Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

State v. McNeil

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


December 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
STEVEN B. MCNEIL, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 02-06-0929.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 27, 2007

Before Judges Coburn, Fuentes and Chambers.

After a trial by jury, defendant Steven B. McNeil was found guilty of eluding in the second-degree, in violation of N.J.S.A. 2C:29-2(b), and aggravated assault in the third-degree, in violation of N.J.S.A. 2C:12-1(b)(5)(a). On the eluding conviction, he was sentenced to a term of imprisonment of ten years with five years of parole ineligibility, and on the aggravated assault conviction, he was sentenced to a concurrent eighteen month term of imprisonment, with nine months of parole ineligibility. A careful review of the record and arguments of counsel reveals no error here, and we affirm.

The charges arose out of a five-car police chase involving officers from three towns in which the police pursued defendant at speeds approaching ninety-five miles per hour. The police briefly lost track of defendant's vehicle immediately prior to the arrest, and as a result, the defense argued that another person, not defendant, was driving the car.

The events leading to this conviction began on March 22, 2002, at about 10:39 p.m., when Officer Matthew Wiesniewski of the Burlington City Police Department, while on foot patrol, heard a vehicle approaching with the radio playing at a volume that could be heard over thirty feet away, in violation of a local ordinance. He testified that the vehicle had only one occupant. When he attempted to stop the vehicle, the vehicle swerved toward him and took off. Wiesniewski called the dispatcher and provided a description of the vehicle, a dark-colored Infiniti with a temporary license tag in the window.

Officer Jamie Lambing, another Burlington City policeman on patrol only a quarter of a mile from the incident, heard the dispatch, spotted the vehicle, and gave chase. The vehicle turned its lights off and went into a cemetery, and Lambing pursued it. The officer testified that only one occupant was in the car. The videotape from the officer's vehicle did not provide a clear view of the number of occupants in the car.

Officer Stanley Tarasewicz, a Burlington Township police officer, saw the vehicle exit the cemetery and took up the pursuit. Once defendant was apprehended, this officer was able to identify defendant as the person in the car. Unfortunately, his videotape of the chase was recycled, and hence lost as evidence in the case.

Tarasewicz dropped out of the chase when defendant headed into Willingboro, but Detective James Barnes from Burlington City continued the chase. He lost sight of the vehicle on Rockland Drive. The chase ended at 10:48 p.m.

Ten minutes later, at 10:58 p.m., Detective Robert Smith from the Willingboro Township Police Department saw a vehicle matching the description of the one involved in the chase. It was not speeding or driving erratically. When he stopped the vehicle, defendant, who was its sole occupant, was cooperative.

Defendant said that he had just obtained the vehicle from a friend.

The vehicle belonged to Beverly Minnie, defendant's girlfriend. She testified that she had given the car keys to defendant that evening and that defendant gave the keys to a friend named Sean who was the driver when the vehicle left her presence.

Rejecting defendant's defense that he was not the driver of the vehicle, the jury convicted him of the charges noted above.

Defendant raises the following issues in this appeal:

POINT I

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT' INCOMPLETE, ERRONEOUS, AND PREJUDICIAL INSTRUCTION ON THE LAW OF ELUDING (Not Raised Below).

A. THE INSTRUCTION ON THE LAW OF ATTEMPT TO ELUDE WAS VAGUE, ERRONEOUS, INCOMPLETE, AND PREJUDICIAL.

1. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT IT MUST FIND THAT THE DEFENDANT ACTED PURPOSELY.

2. THE ATTEMPT TO ELUDE INSTRUCTION WAS UNDULY VAGUE BECAUSE A PERSON OF REASONABLE INTELLIGENCE IS NOT CAPABLE OF UNDERSTANDING THE ELEMENTS OF THE OFFENSE.

B. THE INSTRUCTION ON THE RISK OF INJURY ELEMENT WAS INCOMPLETE, ERRONEOUS, UNDULY VAGUE, AND PREJUDICIAL.

1. THE TRIAL COURT FAILED TO INSTRUCT THE JURY THAT THE RISK OF INJURY MUST BE SUBSTANTIAL AND NOT JUST SOME POSSIBLE OR IMAGINARY RISK.

2. THE TRIAL COURT FAILED TO RESTRICT OR LIMIT THE RISK OF INJURY TO PHYSICAL ILLNESS.

3. THE TRIAL COURT ERRED BY INSTRUCTING THE JURY THAT IT COULD INFER THAT THE DEFENDANT CREATED A RISK OF INJURY ON THE BASIS OF MERE EVIDENCE OF MOTOR VEHICLE INFRACTIONS WITHOUT ANY FINDINGS BEYOND A REASONABLE DOUBT THAT THE DEFENDANT ACTUALLY VIOLATED MOTOR VEHICLE LAWS.

POINT II

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF UNFAIRLY PREJUDICIAL EVIDENCE (Not Raised Below).

POINT III

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURORS THAT THEY SHOULD NOT INFER THAT THE DEFENDANT IS DISPOSED TO VIOLATING THE LAW FROM EVIDENCE OF MULTIPLE MOTOR VEHICLE OFFENSES (Not Raised Below).

