On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment Nos. 05-03-0484, 03-02-0289, and 02-08-1914.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Rodríguez, Waugh and Newman.
Defendant Norman Adams appeals his conviction of third-degree eluding arrest, N.J.S.A. 2C:29-2(b), and third-degree resisting arrest, N.J.S.A. 2C:29-2(a); and the resulting sentence of an aggregate ten-year imprisonment term with four years of parole ineligibility. We reject defendant's arguments on appeal challenging his conviction. However, we remand to the trial court for resentencing consistent with the opinion set forth below and vacate a portion of the May 26, 2006, judgment of conviction.
On December 26, 2004, at around 3:45 in the afternoon, Englewood Police Officers Joseph Doyle and Jamie Gilert were conducting an unrelated traffic stop on West Palisade Avenue near the intersection of James Street in Englewood. Doyle observed defendant Adams walking down the street. Doyle recognized Adams. He knew that there was an outstanding warrant for Adams in Englewood and that his driver's license was suspended. Doyle discussed the situation with Gilert. At that point, both officers returned to their separate patrol cars. Gilert then radioed Doyle that Adams had entered a silver Oldsmobile and was driving down West Palisade Avenue.
Doyle and Gilert, in tandem, followed Adams on West Palisade Avenue and onto Lafayette Avenue without turning on either their lights or sirens. Doyle testified that, after Adams had turned onto Rosemont Avenue, both he and Gilert turned on their lights and, subsequently, their sirens. Eventually, Adams pulled into the driveway of his Summit Avenue residence in Teaneck. Doyle used his patrol car to block Adams's vehicle in the driveway. At trial, two defense witnesses testified that when Doyle and Gilert arrived at Adams's house, neither the lights nor the sirens of the patrol cars were on.
Doyle got out his vehicle and yelled to Adams that "he was under arrest" and "to get on the ground." Doyle testified that Adams did not respond to his request but walked towards him and Gilert with both hands in the pockets of his sweatshirt. Doyle, in response to seeing something black in Adams's left hand, drew his gun; Gilert did the same. The object was ultimately determined to be a cell phone.
Adams removed his hands from his pockets but continued to walk towards Doyle. Doyle holstered his gun and produced his baton. Doyle testified that at this point, Adams attempted to punch him, but missed. Doyle then struck Adams twice with his baton. A scuffle ensued between Doyle and Adams. During the scuffle, Gilert controlled the crowd that had formed to watch the events. After the arrival of additional police units, Adams was subdued.
On March 14, 2005, Adams was indicted on three counts: (1) second-degree eluding arrest, N.J.S.A. 2C:29-2(b); (2) third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a); and (3) third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5).
A jury found Adams guilty of third-degree eluding arrest, a lesser included offense under count one, and third-degree resisting arrest under count two. The jury acquitted Adams of the aggravated assault charge in count three. After granting the State's motion for an extended term, the trial judge sentenced Adams to concurrent seven-year sentences with three years of parole ineligibility for each count.
At the time of his sentencing, Adams pled guilty to violating his prior probationary status on indictment number 03-02-00289-I. The probation officer recommended any sentence imposed for the violation run concurrently with the already imposed seven-year sentences, but he did not object to the State seeking an additional sentence. The trial judge sentenced Adams to an additional three-year term of imprisonment with one year of parole ineligibility to run consecutive to the two seven-year terms. In the aggregate, Adams was sentenced to ten years of imprisonment with four years of parole ineligibility.
Adams raises the following points on appeal:
POINT ONE THE TRIAL COURT IMPROPERLY BOLSTERED THE STATE'S CASE BY TELLING A JUROR THAT POLICE OFFICERS DO NOT FREQUENTLY LIE.
POINT TWO THE TRIAL COURT VIOLATED MR. ADAMS'S RIGHT TO DUE PROCESS BY INSTRUCTING THE JURY THAT THE STATE HAD PROVEN AN ELEMENT OF THE CRIME OF ELUDING. (Not Raised Below).
POINT THREE THE PROSECUTOR MINIMIZED THE JURY'S DUTY BY DIMINISHING THE IMPORTANCE OF THE ELEMENTS OF THE CRIME OF ELUDING.
POINT FOUR THE PROSECUTOR IMPROPERLY COMMENTED ON MR. ADAMS'S RIGHT TO REMAIN SILENT.
POINT FIVE PROSECUTORIAL MISCONDUCT DEPRIVED MR. ADAMS OF A FAIR TRIAL.
A. THE PROSECUTOR MADE INFLAMMATORY STATEMENTS APPEALING TO THE EMOTIONS OF THE JURY, AND DEPRIVING ...