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State v. Hare


June 18, 2010


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-03-0411.

Per curiam.


Submitted April 14, 2010

Before Judges Graves and Sabatino.

Defendant Orlando Hare appeals his conviction, after a jury trial, of second-degree eluding, N.J.S.A. 2C:29-2b. In particular, defendant appeals the trial judge's denial of a judgment of acquittal at the close of the State's proofs. He also appeals his imposed sentence of ten years with four years of parole ineligibility. We affirm.

The State's evidence at trial showed the following. Shortly before 1:00 a.m. on February 1, 2007, Detectives Frederick Bender and Ryan Woodhead of the Trenton Police Department were in an unmarked police car on Greenwood Avenue when their attention was drawn to a silver Nissan Xterra, driven by the defendant. When defendant made a right turn onto Chestnut Avenue without signaling, the detectives turned on their lights and sirens to attempt to effectuate a traffic stop.

Defendant failed to stop. Instead, he continued driving and led the detectives on a chase through the Trenton city streets, out into Ewing Township, and back again into Trenton. The detectives issued a radio dispatch for additional units to help them pursue defendant. Consequently, two other Trenton police officers, Otis Wood and Porsche Ames*fn1 joined the chase in a marked police sedan. Two more officers on patrol, Brian Jones and Roberto Reyes, took the lead in the pursuit of defendant, after he had rapidly passed by their marked patrol car on Willow Street.

During the police chase, defendant drove his vehicle at varying speeds estimated to range between twenty to sixty miles per hour. At one point he drove at approximately fifty miles per hour through a residential neighborhood, exceeding the speed limit.

According to the testimony of Officer Wood, as defendant turned right onto Prospect Street, his Xterra "struck," or "sideswipe[d]," the front passenger side of another police vehicle. Officer Wood stated on cross-examination that he was "not aware of the extent of the damage" to the sideswiped vehicle. In his own testimony, Officer Jones stated that Xterra "almost struck" a police vehicle as it turned onto Prospect.*fn2

There was no evidence that any occupant of a police car was injured.

Defendant also drove through multiple stop signs without stopping. However, at other intermittent times during the pursuit, he obeyed traffic lights and signs, and used his turn signals.

The pursuit of defendant lasted for more than twenty minutes. It concluded when defendant drove into a baseball field. He ran out of his car and fled from the police officers on foot, until he was captured by Officer Reyes and handcuffed.

During the State's case in chief, it presented testimony from Officers Bender, Wood, Jones, and Reyes. Following that testimony and the admission of exhibits consisting of various street maps, the trial judge considered whether defendant would be entitled to a judgment of acquittal pursuant to Rule 3:18-1. He argued that the State's proofs did not suffice to establish the elements of second-degree eluding under N.J.S.A. 2C:29-2b, particularly the element of "a risk of death or injury to any person," which elevates the eluding offense from third degree to second degree. Defendant asserted that there was no proof that any person was actually injured by his driving, and that the roads were practically empty at the time of the pursuit.

The trial judge, Charles A. Delehey, denied a judgment of acquittal. In his oral ruling, Judge Delehey noted that "if the testimony of any of these [police] officers is believed, there is more than sufficient evidence for this matter to go to the jury based on State v. Reyes, [50 N.J. 454 (1967)]," and that "[r]easonable jurors could conclude beyond a reasonable doubt that the defendant is guilty as charged."

Defendant declined to testify in his own behalf and did not present any affirmative proofs. After receiving a jury charge that instructed them, among other things, on the elements of second-degree eluding and third-degree eluding, the jury found defendant guilty of the more severe offense of second-degree eluding.

At sentencing, Judge Delehey rejected the State's request to sentence defendant to an extended term as a persistent offender. The judge imposed the aforementioned ten-year term with a four-year parole disqualifier. The judge noted in his sentencing analysis that aggravating factors three (the risk of reoffense), six (defendant's prior criminal record) and nine (the need for deterrence) were present. See N.J.S.A. 2C:44-1a(3), (6) and (9). The judge also noted, as a non-statutory mitigating factor, that defendant "does suffer from time to time from possible depression."

