to elude," the court was required to instruct the jury in accordance with the law of attempt, specifically that the State had to prove ...