On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-05-0350.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 12, 2011 - Decided January 26, 2011
Before Judges Fuentes, Gilroy and Nugent.
On January 9, 2008, a jury found defendant Corbett Warren guilty of second-degree eluding, N.J.S.A. 2C:29-2b, and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3). The trial judge, sitting as the fact-finder, also found defendant guilty of the following motor vehicle violations: careless driving, N.J.S.A. 39:4-97; driving while intoxicated, N.J.S.A. 39:4-50; refusal to submit to a breathalyzer test, N.J.S.A. 39:4-50.2; driving while suspended, N.J.S.A. 39:3-40; reckless driving, N.J.S.A. 39:4-96; failure to keep right, N.J.S.A. 39:4-82; failure to yield to an emergency vehicle, N.J.S.A. 39:4-91; failure to stop for an emergency vehicle, N.J.S.A. 39:4-92; and unsafe lane change, N.J.S.A. 39:4-88b.
On February 29, 2008, the trial court sentenced defendant on count one to a ten-year term of imprisonment with a five-year period of parole ineligibility; and on count two, to a five-year term of imprisonment, to run concurrent with the sentence imposed on count one. After the court merged the motor vehicle violations for failure to yield to an emergency vehicle and failure to stop for an emergency vehicle with the conviction of second-degree eluding, the court imposed appropriate fines, penalties and license suspensions on the remaining motor vehicle convictions.
On appeal, defendant argues:
POINT I. PROSECUTOR MISCONDUCT R. 3:13 VIOLATION.
PROSECUTOR WITHHELD [EXCULPATORY] EVIDENCE. WITHHOLDING "TANGIBLE OBJECTS IN POSSESSIONS OF THE PROSECUTOR" IS A WILLFUL VIOLATION OF THE ABOVE [STATUTE]. DISCOVERY VIOLATIONS INVOLVING EXCULPATORY EVIDENCE WHERE [BRADY*fn2 ]
OBLIGATIONS ARE PRESENT CONSTITUTE A VIOLATION OF THE ABOVE [STATUTE]. PROSECUTOR KNEW OF THE LOST OR DESTROY-EVIDENCE.
POINT II. PROSECUTOR MISCONDUCT R. 3:10 VIOLATION.
WHILE KNOWING OF THE LOST AND DESTR[OYED] EVIDENCE AND WITHHOLDING THAT INFORMATION FROM THE GRAND JURY, THE PROSECUTOR SOUGHT TO TRY A CASE AROUND THE MISSING EVIDENCE. WILLFUL VIOLATION OF ABOVE RULE DUE TO THE [INDICTMENT] BEING [PALPABLY] INSUFFICIENT. INSTRUCTING THE GRAND JURY ON WHAT THEY WERE TO CONSIDER AS EVIDENCE, AND FAILING TO INSTRUCT THE GRAND JURY ON POSSIBLE DEFENSES. COMMENTS TO THE JURY WERE [INAPPROPRIATE], REMOVED THE BURDEN OF PROOF FROM THE STATE AND PLACED IT ON THE DEFENSE.
SUPPRESSED DISCOVERY BY THE STATE ALLOWED THE USE OF PATENTLY TAILORED TESTIMONY BY THE OFFICERS WHICH THE STATE KNEW AND KNOWINGLY USED THIS TESTIMONY TO OBTAIN AN UNJUST ...