February 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
KARRIEM J. ABLE, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-1835.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 26, 2011
Before Judges Sapp-Peterson and Fasciale.
Defendant appeals his conviction, following a jury trial, for second-degree eluding, N.J.S.A. 2C:29-2(b), and the ten-year custodial sentence imposed. We affirm.
On appeal, defendant raises the following points for our
THE COURT IMPROPERLY DENIED DEFENDANT'S MOTION TO ADMIT THE ATTORNEY GENERAL'S POLICY ON AUTO PURSUIT AS AN EXHIBIT, DESPITE TESTIMONY THAT PURSUIT OF MR. ABLE VIOLATED THAT POLICY AND A JURY QUESTION ABOUT THE MATTER. MR. ABLE WAS THEREBY DENIED HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST. AMENDS. VI, IV; N.J. CONST. ART. I, ¶¶ 1, 9, 10.
UNDER ALL OF THE RELEVANT CIRCUMSTANCES, THE COURT ABUSED ITS DISCRETION IN SENTENCING MR. ABLE TO A [TEN]-YEAR TERM OF IMPRISONMENT, BY GIVING UNDUE WEIGHT TO HIS PRIOR RECORD AND FAILING TO APPLY APPLICABLE MITIGATING FACTORS.
The record discloses that defendant was observed seated in the driver's seat of a double-parked vehicle on a local street in Bloomfield. When a police van approached it from the opposite direction, defendant started to back his vehicle into an intersection and the siren and overhead lights of the police van were turned on. Defendant did not stop and a pursuit ensued. Defendant was convicted on one count of second-degree eluding, N.J.S.A. 2C:29-2(b) (count one), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two).*fn1 He pled not guilty to the charges and the matter proceeded to trial.
During the trial, defense counsel questioned the officer who pursued defendant regarding the New Jersey Police Vehicular Pursuit Policy*fn2 (AG Guidelines), which had been adopted by the Bloomfield Police Department. On redirect examination, portions of the AG Guidelines, specifically, "Deciding Whether to Pursue" and "Authorization to Pursue," were read into the record without objection. At the conclusion of the State's case, defense counsel moved to introduce the AG Guidelines. The State objected, arguing that not everything contained in the AG Guidelines was pertinent. Although defense counsel agreed that there was a "substantial portion" of the AG Guidelines that "[did] not relate to this particular case[,]" he nonetheless sought the introduction of the entire document "because they have an overall picture directive as to pursuit."
The trial court denied the application, finding that admitting the document had the capacity to confuse the jury "since [ninety-nine] percent of them are not relevant to this case, and have not been testified to, either to their purpose or the meaning of them. And [the witness] read in the relevant section, and was cross[-]examined on it as well as on redirect."
During jury deliberations, the jury asked the following question: "What are the reasons that allow for a patrol car to initiate a chase?" The court advised counsel that it would instruct the jury that their recollection governed and would then advise them of what the assistant prosecutor recalled reading into the record. When the court asked defense counsel whether that was "[o]kay[,]" defense counsel responded: "Yes." When the jury returned, the court instructed the jury as follows:
Question No. 2) What are the reasons that allow for a patrol car to initiate a chase?
Again, it's your recollection of the testimony that governs. But, again, counsel agree that they asked Sergeant Peters to read the following section of the Attorney General Guidelines into the record into evidence.
Deciding whether to Pursue: A police officer has the authority at all times to attempt the stop of any person suspected of having committed any criminal offense or traffic violation. It is clear that while it is the officer who initiates the stop, i[t] i[s] the violator who initiates the pursuit.
The officer's decision to pursue should always be undertaken with an awareness of the degree of risk to which the law enforcement officer exposes himself and others. The officer must weight the need for immediate apprehension against the risk created by the pursuit.
A) Authorization to Pursue, Part 1: A police officer may only pursue . . . a) When the officer reasonably believes that the violator has committed an offense of the first or second degree, or an offense enumerated in Appendix A of this policy.
He was, then, asked to go to Appendix A and he picked out burglary and automobile theft.
So that was the testimony about when he's permitted to initiate a chase.
Our standard of review requires us to give "substantial deference to [the] trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). We generally will not disturb those rulings absent "a clear error of judgment[.]" Id. at 454; State v. Cook, 179 N.J. 533, 569 (2004). Moreover, under this standard, we may not substitute our own judgment for that of the trial court, unless "the trial court's ruling 'was so wide of the mark that a manifest denial of justice resulted.'" State v. Marrero, 148 N.J. 469, 484 (1997) (quoting State v. Kelly, 97 N.J. 178, 216 (1984)).
Measured under this standard, we find no such abuse. Defense counsel agreed to the process utilized for responding to the jury's question. The instruction addressed the specific question raised by the jury, and the court read to the jury that portion of the AG Guidelines previously read into the record by the witness without objection from defense counsel.
Turning to defendant's claim that the ten-year sentence imposed is excessive, we conclude this argument is without sufficient merit to warrant discussion in a written opinion.
See R. 2:11-3(e)(2).