June 6, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DERRICK MILLER, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-0332.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 25, 2011 -
Before Judges Fuentes, Ashrafi and Nugent.
Defendant Derrick Miller was tried before a jury over a period of five days and convicted of second degree eluding, N.J.S.A. 2C:29-2(b), and third degree receiving stolen property, N.J.S.A. 2C:20-7.*fn1 The court sentenced defendant to an aggregate term of eight years imprisonment.*fn2 After reviewing the record developed before the trial court, and mindful of prevailing legal standards, we affirm.
On November 10, 2006, the owner of an Audi A6 reported the vehicle stolen to the Newark Police Department. The owner had last seen the car when he parked it outside a Portuguese restaurant in Newark. At approximately 7:50 p.m. the following day, a liquor store in Newark was robbed by men wearing masks and brandishing guns. According to the complaining witness, two or three robbers took money and alcoholic beverages, and drove away in a "silver four door Audi," possibly model A6. The witness did not see the license plate of the car and was unable to determine how many occupants were in the vehicle.
That same night, Newark Police Officer William Golpe and Sergeant Mathew Ruand of the Street Crimes Unit were on patrol in a marked police car. Other officers were driving behind them.
Approximately ten minutes after the robbery, the officers drove past a residential area with a noticeable amount of pedestrian traffic and saw a silver Audi drive by. Aware that a silver Audi had been reported as the possible get-away car in the liquor store robbery, the officers decided to follow the car; a check of the license plate number quickly revealed that the car had been reported stolen. At this point, the officers activated the patrol car's overhead lights and sirens, signaling for the driver of the Audi to pull over.
In response, the Audi accelerated out of its traffic lane; a high speed pursuit ensued through what the police officers characterized as a predominantly residential area. The Audi's speed was estimated at sixty miles per hour or more, in a twenty-five miles per hour zone. The Audi came to a stop when it crashed into another occupied car. According to Sergeant Golpe (who was approximately six or seven car-lengths behind) all four of the Audi's doors opened and a number of individuals ran out.
Golpe testified that he saw the driver of the Audi leave the car from the driver's seat and begin to flee on foot. Golpe and another officer pursued the driver until they apprehended him. Golpe identified defendant as the driver. Two other individuals were also apprehended. One of those individuals was a juvenile who pled guilty to receiving stolen property.
The juvenile testified during defendant's trial. He indicated that defendant was not involved in the liquor store robbery. The juvenile testified that he stayed outside while two other individuals went inside to rob the liquor store. The juvenile and his cohorts thereafter drove the get-away car to a location where they picked up defendant, who sat in the rear seat, behind the driver. According to the juvenile, defendant was merely a passenger in the car, and was not connected in any way with the robbery. Defendant testified in his own defense, corroborating the juvenile's account of events. Defendant testified that he ran after the car crashed and failed to heed the police officer's command to stop because he believed the car was stolen.
Against these facts, defendant now appeals raising the following arguments.
BECAUSE RESISTING ARREST BY FLIGHT WAS CLEARLY INDICATED ON THIS RECORD, THE TRIAL COURT COMMITTED ERROR IN NOT CHARGING IT AS A LESSER-INCLUDED OFFENSE AND DENIED THE DEFENDANT HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (PARTIALLY RAISED BELOW)
THE TRIAL JUDGE'S FAILURE TO ANSWER THE JURY QUESTION OF WHETHER KNOWLEDGE WAS AN ELEMENT OF RECEIVING STOLEN PROPERTY DEPRIVED THE DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I PARS. 1, 9 AND 10). (NOT RAISED BELOW)
THE JUDGE'S STATEMENT THAT THE DEFENDANT HAD A PRIOR ADULT CONVICTION CAUSED THE JURY TO IMPERMISSIBLY SPECULATE AS TO THE DEFENDANT'S PRIOR JUVENILE RECORD AND DEPRIVED HIM OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10). (NOT RAISED BELOW)
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments. In Point I, defendant argues, for the first time on appeal, that the trial court erred by not charging resisting arrest by flight as a lesser included offense of second degree eluding. We first note that defendant did not request the trial court to give such a charge. Although defendant raised this issue in his motion for a new trial, the court was not given the opportunity to assess the merits of the application while the jury was available, as counsel is required to do pursuant to Rule 1:7-2 and Rule 1:8-7.
We are thus compelled to assess the merits of this argument based on the plain error standard in Rule 2:10-2. Under this standard of review, we will reverse only "if the error is clearly capable of producing an unjust result." State v. Rose, 206 N.J. 141, 157 (2011) (quoting Rule 2:10-2). With respect to the trial court's duty to charge lesser included offenses, our Supreme Court has recently reaffirmed that a trial court's duty to charge the jury on its own motion is one that is not self-executing, and that duty arises only when the record evidence clearly indicates the need for or clearly warrants the unrequested jury instruction. In determining whether an unrequested jury charge should be given, the notion that the facts must "clearly indicate the appropriateness" of the jury instruction is paramount: The trial court does not have the obligation on its own meticulously to sift through the entire record in every trial to see if some combination of facts and inferences might rationally sustain a[n unrequested] charge. [State v. Rivera, 205 N.J. 472, 489-90 (2011) (second alteration in original) (citations omitted) (internal quotation marks omitted).]
Although it can be argued that resisting arrest by flight is a lesser included offense of second degree eluding, see State v. Wallace, 313 N.J. Super. 435, 439 (App. Div. 1998), aff'd on other grounds, 158 N.J. 552 (1999), the salient facts here make this analysis unnecessary. The arresting officer's testimony indicates that the crime of eluding was completed when defendant crashed the car.
In Wallace, we noted that the proofs established no separate crime as a matter of fact. Defendant was arrested immediately upon the conclusion of the vehicular chase as he "attempted" to run from his automobile. The chase was the factual predicate of the eluding conviction. At its conclusion, defendant had no opportunity to engage in any separate resistive conduct and, therefore, cannot be treated as if he had committed an additional, distinct crime apart from second degree eluding.*fn3
[Ibid. (emphasis added).]
Here, defendant's subsequent flight by foot was wholly independent of the operation of the vehicle and constituted the fourth degree offense of resisting arrest under N.J.S.A. 2C:29-2(a)(3), a completely independent crime, with its own elements, that do not, by definition, involve the operation of a motor vehicle. Cf. N.J.S.A. 2C:29-2(b) (defining the crime of eluding as requiring the operation of a motor vehicle "on any street or highway in this State"*fn4 ).
We reject the remaining arguments pursuant to Rule 2:11-3(e)(2), and without further elaboration.