April 30, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC SEEGERS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Passaic County, Docket No. 98-07-0772.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 23, 2010
Before Judges Parrillo and Ashrafi.
Following a jury trial in absentia, defendant Eric Seegers was found guilty of third-degree receiving stolen property, N.J.S.A. 2C:20-7 and 2C:20-2b(2)(b); and second-degree eluding, N.J.S.A. 3C:29-2b. In addition, the trial judge found defendant guilty of reckless driving as charged in the complaint. On the State's application, the court sentenced defendant, as a persistent offender, N.J.S.A. 2C:44-3a, to an extended term of twenty years with a ten-year parole bar on the eluding offense and a concurrent five-year term on the receiving stolen property crime. Appropriate fees and penalties were also imposed. Defendant appeals. We remand for resentencing in accordance with State v. Pierce, 188 N.J. 155, 169-70 (2006), for merger of the reckless driving violation with the eluding offense, and for consideration of defendant's request for gap time credit. We affirm the judgment of conviction in all other respects.
According to the State's proofs, on May 27, 1998, Paterson Police Officers Alex Popov and William Perry were patrolling the north sector of the city near the Christopher Columbus housing project in a marked patrol car. Around 2:00 p.m., they observed a Buick Regal driving out of the housing complex with a "loud muffler" and "tending to lean to the right a little bit." From a distance of about twenty-five to thirty yards behind, the officers observed three occupants in the car, one of whom was defendant, the driver. As defendant made a right turn onto Temple Street, Officer Popov radioed the license plate number to the dispatcher, who then reported that the vehicle was stolen.
Popov activated his overhead lights and siren and pursued defendant in an effort to effectuate a motor vehicle stop.
Defendant accelerated and, according to Popov, reached a top speed of 70 miles per hour (m.p.h.).*fn1 Defendant made a series of right turns, passing several cars stopped at a red light, and headed towards the housing project. The area of the pursuit consisted of two public elementary schools in session, a multi-building residential housing project, and four 16-floor apartment buildings, the "Presidential Towers[.]" The posted speed limit was 25 m.p.h. in this heavily populated area. As defendant drove into the housing complex, several pedestrians had to jump onto the sidewalk to avoid being run over.
The officers pursued defendant into the parking lot of the housing project where the three occupants then jumped out of the moving vehicle and fled on foot. The Buick, moving about three to five m.p.h., struck a parked vehicle and came to rest. Defendant fled into one of the buildings and was apprehended by Officer Popov on the second floor stairwell. The front seat passenger fled in the opposite direction into a nearby house, where he was apprehended by Officer Perry.
Officer Popov later examined the Buick, and noted that the steering column was broken, enabling the car to be operated without an ignition key. The owner of the Buick, Reynaldo Otero, explained that on the night before the incident, May 26, he had parked his car on West Broadway near his home. The next morning, Otero discovered that the car was gone and reported it stolen. After the vehicle was recovered by the police on May 27, Otero noticed that the trunk had been "popped" and the contents of the trunk had been stolen. In addition, the exterior door lock was damaged and the steering column was broken.
At the close of evidence and following instructions, the jury convicted defendant of third-degree receiving stolen property and second-degree eluding. On appeal, defendant raises the following issues:
I. THE COURT ERRED IN DENYING THE MOTION FOR JUDGMENT OF ACQUITTAL ON THE SECOND-DEGREE ELUDING CHARGE BECAUSE THERE WAS NO PROOF THAT A RISK OF INJURY WAS CREATED.
II. THE COURT FAILED TO CHARGE THE LESSER-INCLUDED OFFENSE OF FOURTH-DEGREE UNLAWFUL TAKING OF A MEANS OF CONVEYANCE.
III. SEEGERS WAS SENTENCED AS A PERSISTENT OFFENDER TO AN EXTENDED TERM OF 20 YEARS WITH A 10 YEAR PAROLE BAR WHICH TERM IS MANIFESTLY EXCESSIVE. ADDITIONALLY, THE DEFENDANT IS ENTITLED TO GAP-TIME CREDIT AND MERGER OF THE RECKLESS DRIVING TICKET.
