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State of New Jersey v. Santino J. Micelli

February 14, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SANTINO J. MICELLI, A/K/A SANTINO J. MICELI, A/K/A SANTINO MICELI, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-01-0132.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 20, 2011

Before Judges Fisher, Baxter and Nugent.

Defendant Santino Micelli appeals from his May 21, 2010 conviction on a charge of third-degree eluding police, N.J.S.A. 2C:29-2b, as a lesser included offense of second-degree eluding.

The judge imposed a five-year term of probation, subject to 364 days in the Bergen County jail. On appeal, defendant raises the following claims:

I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE.

II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF PRIOR MOTOR VEHICLE VIOLATIONS IN AN ELUDING PROSECUTION. (Not Raised Below).

A. The evidence was improperly admitted.

B. The trial court failed to provide the jury with a proper limiting instruction as required by the law.

III. THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 10 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY [THE] TRIAL COURT'S REFUSAL TO ALLOW CONFRONTATION ON THE CRITICAL ISSUE IN THE CASE: IDENTIFICATION.

IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below).

V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INCOMPLETE, ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF ELUDING. (Not Raised Below).

A. The instruction on the law of eluding, which included attempted eluding, was incomplete, erroneous and prejudicial.

B. The trial court failed to instruct jurors that the law of attempt requires purposeful conduct and that they cannot find that the defendant knowingly attempted to elude the police.

VI. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Partially Raised Below).

VII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below).

We affirm.

I.

On the night of August 23, 2008, members of the Elmwood Park Police Department established a driving while intoxicated (DWI) checkpoint at the intersection of Route 46 and Boulevard.*fn1

The DWI checkpoint consisted of flares and cones to "funnel" drivers into a single lane where they were met by police officers described as "greeters." Detective Thomas Kochis was one of fifteen officers participating in the DWI checkpoint that night, beginning at 11:00 p.m. and ending at 3:30 a.m. on August 24.

At approximately 2:30 a.m. on August 24, a blue Suzuki caught the attention of Detective Kochis because the vehicle slowed down, and nearly stopped, 300 yards back from the point where drivers were approached by the "greeter." According to Detective Kochis, such behavior was suspicious because it signified that the driver was "doing something . . . illegal inside the car, maybe changing positions." Because of the driver's suspicious behavior, Detective Kochis signaled to Sergeant Michael Kassai "to keep an eye on th[e] vehicle." As the Suzuki drew closer to the staging area, its speed increased. When it became clear that the vehicle was accelerating, and that the driver of the Suzuki did not intend to stop at the checkpoint, Detective Kochis "began to shine [his] flashlight directly at the driver and began to order him to stop." Kochis was only "a few feet from the vehicle" and was able to get a good look at the driver, whom Detective Kochis described as a white male, in his late thirties or early forties, thin, with long brown hair. Detective Kochis testified that he was only two to three feet away from the vehicle at the time he used his flashlight to illuminate the driver's face. He also testified that the DWI checkpoint was well-lit.

In a loud voice, Kochis ordered the driver to stop. Several of the other officers were yelling the same thing, but the Suzuki sped away. In fact, the driver "blew through both of the stop signs" at the DWI checkpoint.

After stopping briefly at the red light at the corner of Boulevard, the car "revved" its engine, and made a right turn at the red light, which was prohibited at that particular intersection. A police vehicle pursued the Suzuki, but by the time the officers found the vehicle a little while later a half-mile away, it was in a parking lot next to a bank. The vehicle had sustained "heavy front end damage," and one of the axles was broken. The key was still in the ignition. Numerous documents were strewn about in the passenger compartment, including personal letters and bills bearing the name of defendant, Santino Micelli. Several open containers of beer, and some unopened bottles as well, were found in the passenger compartment.

By calling the Elmwood Park police dispatcher, Detective Kochis learned that the owner of the vehicle was Claire Lune Daniels, who lived in Rochelle Park. Daniels told the police dispatcher that defendant Santino Micelli was her son, and that he had been driving her car that night.

During cross-examination of Detective Kochis, defense counsel attempted to question the detective concerning the Attorney General Guidelines (Guidelines) for photo identifications.*fn2 The judge barred the defense from doing so because Detective Kochis was not the person responsible for setting up the photo identification on the computer. The judge directed defense counsel to reserve ...


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