May 23, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
AZZIZ S. CRAWFORD, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-04-0810 and 06-04-1090.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 19, 2008
Before Judges C.S. Fisher and Kestin.
Defendant went on trial on charges that he had received stolen property, N.J.S.A. 2C:20-7, and eluded police, N.J.S.A. 2C:29-2(b). The jury heard evidence from which it could find that, on October 30, 2004, officers in an unmarked police vehicle observed a 2004 gold Dodge Intrepid, which had been stolen a few nights earlier, double parked on South Burnet Street in East Orange, a high drug trafficking area. As the officers' vehicle turned onto South Burnet Street, the Intrepid immediately drove away. The officers considered this odd and followed the Intrepid as it made a right turn onto Main Street. One of the officers gave the following testimony as to what thereafter occurred:
And as soon as you turn onto Main Street, go west on Main, you approach North Clinton Street, and there was a red light at North Clinton. The [Intrepid] drove right through the red light. I activated my lights and sirens. I notified dispatch of what occurred.
We followed the vehicle to get a plate at North Clinton to Harrison Street. It's about a good half a mile. So, we followed the vehicle, lights and sirens, the [Intrepid] never stopped. We made a left onto Harrison Street. . . . [A]s we turned left, we were still following the [Intrepid], lights and sirens, the [Intrepid] made a sharp turn into a ShopRite parking lot.
[The Intrepid] abruptly turned into [the] ShopRite parking lot. On the wet surface, he must have lost control of the car or something. He hit [an] island, cement island with the ShopRite sign, Dunkin' Donuts, Blockbuster. He hit that sign, the island.
The [Intrepid] was [rendered] undriveable. The driver [defendant] exited that vehicle and began to run. I stopped my car, exited the car, began to run, began to chase . . . this guy on foot . . . . Maybe 50 feet from where the [Intrepid] crashed into the cement island, [defendant] was apprehended.
After defendant was apprehended, the police found a screwdriver in the Intrepid and observed that the ignition was damaged in a way that allowed the vehicle to be started without an ignition key.
Following his conviction, and after the trial court denied the State's motion to impose an extended term, defendant was sentenced to a ten-year prison term, with a five-year period of parole ineligibility on the second-degree eluding conviction, as well as a concurrent five-year term on the third-degree stolen property offense. At sentencing, defendant also pled guilty to the third-degree offense of receiving stolen property, which had been charged in a separate indictment, and was sentenced on that conviction to a five-year prison term with a thirty-month period of parole ineligibility. The latter sentence was ordered to run concurrently to the sentences imposed in the matter that was tried.
Defendant appealed, raising the following issues for our consideration:
I. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT DETECTIVE JOHNSON DIRECTED THE DODGE INTREPID TO STOP.
II. THE TRIAL COURT IMPROPERLY PERMITTED THE JURY TO CONSIDER WHETHER IT MAY INFER [FROM] EVIDENCE OF A MOTOR VEHICLE OFFENSE THAT THE DEFENDANT CREATED A RISK OF DEATH OR INJURY TO ANOTHER (Not Raised Below).
III. THE STATE DID NOT PROVE BEYOND A REASONABLE DOUBT THAT THE GOLD DODGE INTREPID WAS STOLEN.
IV. THE TRIAL COURT ERRONEOUSLY SENTENCED THE DEFENDANT TO A PRISON TERM ABOVE THE PRESUMPTIVE STATUTORY TERM BASED ON A JUDICIAL FINDING OF AGGRAVATING FACTORS OTHER THAN A PRIOR CRIMINAL CONVICTION.
V. WHILE THE DEFENDANT PLED GUILTY TO THE ONE-COUNT INDICTMENT, HE DID NOT CONSENT TO JUDICIAL FACTFINDING SO THAT THE TRIAL COURT COULD SENTENCE HIM ABOVE THE STATUTORY PRESUMPTIVE TERM.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Point II. Defendant argues that the trial judge erroneously charged the jury about what was required to convict defendant of eluding. He claims there was no testimony that any other vehicles or pedestrians were imperiled by his actions, and further argues that "[i]t is not enough to merely commit a motor vehicle offense to necessitate an inference that a defendant created a risk of death or injury without generating danger to another." We reject these arguments.
N.J.S.A. 2C:29-2(b) creates "a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39." Here, the judge advised the jury of this permissive inference and instructed the jury as to each element of the underlying motor vehicle offenses as to which defendant was charged -- reckless driving and failure to comply with traffic control signals. As the testimony of the officer who pursued defendant reveals, defendant both failed to comply with the red light on Main and North Clinton Streets and recklessly entered the ShopRite parking lot as demonstrated by his crashing the Intrepid into a sign post on a concrete median.
The jury was entitled to credit this testimony and could therefore have concluded that defendant violated either or both of the motor vehicle offenses charged while eluding the officers. As a result, the jury was free to apply the permissive inference described in N.J.S.A. 2C:29-2(b). Thus, we find no error in the trial judge's impeccable jury instructions, to which defendant did not object at trial.
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