On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-06-0389.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 12, 2010
Before Judges Rodriguez and LeWinn.
Tried to a jury, defendant was convicted of second-degree eluding, in violation of N.J.S.A. 2C:29-2(b). He was sentenced to a term of seven years imprisonment. On appeal, defendant raises claims of trial error and excessive sentence. Finding no error warranting either reversal or modification of sentence, we affirm.
The essentially unrebutted trial evidence established that at approximately 1:00 a.m. on May 12, 2007, defendant led police officers on a high-speed motor vehicle chase through five towns along Route 22 at speeds reaching ninety-eight miles per hour. Bridgewater Township Police Officer Joseph Dailey initiated pursuit of defendant whose vehicle passed Dailey's marked police cruiser at the side of the highway at very close range and at high speed. During his pursuit, Dailey activated his flashing lights and siren. Defendant's vehicle continually swerved between the highway shoulder and the traffic lanes. As the chase entered the town of Readington, two Readington police vehicles joined pursuant, also with their lights and sirens activated. Dailey had also activated the video recording equipment in his police vehicle and captured the pursuit with the exception of "roughly [eighteen] seconds." The State introduced that video recording at trial.
Upon entering Clinton Township, Dailey received instructions from his sergeant to stop pursuit because the chase had become too dangerous. Dailey thereupon decreased his speed, shut off his lights and siren and used radar to clock defendant who was then traveling at ninety-eight miles per hour. Dailey continued to follow defendant from a "safe distance," noting that he was still "way over the posted speed limit, and he continued to swerve throughout the lanes of travel, nearly hitting another vehicle . . . and nearly rear-end[ing] a tractor-trailer."
The chase ended when defendant crashed his car into a vehicle driven by Somerset County Prosecutor's Detective Kevin Sicola, who was on his way home from work. Sicola testified that defendant's car struck his vehicle causing it to roll over itself from the right shoulder to the center median. Sicola required shoulder surgery as a result.
Upon witnessing the collision, Dailey re-activated his emergency lights to "secure the vehicles." Defendant, who had been ejected from his vehicle upon impact with Sicola's car, suffered a broken jaw and lacerations. He was flown by helicopter to Morristown Memorial Hospital. A toxicology test conducted on defendant's blood at the hospital revealed that his blood alcohol level was 0.184 percent.
Trooper Eric McNeel went to the hospital from the collision scene and spoke to defendant in the emergency room. McNeel testified that "there was an odor of alcohol on [defendant's] breath. Also his eyes were watery, bloodshot." McNeel advised defendant that he was under arrest for "suspicion of driving while intoxicated," and read defendant his Miranda*fn1 rights at that point. Defendant responded to each question by "[t]he physical nodding of the head, as well as a verbal yes." McNeel did not ask defendant to sign the Miranda form because of his injuries.
After being advised of his rights, defendant told McNeel "he didn't remember anything." McNeel then asked defendant "what kind of alcoholic drinks [he had had] that night." Defendant responded that he had consumed two Long Island Iced Teas within "about a half hour."
Defendant testified, and admitted to consuming far more alcohol on the night in question than he had reported to McNeel. Defendant was bowling with friends; he testified that he drank a six-pack of Smirnoff Raw Tea behind the bowling alley before entering. Once inside, he consumed four Long Island Iced Teas. He began to bowl erratically and stated that he "d[id]n't remember anything after the fourth frame of the second game."
Defendant further testified that he did not recall getting into his car, driving on Route 22, or colliding with Sicola's vehicle. He also had no memory of his conversation with McNeel at the hospital, recalling only that he woke up in the hospital the following morning; upon his release from the hospital two hours later, defendant was taken to the Bridgewater Police Department. Defendant stated that because of his "history of alcoholism" he knew that if he had "been drinking and driving," there would be a risk that he "could be involved in a collision and injure somebody."
Having reviewed the video produced by Dailey, defendant could not deny that he had been pursued by "a law enforcement officer" whose "lights were on and [who] was trying to get [him] to stop that night[.]" He had "no reason to dispute" that it was ...