On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-04-0486-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 23, 2008
Before Judges Winkelstein, Yannotti and LeWinn.
Following a jury trial, defendant appeals from convictions for disorderly persons simple assault, third-degree aggravated assault on a law enforcement officer, second-degree eluding, disorderly persons resisting arrest, and third-degree receiving stolen property. The court sentenced him to concurrent terms of ninety days (time served) for the simple assault and the resisting arrest convictions; four years for the aggravated assault conviction; and eight years for the eluding conviction. The court imposed a three-year consecutive term for the receiving stolen property conviction.
On appeal, defendant raises the following points:
Point 1 The jury charges were insufficient (plain error).
A. Defendant's receiving stolen property conviction under count 14 should be vacated because the trial court did not tell the jury that they had to find that the van was stolen, and charging the jury on theft by unlawful taking as an alternate version of the offense was improper.
B. Defendant's conviction for eluding under count 11 should be vacated because the trial court did not follow the model charge on eluding and should have instructed the jury that "attempts to elude" required purposeful conduct by defendant.
C. Defendant's conviction for assault against a police officer under count 2 should be vacated because the trial court did not adhere to the model charge.
Point 2 Defendant's conviction for assault against a law enforcement officer under count 2 should be amended or clarified to reflect a fourth-degree crime because the State did not prove and the jury never found that the officer sustained injury as a result of the alleged attempted assault (plain error).
Point 3 Permitting the jury to hear that defendant might have used or possessed cocaine on the night in question deprived defendant of his right to a fair trial on the charges presented.
Point 4 Defendant's sentence is illegal and excessive.
We find merit to defendant's argument in point 1A and reverse his conviction for receiving stolen property. We also agree with defendant's second point, that his conviction for assault against a law enforcement officer should be amended to a fourth-degree offense. Although we find no merit to defendant's remaining points, to the extent that we reverse his conviction for receiving stolen property and amend his conviction for assault against a law enforcement officer to a fourth-degree crime, we remand for retrial on the receiving stolen property charge and for resentencing.
Between 2:00 a.m. and 2:30 a.m. on December 26, 2003, John Debel arrived at his business, Debel's Dairy in Totowa, where he noticed that his red Ford van was missing from where he had parked it. He saw broken glass on the ground in the parking lot. He reported the van missing to the Totowa Police.
At about the same time, Paterson Police Officers Audrey Cooley and Wayne Smith were in a patrol car at the intersection of Broadway and Auburn Street in the City of Paterson when they observed a red van proceed through the red light. Officer Smith activated the car's lights and siren to pull the van over; as the van was stopping, Officer Cooley noticed a man "hanging off of the driver's side of the window."
The man hanging from the van was Gregory Reed, who testified that his cousin gave defendant "a dime of crack" and defendant, rather than paying for it, drove off in the van. Reed jumped on the side of the van and tried to pull the steering wheel to prevent defendant from getting away.
Paterson Police Sergeant Edwin Rodriguez was on patrol in downtown Paterson that night, wearing his uniform and driving a marked Ford Explorer. He heard a radio transmission from Officers Cooley and Smith that they were attempting to stop a red van with an individual hanging from the driver's side window. When he arrived at the scene, he saw a "red van moving back and forth with a black male hanging from the car holding on to the steering wheel," yelling, "Please help me, please help me." The van almost struck Officers Cooley and Smith's patrol car.
Sergeant Rodriguez activated his lights and siren and parked his car facing the front of the van. He approached the passenger's side of the van and saw defendant behind the van's steering wheel. John Debel testified that he owned the van that defendant was driving.
Rodriguez yelled to defendant to stop the van and get out. He saw defendant bite the other man's arm, causing him to let go of the van. Reed testified that defendant bit his hand.
Cooley and Smith drew their guns and told defendant to turn off the van's engine and put his hands on the steering wheel. Defendant did not follow their instructions. Rodriguez stood in front of the van and pointed his gun at defendant. Defendant drove the van directly at him. Rodriguez jumped out of van's path, avoiding being hit.
Defendant drove away with the officers in pursuit. A high speed chase ensued, beginning along several streets in Paterson, where the van ran stop signs and red lights. Defendant then drove through Elmwood Park, Fair Lawn, and Saddle Brook, on local streets as well as Routes 80 and 46. Multiple police officers from different municipalities were involved, and they testified that, at times, defendant traveled up to eighty miles per hour. Defendant was also observed traveling in lanes against oncoming traffic. He nearly struck several police cars, and he did collide with Clifton Police Officer John Klementovich.
State Trooper Mark Hanselman pursued defendant at speeds as high as seventy-eight miles per hour in a fifty or fifty-five mile-an-hour zone. On Route 80 westbound, Hanselman saw the following:
[Defendant's] driver's side door opened, and I could see part of his body and he threw . . . a small package which was red; it appeared to be red and white. You can't see it [on the video], but it comes right under my car. My experience, it appeared to be a crack vial.
The item was not recovered.
Defense counsel objected to this testimony. The judge found that Hanselman's testimony about the object was not intentional, and he offered to provide a curative instruction to the jury. Because the court had previously permitted testimony that defendant had cocaine in his system that night, defense counsel declined the instruction so as not to draw further attention to the testimony.
While on Route 80, defendant slowed the van; Officer Klementovich attempted to drive his car in front of the van, passing it on the left. As he did so, defendant's van collided with Klementovich again, this time hitting the passenger's side of Klementovich's vehicle. The van veered off the road to the right, struck the rail, then traveled back across all three lanes of traffic and struck the left rail. At that point, the van became disabled and stopped.
The police broke the van's windows because the doors were locked. They ordered defendant out of the van, but he was lying between the driver's side and passenger's side seats, and he did not respond to officers' commands. After defendant "put up a struggle," an officer pulled him out through the back door.
Before trial, defense counsel argued that evidence that defendant had been under the influence of cocaine during the incident should be barred. The court disagreed, and allowed evidence that a urine test at the hospital following defendant's arrest showed that he had cocaine in his system. The judge gave a preliminary instruction to the jury on the use of the evidence:
[You] heard me ask questions of you during the jury selection process . . . about . . . whether or not it would [a]ffect your objectivity if you heard information in the case that the defendant had used cocaine . . . before he was driving . . . a motor vehicle that he was alleged to have been driving . . . . There are no charges here about being in possession of cocaine or using cocaine . . . . But you will be allowed to hear evidence . . . that the defendant used cocaine. That evidence is allowed for . . . a limited purpose only. It must not be used for you in any other way. By that I mean you must not take that evidence and think well, there's evidence that the defendant used cocaine, that means he must be a bad person, that would make him likely to have committed these things he's accused of in the indictment. . . .
First you must decide whether or not to accept the evidence that the defendant had used cocaine, then you must decide whether or not it has any bearing on the limited purpose for which it has been allowed. What is the limited purpose for which it has been allowed? The State contends that the defendant's connection to the cocaine is . . . what explains his motivation in attempting to flee from the police. . . . How you must not use it is to feel that it shows a general disposition of the defendant to commit bad acts, and consequently means he's likely to have committed the things he's charged with in the indictment.
In his final charge to the jury, the court again told the jurors that if they decided to use the evidence of cocaine use, they were only to use it to determine whether they would accept the State's allegation that cocaine "was the motive or the reason for why the defendant eluded the police." The court told the jury not to consider the evidence "as showing that the ...