On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0619.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2012
Before Judges Messano and Yannotti.
Following a jury trial, defendant Lamar West was found guilty of second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29- 2(a)(2) (count two); and the lesser-included disorderly persons offense of resisting arrest, N.J.S.A. 2C:29-2(a)(1) (count three). The judge sentenced defendant to six years' imprisonment on count one; concurrent prison sentences of eighteen-months on count two; and two months on count three. Defendant raises the following arguments on appeal:
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT KNEW THAT IT WAS THE POLICE WHO WERE FOLLOWING HIM IN AN UNMARKED TRUCK, THE VERDICTS ON COUNTS ONE AND TWO OF THE INDICTMENT WERE AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED. POINT II
THE STATE COMMITTED PROSECUTORIAL MISCONDUCT WHEN IT VOUCHED FOR THE POLICE'S CREDIBILITY, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J.. CONST., (1947), ART. 1 PAR. 10. (Not Raised Below)
We have considered these arguments in light of the record and applicable legal standards. We affirm.
On September 3, 2008, Officer William Gatling, Detective Imperiale*fn1 and Sergeant Ladimir Tavares of the Irvington Police Department were patrolling the area of 18th Avenue and 22nd Street in an unmarked burgundy Ford Expedition. The vehicle was equipped with lights on the visor, a strip light across the windshield, "wig-wags,"*fn2 and a siren. The three officers were in plain clothes but were wearing tactical vests with the word "police" on the front and back, and displayed their badges over the vests.
The officers "observed a blue Buick traveling . . . above the speed limit . . . of [twenty-five] miles an hour[,]" and "perceived it to possibly be a stolen vehicle, due to the way it was driving carelessly." They followed the vehicle as it drove "erratically" and passed "double-parked vehicles at a high rate of speed" in a residential neighborhood. The officers activated their lights and sirens and "were within maybe two car lengths of the vehicle."
Gatling testified that when the lights were activated, the driver of the Buick, whom Gatling identified as defendant, pulled the vehicle to the side of the road and extended his hand suggesting he was asking the officers if "[they] wanted him to pull over right there." Gatling exited the unmarked vehicle, and, as he began to approach the Buick, defendant drove off and "continued to . . . drive erratically around [other] vehicles" and "blew the stop sign" at the corner of 19th Avenue and Grove Street, a major intersection. Gatling "immediately" radioed headquarters to advise of the situation and provided the vehicle's plate number and direction of travel.
At trial, a tape of the dispatch was played, and Gatling testified that Lieutenant Young could be heard directing headquarters to tell the officers to abort the pursuit. Gatling further testified that he never heard such instructions, and it was likely they were not relayed because of competing broadcasts he was making regarding the pursuit.
The officers continued to follow defendant as he drove erratically down 19th Avenue toward Eastern Parkway. When defendant reached the intersection, he attempted to pass another vehicle but was unable to negotiate the turn and crashed into a fence separating Eastern Parkway and the Garden State Parkway (GSP). Gatling saw defendant, his face bleeding, exit the vehicle, look at the officers and crawl under the GSP fence in an attempt to flee. Gatling and Tavares crawled under the fence and continued to pursue defendant on foot while yelling, "stop, police," several times.
At the same time, State Police trooper Russell Johnson was transporting a prisoner in a marked vehicle north on the GSP when he observed "two to three" officers pursuing someone on foot alongside the road. Johnson attempted to stop defendant by positioning his vehicle in front of him, but defendant ran around the car. Johnson exited his car and yelled, "[s]top, police," but defendant kept running. Johnson caught defendant and tackled him to the ground.
Gatling and Tavares arrived within seconds and handcuffed defendant as he continued to flail his arms. After processing, and despite his refusal, defendant was taken to Beth Israel Medical Center where he received six stitches above his eyebrow. On cross examination, Johnson acknowledged that he never activated his ...