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State v. Spencer

May 4, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-12-1636.

The opinion of the court was delivered by: R. B. Coleman, J.A.D.


Submitted March 30, 2009

Before Judges R. B. Coleman and Simonelli.

Defendant, Forlang Spencer, appeals from a final order denying his motion for new trial, entered on May 25, 2007. Defendant argues solely that the State failed to disclose material evidence beneficial to his defense - that a State witness was employed by a law firm where a partner was married to a Middlesex County Assistant Prosecutor - and that he is entitled to a new trial under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed. 2d at 215, 218 (1963). It is clear to us that this information is not material evidence, and for the following reasons, we affirm.

Around 5:15 p.m., on November 3, 2003, a uniformed Perth Amboy patrol officer, Officer Crescencio Fuentes, was in his patrol vehicle in a residential area near the intersection of Chamberlain and Sofield Avenues. Officer Fuentes noticed a green Ford Explorer with Virginia license plates parked on the right side of the road. The officer exited his vehicle and approached the parked Explorer on foot. The windows of the Explorer were rolled down. He noticed that the Explorer had two occupants: a black male driver and black female passenger. The officer saw the driver, defendant, looking in his direction. At this point, another patrol car was behind the Explorer, and when Officer Fuentes saw defendant beginning to shift gears, he ordered him to stop.

Defendant ignored the command and began driving west on Chamberlain Avenue. Officer Fuentes re-entered his patrol car and pursued the Explorer, activating his lights and siren. Still in a residential area, defendant drove west on Hamilton Avenue, speeding up to sixty miles per hour, sometimes on the wrong side of the road. Ignoring a stop sign, defendant turned left onto Florida Grove Road with Officer Fuentes still in pursuit. The officer briefly lost sight of the Explorer during the chase, but then regained it and continued to chase defendant until he stopped the Explorer at the intersection of Florida Grove Road and New Brunswick Avenue. At that point, several officers were present. Officer Fuentes then learned that the occupants of the car were defendant and Tamika Green, a co-defendant not party to this appeal.

The entire chase lasted less than two minutes and covered approximately one point six (1.6) miles. A police audiotape recorded the communications of Officer Fuentes, Officer Vasquez, and Lieutenant Pajack throughout the chase of defendant.

Barbara Wittke resided on Florida Grove Road along the route of the chase. When she arrived home on November 3, 2003, she claims that she saw the Explorer being pursued by a patrol vehicle running its sirens and an object was thrown from the passenger side window of the Explorer. A member of her household called the police. The police officers, including Officer Fuentes, questioned Wittke about the incident.

On December 23, 2003, in Indictment No. 03-12-1636, a Middlesex County Grand Jury charged defendant with second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5(f) (count two); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count three); and unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count four).

Defendant pled not guilty. A trial before Judge Jane B. Cantor and a jury was held over the course of three days - November 3, 4 and 8, 2004. At trial, Officer Fuentes testified consistently with the facts stated above. Officer Fuentes' supervisor, Officer Steven Verdi, who arrived on the scene after the chase was over, testified predominantly regarding the recovery of a weapon allegedly thrown from the Explorer during the chase. Green, the second occupant of the Explorer, testified on behalf of the State. Relevant to the issues now before us, Green testified that she was in the car with defendant on the date in question, and that they were chased by the police through a residential area in Perth Amboy. Detective Joseph Breyta, the State's final witness, testified with respect to the interview of Green after she was transported to police headquarters. The defense presented no witnesses at trial.

On November 8, 2004, the jury returned a verdict of guilty as to count one, second-degree eluding, and not guilty as to the weapons offense charges, counts two, three and four.

After denying defendant's motion for a new trial and the State's motion for an extended term sentence, Judge Cantor sentenced defendant on charges arising from two separate indictments on February 25, 2005. As to the present case, under Indictment No. 03-12-1636, the judge sentenced defendant to seven years imprisonment on the single count of second-degree eluding, plus fines, and a jail credit of 111 days. With respect to the charges contained in Indictment No. 04-01-0042, defendant was sentenced to five years imprisonment, with thirty months parole ineligibility. Hence, defendant's aggregate sentence was twelve years imprisonment, with thirty months parole ineligibility, plus fines, and jail credit of 111 days.

On May 16, 2005, defendant filed his notice of appeal from the final judgment of conviction with ...

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