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State v. Ornstein


December 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 05-08-663.

Per curiam.


Argued November 6, 2008

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:


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 that accounted for the apparent attempts to elude the police, or not obey them.

Defendant testified that he had a meeting in a local restaurant that lasted until nearly 1:00 a.m. on the night in question, and thereafter he made some calls on his cell phone checking on the status of a sick relative in Los Angeles. He remembered nothing further until he saw "a red light in his rearview mirror" and he pulled his car over in response. Defendant lowered his driver's side window, but then heard a loud banging on his passenger side window and eventually the shattering of glass. He exited the car, but saw no one on the driver's side and was confused.*fn3 Defendant claimed he was "flung" to the ground by the police and was not attempting to resist in any way.

Defendant recounted how these events, as well as two other episodes in which he unexpectedly fell asleep at the wheel of his car, led him to seek medical help. As a result of Karetzky's treatment and the use of a breathing device at night, defendant claimed that he had no further similar occurrences. The defense rested after defendant's testimony.

During a brief conference that followed on the record, the judge reviewed defendant's proposed charge on the crime of eluding. It included the following language, which we recite at length, since the judge's refusal to give the entire charge is the sole issue presented on appeal.

Here, [defendant] has presented evidence that he was in a semi-conscious state at the time of the events, due to the consequences of obstructive sleep apnea. If you accept that evidence, then you may consider it with regard to whether he was truly aware of the attendant circumstances present at the time of the events; that is, whether he had knowledge that he was being followed by the police. If the State is unable to prove beyond a reasonable doubt that he possessed such knowledge, then they will have failed to prove this element of the offense.

The prosecutor objected to the charge, arguing that "it lent the imprimatur of the Court to the defense." He further contended that "it's unfair for the Court to recapitulate the defense to the jury." He did not, however, object to the last sentence because "that points out the burden of proof[.]" Defendant countered by arguing that "the Court needs to let the jury know . . . that we have placed knowledge in issue[.]" He argued that the instruction, or something similar, was necessary for the jury to place the medical evidence in its proper context.

The judge agreed with the prosecutor and concluded that the import of Karetzky's testimony was more appropriately addressed in closing arguments. She did, however, agree to include the last sentence of the proposed charge in her instructions, and did so when she charged the jury.

In his summation, defense counsel immediately told the jury that defendant "put the issue of knowledge in issue for you. Whether or not [defendant] was aware. Whether he knew any sooner than when it registered on him to pull over." Counsel reviewed Karetzky's testimony, and directed the jurors' attention to the judge's charge, noting, "The person has to know. They have to know that they are purposely avoiding the police, attempting to get away." After deliberating approximately two hours, the jury reached its verdict.

Defendant contends the judge committed prejudicial error because her charge was "inadequately tailored to the facts of the case." He argues that the judge was required to tell the jury the relevancy of Karetzky's testimony, if accepted, to the central issue in the case, i.e., did defendant possess the requisite state of mind to commit the offense of eluding the police?

Defendant concedes that the judge appropriately gave the model criminal jury charge on eluding a police officer by instructing the jurors that [T]he State must prove beyond a reasonable doubt each of the following six elements . . . . Number four, that [defendant] knew that the officer had signaled him to bring the vehicle to a full stop. Number five, that [defendant] knew that Peter Scholz was a police or law enforcement officer. Number six, that [defendant] knowingly fled or attempted to elude the officer.

Mere failure to stop does not constitute flight . . . . The State must prove . . . that [defendant] knew that he was being pursued by police officer, but still did not stop. (Emphasis added.)

The judge then continued using the model criminal jury charge to define the term "knowingly," and inserted the last sentence of defendant's proposed charge, telling the jury, "If the State is unable to prove beyond a reasonable doubt that [defendant] possessed such knowledge, then they will have failed to prove this element of the offense." (Emphasis added).

It is beyond cavil that in certain contexts a judge must properly instruct the jury by relating abstract legal principles to the contested facts in evidence. State v. Savage, 172 N.J. 374, 389 (2002). But, not every case requires such tailoring, and, in general, the trial judge "may exercise broad discretion on whether to grant the request" to charge. State v. Green, 86 N.J. 281, 290 (1981). As we noted in State v. Angoy, 329 N.J. Super. 79, 85 (App. Div.), certif. denied, 165 N.J. 138 (2000), when "the facts of the case and the claims of the State and the defense [are] quite clear[,]" the failure to tailor the charge is not prejudicial error.

In this case, not only was the entire testimony brief and uncomplicated, the evidence supporting the eluding charge was essentially undisputed. Defendant did not deny the State's version of events; indeed, he could not since the entire incident was recorded on video. Any legal issues were essentially reduced to one, i.e., defendant's state of mind. Defense counsel's opening statement and summation stressed repeatedly that it was defendant's contention that he did not knowingly elude the police because he suffered from obstructive sleep apnea, resulting in a semi-conscious, "fugue" state, and he could not appreciate the circumstances surrounding him. There was no possibility that the jury was confused about the import of Karetzky's testimony because the doctor essentially rendered his opinion about the ultimate issue when he told the jury that defendant's "cognitive problems" made him unaware of what was happening.

All this serves to distinguish this case from those relied upon by defendant, specifically State v. Sexton, 160 N.J. 93 (1999), and State v. Concepcion, 111 N.J. 373 (1988). One need only read the Court's opening sentence in Sexton to appreciate this difference:

Once again, we must reconcile anomalies and ambiguities that inhere in the Code of Criminal Justice . . . occasioned by the Legislature's selective inclusion and omission of provisions of its conceptual source, the Model Penal Code (MPC). [Sexton, supra, 160 N.J. at 94 (quoting Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988).]

In Sexton, the defendant, who was convicted of reckless manslaughter, contended that he did not believe the gun with which he killed the victim was loaded and that it discharged by accident. supra, 160 N.J. at 96. The Court was therefore asked to consider whether "a mistake of fact was a defense to the charge[.]" Id. at 102. In rejecting the concept of "mistake" as an affirmative defense, the Court noted that "the better way to explain the concepts is to explain what is required for liability to be established." Id. at 106. While recognizing "[t]he charge should be tailored to the factual circumstances of the case[,]" the Court also recognized the complexity of the issue by stating, "[a]s a practical matter, lawyers and judges will undoubtedly continue to consider a mistake of fact as a defense." Ibid. In short, Sexton involved complicated questions of law and fact that required explanation for the jury.

Concepcion is even less relevant since it involved not only similarly complex legal issues of reckless conduct and the unintended discharge of a weapon, but also myriad disputed facts as to defendant's course of conduct. supra, 111 N.J. at 375-76.

Although the trial judge attempted to incorporate some of those facts into his charge, the Court noted that "[b]y selectively interpreting its charge . . . in relation to one aspect only of the critical events, the trial court may have misled the jury and influenced it to return a guilty verdict based solely on that conduct." Id. at 381.

This case did not present any complex legal or factual issues requiring the judge to tailor her charge by referring directly to Karetzky's testimony. See Id. at 380 (noting that "[i]ncorporating specific evidentiary facts into a jury charge is especially helpful in a protracted trial with conflicting testimony"). The charge as given provided the jury with "sufficient guidance" and did not create any "risk that the [] ultimate determination of guilt or innocence [was] based on speculation, misunderstanding, or confusion." State v. Olivio, 123 N.J. 550, 567-68 (1991).


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