POINT IV

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE (Not Raised Below).

POINT V

THE TRIAL COURT VIOLATED THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION BY FAILING TO INSTRUCT THE JURY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS (Not Raised Below).

POINT VI

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INABILITY OF DEFENDANT TO REVIEW THE VERBATIM TRIAL RECORD FOR THE APPEAL (Not Raised Below).

POINT VII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE LOSS OR DESTRUCTION OF EVIDENCE IN POLICE CUSTODY.

POINT VIII

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO GIVE THE JURY A "SPOILATION" INSTRUCTION (Not Raised Below).

POINT IX

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT DURING SUMMATION (Not Raised Below).

POINT X

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS (PARTIALLY Raised Below).

POINT XI

THE DEFENDANT'S SENTENCE IS EXCESSIVE.

A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

B. THE TRIAL COURT MADE FINDINGS OF FACT TO IMPOSE AN EXCESSIVE SENTENCE.

After carefully reviewing the record and the arguments of counsel, we are satisfied that the issues raised by defendant are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following comments.

Almost all of the issues raised in this appeal were not raised before the trial court. Thus, with respect to those issues we must apply the plain error standard, that is the error must be "clearly capable of producing an unjust result." R. 2:10-2.

We reject the contentions that errors were made in the judge's instructions to the jury, and note that the charge was in conformance with the criminal model jury charges. We find no merit in defendant's argument that the model charge on eluding should include further language that an attempt requires "purposeful conduct." That argument was rejected by this court in State v. Mendez, 345 N.J. Super. 489, 508-09 (App. Div. 2001), aff'd, 175 N.J. 201 (2002). Defendant's reliance on State v. Crescenzi, 224 N.J. Super. 142 (App. Div.), certif. denied, 111 N.J. 597 (1988) is misplaced, since the crime under discussion in that case was witness tampering not eluding. Id. at 143. The Mendez court expressly addressed the requisite intent for the offense of eluding. State v. Mendez, supra, 345 N.J. Super. at 509 n.6.

The record indicates that, due to a technical deficiency in the recordation of the trial, the sidebars are inaudible. Defendant argues that the loss of these sidebars deprives him of his constitutional rights. Indeed, the law recognizes that sidebars should be transcribed in order to assure meaningful review on appeal. State v. Paduani, 307 N.J. Super. 134, 141 (App. Div.), certif. denied, 153 N.J. 216 (1998). However, the absence of a verbatim record of the proceeding merely raises a question of whether the due process guaranty of a fair trial has been met, and by itself does not render the trial unfair. State v. Bishop, 350 N.J. Super. 335, 347 (App. Div.), certif. denied, 174 N.J. 192 (2002). "[I]n cases where portions of the trial were missing, this court has placed a duty upon the defendant to show both an exercise of due diligence to correct the deficiency in the record and prejudice from the incompleteness of the record." Ibid. Here, defendant made no effort to have the record reconstructed in accordance with Rule 2:5-3(f). See State v. Paduani, supra, 307 N.J. Super. at 142 (noting that defendant has a duty to make reasonable attempts to reconstruct the record).

Further, defendant has not explained how the gap in the transcript has prejudiced him in the context of this case. The absence of sidebars in the transcript is not necessarily reversible error, since the import of the sidebar may be apparent from what happened before and after it. State v. Paduani, supra, 307 N.J. Super. at 142-43; see State v. Perry, 124 N.J. 128, 170 (1991) (stating that "gaps" in the trial transcripts constituted harmless error based on discussions immediately prior to each gap).

Defendant also argues due process violations because one of the police videotapes of the chase is missing. Indeed, the State has a duty to preserve evidence that "might be expected to play a significant role in the suspect's defense." State v. Serret, 198 N.J. Super. 21, 27 (App. Div. 1984) (quoting California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2534, 81 L.Ed. 2d 413, 422 (1984)). Here, no evidence is present that indicates that the tape was destroyed in bad faith. Further, a reasonable inference cannot be made that it would have presented exculpatory evidence. The other two tapes of the chase did not show whether there were one or two people in the car, nor could the driver be identified from these tapes. There is no reason to believe that this third police tape would have been any different.

Defendant alleges prosecutorial misconduct. He maintains that the prosecutor mischaracterized the defense by stating in his summation that defendant was asserting a theory of conspiracy among the police officers. The essence of the defense was that defendant was mistakenly identified as the driver involved in the chase, although defense counsel did insinuate that the one videotape may be missing because it contained information helpful to the defense. However, a factual misstatement by the prosecutor constitutes reversible error only if it is "so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). Given the strength of the proofs against defendant, we do not find the misstatement here of such moment as to deny defendant a fair trial.

The sentence imposed by the trial judge properly took into account the relevant aggravating and mitigating factors under N.J.S.A. 2C:44-1 and was well within the discretion of the sentencing judge.

Affirmed.

20071213

© 1992-2007 VersusLaw Inc.



Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.