A. The Quantum of The Sentence Is Excessive.
B. The Defendant Is Entitled To Gap Time Credit.
C. The conviction for reckless driving should be merged with the second-degree eluding.
In a supplemental brief, defendant pro se raises the following arguments:
I. DEFENDANT WAS DEPRIVED OF DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO CHARGE THE JURY THAT THE "IDENTIFICATION" OF THE DRIVER IS AN ELEMENT OF ELUDING (NOT RAISED BELOW).
II. DEFENDANT WAS DEPRIVED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT ERRED IN FAILING TO INSTRUCT JURY ON "SCIENTER" AS AN ELEMENT OF THE OFFENSE OF ELUDING (NOT RAISED BELOW).
III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE LAW OF "BODILY INJURY" EVEN THOUGH THE RISK OF INJURY WAS AN ESSENTIAL ELEMENT OF SECOND[-]DEGREE ELUDING (NOT RAISED BELOW).
IV. DEFENDANT WAS DEPRIVED DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. I OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE TRIAL COURT FAILED TO CHARGE THE LESSER[-]INCLUDED OFFENSES OF CARELESS DRIVING FOR RECKLESS DRIVING, AND CONSTITUTES REVERSIBLE ERROR. (NOT RAISED BELOW).
V. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO ACQUIT AGAINST THE WEIGHT OF THE EVIDENCE.
VI. DEFENDANT ENTITLED TO GAP TIME CREDITS PURSUANT TO N.J.S.A. 2C:44-5b(2).
VII. THE SENTENCING COURT ABUSED ITS DISCRETION WHEN IT EXCESSIVELY SENTENCED AND PUNISHED DEFENDANT FOR INVOKING HIS SIXTH AMENDMENT RIGHT TO A JURY TRIAL.
VIII. DEFENDANT WAS DEPRIVED DUE PROCESS OF LAW AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 9 & 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN DEFENSE COUNSEL FAILED TO CHALLENGE THE IDENTITY OF THE DRIVER ON THE ISSUE OF SUGGESTIBILITY AND RELIABILITY, AND CONSTITUTE INEFFECTIVE ASSISTANCE OF COUNSEL.
In challenging the sufficiency of evidence to support his eluding conviction, defendant argues that the State failed to prove that his actions created a risk of death or injury to a specific person. We conclude there was ample evidence to support this conviction.
On a motion for judgment of acquittal:
At the close of the State's case or after the evidence of all parties has been closed, the court shall, on the defendant's motion or its own initiative, order the entry of a judgment of acquittal of one or more offenses charged in the indictment or accusation if the evidence is insufficient to warrant a conviction.
Whether at trial or on appeal, the standard for determining the sufficiency of evidence to uphold a conviction is the same, namely whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. [State v. Reyes, 50 N.J. 454, 458-59 (1967).]
"On such a motion the trial judge is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975).
Second-degree eluding requires a "risk of death or injury to any person." N.J.S.A. 2C:29-2b (emphasis added). The term "any person" is intended to encompass "all natural persons, including the defendant." State v. Bunch, 180 N.J. 534, 543 (2004). The State need not show that a member of the public was in the vicinity of the chase. A risk of injury to the police officers, who by definition are present, is sufficient under the statute. State v. Wallace, 158 N.J. 552, 560 (1999). As the Wallace Court held:
We are satisfied that the Legislature intended to protect all persons by the eluding statute, including the police officers occupying the chasing vehicle and any persons in the eluding vehicle, as well as any people who could potentially be exposed to injury or death along the chase route. [T]he statute was designed to punish [creation of] a possibility of injury to others. [Ibid.]
The State is relieved of the affirmative requirement of showing a "risk of death or injury," and the jury may properly infer such a fact, if the defendant's conduct involves a motor vehicle violation under Chapter 4 of Title 39. Id. at 558-59. This requirement does not mean that the jury must find a motor vehicle or other violation before it may apply the permissive inference; all that is necessary is that the jury be given a standard - i.e., the elements of the alleged motor vehicle offenses - by which to determine whether a violation occurred and thus whether to apply the inference. See State v. Dixon, 346 N.J. Super. 126, 138-39 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002). The judge remains the arbiter of the defendant's guilt of the motor vehicle infractions.
