On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-10-0961.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Grall.
A jury found defendant Anthony Crawford guilty of second-degree eluding a law enforcement officer while operating a motor vehicle and creating a risk of death or injury to others, N.J.S.A. 2C:29-2b. The trial judge imposed the appropriate penalties and assessments, suspended defendant's license for twelve months, and sentenced him to a term of seven years' imprisonment. We remand for resentencing but affirm in all other respects.
In the early evening of September 8, 2008, Sergeant Christopher Blackburn arrived at the intersection of Hampton and New Streets in Bridgeton in response to a complaint regarding the operation of a dirt bike. As he canvassed the area, Sergeant Blackburn heard a sound that he described as "a high pitched dirt bike" traveling eastbound down New Street in his direction. Moments later, as he pulled his unmarked police vehicle out from an alley on to New Street, Sergeant Blackburn observed the dirt bike appear in front of his vehicle. Having had "fifty to sixty" encounters with defendant prior to this occasion, Sergeant Blackburn recognized defendant as the operator. He later testified that defendant was not wearing a helmet, goggles, or anything else that would have obstructed his face, and that the evening had not yet grown dark. He was "one-hundred percent positive" that defendant was the operator.
Based on the dirt bike's high rate of speed, and on his observation of "numerous" other motor vehicle violations, Sergeant Blackburn activated his flashing lights and siren and began pursuing defendant's vehicle. Defendant responded by increasing his rate of speed and turning to look over his shoulder at Sergeant Blackburn several times as he drove. Despite increasing his own rate of speed to approximately sixty miles per hour in this twenty-five mile per hour zone, Sergeant Blackburn was unable to close in on defendant's vehicle. Because he had seen a group of children playing basketball nearby, and several people walking their dogs on the street, Sergeant Blackburn determined that the risk of injury to others outweighed the need to stop defendant's vehicle. Therefore, he ended his pursuit. Defendant was apprehended five days later, and he was subsequently released on bail.
On January 19, 2010, defendant appeared for a pre-trial conference at which he signed a memorandum acknowledging an assigned trial date of February 22, 2010 and also the possibility that the trial would proceed in his absence should he fail to appear.*fn1 Defendant nonetheless failed to appear for trial, and his attorney informed the judge that she had not been able to contact her client. Defense counsel requested an adjournment to allow her to continue those efforts; the judge denied that request.
The judge addressed defendant's absence in his preliminary instructions to the pool of potential jurors:
The Defendant has pleaded not guilty to the charge and is presumed to be innocent. I must say that the Defendant also has chosen not to be here for this trial, or he's not here, and therefore we are trying the case in his absence.
I'll be giving you, if you're left on the jury, a jury charge to that effect at a later date but I wanted . . . to make you aware that we're aware he's not here, but he's chosen not to be here, as far as we can tell.
Again, the Defendant has pleaded not guilty to these charges and is presumed innocent unless found guilty otherwise.[*fn2 ]
At sidebar, defense counsel objected to the judge's discussion of her client's absence. Although the transcript does not reveal the precise nature of her objection, we presume her concern centered on the judge's ...