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State v. McBride

September 27, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DEVOE R. MCBRIDE, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Cape May County, 02-12-0808.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 18, 2007

Before Judges Coburn and Chambers.

After losing his motion to dismiss the indictment, defendant was tried before a jury and found guilty of second degree eluding, N.J.S.A. 2C:29-2(b). The judge granted the State's motion to impose a discretionary extended term, and then sentenced defendant to imprisonment for ten years with five years of parole ineligibility. We affirm the conviction and remand for re-sentencing.

On June 11, 2002, at about 9:15 p.m., Lieutenant Chad Callahan of the Ocean County Police Department saw defendant driving an Acura automobile. Although it was night, the area was well-lit by streetlights and light coming from stores. Callahan testified that he recognized defendant because he had been in contact with him hundreds of times. Because Callahan knew that defendant's driver's license was suspended, he followed him, noting that he failed to stop at a stop sign and was driving fifty miles per hour in a twenty-miles per hour zone. Callahan activated his police lights and siren, and defendant pulled to a stop. Callahan saw no one else in the car. Callahan walked up to the driver's side of defendant's automobile, and defendant said, "What's up Chad?" Callahan replied, "Mr. McBride, Devoe, turn your 'f'king' car off." Instead of doing as he was told, defendant drove away at a high rate of speed.

During the chase, defendant almost hit another motor vehicle, then turned into a narrow alleyway, turned off the automobile's lights, made a turn back on the street, and drove through several stop signs. Callahan stopped his pursuit because of safety concerns. Another officer, Michael Gray, who had joined the effort to arrest defendant, saw defendant standing next to his automobile and watched as he ran into his home on West Avenue.

A third officer, David Hall, who also had "numerous contacts" with defendant, and identified him in court, testified that he saw defendant look out of the window on the second floor of the West Avenue house. Callahan and Gray went upstairs and placed defendant under arrest.

Defendant's uncle, Julius Adams, testified for the defendant, indicating that he was the driver of the Acura on the night in question, and that defendant was in a passenger seat. Adams's testimony contained many inconsistencies, but there is no need to detail them here. Nor, since defendant does not contend the verdict was against the weight of the evidence, need we describe the testimony of other defense witnesses who attempted to corroborate Adams's story.

On appeal, defendant offers the following arguments:

POINT I

SINCE THE PROSECUTOR'S TRIAL STRATEGY TO AVOID A N.J.R.E. 404(B) HEARING DEPRIVED THE TRIAL COURT OF AN OPPORTUNITY TO CONDUCT A N.J.R.E. 403 PROBATIVE VALUE/PREJUDICE BALANCING TEST, THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENDANT'S MOTION TO PRECLUDE TESTIMONY CONCERNING LIEUTENANT CALLAHAN'S FAMILIARITY WITH THE DEFENDANT.

POINT II

THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN ...


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