On appeal from Superior Court of New Jersey, Law Division, Middlesex County, 01-2-265-I.
Before Judges King, Lisa and Fuentes.
The opinion of the court was delivered by: Lisa, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 8, 2003
This appeal requires us to determine whether eluding an officer, N.J.S.A. 2C:29-2b, is elevated from a third-degree to second-degree crime where the defendant's unlawful conduct creates a risk of death or injury to himself, but to no one else. We hold it does not.
After a trial by jury, defendant was convicted of second- degree eluding and sentenced to seven-years imprisonment. The jury acquitted defendant of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1), and possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1) and -5b(3). The judge who presided over the jury trial adjudicated the motor vehicle charges arising out of the incident. R. 3:15-3(a)(2). The judge found defendant guilty of careless and reckless driving, but merged the careless with the reckless conviction, and the reckless with the second-degree eluding conviction. The judge found defendant not guilty of failure to wear a seatbelt, operating a motor vehicle with tinted windows and possession of a CDS in a motor vehicle.
A person is guilty of third-degree eluding who operates a motor vehicle on a street or highway, who knowingly flees or attempts to elude a police or law enforcement officer after receiving a signal from the officer to bring the vehicle to a full stop. N.J.S.A. 2C:29-2b. The offense is elevated to a second-degree crime "if the flight or attempt to elude creates a risk of death or injury to any person." Ibid. The State tried the case on the theory that defendant created a risk of death or injury to himself, but to no one else. The judge denied defendant's motion at the end of the State's case, R. 3:18-1, to dismiss the second-degree eluding charge (and, implicitly, to submit only the third-degree charge to the jury).
The judge instructed the jury that the enhancing element would be satisfied if "the flight or attempt to elude created a risk of death or injury to any person and that person would include and is alleged to be the defendant himself." He reiterated, "In order to find this element, you must determine that there was at least one person put at risk by the defendant's conduct and that would be according to the State's allegations the defendant himself." The jury verdict sheet correspondingly asked the jurors, if they found defendant guilty of third-degree eluding, to further determine if defendant's conduct "created a risk of death or injury to the defendant."
On appeal, defendant contends the trial judge's instruction on second-degree eluding improperly broadened the scope of the offense, thereby violating defendant's right to due process of law. We agree with this contention and now reverse.
At 12:15 a.m. on January 12, 2001, Lt. Auker, in uniform and patrolling in a marked police car, observed a car traveling at a high rate of speed in the opposite direction on Industrial Road in Carteret. Auker made a U-turn and activated his overhead lights. He estimated the vehicle's speed at close to sixty miles per hour in a forty miles per hour zone. The vehicle pulled over without incident. The distance from the point of Auker's initial observation of the vehicle to the point of the stop was about one-half of a mile, and the elapsed time between those events was less than one minute.
As Auker exited his car and approached the stopped vehicle, he observed a lone occupant, later determined to be defendant.
According to Auker, as he approached defendant's car he placed his hand on his gun and unsnapped the restraint, but never removed it from the holster. He did this for his safety because of the late hour and because defendant leaned towards the glove compartment. According to defendant, Auker unholstered his gun, pointed it in defendant's face and addressed him using a racial epithet. Under either version of this interaction, defendant then sped away from the scene. Defendant contends he panicked and left in fear of the officer. The State urges an inference that defendant left because there was CDS in the car, which he did not want to be discovered.
Auker returned to his car and began a pursuit, with his overhead lights and siren on. Auker knew of a sharp curve in the roadway and consciously held down his speed to about fifty to fifty-five miles per hour. He "backed off" hoping defendant would slow down. Auker radioed for back-up, who he instructed to proceed to an intersection beyond the curve, where they could intercept defendant. Defendant accelerated rapidly, reaching a speed estimated by Auker of sixty to seventy miles per hour. After traveling about one-half of a mile from the initial stop in less than one minute, defendant did not successfully negotiate the curve. His car left the road, striking a utility pole and severing it in half. There may have been some snow or ice on the roadway that may have contributed to the crash. Defendant was seriously injured and was removed to the hospital by a medivac helicopter.
CDS was found in the wrecked car. The car was owned by defendant's brother. Defendant testified he had just borrowed it to drive home and had no knowledge of the presence of ...