On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The primary issue in this appeal is whether a driver who places only himself in danger of death or injury is guilty under a statute that says a driver who attempts to elude the police is guilty of a second-degree crime if the attempt to elude creates a risk of death or injury to any person. The factual basis for the appeal follows.
In October of 2000, sometime after 10:00 p.m., two police officers on patrol in Paterson spotted a red Mustang being driven without its headlights on. As the officers drove past the Mustang, which was heading in the opposite direction, they observed that the driver was not wearing his seatbelt. The officers made a U-turn, turned on their overhead lights and siren, and followed the Mustang as it turned and increased speed. During the chase, the officers saw the driver turn without signaling; drive through a residential and commercial area in excess of the speed limit; fail to heed two stop signs; swerve across double yellow lines into oncoming traffic while turning at an intersection; and drive the wrong way down a one-way street, requiring two or three drivers with the right of way to pull over to avoid a collision. The chase ended when the driver lost control of the Mustang while turning and crashed the Mustang into a parked minivan. As the officers approached the crashed vehicle, the driver ran towards the officers. A struggle ensued during which one officer tried to subdue the driver with mace. However, he broke free from the officers and fled on foot. The officers eventually apprehended the driver, later identified as Davon Bunch, and placed him under arrest.
The jury convicted Mr. Bunch of second-degree eluding, resisting arrest, and criminal mischief. Mr. Bunch was sentenced to eight years imprisonment on the eluding charge and to concurrent terms on the resisting arrest and criminal mischief charges.
On appeal, the Appellate Division affirmed Mr. Bunch's convictions and remanded the case to the trial court for resentencing on the conviction for third-degree resisting arrest because that sentence fell below the statutory range for third-degree crimes. We granted Mr. Bunch's petition for certification,
HELD: The jury instruction on second degree eluding was not erroneous. The term "any person" in the statute includes the eluding accused. Because the Appellate Division's interpretation of N.J.S.A. 2C:29-2b in State v. Moore is inconsistent with ours, we overrule Moore.
1. In State v. Moore, the Appellate Division held that a conviction for second-degree eluding cannot rest on evidence that the defendant created a risk of death of injury to only himself or herself. In the context of the eluding statute, the phrase "any person" refers unambiguously to all natural persons, including the eluding defendant. Accordingly, a defendant who uses a motor vehicle to escape apprehension and in doing so creates a risk of death or injury to himself or herself is guilty of second-degree eluding. Because Moore's interpretation of the statute is inconsistent with ours, we overrule Moore. (Pp.9-15)
2. The jury instruction on second-degree eluding was not erroneous. The trial court charged the jury that eluding is elevated from a third-degree to a second-degree crime if the flight or attempt to elude creates a risk of death or injury to any person and further explained that to convict Mr. Bunch of second-degree eluding, it had to find that there was at least one person put at risk by Bunch's conduct including persons walking along the route or police officers in the chasing vehicle. The State's theory of the case was that during the high-speed chase, Bunch created a risk of death or injury to persons other than himself. In the circumstances of this case, the trial court was not required to clarify that any person included Mr. Bunch and, in any event, the exclusion of that explanation worked to Mr. Bunch's advantage. (Pp.15-16)
3. Mr. Bunch argues that the trial court improperly submitted the second-degree eluding charge to the jury because there was insufficient evidence that anyone was placed at risk of death or injury by his conduct. The State presented more than sufficient evidence from which a rational jury could find, beyond a reasonable doubt, that Bunch committed second-degree eluding. (P.17)
4. The assistant prosecutor should not have asked Mr. Bunch, "So basically you want this jury to believe that everything that the officers came in here and testified to is untrue?" Nevertheless, in view of the substantial amount of evidence of Mr. Bunch's guilt and the trial court's instruction to the jury that it must determine the witnesses' credibility, we conclude that the improper statement was not so egregious that it deprived Mr. Bunch of a fair trial. (P.18)
5. In view of Mr. Bunch's extensive criminal history, the court's decision to impose a sentence one year higher than the presumptive seven-year term for second-degree crimes does not shock the judicial conscience. (P.19)
The judgment of the Appellate Division is AFFIRMED and the matter is remanded to the trial court for further proceedings consistent with the Appellate Division opinion.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ALBIN, and WALLACE join in JUSTICE ZAZZALI's opinion. JUSTICE LONG did not participate.
The opinion of the court was delivered by: Justice Zazzali
Under N.J.S.A. 2C:29-2b, a person is guilty of second degree eluding if, "while operating a motor vehicle on any street or highway in this State," the driver "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... [and] the flight or attempt to elude creates a risk of death or injury to any person."
The primary issue in this appeal is whether the term "any person" in N.J.S.A. 2C:29-2b includes the eluding defendant. In holding that it does, we reject defendant's contention that a conviction for second-degree eluding cannot rest on a finding that the defendant's conduct created a risk of death or injury to no one but himself or herself.
We also address whether the trial court erred in submitting the charge of second-degree eluding to the jury, whether the prosecutor engaged in egregious misconduct that deprived defendant of a fair trial, and whether the sentence imposed for second-degree eluding was excessive. Because we find no merit in any of those claims, we affirm the judgment of the Appellate Division.
On October 6, 2000, at approximately 10:20 p.m., Officers Marcos Medina and Derek Landi of the Paterson Police Department were patrolling the streets of Paterson in a marked police car when they spotted a red Mustang being driven without its headlights illuminated. As the officers drove past the Mustang, which was heading in the opposite direction, they observed that the driver, later identified as defendant, was not wearing his seatbelt. Officers Medina and Landi made a U-turn, activated their ...