On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-01-0051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 21, 2010
Before Judges Carchman and Messano.
Defendant Tyreese L. Batts, a/k/a as Tyreese Best, appeals from the judgment of conviction and sentence imposed following a jury trial at which he was convicted of third-degree receiving stolen property, N.J.S.A. 2C:20-7a; second-degree eluding, N.J.S.A. 2C:29-2b; and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a(2). Defendant was sentenced to a four-year term of imprisonment on the theft conviction, a concurrent extended term of fifteen years with a seven-year period of parole ineligibility on the eluding conviction, and a concurrent eighteen-month sentence of imprisonment on the resisting arrest conviction. On appeal, defendant raises the following points for our consideration:
THE TRIAL JUDGE ERRED IN NOT LIMITING THE USE OF "FLIGHT" TO THE JURY AS FLIGHT DID NOT APPLY TO THE CRIME OF RESISTING ARREST. IN ADDITION, THE JUDGE DID NOT CLEARLY EXPLAIN TO THE JURY THE DIFFERENT TYPES OF FLIGHT CHARGED AS APPLIED TO THE CRIME OF ELUDING.
THE TRIAL JUDGE ERRED IN FAILING TO ASCERTAIN WHETHER THE JURY TRULY DID NOT WANT A READBACK OF THE CROSS-EXAMINATION OF OFFICER DiORIO.
THE DEFENDANT'S SENTENCE IS EXCESSIVE.
We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction but remand the matter for re-sentencing.
We briefly summarize the testimony at trial. On August 15, 2007, Officer James DiOrio of the Elizabeth Police Department responded to a report of a stolen vehicle at the Jersey Gardens Mall. At the scene, the victim told DiOrio that when he exited the mall his beige Honda Accord was missing.
The following day, DiOrio was on patrol driving an unmarked police vehicle when he observed a beige Honda Accord driving toward him in the opposite direction. DiOrio observed that the driver was wearing a white sleeveless tank top or tee shirt and a navy blue New York Yankees baseball cap with a gold sticker on the brim. DiOrio entered the license plate number of the Accord into his mobile ...