On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-663.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Messano.
Defendant Samuel Ornstein appeals from the judgment of conviction that followed a jury trial at which he was found guilty of third-degree eluding a police officer, N.J.S.A. 2C:29-2b. He raises the following point on appeal:
THE TRIAL COURT DENIED DEFENDANT A FAIR TRIAL BY FAILING TO INSTRUCT THE JURY ON HOW TO CONSIDER THE TESTIMONY OF DR. MONROE KARETSKY IN RELATION TO THE ELEMENTS OF THE OFFENSE, AS DEFENDANT REQUESTED.*fn1
We have considered the argument in light of the record and applicable legal standards. We affirm.
Defendant asserted that he suffered from a severe case of obstructive sleep apnea resulting in periods of time when he engaged in "automatic behavior" similar to sleepwalking. In his opening statement to the jury, defense counsel noted the significance of this condition to the charge of eluding when he told the jury
So, when the judge tells you about eluding the police, the [j]udge is also going to tell you that in order for someone to be found guilty, they have to know  that's what they're doing. It has to be knowing conduct on their part. That's what their objective is, to get away from the police.
Police officer Peter Scholz of the Hillsborough Police Department was the State's first witness. He testified that shortly before 2:00 a.m. on June 8, 2005, he responded to a call regarding a gold Lincoln SUV stopped in an intersection with its driver "passed out." When he approached the vehicle, he saw defendant "hunched over the steering wheel," tapped on the window, and identified himself as a police officer. Defendant awoke, and as he made eye contact with Scholz, his "car began to move." Scholz returned to his police car and began to follow defendant with his lights and siren activated.
Defendant drove at thirty-five to forty miles per hour for approximately one and one-half miles, sometimes striking the curb, at other times in the wrong lane of traffic. At one intersection, defendant made a right turn onto another road, signaling with his directional light before doing so. Police officer Jeremy Cuomo joined the pursuit in another police car. Eventually, defendant's vehicle came to a stop, though its brake lights remained activated as both officers exited their cars and approached. Although Cuomo commanded defendant to get out of the SUV, he failed to respond, and Scholz, who was on the passenger side of the vehicle, broke that window with his flashlight. Defendant exited through the driver's side door and a struggle ensued as he continued to refuse the officers' verbal commands, leading the police to spray him with mace. Defendant suffered a minor abrasion to his forehead as a result.*fn2 The jury viewed the entire incident which was videotaped by dashboard cameras in each officer's police car. After Scholz concluded his testimony, and officer Cuomo testified in similar fashion, the State rested.
The defense case began with the testimony of Dr. Monroe Karetzky, a physician who specialized in "pulmonary and critical care medicine and sleeping disorders." Karetzky first saw defendant as a patient in November 2005. He testified at length about sleep apnea, its symptoms and effects, the diagnostic tools he used in his practice, and, in particular, the methods he employed in diagnosing defendant's condition.
Karetzky reviewed the videotapes of the incident and opined [W]ith a reasonable degree of medical certainty [the events] were completely attributable to [defendant's] subsequent diagnosis of obstructive sleep apnea and these would be . . . cognitive problems that are perfectly compatible with and expected of somebody with severe sleep disorder.
When asked if defendant was "purposely, intentionally trying to elude the police," Karetzky responded that defendant's conduct was [N]ot purposeful[.] [I]t was all a consequence of his problem from having obstructive sleep apnea and the impaired state of wakefulness, as well as the impaired state of waking up ...