In his first issue on appeal, defendant argues that a judgment of acquittal should have been granted because the State's proofs did not suffice to establish the elements of second-degree eluding under N.J.S.A. 2C:29-2b, particularly the element of "a risk of death or injury to any person," which elevates the eluding offense from third degree to second degree. Defendant emphasizes that there was no proof that any person was actually injured by his driving. He also contends that the city streets were practically empty at the time of the pursuit.

In reviewing a trial court's decision to deny judgment of acquittal, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560, 573 (1979)). The State's evidence should be viewed in its entirety and given "'the benefit of all its favorable testimony and all of the favorable inferences' to be drawn from that testimony . . . [.]" State v. Spivey, 179 N.J. 229, 236 (2004) (quoting State v. Motta, 42 N.J. 258, 263 (1964)). Applying those standards here, we have no hesitation in sustaining the trial judge's ruling and the jury's guilty verdict.

The core elements of eluding under N.J.S.A. 2C:29-2b are readily and reasonably established by the accounts of the four testifying police officers. Defendant was operating a motor vehicle on the public streets; he received a signal from a police officer to bring his vehicle to a full stop; and thereafter, as demonstrated by his continued driving for twenty minutes while being pursued by multiple patrol cars, knowingly fled or attempted to elude the pursuing officers. See N.J.S.A. 2C:29-2b. The sole issue concerning the statutory elements that defendant argues is whether his conduct created a "risk of death or injury to any person." We are satisfied that such a risk was reasonably established by the State.

As the Supreme Court has explained, "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." State v. Wallace, 158 N.J. 552, 560 (1999). The Court further clarified in Wallace that "the [eluding] statute was designed to punish those who elude the police and actually cause injury or death, as well as those whose unlawful conduct creates a possibility of injury to others." Ibid. (emphasis added). Viewing the record in a light most favorable to the State, the evidence was more than ample to meet this test. The unrebutted testimony that defendant sideswiped (or nearly struck) a police car, coupled with evidence of defendant running stop signs and speeding through residential neighborhoods, created a palpable risk of injury, even though, fortunately, no one was actually hurt. Consequently, judgment of acquittal for second-degree eluding was correctly denied.

In his second argument, as amplified in a pro se brief that we have also fully considered, defendant argues that his sentence was excessive. In particular, he asserts that the sentencing judge failed to take into account his mental health problems, and perceived "provocation" by the pursuing officers, as mitigating considerations.

Defendant relies upon an evaluation that had been performed by a psychiatrist, Kenneth J. Weiss, M.D. Dr. Weiss interviewed defendant and thereafter issued a written report on December 19, 2007. Dr. Weiss noted in his report that defendant reported suffering from chronic periods of depression, marked by "substantial periods of incarceration, and fear of undercover police over the past 20 years." Dr. Weiss described defendant's reaction to the police chase in this case as "idiosyncratic[.]" He recommended that the court, in sentencing, "take into account [defendant's] subjective experience of anxiety, which caused an error in judgment."

However, Dr. Weiss also acknowledged that defendant "did not experience a psychotic reaction, that is, an inability to assess reality." The expert further opined that "whatever mental state [defendant] was in at the time [of the chase] would not rise to the level of preventing him from forming the intent to elude[,]" and that defendant "would have known that what he was doing was wrong."

Defendant told Dr. Weiss that he does not fear police generally, but he does fear undercover police, because of an assault that he once suffered at the hands of undercover detectives. He stated because the police car that initiated the traffic stop in this case was an unmarked car, he associated it with undercover police. Even if this claim were deemed credible, it is clear that defendant continued to flee the pursuit of law enforcement for at least twenty minutes, even after marked police cruisers had joined the pursuit.

Considering the record as a whole, the trial court had ample reason to afford limited or no value to defendant's arguments. The sentencing judge reasonably weighed the aggravating factors and duly considered the potential mitigating arguments presented by the defense. Our function on appeal is not to second-guess such rationally-based sentencing determinations. See State v. Bieniek, 200 N.J. 601, 608 (2010); State v. Roth, 95 N.J. 334, 365 (1984).

The other contentions raised on appeal in defendant's pro se brief respecting his sentence lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).


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