On appeal from the Superior Court of New Jersey, Law Division, Morris County, Indictment No. 06-04-0495.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 10, 2008
Before Judges Miniman and King.
After a jury trial, defendant was convicted of third-degree theft of a 2001 Jeep Cherokee, N.J.S.A. 2C:20-3a; third-degree conspiracy to commit theft, N.J.S.A. 2C:20-3; and second-degree eluding, N.J.S.A. 2C:29-2b. At sentencing on December 18, 2006 Judge Falcone imposed an aggregate persistent-offender term of eighteen years, nine without parole, consecutive to any period of parole revocation for a prior offense, on the eluding count. On the third-degree theft count, the judge imposed a flat five-year prison term, concurrent with the sentence on eluding, but consecutive to whatever sentence the Parole Board imposed on defendant's violation of parole. He also gave defendant 346 days jail credit, suspended his driver's license for ten years, and imposed the usual assessments and penalties.
On this appeal defendant raises two points:
POINT I - The trial court failed to adequately instruct the jury how to evaluate the State's evidence of Mr. Pickett's unrecorded interrogation and alleged confession, thereby depriving him of a fair trial.
POINT II - The trial court derived the excessive 18-year base extended term by applying a flawed analysis. (Not raised below).
These criminal charges arose out of the theft of a Jeep Cherokee from a driveway of a residence in Morris Township during the early morning hours of January 6, 2006. The theft was promptly reported and a high-speed chase ensued through several towns, including Chatham, Florham Park, and Irvington.
The defendant finally was apprehended on foot after the high-speed chase had caused several accidents.
We find the appeal without sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). As to the defendant's interrogation, Rule 3:17, adopted in response to State v. Cook, 179 N.J. 533 (2004), was enacted on October 14, 2005, effective on January 1, 2006 for homicides only. The Rule was effective as to other enumerated offenses as of January 1, 2007. Defendant's trial took place in October 2006. Thus, law enforcement was under no obligation to video record defendant's statements at the time they were taken, shortly after the criminal episode occurred on January 6, 2006. We find no error in the judge's jury instruction on the point and observe there was no contemporaneous objection to the charge as given, Rule 1:7-3, and no written request to charge the jury other than rendered. R. 1:8-7.
As to the sentence, defendant was on parole at the time of the crime and had six prior indictable convictions. We conclude that Judge Falcone clearly applied the factors held pertinent in State v. Pierce, 188 N.J. 155, 166-67 (2006), and we find no abuse of discretion in this extended term sentence. As to defendant's argument that the judge failed to find mitigating factor 11, N.J.S.A. 2C:44-1(b)(11), this fails as well. The effect on minor children of incarceration of a parent does not ordinarily amount to sufficient "serious injustice" to overcome the presumption of imprisonment. See State v. Kelly, 97 N.J. 178, 219-20 (1984). Moreover, defendant was not a custodial parent, did not live with the child's mother, and was delinquent in child support in the sum of $3700. The judge properly weighed this factor.