On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Union County, Indictment No. 05-09-1015.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: April 21, 2008
Before Judges C.S. Fisher and C.L. Miniman.
Defendant Osman Brown appeals from a judgment of conviction on a one-count indictment charging him with second-degree eluding in violation of N.J.S.A. 2C:29-2(b) on which a sentence of eight years imprisonment with a six-month license suspension and various fines and penalties were imposed. Motor vehicle violations for careless driving and two failures to signal were merged into the eluding charge. A $10 fine was imposed for a seatbelt violation and a six-month consecutive license suspension was imposed for driving on the revoked list. We affirm.
On April 28, 2005, Officer Cosimo Tripoli of the Hillside Police Department observed defendant driving a light-blue Buick on Schley Street, which is one way and has one lane. Defendant passed a Lexus on the right side and, without stopping, made a right turn onto Winans Avenue. As the officer made a right turn on Winans, he observed defendant turning right on Fabyan Place. As the officer followed defendant, he called headquarters for a motor vehicle check on the SJY93P license plate on the Buick.
As defendant drove toward the entrance ramp to Route 78, the officer activated his lights and defendant pulled over on the entrance ramp. The officer stopped behind the Buick, which had its brake lights on, indicating that it was still in drive. As the officer radioed the stop to headquarters, he observed that defendant had turned around to look at him. Defendant maintained eye contact the entire time and the officer studied his face carefully. The defendant was a black male wearing a skull cap and a beige Carhart jacket.
Both the officer and the defendant left their cars in drive. When the officer opened his door, defendant accelerated onto Route 78. The officer gave chase and estimated that defendant was driving in excess of eighty to ninety miles an hour, speeding through a work zone, cutting off motorists and driving on the shoulder of the road. Out of concern for public safety, the officer abandoned the chase.
The Buick was owned by defendant's sister, Dana Brown, who resided at 428 Leslie Street, Newark, which was about a one minute drive from the point on Schley Street where the officer first encountered defendant. On May 10, 2005, the officer was shown a six-person photo array and immediately identified the defendant, stating that he was one hundred percent sure of the identification.
The State and the defendant stipulated to certain facts at trial: At the time of the offense, the Buick was registered to Dana Brown. Defendant had permission to drive the car and did so on dates prior and subsequent to April 28, 2005. The defendant's address, according to his motor vehicle record, was 428 Leslie Street and, at the time of the offense, his driver's license was suspended.
Two witnesses testified for the defense. Dana Brown claimed that she would rent her car to make extra money and that on April 28, 2005, she had rented it to a man named "John" who no longer lived in the area. She did not know his last name or phone number. She did not know if he had a driver's license and was not sure of his address. She told the jury that she had never had a driver's license and could not drive, but the State confronted her with the certified abstracts of two different New Jersey driver's licenses in her name. Other discrepancies emerged from cross-examination.
The second witness for the defense was Bruce Jones, who testified that he worked for defendant's roommate, Dwayne Swan, selling T-shirts on the corner of Halsey and Branford in Newark. He could not produce proof of his employment. He claimed to remember that on April 28, 2005, defendant, who was also working for Swan, arrived at work at 8:00 a.m. Jones had no recollection of defendant's arrival time at work on other random dates. He claimed to have refreshed his recollection by looking at an inventory book. When it was produced later in the day, the only notations on the page dated April 28, 2005, were the initials of himself, defendant and Swan and a list of T-shirt sizes and prices. He then admitted that he had no idea when defendant arrived at work that day.
The trial began on May 23, 2006, and at the conclusion of the proofs on May 25, 2007, the judge charged the jury, which began its deliberations after lunch that day. The jury knocked with four questions during the afternoon and the testimony of one of the police officers was read back to the jury. The jury was brought into the courtroom at 3:23 p.m. and their remaining questions were answered. The jurors then handed two additional questions to the judge and returned to their deliberations. One of the additional questions was:
Our current vote reflects a hung jury. We need information that was not and cannot be provided in trial. People on our jury need this information in order ...