On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Ocean County, 04-01-0015.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Kestin and Weissbard.
Defendant, Paul Chapman, was charged with second-degree eluding, N.J.S.A. 2C:29-2b. That charge was tried to a jury, and a guilty verdict was returned.
Prior to trial, for reasons stated on the record, the court denied defendant's motion for a jury trial, as well, on siX charges of motor vehicle violations arising from the same incident; and his motion to suppress certain testimony and other evidence bearing on some of those charges was also denied. The motor vehicle violation charges were: reckless driving, N.J.S.A. 39:4-96; failure to maintain lane, N.J.S.A. 39:4-88b; driving under the influence of intoxicants (DUI), N.J.S.A. 39:4-50; refusal to submit to a breath test, N.J.S.A. 39:4-50.4a (mistakenly charged in the complaint-summons as N.J.S.A. 39:4-50.2); possession of an open alcoholic beverage container or consumption of alcohol while operating a motor vehicle, N.J.S.A. 39:4-51a; and failure to stop or yield, N.J.S.A. 39:4-144. After the jury returned its verdict on the eluding charge, the court conducted a bench trial on the motor vehicle charges and found defendant guilty of all.
A sentence of seven years of imprisonment was imposed for the second degree crime and the merged convictions for reckless driving, failure to maintain lane, and failure to stop or yield. A twelve-month suspension of driver's license was also ordered, along with specified assessments mandated by statute.
For the DUI conviction, a concurrent 180-day jail term was ordered notwithstanding a finding that defendant had been thrice convicted previously of that offense as well as twice convicted of breathalyzer refusal. The State had stipulated in the pre-trial proceedings that, in the event defendant were to be found guilty of one or more of the motor vehicle offenses, "his exposure would not exceed six months." In addition, for the DUI conviction, a consecutive ten-year loss of driver's privileges was ordered along with installation of a two-year ignition interlock, as well as various fines, assessments and surcharges mandated by statute, and an Intoxicated Driver Resource Center (I.D.R.C.) requirement. For the refusal, defendant's driver's privileges were revoked for an additional, consecutive ten-year term along with fines, assessments and an I.D.R.C. requirement. A separate fine was imposed for the remaining motor vehicle violation.
The judgment of conviction notes the trial judge's finding that "[s]ubstance abuse is [a] serious problem for defendant." It also contains the following recitation: "The court strongly recommends alcohol treatment and rehabilitation programs be made available to defendant during his period of incarceration."
On appeal, defendant raises the following arguments:
POINT I IN PROHIBITING ANYONE FROM EXITING OR ENTERING THE COURTROOM DURING THE JURY CHARGE, THE COURT VIOLATED DEFENDANT'S RIGHT TO A PUBLIC TRIAL AND, ACCORDINGLY, DEFENDANT'S CONVICTION MUST BE REVERSED AND THE MATTER REMANDED FOR A NEW TRIAL. (Not Raised Below)
POINT II STATEMENTS MADE BY THE PROSECUTOR DURING CLOSING ARGUMENTS RESULTED IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S FUNDAMENTAL RIGHT TO HAVE THE JURY FAIRLY ASSESS THE CASE AGAINST HIM. (Not Raised Below)
POINT III THE COURT BELOW ERRED IN PERMITTING TO BE PLAYED FOR THE JURY A TAPE RECORDING OF BOUTIN'S CALL TO THE BRICK POLICE DEPARTMENT.
POINT IV DEFENDANT'S CONVICTION MUST BE SET ASIDE AS THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE ...