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State of New Jersey v. Michael P. Zentner

March 9, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MICHAEL P. ZENTNER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No.08-07-1095.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 15, 2011 - Decided Before Judges Carchman and Messano.

Following a jury trial, defendant Michael P. Zentner was convicted of second-degree eluding, N.J.S.A. 2C:29-2b; as well as a motor vehicle violation of reckless driving, N.J.S.A. 39:4-96, both arising out of a high speed car chase on Route 70 in Manchester Township. The trial judge sentenced defendant to a four-year term of imprisonment on the eluding charge together with mandated fines, penalties and license suspension. Thereafter, defendant was released to the Intensive Supervision Program. He appeals, and we affirm.

These are the relevant facts adduced at trial. On May 13, 2008, while patrolling Route 70 traveling west, Manchester Township Police Sergeant John Williams observed a gray 2003 Dodge Durango with Illinois plates proceeding eastbound. The Sergeant glanced at his radar to determine the car's speed, and when he looked up he had to swerve because the Durango had crossed into his lane. The Sergeant made a U-turn to pursue the vehicle. The Durango accelerated, and the Sergeant activated his red and blue emergency LED lights. As he did so, the Sergeant saw the Durango's rear lights extinguish.

The Durango continued through the red traffic signal at the major intersection of 70 and County Road 539. As Sergeant Williams approached the same intersection, he activated his patrol car's siren, decelerated and came to a near stop. The Durango was now out of sight.

Sergeant Williams proceeded through the intersection, turned off his emergency lights and continued his pursuit. He observed the Durango at the intersection of Becharsville Road and Manchester Boulevard. As the Durango passed through the intersection, the green traffic light illuminated the vehicle. From his position behind the Durango and with the aid of the traffic light, Sergeant Williams observed that the Durango's lights were still off.

Sergeant Williams accelerated, reactivated his emergency lights and radioed other officers stationed in the east and west ends of Manchester Township for assistance. He observed the Durango, still with lights off, pass two eastbound vehicles, the second of which was a white pickup truck. As the Durango passed the white pickup truck, still traveling east, it entered the westbound lane and continued in that lane for approximately a quarter mile. Sergeant Williams accelerated again to over 120 miles per hour to try catch up to the Durango. When he was close enough to pace the Durango, he estimated that the vehicle was traveling at a speed of approximately 100 to 105 miles per hour. The posted speed limited was 55 miles per hour.

After a three minute chase on six miles of roadway, the Durango came to a stop at mile marker 43, just before entering Lakehurst Township. Two Manchester Township patrol cars with active emergency lights were stopped at mile marker 43. Sergeant Williams and two additional patrol cars stopped behind the Durango. Sergeant Williams approached the driver, defendant, and engaged in a "felony stop." Sergeant Williams asked defendant, "Why didn't you just stop?" Defendant stared.

Defendant was removed from the vehicle and brought to its rear to perform tests. He did not show any signs of intoxication either in the roadway or at headquarters. His speech was normal, and the odor of alcohol was not observed. At trial, defendant testified that he did not know Sergeant Williams was behind him, and he did not know he turned his lights off. Defendant admitted driving through a red traffic light and speeding.

On appeal, defendant asserts that his Sixth Amendment rights were violated as his counsel was ineffective. Specifically, he claims that counsel failed to identify inconsistent statements in Sergeant Williams trial testimony and his report, his counsel "vouched" for the credibility of the officers, counsel failed to investigate and counsel failed to employ a trail strategy. He further claims, substantively, that the judge erred by permitting commentary on defendant's post-arrest silence, the prosecutor improperly vouched for the Sergeant's credibility, and the prosecutor improperly commented to the jury in summation as to the substantive offense of alluding.

We have carefully considered the arguments of counsel and conclude that they are without merit. R. 2:11-3(e)(E). We add the following comments.

Defendant's arguments regarding ineffective assistance of counsel are raised here on the direct appeal. As a general rule, we will not entertain ineffective assistance of counsel claims on direct appeal especially where the claims are dependant on allegations and evidence outside of the trial record. State v. Echols, 199 N.J. 344, 357 (2009) (citing State v. Preciose, 129 N.J. 451, 460 (1992)).

The general rule is particularly relevant here where defendant is critical of counsel's cross-examination, specifically his failure to exploit the inconsistencies between Sergeant Williams' trial testimony and his earlier report, yet his report is not part of the record on this appeal. We decline, on the direct appeal, to address this issue in a vacuum ...


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