On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-02-0309.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 27, 2009
Before Judges Parrillo and Lihotz.
Tried by a jury, Terrence Jack was convicted of fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a; third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b.*fn1 On the latter, defendant was sentenced, as a persistent offender, N.J.S.A. 2C:44-3a, to a discretionary extended term of fifteen years with a seven-and-one-half period of parole ineligibility. He also received concurrent terms of five years on the weapons offense and eighteen months on the resisting arrest conviction.*fn2 Defendant appeals, and we affirm.
According to the State's proofs, on December 10, 2006, at around 10:50 p.m., Wendall Harris drove his daughter's white Mitsubishi Galant to haul garbage to a refuse collection area about three blocks from his Jersey City residence. After placing the garbage in a bin, he turned around and was confronted by a man who stuck a .45 caliber handgun in Harris' chest, demanding that Harris get on his knees. When Harris refused, his assailant ordered him to turn around, which Harris did. Reaching into Harris' pockets, the assailant withdrew a small amount of cash and the keys to the Mitsubishi. After the assailant left the scene in Harris' car, Harris ran back to his home and called the police to report the carjacking.
Two Jersey City plain clothes police detectives arrived at Harris' home within fifteen minutes. Harris recounted the incident, identifying the stolen vehicle as a 1999 Mitsubishi Galant. However, because of poor lighting near the garbage bins, he was only able to give a general description of the assailant as a black male between 5'9" and 6' tall, wearing brown or black sleeves. One of the detectives, Christopher Monahan, immediately broadcast a radio transmission with a description of both the suspect and the vehicle.
About ten minutes later, Monahan received a radio transmission from police headquarters that the department's closed circuit television unit - responsible for monitoring about seventy closed circuit television cameras throughout Jersey City - had spotted a white Mitsubishi Galant making a right turn onto Bayview Avenue from Ocean Avenue. Responding to the area, Monahan found the vehicle, and confirmed it was Harris' once he got close enough to read the license plate. Monahan also saw a black male, later identified as defendant, "fitting the description of the person that [they] were looking for . . . standing outside of the car talking to a female." As Monahan and his partner exited their unmarked car, exhibiting police identification in the form of a silver badge, defendant fled the scene on foot, and the officers gave chase. During the foot chase, Monahan saw defendant discard a handgun from his waistband, which was later recovered by the police. The chase continued, and eventually Monahan, with the assistance of three other police officers, subdued defendant in the backyard of a nearby residence, handcuffed, and placed him under arrest.
On appeal, defendant raises the following issues:
I. THE COURT ERRED IN ALLOWING THE STATE TO ARGUE FLIGHT AS CONSCIOUSNESS OF GUILT DESPITE THE COURT'S DETERMINATION THAT A FLIGHT JURY CHARGE WAS INAPPROPRIATE, DEPRIVING DEFENDANT OF HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. Amend. V, XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.
A. Flight Instruction Was Not Appropriate.
B. Even If A Flight Instruction Were Factually Supported, The Protections of the Model Charge Were Not Given.
II. DEFENSE COUNSEL WAS INEFFECTIVE FOR FAILING TO MOVE FOR A JUDGMENT OF ACQUITTAL AS TO THE RESISTING ARREST CHARGE BECAUSE THERE WAS NO EVIDENCE TO SUPPORT THE ESSENTIAL ELEMENT THAT DEFENDANT KNEW HE WAS BEING ARRESTED.
III. THE DEFENDANT'S DISCRETIONARY EXTENDED TERM, PURSUANT TO N.J.S.A. 2C:44-3(a), OF A 15 YEAR BASE TERM WITH A 71/2 YEAR PERIOD OF PAROLE INELIGIBILITY, IS ...