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State of New Jersey v. Bassem M. Abdolrazek

May 24, 2011

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BASSEM M. ABDOLRAZEK,*FN1 DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 01-10-1342.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 10, 2011

Before Judges Parrillo and Yannotti.

Defendant Bassem M. Abdolrazek appeals from an order entered by the Law Division on September 12, 2008, denying his petition for post-conviction relief (PCR). We affirm.

Defendant was tried before a jury and found guilty of second-degree eluding, N.J.S.A. 2C:29-2(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The court sentenced defendant on the eluding conviction to nine years of incarceration with a three-year period of parole ineligibility and a concurrent eighteen-month term on the resisting arrest conviction.

Defendant filed a notice of appeal on January 3, 2004, and raised the following arguments:

POINT I

THE JUDGE'S COMMENTS TO THE JURY, AS A PART OF THE JURY CHARGE, WHICH PRAISED THE POLICE OFFICER AND UNDERSCORED HIS "DUTY TO STOP" DEFENDANT, IMPROPERLY SERVED TO LET THE JURY KNOW THAT THE JUDGE PERSONALLY BELIEVED AND ADMIRED THE POLICE OFFICER, IN GROSS VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (Not Raised Below)

POINT II

THE DEFENDANT'S SECOND-DEGREE ELUDING CONVICTION MUST BE REVERSED BECAUSE THE TRIAL JUDGE'S CHARGE RELIEVED THE STATE OF ITS BURDEN OF PROVING THE MATERIAL ELEMENT OF KNOWINGLY CREATING A RISK OF DEATH OR INJURY. (Not Raised Below)

A. N.J.S.A. 2C:2-2[(c)](1) Requires The Knowing Mental State Be Applied To The Result-Of-Conduct Element Of Second-Degree Eluding Because The Mental State Is Defined As Knowingly For The Other Material Elements Of Second Degree Eluding And It Does Not "Plainly Appear" That The Legislature Intended To Make Second Degree Eluding A Strict Liability Offense.

B. State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001[)], certif. denied, 172 N.J. 181 (2002), Was Wrongly Decided Because The Panel Failed To Interpret The Second-Degree Eluding Statute In Accordance With N.J.S.A. 2C:2-2[(c)](1) And The Principle That Penal Statutes Must Be Strictly Construed.

C. The Erroneous Jury Instructions, Objected To By Defense Counsel Below, Relieved The State Of its Burden Of Proof And Thus Defendant's Conviction For ...


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