On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment Number 03-05-0713-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 30, 2009
Before Judges Collester and Fall.
Defendant Pontell C. Bryant appeals from his conviction and the sentence imposed. The following factual and procedural history is relevant to our consideration of the arguments advanced on appeal.
Defendant was charged in Burlington County Indictment Number 2003-05-0713-I with second-degree eluding while creating a risk of death or injury to any person, contrary to N.J.S.A. 2C:29-2b (count one); and fourth-degree obstructing the administration of the law, contrary to N.J.S.A. 2C:29-1a (count two). Tried to a jury, defendant was convicted of both charges. On the second-degree eluding conviction on count one, the trial court sentenced defendant to a term of imprisonment of eight years, with a four-year period of parole ineligibility. The court merged the fourth-degree obstruction conviction on count two into count one. Mandatory fines and penalties were also assessed.
The charges against defendant arose from an incident occurring on March 15, 2003. The evidence adduced by the State at trial, if credited, disclosed the following. At approximately 10:56 p.m., Burlington City Police Officers Matthew Wiesniewski and Jonathan Fine were in a marked police vehicle on patrol in the New Yorkshire section of Burlington City, traveling eastbound on East Federal Street at approximately twenty-five miles per hour, the posted speed limit. Officer Wiesniewski was driving and Officer Fine was in the passenger seat. In his testimony, Officer Wiesniewski described the New Yorkshire section of East Federal Street as a residential neighborhood lit by continuous street lights, one lane in each direction, with parking on both sides of the street. At that time and place, they observed another vehicle traveling westbound on East Federal Street heading towards them, also driving within the speed limit. As the vehicle, a dark-colored Ford Expedition, approached and was passing within three to four feet of their patrol vehicle, both officers recognized the driver as defendant. Officer Wiesniewski stated although it was dark outside, both vehicles had their headlights on and the street lighting illuminated the area.
Officer Wiesniewski was familiar with defendant from prior contacts with him in the course of his care-taking functions in the community.*fn1 Officer Fine testified he knew defendant because they had grown up together in Burlington City, living within a few blocks of each other. Officer Fine stated he also had contacts over the years with defendant in his capacity as a police officer. Once the officers recognized defendant, Officer Wiesniewski explained what next occurred during the following direct examination:
Q: What did you do when you saw Mr. Bryant operating that vehicle?
A: I proceeded to turn my vehicle around to effect a motor vehicle stop.
Q: And why did you want to conduct a motor vehicle stop?
A: To issue a motor vehicle summons.
Q: And, what did you want to issue a motor vehicle summons for?
A: Driving while suspended.
Q: Why did you want to issue a motor -- and why did you want to issue that particular summons?
A: Because it was known to me that he was suspended.
Officer Wiesniewski stated that after turning his police vehicle around, he drove up behind defendant's vehicle, which was then traveling westbound on West Federal Street, and attempted to effectuate a stop by first turning on the overhead emergency lights of his vehicle and flashing his headlights, directing defendant to stop, whereupon defendant's vehicle accelerated and turned left onto Wood Street. Officer Wiesniewski then activated the police siren, and defendant pulled his vehicle into a parking lot at the corner of Route 130 South and Wood Street. Defendant at first slowed down, but then accelerated and went onto Route 130 South and continued to increase his speed, driving through a red traffic signal without stopping at the corner of Lincoln Avenue and Route 130 South.
Both officers explained that since they already knew defendant was the driver the vehicle, they did not want to engage him in a high-speed chase, so Officer Wiesniewski turned off the sirens and overhead lights, but continued to follow at a distance. They then observed defendant's vehicle come to a red traffic signal at Keim Boulevard, make a right turn on red without stopping, and go around a traffic circle onto Taylor Avenue, and stop on the right side of Washington Avenue at the location of an apartment building. The officers then observed defendant exit his vehicle on the driver's side, turn back to look at them in the police vehicle, and run around the front of his vehicle and then towards the rear of the apartment building.
The patrol vehicle being operated by Officer Wiesniewski was equipped with a mobile video recorder (MVR), consisting of a camera mounted on the front windshield with the recording unit located in the trunk. Officer Wiesniewski explained that the MVR records audio and visual and is activated automatically when the vehicle's overhead emergency lights are turned on; it can also be activated manually from inside the vehicle. Officer Wiesniewski stated the MVR recorded the incident, and the tape was played for the jury from the point it was activated when the vehicle's overhead lights were turned on; however, no image of defendant's face was captured on the videotape.
After defendant ran around to the rear of the apartment building, Officer Fine pursued him on foot but was unable to locate him. After they broke off the search, the vehicle being driven by defendant was impounded. The vehicle's registration was checked through the police dispatcher and determined to be a stolen vehicle registered to a Mr. Loringer of Willingboro.
Caroline Strong was also called by the State as a witness. However, prior to opening statements, and outside the presence of the jury, the trial court conducted a hearing to determine whether there was an adequate basis for an in-court identification of defendant by Ms. Strong. During that hearing, Ms. Strong testified that on March 15, 2003, she was living with her three children in an apartment on Mount Holly Road in Burlington City. She stated that during the early afternoon hours of March 15, 2003, her friend Donna Loringer came to her apartment for a visit, arriving in a dark-colored sports utility vehicle. Later in the afternoon, defendant and two of his friends also arrived at her apartment. She testified that, as of that date, she had known defendant for about a year. Prior to their arrival, Ms. Strong and Ms. Loringer had been consuming alcohol and crack cocaine. Ms. Strong stated defendant and his friends stayed at her apartment about an hour. During her direct examination at the hearing, the following colloquy ensued:
Q: Now, let me ask you this. Ms. Strong, do you see -- you said you saw -- identified one of those individuals as Pontell. Is the person who you're identifying as Pontell here in this courtroom?
Q: The person who you've identified as ...