On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 99-02-0321.
Before Judges Stern, Eichen and Lintner.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 2, 2001
Tried by jury, defendant was convicted of second degree eluding, N.J.S.A. 2C:29-2b (count one), and resisting arrest, N.J.S.A. 2C:29-2a, as a lesser included disorderly persons offense (count two). Co-defendant Gary M. Scott was also convicted of the disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2a, as a lesser included offense on count three. Defendant was sentenced to an extended term, pursuant to N.J.S.A. 2C:44-3a, of eleven years in prison with three years and six months to be served before parole eligibility on count one. He received a concurrent term of six months imprisonment on count two. Defendant appeals and argues:
POINT I[THE TRIAL JUDGE'S] FAILURE TO CHARGE THE JURY ON IDENTIFICATION DENIED DEFENDANT A FAIR TRIAL AND IS REVERSIBLE ERROR, BECAUSE THE SOLE ISSUE, WHETHER DEFENDANT WAS THE CAR'S DRIVER, WAS SUPPORTED ONLY BY EYEWITNESS TESTIMONY NOT CORROBORATED BY INDEPENDENT IDENTIFICATION EVIDENCE (NOT RAISED BELOW).
POINT II [THE JUDGE] COMMITTED REVERSIBLE ERROR WHEN, CONTRARY TO N.J.S.A. 2C:2-2(C), HE FAILED TO CHARGE THE JURY ON THE LEVEL OF CULPABILITY SUFFICIENT TO PROVE DEFENDANT CREATED A RISK OF DEATH OR INJURY TO ANY PERSON, THE ESSENTIAL ELEMENT OF THE SECOND DEGREE OFFENSE OF ELUDING DEFINED UNDER N.J.S.A. 2C:-29-2[b] (NOT RAISED BELOW).
POINT III DEFENDANT IS ENTITLED TO A NEW TRIAL BECAUSE THE JURY WAS PERMITTED TO INFER THAT DEFENDANT'S CONDUCT CREATED "A RISK OF DEATH OR INJURY" IF IT DETERMINED THAT HIS CONDUCT "INVOLVED" ANY OF THE MOTOR VEHICLE OFFENSES SET FORTH IN CHAPTER 4 OF TITLE 39, IN THE ABSENCE OF AN INSTRUCTION THAT THE JURY HAD TO FIRST DETERMINE THAT DEFENDANT WAS GUILTY OF THOSE OFFENSES BEYOND A REASONABLE DOUBT BEFORE IT COULD DRAW THE INFERENCE. (NOT RAISED BELOW).
POINT IV DEFENDANT'S EXTENDED TERM SENTENCE OF ELEVEN YEARS OF IMPRISONMENT WITH THREE AND ONE-HALF YEARS OF PAROLE INELIGIBILITY IS EXCESSIVE.
In a pro se supplementary brief, defendant also contends:
POINT I THE DEFENDANT'S SENTENCE SHOULD BE VACATED BECAUSE IT VIOLATES [THE] DUNBAR ANALYSIS AND [IS] PER SE ILLEGAL.
POINT II THE DEFENDANT['S] CONSTITUTIONAL RIGHT TO A FAIR TRIAL WAS VIOLATED BECAUSE THE DEFENDANT['S] TRIAL ATTORNEY RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL WITH THE RESULT THAT A SUSPECT VERDICT WAS RENDERED AGAINST THE DEFENDANT.
POINT III THE DEFENDANT IS ENTITLED TO A FULL EVIDENTIARY HEARING BECAUSE THE DEFENDANT HAS PRESENTED A PRIMA FACIE CASE ON INEFFECTIVE ASSISTANCE OF COUNSEL.
Our careful review of the record leads us to conclude that these contentions are without merit and require only the following discussion in a written opinion. R. 2:11-3(e)(2).
On November 6, 1998, at about 1:30 a.m., Officer Daniel Graber, a seven year veteran of the Port Authority Police Department, was on traffic patrol in a marked police vehicle. As he was driving westbound on the upper deck of the George Washington Bridge, he observed a maroon Plymouth Horizon with a broken tail light that was speeding and passing other traffic. Officer Graber began to follow the vehicle which he clocked at approximately 74 m.p.h.
Officer Graber followed the car for about one-half mile and then "activated" his overhead emergency lights to stop the car. However, the car kept going. Officer Graber then turned on his siren but the driver did not pull over. Officer Graber thereafter radioed the George Washington Bridge communications desk, advised that he "was attempting to stop a vehicle," and gave them the license plate number and description of the car. As a result, Officer Matthew Lombardo joined Officer Graber in the chase.
Officer Graber followed the Plymouth onto Route 4, where it was traveling at "[a]bout 70 miles an hour" and "was weaving in and out of the lanes and traffic." Although the traffic was "light," the driver's conduct caused "other motorists to hit the[ir] brakes, stop [and] swerve," to avoid a collision. The car then "veered" from the left lane to the right hand exit that led to the City of Englewood. Officers Graber and Lombardo continued chasing the car with their lights and sirens on.
The Plymouth Horizon, now traveling about 50 m.p.h. in a 25 m.p.h. local traffic zone, drove through "at least 20" stop signs on several side streets, forcing drivers who had the right of way "to hit their brakes and stop." When the car slowed down to about 40 m.p.h., one of the passengers opened the rear door of the car, jumped out and ran away.
The vehicle then pulled onto a "dead end-street" into an apartment complex. As the vehicle slowed down, defendant, who had been driving, and the front seat passenger "jumped out" of the car. Graber testified that defendant ran to the left of a large "dumpster" into "an open field," and the front seat passenger ran to the right of the dumpster into the same field. Meanwhile, the car continued to roll down the street into the dumpster, and Graber "yelled" to Lombardo "to get the driver."
Officer Graber immediately arrested a passenger who remained in the rear of the car, as Officer Lombardo pursued defendant and the front seat passenger on foot. Lombardo was able to arrest defendant about fifty yards from the car, although the front seat passenger escaped. After placing defendant under arrest, the officers put him in the rear of the patrol car with the back seat passenger, co-defendant Scott. Meanwhile, approximately ten officers arrived on the scene as "back-up." For about one hour the officers unsuccessfully tried to apprehend the two occupants who had fled.
While processing defendant at headquarters, Graber discovered that defendant's license was suspended, and he issued six motor vehicle summons. Graber specified that defendant was charged with driving while suspended, reckless driving, speeding, having an inoperable stop light, and failure to comply with the lawful directions of a police officer. Graber also testified that his ...