Separate and apart from whether the permissive inference applied here, the State produced ample direct evidence that defendant's eluding in fact created a risk of death or injury. In a heavily populated area, consisting of elementary schools, housing projects and residential high-rise apartment buildings, defendant drove at estimated speeds as high as 70 m.p.h. through both vehicular and pedestrian traffic. See, e.g., State v. Thomas, 187 N.J. 119, 137-38 (2006), rev'd on other grounds, 195 N.J. 431 (2008). In fact, several pedestrians had to jump out of defendant's way to avoid being hit by his car. Defendant himself "bailed" out of the moving vehicle, which continued moving until it struck a parked vehicle. The happenstance that no one was actually injured during the pursuit does not absolve defendant of second-degree criminal liability since the statute's protective scope encompasses any person who could potentially be exposed to injury or death along the chase route. Wallace, supra, 158 N.J. at 560. Here, the potential for such consequences is obvious and well established in the record.
Defendant next argues the court erred in not charging the lesser-included offense of fourth-degree unlawful taking of a means of conveyance (joyriding). We disagree.
At the charge conference, the trial judge raised the issue of whether unlawful taking of a conveyance under N.J.S.A. 2C:20-10, either a fourth- or third-degree offense, could be a lesser-included offense of receiving stolen property given the evidence presented. In ultimately rejecting defense counsel's request to charge fourth-degree joyriding, the judge reasoned:
What I'm trying to explain is the fact that if the jury concludes that it wasn't the defendant Seegers' intention to permanently deprive Otero of the vehicle, but to rather temporarily deprive, and he was the operator of the vehicle, then potentially you could charge unlawful taking by a means of conveyance, fourth degree. Why I can't in this case is because there is no disputed fact as to the property damage. There was property damage, and if there was property damage that resulted from the operation of the vehicle which was being taken without the consent of the owner and was being taken to temporarily deprive him, then I could only charge third degree, because that's what the law says it is. And if I charge third degree, I'm then charging a different substantive offense. I'm giving the jurors two bites at the apple to convict your client, and I don't think I should be doing that. [Emphasis added).]
We agree with this rationale.
Where a defendant requests a jury charge on a lesser-included offense, the trial court examines the record thoroughly to determine if "the evidence at trial presents a rational basis for the jury to acquit the defendant of the greater offense and convict him or her of the lesser." State v. Brent, 137 N.J. 107, 123 (1994); N.J.S.A. 2C:1-8e. A defendant is entitled to a charge on a lesser offense that is supported by the evidence, regardless of whether the charge is consistent with the theory of the defendant's defense. Brent, supra, 137 N.J. at 118 (citing State v. Powell, 84 N.J. 305, 317 (1980)).
A person is guilty of the crime of receiving stolen property if he knowingly receives movable property of another knowing that it had been stolen, or believing that it was probably stolen. N.J.S.A. 2C:20-7. A person commits fourth-degree joyriding if, "with purpose to withhold temporarily from the owner, he takes, operates or exercises control over a motor vehicle without the consent of the owner or other person authorized to give consent." N.J.S.A. 2C:20-10b. The offense is elevated to third-degree if, in addition, the person "operates the motor vehicle in a manner that creates a risk of injury to any person or a risk of damage to property." N.J.S.A. 2C:20-10c.
Clearly, third-degree joyriding is not a lesser-included offense of theft because it involves additional proofs relating to the greater risk of harm to person or property, not from taking the vehicle, but rather in its manner of operation, which is not one of the elements of the crime of receiving stolen property. State v. Robinson, 356 N.J. Super. 332, 341 (Law Div. 2002). Because it was not a lesser-included offense of receiving stolen property, but rather an entirely different and distinct crime not charged in the indictment, there was no error in refusing to instruct the jury on third-degree joyriding.
Nevertheless, defendant argues the court should have instructed on fourth-degree joyriding instead. This offense, however, was not indicated in the record. The undisputed proofs demonstrate there was physical damage not only to the stolen vehicle, but an unattended parked car as well, and therefore, the grade of the offense necessarily escalated to third-degree. A jury could not rationally acquit defendant of third-degree joyriding and convict him of the fourth-degree offense. Neither was there a rational basis upon which the jury could acquit on the greater offense of receiving stolen property and convict on the so-called lesser offense of fourth-degree joyriding. Here again, the proofs are undisputed that the contents of the trunk had been removed without the owner's consent and the steering column had been broken, enabling the vehicle to be operated without a key. This evidence of permanent deprivation undeniably refutes any intention to drive the car only temporarily for pleasure and thus forecloses a jury from rationally convicting on the lesser offense.
