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State of New Jersey v. Jose Santos

June 8, 2012


On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-01-0106.

Per curiam.


Argued October 4, 2011

Before Judges Espinosa and Kennedy.

Defendant was convicted by a jury of second-degree eluding, N.J.S.A. 2C:29-2(b), and disorderly persons shoplifting, N.J.S.A. 2C:20-11, and was sentenced as a persistent offender, N.J.S.A. 2C:44-3(a), to an aggregate term of ten-years imprisonment. He appeals from his convictions and sentence. We affirm.

On the afternoon of August 28, 2007, the Lakewood Police Department received a report of a suspicious person at the Home Depot. Officer Obdulio Serrano, Jr. responded to the scene where he found Richard Campolei, the assistant store manager, standing in front of the store, yelling, "there they are, there they are, they stole from my store." Campolei was pointing at defendant and his fifteen-year-old nephew in the parking lot, walking toward a red, two-door Chevy Cavalier.

Serrano proceeded toward the two males. As he approached, he attempted to get defendant's attention but defendant "completely ignored" him. Serrano pulled on the door handle and banged on the window, saying "Lakewood Police, stop the vehicle, stop the vehicle." Defendant responded by putting the car in reverse and backing up. As the car backed up, the side view mirror hit the top clip of Serrano's magazine belt, ripping the clip and his magazine completely out. Serrano jumped back and watched to see where the vehicle was going. The vehicle stopped and Serrano walked to the front of it, held his hands up and yelled again, "stop the vehicle, stop the vehicle."

Defendant continued to ignore Serrano and put the car into drive. However, another car backed out and blocked defendant's exit from the Home Depot. Serrano approached the vehicle again but defendant backed up again and "just squeal[ed] the tires right around" Serrano and the other vehicle. Defendant went through two stop signs without stopping and exited onto Route 70.

Serrano described defendant's driving as careless, and faster than the fifteen miles per hour speed limit in the parking lot. Once defendant drove onto eastbound Route 70, he cut across three lanes to a concrete barrier and made an illegal U-turn to proceed onto the westbound lanes. Serrano radioed to other police officers, informing them of the direction defendant was heading in, a physical description of him and the car, and the license plate of the vehicle.

Serrano returned to the Home Depot, where he obtained information from Campolei and viewed a video surveillance tape. The videotape, which was received in evidence and played for the jury, showed defendant and his nephew pick up a drill in the store and leave the store. Serrano testified that when he first saw defendant and his nephew, he was able to observe that the nephew was carrying an item bearing the label "DeWalt," a brand of drill.

Serrano testified that, upon returning to police headquarters, he learned defendant's name, that his driving privileges were suspended and that there were multiple warrants outstanding for his arrest. A records check was conducted and Serrano learned that the red Chevy Cavalier was registered to Iris D. Montalvo, defendant's mother.

Approximately one hour after the incident at Home Depot, a male, later identified as defendant, called the Lakewood Police Department. Defendant identified himself as "Jose Montalvo[,]" and said that he "just had an incident at Home Depot." He stated that he took his mother's car and

I went in there and I stole something and I had my nephew with me. He didn't have nothing to do with it and I took off and I'm halfway to New York. I stole my mother's car. I dumped it and I'm out. I'm not turning myself in and I went in there and I boosted a f***in' drill and I didn't wanna' get caught and I'm out and I stole my mother's car and everything.

The dispatcher asked where the car was and defendant replied, "I ain't tellin' you nothin'. I'm using it. I'm driving the car right now and when I get where I'm goin', I'm dumpin' it." When the dispatcher asked why he did not return the car so his mother could have it, defendant replied, "No, no. I ain't, I ain't turning myself in there." He repeatedly tried to exculpate his nephew and said once again that he was not going to turn himself in.

Following defendant's conviction, the trial court granted the State's motion to sentence defendant to an extended term as a persistent offender pursuant to N.J.S.A. 2C:44-3. The court imposed a sentence of ten years on the second-degree eluding charge, a concurrent term of six months on the shoplifting conviction and appropriate fines and penalties.

In his appeal, defendant presents the following issues for our consideration:



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