On appeal from the Superior Court of New Jersey, Law Division, Warren County, Indictment No. 06-09-0349.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2009
Before Judges Baxter and Alvarez.
Defendant Ramon Acosta was found guilty by a jury of third-degree conspiracy to commit burglary, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:18-2 (count one); third-degree conspiracy to commit theft by unlawful taking, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:20-3 (count two); third-degree theft by unlawful taking, N.J.S.A. 2C:20-3 (count four); second-degree eluding, N.J.S.A. 2C:29-2b (count five); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count six); third-degree hindering prosecution, N.J.S.A. 2C:29-3b (count eight); and fourth-degree hindering the prosecution of another, N.J.S.A. 2C:29-3b (count nine). Defendant was acquitted of count three, a third-degree burglary.
Following merger of the conspiracy to commit theft into the substantive theft count, defendant was sentenced to seven years imprisonment for eluding, a concurrent five-year term on each third-degree offense and a concurrent eighteen-month term on the fourth-degree crime. Additionally, defendant was sentenced on numerous motor vehicle offenses and appropriate penalties and fines were imposed.*fn1
The following facts were developed at trial. On April 21, 2006, New Jersey State Park Police Rangers David M. Wojtach and Robert Pfeil were on patrol in the Worthington State Forest off Route 80, near the Pennsylvania border. Because of many reports over the weeks prior of "lewd behavior" and "car break-ins" in the area, they included the Dunnfield parking lot in their patrol circuit. Both men were uniformed and armed. Wojtach was in the troop car while Pfeil surveilled the lot on foot. At approximately 3:00 p.m., Pfeil sent Wojtach a radio transmission that he had observed an individual involved in suspicious activity in the woods overlooking the Dunnfield parking lot. Wojtach drove into the parking lot within thirty seconds of the radio dispatch and immediately saw an older blue two-door Cadillac. Pfeil had included a description of a blue car in his radio transmission. Wojtach activated his emergency lights and sirens and noticed the individual Pfeil had also described, defendant, getting into the Cadillac's driver's seat. The vehicle nearly struck Wojtach's patrol car as it sped away.
Wojtach followed it out onto Route 80, where the vehicle crossed both lanes even though it was the beginning of rush hour and the roadway was crowded. The Cadillac cut in front of other cars as it traveled at a high speed. The driver was "gunning it" and eventually "shot right across the highway" to take the last exit before the Pennsylvania border. As a result of that maneuver, a tractor-trailer nearly struck Wojtach's patrol car as it avoided a collision with the Cadillac. The Cadillac crashed into a concrete wall at the base of the exit ramp; Wojtach saw smoke pouring out of the vehicle, and defendant and his passenger immediately dove out of the car, running in opposite directions. Wojtach chased defendant, reaching him several times before defendant finally stopped and allowed Wojtach to handcuff him. At that moment, the passenger appeared and ran towards Wojtach, who drew his gun. Upon seeing Wojtach's weapon, the passenger turned and ran. Wojtach cuffed defendant and placed him in the rear of his troop car. The passenger, defendant's co-defendant, was apprehended several hours later while walking on Route 80.
When Wojtach returned to the exit ramp to secure defendant in the rear of his patrol car, he realized that the Cadillac had actually moved from the point of impact because the engine had been left running and the car was in gear. When Wojtach entered the car in order to shut off the engine, he saw a number of suspicious items in plain view, including burglary tools. A bag was located in the rear of the vehicle containing, among other things, a computer and an Ipod belonging to a victim whose car was burglarized earlier in the day while he was hiking the state park trails.
During his testimony, one of the arresting officers, without prompting, said that a background check on defendant's name revealed an outstanding bench warrant. Defense counsel immediately objected, and the judge instructed the jury that the bench warrant was not relevant to the proceedings. Defense counsel then made a motion for a mistrial, which the judge denied.
Defendant testified through an interpreter that he was only vaguely aware that he and his cohort were being chased by police. He said that when the co-defendant ran out of the car, he cried out, "why are you running?" The co-defendant only told him he could not be arrested. Defendant denied running; he claimed that he walked in front of the car while attempting to convince the other man not to run. He testified that Wojtach spoke to him in English, which he did not understand, and that he never ran from or scuffled with any officer. He said, in fact, that the arresting officer struck him, knocked him down and kicked him on the side of his body. He denied breaking into cars, seeing anyone else break into cars, driving the Cadillac, or even being given Miranda*fn2 warnings.
On appeal, defendant raises the following ...