On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-05-0728.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 10, 2010 - Decided Before Judges Axelrad, Lihotz, and J. N. Harris.
Defendant Caron Harris appeals from his convictions and sentence for two counts of aggravated assault and two counts of resisting arrest, for which he received an aggregate sentence of five years imprisonment with a two and one-half-year period of parole ineligibility. On appeal, defendant asserts a multitude of trial errors including improper jury instructions, various evidentiary errors, and what he considers to be an unfair and excessive sentence imposed by the Law Division. We affirm.
The following facts are gleaned from the trial record, which evidently convinced the jury to acquit defendant of the most serious charges, but to convict him of resisting arrest and aggravated assault. At approximately 11:40 p.m. on February 25, 2007, off-duty Jersey City Detective Joseph Walsh was traveling along Culver Avenue in Jersey City near the intersection of Culver and Route 440. Walsh heard gunshots and saw a muzzle flash between a red Pontiac and a maroon Toyota Scion traveling northbound on Route 440.
In response to what he had heard and seen, Walsh moved behind the two vehicles and followed the Scion when it turned right at Claremont Avenue. When the two cars came to a stop light at the intersection of Culver and West Side Avenues, plain clothes police officers Rodriguez and Lanzo, who had responded to a call placed by Walsh, exited their unmarked car in the middle of the intersection and approached the Scion on foot and with their badges on display. Before they could reach the Scion, it continued through the red light and turned left onto West Side Avenue. Police officers Nisbet and O'Connell then joined in the pursuit. The Scion was observed "cutting in and out of cars" and passing through four red lights.
Near the intersection of West Side and Virginia Avenues, Nisbet noticed the driver of the Scion, later identified as defendant, make a reaching motion towards the passenger side of the vehicle. Nisbet then lost sight of the vehicle, at which point police officers Cullinane and Licata picked up the chase in a marked police vehicle. After traveling through three more red lights, defendant's vehicle crashed into a light pole at the corner of West Side and Kensington Avenues.
Defendant then exited his vehicle and began running along Kensington Avenue. At one point defendant ran behind parked cars, temporarily shielding himself from the officers' view. Cullinane then noticed a foot sticking out from under a pile of garbage bags near a parked car. He and Licata attempted to pull defendant out from under the vehicle while directing that defendant show them his hands. According to the officers, defendant began screaming, then "flailing, kicking [his legs up at the officers], and punching, refusing to give [the officers] his hands so [they] could handcuff him." This resulted in both officers being struck in the upper chest and face. Eventually, defendant was subdued and taken into custody.
A .45 caliber handgun containing one live round was later recovered at the intersection of West Side and Virginia Avenues where the officers had previously observed defendant make a reaching motion towards the passenger side of the vehicle. An investigation of the area along Route 440 where Walsh had initially heard gun shots yielded two spent .45 caliber shell casings, however no evidence was presented to directly link the casings to the .45 caliber weapon recovered from the other location.
In addition to being issued eleven motor vehicle summonses, defendant was charged by a Hudson County Grand Jury with second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5(b) (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(5)(a) (counts four and five); third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count six); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2) and second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-7(b) (count eight).
Before it deliberated, the jury was instructed that it could consider defendant's alleged flight as evidence of his consciousness of guilt. The jury ultimately found defendant guilty of two counts of aggravated assault -- one in the third-degree and one in the fourth-degree -- and two counts of resisting arrest -- one in the fourth degree and one as a disorderly persons offense.*fn1 He was sentenced to five years imprisonment with a two and one-half-year period of parole ineligibility on count four and lesser concurrent sentences on the remaining counts.
On appeal, defendant raises the following points:
Point One: THE TRIAL COURT'S JURY INSTRUCTION TO THE JURY ON THE DOCTRINE OF FLIGHT WAS PLAIN ERROR. (Not Raised Below) Point Two: DEFENDANT WAS DENIED A FAIR TRIAL BY THE TRIAL COURT'S LIMITATIONS OF THE CROSS-EXAMINATIONS OF OFFICER NISBET AND INVESTIGATOR DIAZ TO PRECLUDE TESTIMONY AS TO THE PREVALENCE OF .45 CALIBER HANDGUNS IN JERSEY CITY.
Point Three: THE TRIAL COURT ERRED BY PERMITTING SERGEANT MCKERRY TO RENDER AN UNQUALIFIED EXPERT.
Point Four: THE ADMISSION INTO EVIDENCE OF THE MOTOR VEHICLE SUMMONSES DENIED DEFENDANT A FAIR TRIAL.
Point Five: DEFENDANT WAS UNDULY PREJUDICED BY OFFICER NISBET'S TESTIMONY WHICH OFFERED A LEGAL CONCLUSION AS TO DEFENDANT'S GUILT. Point Six: DEFENDANT RECEIVED AN EXCESSIVE SENTENCE.
From our review of the trial record, we are firmly convinced that defendant's arguments are unavailing, and we affirm the ...