On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-08-0573.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 16, 2011
Before Judges Gilroy, Ashrafi and Nugent.
On August 12, 2008, a Cape May County grand jury indicted defendant, Kenneth L. Copson, on charges of second degree aggravated assault, N.J.S.A. 2C:12-1b(1) (count one); second degree aggravated assault while eluding, N.J.S.A. 2C:29-2b and N.J.S.A. 2C:12-1b(6) (count two); and second degree eluding, N.J.S.A. 2C:29-2b (count three). On December 9, 2009, a jury convicted defendant of the lesser included offense of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(3), on count one, and of counts two and three. On February 4, 2010, after denying defendant's motion for a new trial, the court merged the convictions on counts one and three with count two, and sentenced defendant on count two to eight years of imprisonment with an 85% period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a three-year period of parole supervision on release. We affirm.
We discern the following facts from the trial record. Twice before midnight on May 14, 2008, Middle Township Police Officer Stephen Novsak was dispatched to a residence in the Edgewood section of Middle Township, Cape May County, to investigate a possible fight. Each time, upon his arrival, residents told him that the matter had been resolved and there was no need for his services. At approximately 12:30 a.m. on May 15, 2008, Novsak, Patrolman Matthew Martino, and Corporal Richard Sittineri were dispatched to Sixth Avenue, in the same section of the Township, to investigate another report of a fight. Each officer was in uniform and drove a separately marked police vehicle.
Upon arrival, the officers encountered Nick Hazel and defendant. Hazel said he and his brother had fought earlier, but that there would be no further problem. The officers took no action, but Novsak and Martino decided to stay at Sixth Avenue and Main Street to deter additional problems. They subsequently investigated a minor incident in a wooded area off Sixth Street.*fn1
Later that morning, about 1:30 a.m., Novsak and Martino heard an all-terrain vehicle (quad) operating in the distance. The sound of the quad faded, then the officers heard it again and determined that it was on Sixth Street. Martino and Sittineri walked toward the quad, which had stopped, and Sittineri thought he saw the light of a cell phone. As they approached the quad, the driver, later identified as defendant, drove away.
The quad returned and stopped somewhere on North Sixth. Sittineri drove toward the quad with his lights turned off, trying to close the gap between his vehicle and the quad. Meanwhile, Novsak and Martino proceeded to the intersection of Sixth and Main. As Sittineri neared the quad, he turned on his red, white and blue strobe lights, which defendant ignored as he drove into an open field.*fn2 Sittineri gave chase. Defendant did not turn on the quad's lights as he sped through the field, turned onto Seventh Street, and disregarded a stop sign. Driving erratically, he continued onto Main at a high rate of speed on the wrong side of the street.
As defendant drove toward Novsak and Martino, they flashed their flashlights and yelled at him to stop; instead, he drove toward Novsak and accelerated. Novsak and Martino jumped to avoid the quad, which swerved and struck Novsak, shattering his leg. Defendant then drove into the woods, but surrendered when Martino drew his weapon. When Martino arrested him, defendant asked Martino why the officers did not move. Sittineri issued defendant traffic summonses for reckless driving, failure to comply with an officer's directions, failure to give a signal when turning, failure to stop at a stop sign, failure to keep right, and failure to yield to pedestrians.*fn3
On appeal, defendant raises the following issues:
I. THE PROSECUTION'S SUMMATION IMPROPERLY URGED THE JURY TO CONVICT FOR IRRELEVANT SUPPOSED BAD ACTS AND BASED ON AN ERRONEOUS STANDARD OF NEGLIGENCE OR "UNREASONABLENESS". (NOT RAISED BELOW); THE PROSECUTION COMPOUNDED [ITS] MISLEADING OF THE JURY ON APPLICABLE LAW BY URGING THE DEFENDANT'S RESPONSIBILITY FOR VIOLATING A MOTOR VEHICLE STATUTE, 39:4-66.1, FOR WHICH THE RECORD PROVIDED NO EVIDENTIARY SUPPORT; THUS THE PROSECUTION'S SUMMATION MISSTATED THE LAW AND SATISFIES THE PLAIN ERROR STANDARD. (NOT RAISED BELOW).
II. THE PROSECUTOR'S SUMMATION IMPERMISSIBLY COMMUNICATED THE PROSECUTOR'S BELIEF IN DEFENDANT'S GUILT, DENIGRATED THE DEFENDANT AND THE DEFENSE, IMPERMISSIBLY INJECTED THE PROSECUTOR'S PERSONAL EXPERIENCE TO SUPPORT THE PROOFS ON MENS REA, URGED THE JURY TO STAND UP FOR PUBLIC ORDER AND TO "HOLD THE DEFENDANT ACCOUNTABLE" AND IMPERMISSIBLY APPEALED TO THE JURY'S EMOTIONS AND PASSION, PREJUDICE OR SYMPATHY IN FAVOR OF THE POLICE (NOT RAISED BELOW).
III. THE COURT FAILED TO INSTRUCT THE JURY PROPERLY ON ITS CONSIDERATION OF CONDUCT THAT MIGHT CONSTITUTE VARIOUS MOVING VIOLATIONS, AND INCLUDED AN IMPORTANT SUPPOSED VIOLATION THAT HAD NO BASIS IN THE EVIDENCE, FAILURE TO YIELD TO PEDESTRIANS (NOT RAISED BELOW).
IV. THE FAILURE OF THE DEFENSE COUNSEL TO OBJECT TO ERRORS IN THE CHARGE AND TO PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT ...