On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 04-03-1068 and 03-04-1273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges Lintner and Sabatino.
Following a two-day jury trial, defendant Tarik Manigo was convicted of second-degree eluding, contrary to N.J.S.A. 2C:29-2b; third-degree receipt of stolen property, contrary to N.J.S.A. 2C:20-7; and fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a. Defendant now appeals those convictions and the corresponding sentences. We affirm.
The events giving rise to defendant's indictment in this case*fn1 occurred on November 12, 2002 in Irvington. Just before 10:00 a.m. that day, Irvington Police Officer Miles Brown was patrolling in the area of Stuyvesant and Madison Avenues. Officer Brown observed a gray van, driven by defendant, coming towards him in the opposite direction. As the vehicles passed each other, Officer Brown observed defendant's van strike a parked car on Madison Avenue and continue driving. Officer Brown turned his patrol car around, turned on his lights and siren, and pursued the van.
Defendant ignored Officer Brown's lights and siren and kept driving, weaving through traffic and running at least two red lights. A license plate check revealed that the van, a 2001 Mazda MPV, had been reported stolen by its owner six days earlier. According to Officer Brown, the chase lasted for about ten minutes, at speeds of around 35 m.p.h.
After weaving through several Irvington streets with Officer Brown in pursuit, defendant tried to turn right from Union Avenue onto Nye Avenue, when he swerved wide and struck two cars. The drivers of those two cars, Clive Stanford and Simard Allen, both testified at trial that they were waiting at a light on Nye Avenue when a gray van swung around the corner, skidded, and ran into them. Allen testified that the force of the van's impact propelled his car up onto the sidewalk and into a parking garage. According to Allen, the van's driver tried to take off after hitting Allen's car, but one of the van's tires was "broken" and it instead went straight into a utility pole on Nye Avenue. Allen then witnessed defendant jump out of the van, look at him, and flee up Nye Avenue towards a gas station.
Officer Brown pursued the van onto Nye Avenue and witnessed it hit one of the stopped cars and then crash into a pole. Officer Brown then got out of his patrol car and approached the van from behind. He noticed as he approached that the van was still running and in reverse gear. The van then began to back up towards the officer, who put his hands up to blunt the impact. The officer testified that his left hand went through the driver's side taillight, smashing the light and injuring his thumb, and he was knocked to the ground. At this point, defendant jumped out of the van and ran up Nye Avenue. Officer Brown got up and pursued defendant on foot.
Meanwhile, off-duty Irvington Police Officer Alfredo Aleman was working a shift at his part-time job at a bank on Union Avenue. He had left the bank around 10:00 a.m. to go to the corner store for a cup of coffee when he heard sirens nearby. Officer Aleman switched on his police radio and heard that Officer Brown was pursuing a stolen vehicle on Union Avenue. After seeing the chase pass him on Union and turn onto Nye Avenue, Officer Aleman heard a crash. He heard Officer Brown on the radio, reporting that the van's driver had fled on foot.
Officer Aleman ran to the corner of Union and Nye Avenues, where he saw Officer Brown chasing defendant up Nye Avenue. Officer Aleman checked on Stanford and Allen to make sure they were unharmed. He then got into Officer Brown's patrol car, which was running and unlocked, and headed in the direction of defendant and Officer Brown. Officer Aleman made a left on Augusta Avenue, stopped in front of an apartment building, and got out to look for defendant.
With Officer Brown chasing him on foot, defendant ran behind a gas station and down a small alley bordering an apartment building. Defendant jumped a fence into a backyard and hid from view. Officer Brown was unable to get over the fence, but he saw Officer Aleman on the other side and told him that defendant was hiding in the area. After a brief search, Officer Aleman discovered defendant hiding underneath a pile of garbage. By this time other patrol units had arrived on the scene.
