On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-11-2571.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 5, 2009
Before Judges Axelrad and Espinosa.
Defendant Austin Genoa appeals from his convictions for eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); aggravated assault, N.J.S.A. 2C:12-1(b)(6); two counts of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10(a)(1); and possession of less than 50 grams of marijuana, N.J.S.A. 2C:35-10(a)(4), and his sentence. We affirm.
The charges arise from events that followed a motor vehicle stop in Englishtown by Patrolman Michael MacInnes. After observing a black Ford Explorer driving on the shoulder of the road, Officer MacInnes activated his siren and overhead lights. After the Explorer stopped, Officer MacInnes was able to observe three white males inside the Explorer. The driver was unable to produce a driver's license. He identified himself as Austin Genoa and provided a date of birth that proved to be defendant's date of birth. He did produce a vehicle registration in the name of defendant's mother, Evelyn Genoa. Officer MacInnes wrote the name "Austin K. Genoa" and the birth date given by the driver on the vehicle registration. The two passengers, Matthew Corley and Michael Cannillo, had been friends with defendant since high school and testified at trial.
Officer MacInnes detected the odor of marijuana coming from the vehicle. He ordered defendant, who appeared nervous, to exit the Explorer and sit on the rear bumper of the vehicle.
Patrolman Trevor Martinson arrived at the scene to provide backup support.
When questioned about the odor of marijuana, defendant admitted that the Explorer's occupants "had been smoking a blunt[;]" he stated that it was in the pocket of the front seat passenger, Michael, and offered to retrieve it. The officers told him, "you are not going back into the vehicle." However, when Officer MacInnes approached the passenger side of the vehicle, defendant ran to the driver's side. Despite both officers yelling for him to stop, defendant got into the driver's seat. Officer Martinson reached in through the window and grabbed him by the neck while Officer MacInnes reached in through the passenger window, trying to prevent him from shifting the gear. Defendant overcame the efforts of both officers and sped away as both officers were still holding onto the Explorer.
The two officers jumped from the Explorer and rolled away. Each suffered minor injuries. However, when Cannillo jumped out shortly thereafter, he landed headfirst on the concrete and suffered a fractured skull. Corley remained in the back seat of the Explorer, yelling to defendant to stop.
Officer MacInnes pursued the Explorer in his patrol car while Officer Martinson attended to Cannillo. While in flight, defendant turned off the Explorer's lights for approximately four seconds in an apparent effort to elude detection. However, Officer MacInnes was able to follow the Explorer as it turned off the road and stopped. Defendant then fled on foot. Before he lost sight of defendant, Officer MacInnes observed him carrying a plastic bag as he ran away. Corley testified that, in fact, defendant had reached for something under the passenger seat before fleeing. Corley also ran from the vehicle but eventually surrendered.
A search of the area using a K-9 unit resulted in the recovery of a bag of marijuana in an area where defendant had run but did not lead to defendant's apprehension that night. Searches of the Explorer yielded the recovery of additional marijuana, baggies of cocaine and a stash of steroid pills.
At trial, defendant presented the testimony of two alibi witnesses who stated that he was with them in Staten Island at the time of these events. However, at sentencing, defendant admitted his guilt and apologized for his conduct. At sentencing, the court merged count one (eluding a law enforcement officer) into count two (aggravated assault) and merged counts three (possession of less than 50 grams of marijuana) and five (possession of CDS) into count four (possession of CDS). Defendant was sentenced to seven years imprisonment, with 85% to be served prior to parole subject to the No ...