On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-12-1636.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 24, 2007
Before Judges Lintner and Sabatino.
On December 8, 2004, following a trial, a jury convicted Forlang Spencer of second-degree eluding, N.J.S.A. 2C:29-2d (Count One) and acquitted him of weapons offenses charged in Counts Two, Three, and Four.*fn1 The judge denied defendant's motion for judgment notwithstanding the verdict and the State's motion to impose an extended term. She imposed a seven-year term. Defendant appeals and we affirm.
We recite the relevant facts. While on patrol in a residential area in Perth Amboy on November 3, 2003, at approximately 5:15 p.m., uniformed Police Officer Crescencio Fuentes came upon a Ford Explorer parked on the side of the road. Fuentes pulled up behind the Explorer, exited his patrol unit, and approached the Explorer. As he approached, he saw an individual, later identified as defendant, in the driver's seat with the window down. Tamika Green occupied the front passenger seat. Fuentes ordered defendant to stop, however, defendant spun the Explorer tires and pulled away from the curb. Fuentes reentered his vehicle, activated the overhead lights and siren, and pursued the Explorer. Defendant proceeded westbound on Hamilton Avenue, made a quick right turn to North Westmont, and continued to the intersection with Florida Grove Road where he turned southbound on Florida Grove Road without stopping at the stop sign.
Defendant drove erratically, weaving in and out of oncoming traffic on both lanes of Florida Grove Road, reaching speeds as high as sixty miles per hour. Fuentes was able to determine the Explorer's speed by looking at his own speedometer during the pursuit.
As the Explorer continued southbound on Florida Grove Road, it approached the major intersection at Pfeiffer Boulevard.*fn2
According to Fuentes, at the time of the pursuit, approximately 5:15 p.m., the area regularly experiences a high volume of traffic flow with people headed home from work. As defendant reached the intersection, the traffic light was red in his direction and there were other vehicles at the intersection. However, defendant ignored the red light, entering the intersection on the wrong side of the road with just a tap of his breaks and without stopping. When asked if he followed defendant through the intersection, Fuentes responded:
I did not follow him into the oncoming lane. I was concerned of safety of all the other vehicles and the persons at that moment. I slowed down in order to proceed to the intersection which was still red.
Fuentes briefly lost sight of the Explorer as it went around a bend in the road. Testifying for the State, Green stated that she threw a gun out the window once the Explorer was out of the pursuing police car's view. Barbara Wittke, who lived on Florida Grove Road, testified that she saw an object thrown from a green Explorer that was being pursued by several police cars at approximately 5:20 p.m.
After regaining sight of the vehicle, Fuentes pursued the Explorer while it continued southbound on Florida Grove Road for approximately one-half mile before coming to a halt north of New Brunswick Avenue. Green stated that it was her and defendant's "intention to get rid of [the gun]" and defendant stopped the vehicle "[r]ight after [she] threw the gun out." Once stopped, defendant and Green were ordered out of the vehicle and arrested.
The entire pursuit lasted between one-and-a-half to two minutes and covered 1.6 miles in a residential area. The speed limit throughout was twenty-five miles per hour. Fuentes issued summonses to defendant for "disregard of a stop sign, disregard of a light, failure to keep right, and reckless [driving]." He did not issue a summons for speeding because he did not have radar at the time of the incident, but observed the Explorer traveling at speeds of thirty, forty, and sixty miles per hour.
Wittke saw a man who lived two houses down on Florida Grove Road pick up the item thrown from the Explorer and carry it into his driveway. She then heard a bang and called 911. After conferring with Wittke, Fuentes and Sergeant Steven Verdi proceeded to the location where Verdi recovered a semi-automatic handgun with approximately thirty rounds of ammunition.
On appeal, defendant raises the following points:
THE COURT'S CHARGE ON SECOND DEGREE ELUDING DEPRIVED THE DEFENDANT OF HIS RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL REQUIRING REVERSAL OF HIS CONVICTION. U.S. CONST.
AMENDS. V, VI, XIV; N.J. CONST. ART. 1, ¶¶ 1, 9, 10. THE CHARGE RELIEVED THE STATE OF ITS BURDEN OF PROOF REGARDING THE MATERIAL ELEMENT OF KNOWINGLY CREATING A RISK OF DEATH OR INJURY AND FAILED TO ADEQUATELY EXPLAIN HOW TO PROCEED WITH THEIR DELIBERATIONS SHOULD THEY REJECT THE ...