According to Officer Aleman, as they tried to arrest defendant, he vehemently resisted, kicking and trying to get free. Officer Aleman testified that defendant continued to struggle until he threatened to let a police dog loose on him. At this point, the police succeeded in arresting defendant and taking him to the station.
After the incident, Officer Brown was taken to the hospital, where an x-ray revealed that he had a sprained left hand from the impact with defendant's vehicle. Officer Brown was not involved in the post-arrest processing of defendant, nor did he personally issue any motor vehicle summons to defendant. However, he testified that he conveyed the details of the chase to Irvington Police Officer Daniel Payton, who then wrote up and issued the summonses to defendant.*fn2
Officer Brown testified at trial that the summonses issued to defendant corresponded to what had happened during the chase:
Q: [C]an you tell us what [the summonses] were for and as they respond to the chase?
A: Yes. He ran a light, Madison and [Stuyvesant]. Leaving the scene of an accident, 56 Nye Avenue. Oh. Unlicensed driver, 56 Nye Avenue. Uninsured driver, 56 Nye Avenue. Unregistered vehicle, 56 Nye Avenue. Reckless, 56 Nye Avenue. Failure to observe signal, Union and Nye. Failure to observe signal, Stuyvesant.
Defendant was subsequently indicted and charged with aggravated assault of a police officer, unlawful possession of a weapon (an automobile), possession of a weapon for an unlawful purpose, receiving stolen property, eluding police, and resisting arrest. Defendant rejected a plea offer and pled not guilty to all of the charges at an October 17, 2003 status conference before the judge originally assigned to try his case. At the conclusion of that conference, the judge scheduled defendant's trial for January 12, 2004. The judge explicitly told defendant, "Mr. Manigo, if you fail to appear at that trial date, a bench warrant will be issued for your arrest, you lo[s]e your bail, and the case could go to trial even though you're not here. Do you understand that? Right?" Defendant replied, "Yes."
Nonetheless, defendant failed to appear in court on the morning of January 12, 2004, when the trial was scheduled to begin. Defense counsel requested that the judge adjourn the trial temporarily, pending efforts to locate defendant.*fn3 The judge denied that request. However, defendant's trial did not proceed that day, apparently because the judge was needed to preside over another trial.
The next morning, January 13, a different judge assumed responsibility as the trial judge in defendant's case.*fn4
Defendant again was not present. The court was not informed of defendant's whereabouts, although defense counsel ultimately conceded at a later proceeding that his client was not in jail, in a hospital, or in any situation that prevented him from attending his trial. Accordingly, the trial judge likewise refused to grant an adjournment. The court proceeded with trial in absentia, having been provided with no reason to depart from the first judge's prior decision.
Prior to jury selection, defense counsel requested that the trial judge ask the potential jurors whether they had ever had a car stolen, and also whether they had ever been involved in a car accident. The judge denied that specific request, but did agree to incorporate the concept of stolen cars into the customary question of whether any juror had ever been a crime victim. Hence, the question asked of each potential juror on this subject was, "Have you or any friends or relatives ever been the victim of a crime? A victim of a crime, by that I mean any crime whatsoever, including having your car stolen." The jury was duly empanelled, and defendant did not use all of his allotted peremptory challenges.
At trial, the State presented eyewitness testimony from Officers Brown and Aleman, as well as from the civilian witnesses, Clive Stanford and Simard Allen. Also testifying for the State were the owner of the stolen van and Officer Timothy Pentiman of the Essex County Sheriff's Department, who gave testimony regarding a photograph of defendant used at trial. The defense presented no contradictory eyewitness testimony. Its sole witness was Officer Payton, whose testimony centered on the information contained in, and allegedly omitted from, the police report of November 12, 2002, reflecting the investigation of this incident.
Following deliberations, the jury found defendant not guilty of the charges of aggravated assault and possession of a weapon for an unlawful purpose, and found him guilty on the remaining charges. Prior to sentencing, the court dismissed the unlawful possession charge, ruling that the guilty verdict on that count was inconsistent with ...