In an analogous case, State v. Richardson, 208 N.J. Super. 399, 402-03 (App. Div. 1986), the defendant eluded police in a Cadillac, exited the vehicle, and fled on foot. The steering column and ignition column had been broken, and the radio had been partially removed from the dashboard. Id. at 403. We concluded that fourth-degree joyriding was not a lesser offense of receiving stolen property:
We find a complete absence of any rational basis in the evidence which even remotely suggests that defendant only intended to drive the car for pleasure. The unlawful taking of a means of transportation, or joyriding, is not a lesser included offense of receiving stolen property. The elements of the two offenses are different. The unlawful taking of a means of transportation and joyriding does not involve stripping of a motor vehicle as was demonstrated in the present case. [Id. at 405-06 (internal citations omitted).]
The cases relied upon by defendant, on the other hand, are inapposite, involving passengers in stolen vehicles whom the jury could reasonably have acquitted of receiving stolen property, as their mere presence in the stolen car, as opposed to possession thereof, may have been evidential of only a temporary use for pleasure. See, e.g., State v. Moore, 330 N.J. Super. 535, 544 (App. Div.), certif. denied, 165 N.J. 531 (2000); State v. McCoy, 222 N.J. Super. 626, 633-34 (App. Div. 1988), aff'd, 116 N.J. 293 (1989); and State v. Alexander, 215 N.J. Super. 523, 529-31 (App. Div. 1987). Unlike these cases, the evidence in the present matter simply affords no rational basis for the jury to acquit defendant of receiving stolen property and convict him of fourth-degree joyriding. Accordingly, the trial court properly refused to instruct on the lesser offense.
Aside from the sentencing issues, the remaining arguments raised by defendant pro se are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the court's eluding instruction, read as a whole, State v. Wilbely, 63 N.J. 420, 422 (1973), adequately informed the jury of the State's obligation to prove that defendant was the person who committed the offenses charged. Moreover, defense counsel never requested a separate identification instruction, see State v. Gaines, 377 N.J. Super. 612, 623 (App. Div.), certif. denied, 185 N.J. 264 (2005) and, in any event, identification was not a key issue in the case. State v. Green, 86 N.J. 281, 291 (1981). In this regard, Officer Popov's identification testimony was unequivocal and unchallenged on cross-examination, which focused instead on establishing that the eluding did not involve a risk of injury to other vehicles in the roadway.
Nor was the eluding instruction deficient in any other respect. The court properly charged all the elements of the offense including defendant's knowledge he was being pursued by police officers who had signaled him to stop.
As for defendant's ineffective assistance of counsel claim based on counsel's failure to request a Wade*fn2 hearing to suppress proof of identification, such a claim relies on evidence outside the record and, as such, is more appropriately considered on post-conviction review, not direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992).
Defendant challenges his sentence on multiple grounds, two of which are conceded by the State. Thus, the State agrees that there should be a limited remand for merger of defendant's reckless driving violation with his eluding conviction. See State v. Wallace, 313 N.J. Super. 435, 439 (App. Div. 1998), aff'd, 158 N.J. 552 (1999). The State also agrees that a remand is required under Pierce, supra, 188 N.J. at 169-70, to allow the court to consider the full sentencing range for the discretionary extended-term sentence imposed under N.J.S.A. 2C:44-3a, which "starts at the minimum of the ordinary-term range and ends at the maximum extended-term range." Id. at 169. In light of this remand, we need not consider defendant's additional argument that the quantum of sentence imposed - twenty years with a ten-year parole bar - is manifestly excessive. We also need not consider defendant's argument, raised for the first time on appeal, that he is entitled to 256 days of gap time credit for the sentence he served on his Bergen County conviction before he was sentenced on the instant charges, Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973), and leave resolution of this issue for the trial judge on remand.
The matter is remanded for resentencing. The judgment of conviction is affirmed in all other respects.