On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 08-10-1330.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Roe.
Tried by a jury, defendant Blagojce Veselinovski was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b). Following the jury verdict, the judge found defendant guilty of the motor vehicle offense of reckless driving, N.J.S.A. 39-4-96, and the disorderly person's offense of possession of drug paraphernalia, N.J.S.A. 2C:36-2. The reckless driving offense was merged with the eluding, for which defendant was sentenced to a six-year term of imprisonment. Defendant was sentenced to time served on the drug paraphernalia charge. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.
According to the State's proofs, while on patrol around 3:00 a.m. on July 14, 2008, Clifton Police Officer Mohammad Droubi heard the engine of defendant's 1997 BMW being revved and observed the tires spin, "doing a burn out," as defendant accelerated along the ramp onto Route 46 after the traffic light turned green. Droubi, who was behind defendant in his marked patrol car, followed the BMW up the ramp with lights and siren activated.
As defendant entered Route 46, he immediately "made a hard right" onto the exit ramp for River Drive, still accelerating while passing a yield sign. As Droubi followed in pursuit, defendant continued to ignore the police signal, even as defendant's rear window was open. At this point, there were no other cars between the BMW and Droubi.
Once on River Drive, defendant passed three cars, forcing them to drive to the side of the road where there was no shoulder and brake in a panicky manner. To pass the cars, the BMW crossed the double yellow line and drove into the lane of opposing traffic. Defendant then turned left off River Drive onto Lanza Avenue in Garfield, causing the tires to screech. The BMW traveled on Lanza Avenue for several blocks and then stopped in front of a home on that street, about one-half mile from where defendant first entered onto River Drive. According to Droubi, defendant reached a top speed of 85 miles per hour during the approximately one-minute pursuit.
Droubi radioed for backup and then approached the driver's side of the BMW with his gun drawn. Defendant looked at the officer and said, "what the fuck is your problem?" Droubi told defendant to turn off the car and exit with his hands where the officer could see them. Upon exiting, defendant was brought to the rear of the vehicle, handcuffed, searched and placed in the back of the patrol car.
When the backup officers arrived, defendant was already in custody. Detective Steven Farrell searched the BMW and found a marijuana grinder behind the front passenger seat.
Defendant testified to an entirely different version. According to defendant, the first time he saw the police car in his rear view mirror was after he turned left onto Lanza Avenue, "on top of the hill." Thinking the officer "was on a chase" or "on a call or something," defendant immediately pulled over to the side. He was "just shocked" when the officer stopped behind him and asked the officer the reason for being pulled over. Defendant then explained that he did not know Officer Droubi was chasing him.
Defendant also denied failing to yield at the yield sign, passing any other cars, or going over the double-yellow line. At the time, defendant was returning to his home only a short distance away. He claimed to have been traveling only "25, 30" miles per hour at "the most" on the ramp to Route 46, where he then proceeded only seventy or eighty feet to exit onto River Drive. Once on River Drive, defendant drove under the forty-five mile per hour speed limit for three or four blocks before turning left onto Lanza Avenue, where he continued traveling "about 35, 40" miles per hour.
Evidently crediting the State's account, the jury found defendant guilty of second-degree eluding. On appeal, defendant raises the following issues:
I. THE COURT BELOW SHOULD HAVE GRANTED THE MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-2 AS TO COUNT 1 (ELUDING) SINCE THERE IS INSUFFICIENT EVIDENCE TO PROVE THAT THE DEFENDANT "KNOWINGLY" FLED OR ATTEMPTED TO ELUDE A LAW ENFORCEMENT OFFICER; THE CONVICTION IS CONTRARY TO THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT ...