On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-03-00419.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 31, 2011
Before Judges A. A. Rodriguez and LeWinn.
Tried to a jury, defendant David G. Padilla-Bustamante was convicted of third-degree eluding, N.J.S.A. 2C:29-2b; and the disorderly persons offense of simple assault on Marvin Mejia, N.J.S.A. 2C:12-1a, as a lesser-included offense of aggravated assault.*fn1 The jury found defendant not guilty on aggravated assault and unlawful possession of a weapon, namely a box cutter. Following the verdict, defendant moved for permission to apply to the Pre-Trial Intervention Program (PTI), R. 3:28. The judge denied the motion and imposed concurrent probationary four-year terms. We reverse the eluding conviction and the denial of defendant's motion to apply for admission to PTI.
These are the relevant facts. In the early morning hours of September 2, 2007, defendant went to a tavern where he remained until approximately 2:00 a.m. At the tavern, he met with Kevin, an acquaintance. Defendant agreed to give Kevin a ride home. Two other young men, who were Kevin's friends, also asked for a ride. Defendant agreed. All four men entered defendant's white Ford Explorer.
Around 2:14 a.m., defendant stopped to buy gasoline at an Exxon station at the intersection of George Street and Commercial Avenue in New Brunswick. Parked in front of the Explorer was a red vehicle that defendant knew belonged to a man nicknamed "Flaco." There were other people in the red vehicle. A young man, later identified as Mejia, exited the red vehicle, stood in front of defendant's Explorer, gestured to the occupants and said, in Spanish, "come on." Defendant remained inside the Explorer. He wanted to avoid an altercation and tried to pull away from the gas station. Before he could do so, Kevin's friends, who were seated in the Explorer's back seat, exited and approached Mejia. A fight ensued and moved into the middle of Commercial Avenue. At least four young men were fighting in the street.
Defendant and Kevin, who never left the Explorer, drove away from the area. However, Kevin persuaded defendant to return to pick up his two friends. Defendant drove back to the gas station. The men were still fighting.
Rutgers University Police Sergeant Rowland Johnson heard a dispatch and responded to the scene. Johnson saw four young men near the intersection of George Street and Commercial Avenue stomping a person on the ground. Johnson yelled "police, stop." The fighting stopped. Johnson then saw defendant's Explorer arrive at the intersection. The stomping victim ran towards the Explorer and his attackers chased him. The stomping victim entered the Explorer's passenger side door. According to Johnson, when defendant tried to leave Mejia jumped in front of the Explorer to prevent it from driving away. Defendant drove forward and hit Mejia, then sped away.
At this point, Rutgers University Police Officer Emerson Ghee approached the scene in a patrol car. He saw the Explorer hit Mejia. Ghee pursued the Explorer, which was traveling at fifty-miles-per-hour. Ghee activated his overhead lights and siren. Defendant did not stop. After approximately thirty seconds of driving, the Explorer struck a telephone pole about a half a mile away on Ryders Lane. Defendant, Kevin, and the stomping victim exited the Explorer and ran toward a wooded area. Defendant ran straight through the woods until he came out on the other side. Ghee found defendant sitting on the front porch of a house on Gibbons Street.
New Brunswick Police Officer Emma O'Flanagan arrived at the Gibbons Street location shortly thereafter. She asked defendant why he was sweating. Defendant replied, "I'll be truthful with you, I was driving the white SUV [Explorer] that you were trying to stop." Defendant was arrested. He told the police he had a box cutter in his pocket, which he used at work at his stepfather's "bodega," which is essentially a grocery and convenience store. The police seized the box cutter. Defendant admitted to Ghee that he had hit a man with the Explorer unintentionally and had left the scene because he was afraid.
New Brunswick Police Officer Keith Walcott responded to the site where the fight had occurred. He encountered Mejia and Selbin Hernandez. They were bleeding and very agitated. Mejia had a cut on his arm, and contusions and abrasions on his face. Hernandez had a cut on his face.
Neither Mejia nor Hernandez testified at trial; nor did any of the other fight participants testify. The State presented the testimony of Officers Johnson, Ghee and Walcott. In addition, Middlesex County Prosecutor's Investigator Latonya Miles testified about her unsuccessful attempts to locate Mejia prior to trial. After introducing security videotapes from the gas station's surveillance camera and from Officer Ghee's patrol car security camera, the State rested.
Defendant presented his stepfather Alfonso Nunez as a witness. Nunez testified that defendant worked at his bodega and regularly used a box ...