On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-09-1226.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010 - Decided Before Judges Fuentes and Ashrafi.
Defendant David Morales was tried before a jury and convicted of third degree assault by auto, N.J.S.A. 2C:12-1c(2), third degree resisting arrest, N.J.S.A. 2C:29-2a(3), second degree eluding, N.J.S.A. 2C:29-2b, and second degree aggravated assault, N.J.S.A. 2C:12-1b(6). After merging the assault by auto and eluding convictions with the aggravated assault conviction, the court sentenced defendant to a term of five years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, and a concurrent three-year term on the resisting arrest conviction.
Defendant now appeals, raising a number of arguments attacking his conviction. We affirm. We gather the following facts from the record developed before the trial court.
On April 9, 2004, defendant drove into New York City and picked up a friend to go to a bar. Between 4:30 and 5:00 p.m., defendant consumed three shots of cognac. The two men left the bar around 5:00 p.m. and proceeded to drive to the home of an acquaintance of defendant's friend who resides in Paterson; the trip took approximately ninety minutes. Once in Paterson, defendant consumed more cognac, two "regular glass[es] but filled up halfway." At trial, defendant testified that after consuming the second glass of cognac, he had no recollection of the rest of the evening's events.
Paterson Police Officer Jason Wester testified that at 8:30 p.m. he stopped his marked patrol car about two car-lengths behind a silver Honda that was stopped at a red traffic signal. Webster observed the traffic signal change from red to green and back to red again without the Honda responding or otherwise proceeding through it. Consequently, Wester "activated [his overhead] emergency lights and pulled behind the vehicle." Wester exited his patrol car and approached the driver's side of the Honda. The traffic signal had again cycled from green to red without any movement from the Honda.
When Wester knocked on the Honda's driver's side window, defendant rolled down the window and answered affirmatively when Wester asked him if he "was okay." Wester then asked defendant why he failed to proceed through the green lights, to which defendant responded: "I'm waiting for the light to turn green, you jerk-off."
When the traffic signal turned green once more, defendant sped away. Before this occurred, Wester noticed that defendant was not wearing his seatbelt. At this point, however, Wester did not observe any signs that defendant was intoxicated; his speech was not slurred and he did not smell of alcohol.
Wester returned to his patrol vehicle and began pursuing defendant with the intention of giving him a verbal warning regarding his seatbelt. He activated his overhead lights and sirens as defendant navigated "extremely well" around approximately five blocks in Paterson. The pursuit lasted from two to five minutes and was conducted at speeds in excess of fifty miles-per-hour. The local speeding limit was twenty-five miles-per-hour. At one point in the pursuit defendant turned off his headlights for approximately thirty seconds.
Wester decided to terminate the pursuit because the risk of endangering innocent lives for a "minor seatbelt infraction" was "just not worth it." After turning off his overhead lights and sirens, Wester reduced his speed to comply with the local speed zone but continued to follow defendant's vehicle. At this point, Wester saw defendant's vehicle collide with another vehicle and continue without stopping. After checking on the conditions of the occupants of the car struck by defendant, Wester watched as defendant drove out of his sight. Wester then heard two loud bangs and "saw sparks shoot across the street."
Wester drove to the scene of the apparent accident and upon arriving, saw that a vehicle had struck a utility pole, a parked car had been struck and was "on top of another parked vehicle," and defendant's car had come to a stop. As Wester approached defendant's car, defendant "exited his vehicle and began to run in the direction toward [another uniformed officer who had arrived at the scene]." After running for about fifty feet, defendant "turned around and began to run in [Wester's] direction." Defendant then slipped and fell. Wester attempted to arrest defendant but "[h]e began flailing his arms in a violent manner," forcing Wester to seek the assistance of another officer to finally handcuff him. At this point, Wester noticed defendant "was slurring his speech," was "sway[ing] while he was walking," and that an odor of alcohol emanated from his person.
Defendant was taken from the scene to a nearby hospital to treat injuries he suffered from the collision. The parties stipulated that defendant's blood tested at the hospital indicated that defendant had a blood alcohol concentration (BAC) of .227%, nearly three times the 0.08% presumptive level of intoxication under N.J.S.A. 39:4-50a.
At trial, defendant testified that the car he drove on the day of the incident was purchased for him by his mother. According to defendant, he did not recall any of the events that transpired from between 6:00 p.m. on April 9, 2004, when he left his friend's home in Paterson, to the time he woke up in the police holding cell the next day. Defendant admitted in his direct testimony having been convicted of driving while intoxicated (DWI) in New York the previous year. However, he did not experience any blackout on that occasion. On cross-examination, defendant indicated that he believed the car he was ...