On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 06-12-1156.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Ashrafi.
Tried by a jury, defendant Elijah Pittman was found guilty of second-degree eluding, N.J.S.A. 2C:29-2b, and second-degree aggravated assault, N.J.S.A. 2C:12-1b(6). On the eluding conviction, defendant was sentenced to six years in prison with a two-year period of parole ineligibility, and for aggravated assault, a consecutive eight-year term with an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant appeals, and we affirm.
According to the State's proofs, at around 7:30 p.m. on August 22, 2006, while still daylight with clear weather, Union Township Police Officer Michael Wittevrongel was monitoring eastbound Route 22 traffic in a marked patrol car parked about ten feet away in a lot perpendicular to the roadway. The officer noticed a Chrysler Fifth Avenue approaching in the left lane with no front license plate, but a New Jersey license plate on the back. Wittevrongel focused solely on this car as it passed by at about forty to forty-five miles per hour, paying particular attention because its driver's side door lock was damaged, indicating that it could have been stolen. At the same time, Wittevrongel observed a male driver and a female passenger.
Wittevrongel ran the number on the rear license plate and found that it was not registered to that vehicle or any other. As a result, he radioed two other officers in the area, David Roman and Walter Stinner, for assistance. Wittevrongel then pulled out onto Route 22 in pursuit, losing sight of the Chrysler for no more than thirty seconds. He eventually caught up to the Chrysler near the Lowes Shopping Center on Route 22, where he saw his fellow officers pull out from the Lowes' parking lot, in their police cruiser, activate their lights and sirens, and signal for defendant to stop. Wittevrongel did the same, taking over as the primary unit in pursuit, only losing sight of the vehicle for an instant just before it ultimately crashed a few minutes later. While in pursuit, Officer Stinner also observed that the driver was male and the passenger, female.
With the police vehicles following, the Chrysler accelerated to about seventy miles per hour in the forty-five mile per hour speed zone, "weaving in and out of traffic," driving erratically, and suddenly "pull[ing] from the left lane, clear across the right lane of traffic, and right off the [exit] ramp." By then, the officers had been pursuing the vehicle for approximately 3.3 miles. When Wittevrongel reached the top of the exit ramp, he saw that the Chrysler - which he lost sight of for only "a fraction of a second" when it shot down the ramp - had rear-ended another vehicle, a Saturn, at a stop sign at the bottom of the ramp. The impact forced the Saturn all the way across the street and into a parking lot where it collided with a tractor trailer.
The Chrysler had sustained heavy front-end damage and was still smoking and rolling the wrong way down a one-way street as the passenger remained inside while the driver attempted to exit, despite the fact that his door would not open. Wittevrongel, after quickly checking that the driver of the Saturn was all right, used his police cruiser to block the Chrysler from moving any further. Inside that vehicle was defendant, in the driver's seat, along with a passenger, defendant's cousin Nicole Pittman. Defendant, who was the same person Wittevrongel saw in the driver's seat when he first observed the vehicle on Route 22,*fn1 was then placed under arrest. Carol McBride, the driver of the Saturn vehicle, sustained injuries to her neck, back, and shoulders that left her, more than a year later, with continuing pain and still unable to drive.
Having credited the State's version, the jury found defendant guilty of second-degree eluding and aggravated assault for which he was sentenced to consecutive prison terms. For the first time on appeal, defendant challenges the court's jury charge for failing to give the identification and "false in one, false in all" instructions, omitting a paragraph from the eluding charge, and erroneously instructing on defendant's right to remain silent. Defendant also argues that the imposition of consecutive sentences was an abuse of discretion. Specifically, defendant argues:
I. THE COURT'S JURY INSTRUCTION ERRORS REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. (Not Raised Below).
A. The Court's Failure To Instruct The Jury Sua Sponte That The State Had To Prove Identification Beyond A Reasonable Doubt Denied Defendant His Constitutional Rights To Due Process And A Fair Trial. U.S. Const. Amends. V, VI, XIV; N.J. Const. ¶¶ 1, 9, and 10.
B. The Court Erred In Not Charging "False In One False In All" Sua Sponte, Thus Prejudicing Defendant Where The Primary Witnesses Were Law Enforcement Officers. (Not Raised Below).
C. The Court Erroneously Omitted A Paragraph From The Model Charge On Eluding, Thus Diluting The State's Burden Of Proof. (Not Raised Below).
II. THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below).
III. THE COURT'S IMPOSITION OF CONSECUTIVE SENTENCES CONSTITUTES AN ABUSE OF DISCRETION, AND THE REASONS STATED CONTRAVENE YARBOUGH PRINCIPLES.
We find no merit to any of these ...