On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-08-0918.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 14, 2009
Before Judges Rodríguez and Payne.
Following a jury trial, defendant Gregory L. Banks was convicted of second-degree eluding a police officer, N.J.S.A. 2C:29-2(b) and fourth-degree resisting arrest, N.J.S.A. 2C:29- 2(a). The judge imposed concurrent terms aggregating eight years. At a simultaneous bench trial, the judge found defendant guilty of the following traffic offenses: fictitious plates, N.J.S.A. 39:3-33; failure to wear a seat belt, N.J.S.A. 39:3-76.2(f); reckless driving, N.J.S.A. 39:4-96; unregistered vehicle, N.J.S.A. 39:3-4; uninsured vehicle, N.J.S.A. 39:6b-2; and unlicensed driver, N.J.S.A. 39:3-10, resulting in the imposition of a total of $600 in fines, a driver's license suspension of twelve months, a $100 VCCB penalty, and a $150 SNSF penalty. We affirm.
Only one witness testified at trial, Fanwood Police Officer Kenneth Zwirko. The State's proofs can be summarized as follows. On May 28, 2005, at approximately 10:43 p.m., Zwirko was on patrol on Terrill Road near Midway Avenue in his marked vehicle. The road conditions were wet. Zwirko saw a black 1986 BMW and conducted a random license plate check. The check revealed that the license plate belonged to a 1988 black Saab, which was unregistered. It was eventually determined that the license plates on the BMW belonged to a deceased person. Zwirko activated his lights and sirens in an attempt to stop the BMW. The driver of the BMW, later identified as defendant, immediately made a left turn onto McCrea Road and accelerated his speed. Zwirko was approximately 150 to 200 feet from the BMW. The vehicle traveled westbound on McCrea, at a fast rate. Then it slowed down, but ran a stop sign, and made a sharp right turn onto Wiley Road, which is in Plainfield.
The BMW traveled north on Wiley and again ran a stop sign causing another vehicle to stop in order to avoid being hit. The BMW swerved around a second vehicle and made a sharp right turn onto Alden Road, attempting to brake on the wet road. However, the BMW spun out of control, struck a curb and came to a complete stop. According to Zwirko, he never lost sight of the BMW. However, he was able to see only the silhouette of the driver.
After the BMW stopped, Zwirko saw defendant get out of the car and run northeast through the yards of residences on Alden Road. Zwirko pursued defendant, yelling, "stop police. Stop, police." Eventually, Zwirko caught defendant, who "immediately put his hands up and he pretty much laid down on the ground . . . ."
On appeal, defendant contends:
THE COURT ERRED IN NOT CHARGING THE JURY WITH THE UNDERLYING MOTOR VEHICLE OFFENSES AND THE PERMISSIBLE INFERENCE IN ORDER TO SUSTAIN A SECOND-DEGREE ELUDING CONVICTION.
Because this issue is raised for the first time on appeal, it must be decided by the plain error standard. To rise to plain error, it must be "clearly capable of producing an unjust result" such that it is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971).
Defendant argues that the proofs were insufficient to support a finding that defendant's conduct created a risk of death or injury to any person. He also argues that the judge erred by not instructing the jury on the elements of the traffic offenses and inference to be drawn from such offense. The inference is found at N.J.S.A. 2C:29-2(b). In relevant part that section provides:
Any person, while operating a motor vehicle on any street or highway in this State . . . who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of ...