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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:
[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).
[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).
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).
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 ITHE DEFENDANT'S SENTENCE SHOULD BE VACATED BECAUSE IT VIOLATES [THE] DUNBAR ANALYSIS AND [IS] PER SE ILLEGAL.
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.
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 ...