On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-11-0769.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Lihotz.
Defendant Troy C. Chance was charged under Somerset County Indictment No. 07-11-0769 with second-degree attempted escape, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-5. After a three-day jury trial, he was convicted and sentenced to a five-year period of incarceration on the indictable offense. In a related charge reviewed by the court, defendant was found guilty of the disorderly persons offense of obstructing the administration of law, N.J.S.A. 2C:29-1A, for which a concurrent six-month sentence was imposed.
On appeal, defendant challenges his conviction, arguing:
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.
THE TRIAL COURT ERRED IN PERMITTING STATEMENTS INTO EVIDENCE MADE BY THE DEFENDANT AT THE HOSPITAL AS THEY WERE PREJUDICIAL IN NATURE AND NOT AT ALL PROBATIVE.
IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO RULE 3:18 AS THERE WAS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION.
IT WAS ERROR ON THE PART OF THE COURT TO PERMIT TESTIMONY RELATING TO THE FACT THAT THE POLICE WERE LOOKING FOR THE DEFENDANT PRIOR TO THE EVENTS WHICH WERE THE SUBJECT OF THE TRIAL.
THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (PARTIALLY RAISED BELOW).
THE TRIAL COURT ERRED IN PERMITTING THE VIDEO RECORDING INTO EVIDENCE WHICH WAS CONTRARY TO N.J.R.E. 901 (NOT RAISED BELOW).
THE TRIAL COURT ERRED BY CONTINUING TO ALLOW WITNESS MARSWILLO TO ARGUE WITH DEFENSE COUNSEL CONTRARY TO DEFENDANT'S SIXTH AMENDMENT RIGHTS RESULTING IN PREJUDICE (PARTIALLY RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE; THE COURT ERRED IN DENYING DEFENDANT'S APPLICATION TO BE SENTENCED TO A DEGREE LOWER; THE SENTENCE SHOULD BE REDUCED.
Following our review, in light of the record and applicable law, we affirm.
The facts supporting defendant's conviction are largely undisputed. On October 10, 2007, Officer Michael Opaleski of the Franklin Township Police Department, was patrolling the southern portion of the township. At approximately 10:24 p.m., Opaleski received a call regarding a domestic disturbance involving defendant. En route to the scene, Opaleski ran a warrant check on defendant, which revealed four outstanding warrants. While conducting an interview of the complainant, Opaleski saw defendant drive by in a green minivan and gave chase in his patrol car.
After a brief pursuit, defendant left his car and fled on foot. He was discovered hiding beneath a row of bushes. Initially, defendant ignored the exhortations of Opaleski and another officer to come out; eventually, he exited the bushes and was placed under arrest.
Opaleski explained that as he escorted defendant to the patrol car, he was "resist[ing], pull[ing] away from me, pushing me." Specifically, defendant was "pull[ing] over to the right [ ] then push[ing] back into" Opaleski on the left. When the officers reached the vehicle, defendant sat in the backseat but refused "several" requests to place his legs inside the car.
Opaleski began discussing the situation with a sergeant who had arrived on scene. Defendant then began "yelling, cursing, yelling profanities at [the backup officer], kick[ing] the rear patrol car window [and] spit[ting] at the divider." At headquarters, defendant was "processed, booked, searched [and] placed in a holding cell." While in the cell, defendant calmed down "on and off" but engaged in "confrontational" behavior, including "shaking the cell doors, yelling numerous profanities [and] kicking the cell doors."
After being informed of his bail, defendant announced he was unable to pay. At this time, two other officers, Michael Casey and Rocco Marswillo, were called to transport defendant to the Somerset County Jail.
Defendant complied with Marswillo's request to step out of the cell; however, when he was asked to turn around and place his hands on the wall to be handcuffed, defendant took off, bolted through a door to his left, and traveled four or five yards down a hallway until he encountered a locked security door.
Defendant made no physical contact with the officers when he initially fled. In fact, the attempted escape was captured on closed-circuit videotape and time-lapse still photographs of the events were entered into evidence. However, the physical altercation between defendant and the police officers after he encountered the locked door was not shown on the video. The accounts of the events expressed by defendant and the police diverge.
I was right behind [defendant]. At that time I grabbed him and we ended up on the ground.... [Defendant] was flailing trying to get through the door and away from me, and at some point we both ended up on the ground.
When we ended up at the ground [and] Officer Casey and Officer Opaleski came to assist me, [defendant's] head is facing towards the door into the hallway[.] His feet are facing back towards the cell block to the unsecure[d] door from the direction in which he came. I have him [ ] with an arm at one point. Officer[s] Casey and [ ] Opaleski come in. I'm not sure. I know they come in and say stop resisting, place your hands behind your back, but I don't have a visual on what they're doing with his feet. I know someone said something to the effect of stop kicking and stop resisting was repeated over and over. As I'm trying to gain control of [defendant's] hand, he rolls over onto both of his arms so we cannot grab his arms.
I [then] have [defendant] about the shoulder and I'm trying to get him to roll back. So I can reach underneath him, grab one of his arms and gain control of him again.
Casey largely confirmed this account, stating that after defendant and Marswillo fell to the floor you could see [defendant] was flailing his arms, his legs were kicking and Officer Marswillo at the same time... was trying to gain control of his arms and attempt to put cuffs on him.
I tried to [ ] get in there and get a hold of his wrists so that we could handcuff his hands behind his back.... At that point we weren't [successful]. We were still basically having trouble getting the cuffs on him. [L]ike I said, he was flailing his arms, kicking his legs. At one point I received a foot [ ] near my groin area, my right leg[.]
Defendant testified in his own behalf, stating:
I stopped my attempt and put my hands on my head and... started to kneel down. But I never got to kneel down voluntarily because the officers was [sic] right behind me and as I was kneeling down one of the officers slammed me into the corner.
As I was on the floor as in the officers' statements, they said one officer was in front of me and one was on the side... and [Marswillo], he had his knee into my neck so I couldn't breathe, and as they was yelling stop resisting, since I couldn't breathe, I was trying to - I had my hands like this trying to move knees off of my neck to yell I'm not resisting. But since I couldn't breathe I was kicking my feet like [ ] if you can't swim [and] you get thrown in the pool you fight [ ] to try and get out so you can breathe. So that's basically what I was doing.
After a "prolonged struggle" involving five police officers, defendant was subdued and leg shackles were applied. The officers placed defendant in a patrol car for transport to the county jail.
Once in the car, defendant complained of shoulder pain and stated he had passed out briefly during the altercation and felt "tingly" upon awaking. Departmental policy dictated defendant be taken to the Robert Wood Johnson hospital where he was examined by doctors in the pediatric unit.*fn1 At the hospital, defendant was "using profanities, cursing, yelling and basically disrupting operations, thereby drawing attention to himself." While waiting for an x-ray, defendant voluntarily made several statements to the officers regarding the events at police headquarters. Some of these statements were admitted at trial; others were excluded after a pre-trial hearing. Defendant admitted he "was already contemplating how he was going to get away from [police] as the cell block door was opening" and "was actually contemplating whether he should take a punch at [police to get] a ...