On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 05-02-0171.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 16, 2008
Before Judges Axelrad, Sapp-Peterson and Messano.
After a jury trial, defendant Douglas C. Green was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The trial judge, sitting as a municipal court judge, additionally found defendant guilty of driving while his license was suspended, N.J.S.A. 39:3-40, and improper passing, N.J.S.A. 39:4-85. The jury acquitted defendant of fourth-degree aggravated assault upon police officer James Van de Zilver, N.J.S.A. 2C:12-1(b)(5)(a), and could not reach a verdict on two other counts charging defendant with third-degree aggravated assault upon police officer Christopher Spagnuolo, N.J.S.A. 2C:12-1(b)(5)(a), and second-degree aggravated assault while fleeing or attempting to elude Spagnuolo, N.J.S.A. 2C:12-1(b)(6). The judge granted the prosecutor's subsequent motion to dismiss those counts.
Prior to sentencing, defendant moved for a new trial or for judgment notwithstanding the verdict (JNOV). The judge denied most aspects of defendant's motion, however, he did agree that the jury's verdict on the resisting arrest charge needed to be molded to a disorderly persons violation. The judge sentenced defendant to five years imprisonment on the eluding charge and 180 days on the resisting arrest charge with both terms to run concurrently. He imposed the appropriate penalties and assessments on these counts and the motor vehicle offenses.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT NOTWITHSTANDING THE VERDICT ON COUNT TWO CHARGING SECOND-DEGREE ELUDING. THE TRIAL COURT IMPROPERLY ADDED AN ADDITIONAL THEORY OF CULPABILITY TO A CRIME OF THIRD-DEGREE ELUDING. [Partially raised below.]
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE DEFENDANT'S MOTION TO CONDUCT AN IN CAMERA REVIEW OF OFFICER SPAGNUOLO'S PERSONNEL FILE TO DETERMINE IF THERE EXISTED RELEVANT INFORMATION TO ENABLE THE DEFENDANT TO PROPERLY CROSS-EXAMINE AND IMPEACH HIS CREDIBILITY AS A VICTIM. THE COURT'S DENIAL DEPRIVED THE DEFENDANT OF HIS RIGHT OF CONFRONTATION GUARANTEED BY THE SIXTH AMENDMENT.
THE COURT ERRED IN ADMITTING THE DEFENDANT'S PRIOR CONVICTIONS. IN THE ALTERNATIVE, THE COURT SHOULD HAVE SANITIZED THE CONVICTIONS AND ISSUED AN IMMEDIATE LIMITING INSTRUCTION NOTWITHSTANDING ITS INCLUSION OF A LIMITING INSTRUCTION DURING THE CHARGE TO THE JURY. THE COURT ERRED WHEN IT PERMITTED THE ADMISSION OF THE NURSE'S TESTIMONY WHICH WHEN COUPLED WITH THE ADMISSION OF THE PRIOR CONVICTIONS, CONVEYED TO THE JURY THAT THE DEFENDANT WAS A BAD PERSON, THEREBY DEPRIVING HIM OF A FAIR TRIAL. [Partially raised below.]
THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO PERMIT THE DEFENSE TO REOPEN ITS CASE TO INTRODUCE IMPORTANT PHOTOGRAPHS OF THE DEFENDANT AND WHEN IT DENIED THE DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THIS ERROR.
VARIOUS ASPECTS OF THE COURT'S CHARGE, BOTH PRELIMINARY AND FINAL, DEPRIVED THE DEFENDANT OF A FAIR TRIAL REQUIRING REVERSAL OF HIS CONVICTIONS. [Not raised below.]
THE TRIAL COURT ERRED WHEN IT REFUSED TO CHARGE THE JURY WITH REGARD TO THE DEFENSE OF NECESSITY.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The State commenced its case with the testimony of detective Harry Van de Zilver of the Lakewood police department. He testified that on February 26, 2004, at approximately 5:00 p.m., he and two other officers were in plainclothes in an unmarked police van when they noticed defendant drive past them at a high rate of speed. Van de Zilver recognized defendant and he believed defendant recognized him as a police officer. Intending to stop defendant's car, the officers turned their vehicle around and radioed for a marked police unit to assist them as they followed defendant's vehicle. Although the officers ultimately lost sight of defendant, they broadcast a description of his car, a partial description of its license plate number, and its general direction of travel. They continued in that direction themselves.
Officer Joseph Prebish, who was riding with detective Van de Zilver, testified that other officers ultimately stopped defendant's vehicle in the parking lot of Holy Family Church and he identified defendant in court. Prebish did not recall seeing any struggle in the church parking lot between defendant and the other five or six officers that were already there.
Officer Christopher Spagnuolo testified. Spagnuolo was on duty in full uniform and in a marked police unit when he heard the radio broadcast by Prebish that described defendant's vehicle and requested assistance in stopping the car. Spagnuolo spotted defendant's vehicle and began to pursue it with his lights and sirens on. Defendant pulled over to the side of the road, and Spagnuolo approached the vehicle after broadcasting his location on his portable radio.
Spagnuolo testified that defendant was very belligerent and refused to shut off the ignition as requested. As Spagnuolo reached in the car to remove the keys, defendant grabbed his arm and tried to pull him into the vehicle. Spagnuolo struggled with defendant but was unable to free himself from his grasp and ultimately had both hands in the vehicle as defendant raised the window of the car.
Dropping the radio that he held in his right hand into the car, Spagnuolo was able to free himself partially as defendant placed the car in drive. With one arm still in the car, Spagnuolo was dragged eight to ten feet as he used his pepper spray on defendant. The officer freed himself completely, returned to his police vehicle, and pursued defendant's car for approximately five hundred yards until it turned into the church parking lot.
Officer James Van de Zilver, in another marked police unit, immediately took up the pursuit of defendant's car as it fled from Spagnuolo. As defendant emerged from his vehicle in the church parking lot, Van de Zilver drew his weapon and ordered defendant to the ground; defendant refused, however, and knocked the gun from his hand. A physical struggle ensued and Van de Zilver and Spagnuolo were pulled to the ground. Eventually, with the assistance of others, Spagnuolo handcuffed defendant and placed him in custody. Spagnuolo suffered minor injuries from the incident and was out of work for three days. On cross-examination, Spagnuolo acknowledged that he had not turned on his police vehicle's video recording system during the incident, even though departmental policy required him to do so.
Officer James Van de Zilver testified that he pursued defendant's car for approximately four hundred yards before it turned into the church parking lot. He saw the car passing vehicles and saw defendant waving his arms while he was driving.
Van de Zilver claimed that defendant exited his car in the parking lot, walked toward him, and knocked his gun out of his hand. Defendant told the officers, "I'll let you arrest me," but nonetheless refused to heed their commands to get on the ground. Van de Zilver's vehicle's video and audio recording system was operational during the stop of defendant's car and the ensuing melee in the church parking lot. The State played the tape for the jury.
During cross-examination, Van de Zilver acknowledged that the audio recording of the incident included defendant's reference to his earlier contact with Spagnuolo, specifically, defendant exclaimed, "The cop walked up to me and started attacking me, and I'm getting arrested?" Van de Zilver also acknowledged that "because of the severity of how [things] were going down," he failed to point his vehicle's video camera in the direction of the physical encounter with defendant.*fn1
The State's last witness was officer Thomas Langenberger who also responded to the church parking lot and participated in the arrest of defendant. He too had forgotten to turn on the video recording system in his police car. Langenberger testified that defendant was ...