On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment Nos. 06-05-0431, 06-02-0181; DP No. W-2007-243315-0802.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 22, 2008
Before Judges Cuff and Baxter.
Following a jury trial on Indictment No. 06-05-0431, defendant Emanuel L. Graham was found guilty of third degree resisting arrest, N.J.S.A. 2C:29-2a(3). After trial, but prior to sentencing, defendant pled guilty to fourth degree resisting arrest, N.J.S.A. 2C:29-2a(2), under Indictment No. 06-02-0181; and the disorderly persons offense of shoplifting, N.J.S.A. 2C:20-11, under W-2007-243315-0802. After denying the State's motion for an extended term, the judge sentenced defendant to a five-year term of imprisonment with a thirty-month period of parole ineligibility on the tried charge of resisting arrest. On the charges to which defendant pled guilty, the judge sentenced defendant to an eighteen-month term for resisting arrest and a six-month term of imprisonment for shoplifting. All sentences are concurrent. The appropriate fines, penalties and assessments were also imposed.
On appeal, defendant raises the following arguments:
POINT I: THE TRIAL COURT ERRED BY FAILING TO CHARGE THE JURY WITH RESISTING ARREST BY FLIGHT, A FOURTH-DEGREE OFFENSE.
POINT II: THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT NOV AND/OR NEW TRIAL BECAUSE THE EVIDENCE PRESENTED AT TRIAL DID NOT SUPPORT A VERDICT CONVICTING DEFENDANT OF RESISTING ARREST BY FORCE, A THIRD-DEGREE OFFENSE.
POINT III: THE ISSUE OF DEFENDANT'S DIMINISHED CAPACITY SHOULD HAVE BEEN CHARGED TO THE JURY (NOT RAISED BELOW).
POINT IV: THE SENTENCE IMPOSED WAS EXCESSIVE.
On the afternoon of February 15, 2006, at approximately 5:00 p.m., Officers Bish and Marino of the Paulsboro Police Department were on patrol in a black unmarked police cruiser when Bish spotted defendant on the street. Bish recognized defendant and knew there were outstanding warrants for defendant's arrest. Bish, dressed in plain clothes, exited the car and approached defendant. What happened next was hotly contested.
Bish testified that he informed defendant he was a police officer, showed defendant his badge, and told defendant he was under arrest. According to Bish, defendant continued to walk away from him and rounded a corner. Bish heard a door shut and believed defendant had entered a nearby duplex. Bish and Marino set up a perimeter surveillance around the house and called for backup.
Shortly thereafter, Sergeant Menitti and Patrolmen Suter and Kanauss arrived at the scene. All were in police uniforms. Kanauss heard a noise on the side of the house and found defendant opening a window. Kanauss ordered defendant to stop, told him he was under arrest, and asked him to show his hands. Defendant ignored the commands and Kanauss drew his weapon but attempted to re-holster the gun when he noticed defendant was unarmed. Defendant jumped from the window, ran towards Kanauss, and hit the officer's lip as he made his escape. A chase ensued. Moments later, Bish encountered defendant in a yard. Defendant took an "aggressive ...