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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...