On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-02-0097-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2008
Before Judges Collester and Graves.
Tried to a jury, defendant Syhim Jackson was convicted of second-degree eluding a law enforcement officer, contrary to N.J.S.A. 2C:29-2(b); second-degree aggravated assault for causing bodily injury while fleeing or attempting to elude a police officer, contrary to N.J.S.A. 2C:12-1(b)(6); third-degree receiving stolen property, contrary to N.J.S.A. 2C:20-7; and resisting arrest, contrary to N.J.S.A. 2C:29-2(a). The sentencing judge granted the prosecutor's motion for defendant to receive an enhanced sentence as a persistent offender. After merger of offenses, the court imposed an aggregate sentence of sixteen years incarceration with eighty-five percent parole ineligibility under the No Early Release Act (NERA). This appeal followed.
The facts adduced at trial were as follows. At about 9 p.m. on March 20, 2003, Union Township police officers responded to 2611 Vauxhill Road on a report of a car theft in progress. They were advised by the dispatcher that men in a white Jeep Cherokee were attempting to steal a maroon sport utility vehicle. When the officers arrived, the Jeep was parked at the curb with its lights on. The officers did not see a maroon vehicle, but did confirm that the white Jeep had previously been reported stolen. The officers executed a box maneuver to prevent the Jeep from fleeing the scene. Officer Thomas Florio pulled his patrol car diagonally in front of the Jeep while a second patrol car stopped directly behind the rear bumper. A third patrol car pulled over diagonally at the left side while a fourth pulled over head-on with the Jeep, closing the space between the first patrol car and the curb.
Officer Florio left his patrol car, approached the Jeep, and ordered the two occupants to get out. Instead, the Jeep moved forward, striking a telephone pole guide wire. Then it accelerated in reverse and rammed the patrol car behind it, causing it to ride up on the patrol car's front bumper and hood. As the Jeep accelerated forward, it swerved violently and struck Officer Florio in his right leg and hip, knocking him backwards to the pavement. Fearing for his safety, Florio fired a shot which shattered the driver side window, but the Jeep continued to ram back and forth in an attempt to escape. After more shots were fired by police, the passenger side door opened, and both occupants fled. Officers chased the two men to the rear of one of the houses on Vauxhall Road where they caught the passenger, later identified as Lavelle Burnett. However, they were unable to apprehend the driver. Police notified local hospitals that a suspect at large may have been shot and could seek medical attention.
Samantha Kennedy, a director of nursing with the Clifton Surgery Center, testified that at about 7:30 a.m. on April 1, 2003, an individual giving the name Rashem Renix appeared for a pre-scheduled surgery to remove a foreign object from his buttocks. After x-rays and fluoroscopic imaging revealed that the object was a bullet which had been present for at least a week, Kennedy notified local police. When officers arrived, defendant was taken into custody and subsequently identified as defendant Syhim Jackson.
A photo array was compiled consisting of the defendant and five other men and was shown to Officer Florio and his partner, Officer D'Allesandro, on April 3, 2003. D'Allesandro was unable to make an identification, but Florio selected defendant's picture and identified him as the driver of the Jeep.
Following his conviction and sentence, defendant filed a notice of appeal and submits the following legal arguments for our consideration:
POINT I - THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO PRECLUDE THE OUT OF COURT PHOTO IDENTIFICATION OF THE DEFENDANT, AND THUS, DENYING DEFENDANT'S RIGHT TO A FAIR TRIAL.
POINT II - THE COURT ERRED IN ADMITTING THE POLYGRAPH RESULTS INTO EVIDENCE AND THUS, DEPRIVED DEFENDANT OF A FAIR TRIAL.
POINT III - DEFENDANT WAS PREJUDICED BY THE TESTIMONY OF DR. SIREN, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL AND WARRANTING VACATION OF THE JUDGMENT OF CONVICTION. (Not Raised Below.)
POINT IV - THE TRIAL COURT'S CHARGE ON THE KEY ISSUE OF THE REQUISITE MENTAL STATE FOR CONVICTION OF AN ATTEMPT TO CAUSE BODILY INJURY HAD THE CAPACITY TO CONFUSE AND MISLEAD THE JURY, THUS DEPRIVING ...