On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. 07-12-4096.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, J. N. Harris and Koblitz.
Defendant Ryan Griggs appeals from his conviction and sentence for eluding and resisting arrest stemming from an altercation with the police in which defendant was alleged to have struck a police vehicle with his car and pointed a gun at an officer before fleeing the scene. Defendant argues that the retrial after termination of the original trial, which occurred after the jury had been sworn, constituted double jeopardy. He also maintains that the judge abused his discretion in restricting defendant's access to the officers' internal affairs and personnel files and erred in denying defendant's motion for a judgment of acquittal. He further contends that the sentence imposed is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.*fn1
On December 20, 2007, an Essex County Grand Jury returned Indictment No. 07-12-4096 charging defendant with first-degree attempted murder of a police detective, N.J.S.A. 2C:11-3(a) and N.J.S.A. 2C:5-1 (count one); third-degree aggravated assault of the same detective, N.J.S.A. 2C:12-1(b)(2) (count two); three counts of second-degree aggravated assault of three other police officers, N.J.S.A. 2C:12-1(b)(1) (counts three, four and five); third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count six); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); fourth-degree possession of hollow-point bullets, N.J.S.A. 2C:39-3(f) (count eight); fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a) (count nine); and third-degree eluding the police, N.J.S.A. 2C:29-2(b) (count ten). Defendant was convicted only of counts nine and ten. On July 1, 2009, he was sentenced to four-and-one-half years in prison on the eluding conviction, and a concurrent thirteen months and fifteen days on the resisting arrest conviction.
The trial testimony of the police officers revealed the following facts. On August 31, 2007, at 10:00 p.m., seven police officers in three unmarked police cars, a Crown Victoria, a Grand Prix and a Honda, were on patrol on Victoria Avenue in Newark.
All seven officers observed a silver BMW "shoot out" of a side street onto Victoria Avenue. The driver failed to stop at a stop sign at the intersection of Victoria and Cutler streets. The BMW then made a left on Stone Street and went into a driveway. Several people standing near the driveway ran into the house when the unmarked police vehicles approached.
The Crown Victoria pulled in front of the BMW, while the Grand Prix and Honda parked behind the BMW. An officer exited the Crown Victoria, identified himself as a police officer, and attempted to open the driver's side door of the BMW while instructing the driver to shut off the engine. Instead, the driver shifted the car into reverse, put his foot on the accelerator and hit the Grand Prix twice before coming to a stop. The other officers then got out of their cars.
Shining a light on the front of the vehicle, an officer yelled out, "he's reaching." Other officers saw the driver pointing a revolver at an officer, who fired his weapon at the driver and then jumped back into the Crown Victoria. The other officers then also started shooting.
Defendant exited the car and took off running with nothing in his hands. An officer chased and apprehended him. Defendant received three gunshot wounds to his chest and arms and, as a result, was hospitalized. Officers found a black revolver on the front floor of the BMW.
One officer admitted during his testimony to being under investigation by the Essex County Prosecutor's Office for two unrelated incidents: one involving the discharge of a firearm, the other the use of excessive force.
Defendant was issued summonses for failure to stop at a stop sign, speeding, careless driving, having tinted front-side windows, failure to display license plates and failure to comply with officers' orders.
Detective Michael Bozsolak of the Essex County Prosecutor's Office testified as both an expert and a fact witness. He arrived at the shooting scene shortly after midnight. He saw a handgun on the floor of the BMW's driver's side. He found blood on the sidewalk about 400 feet north of the vehicle. Bozsolak counted six bullet holes in the BMW's front window. He recovered twenty-seven shell casings of the same type, consistent with the firearms carried by the officers that night. Bozsolak examined the .357 Magnum revolver recovered from the car and concluded that the trigger had been pulled three times, but that none of the bullets had fired. The rounds were either hollow points or semi-hollow points. He did not find any fingerprints on the gun, which he did not find surprising due to the nature of the handle.
The defense played video of the incident taken from one of the patrol cars for the jury. The defense used the video to suggest that while officers chased defendant, an unidentified individual, who was shown going back to the Crown Victoria and then returning to the BMW, had an opportunity to plant the gun.
One officer, Detective Vernon Parker, who had been in the Crown Victoria, was called as a witness for the defense. He denied discharging his weapon that evening and said that he joined in pursuing the individuals who ran into the house. When he emerged from the basement of the house, he went to aid an officer who was cut from shattered glass. Parker conceded, however, that he did not include that information in his report.
Although Parker filed a complaint indicating that defendant had pointed a gun at him, he conceded at trial that defendant had not done so. Parker further admitted that at the time of trial he was under suspension for two separate indictments for sexual assault, endangering the welfare of a child and animal cruelty. He denied planting the gun found in the BMW.
Defendant did not testify.
Defendant raises the following issues on appeal:
POINT I IT WAS ERROR TO DENY THE DEFENSE MOTION FOR A MISTRIAL BECAUSE DOUBLE JEOPARDY ATTACHED AFTER A MISTRIAL WAS DECLARED IN THE FIRST TRIAL DUE SOLELY TO STATE MISCONDUCT.
POINT II THE TRIAL COURT'S RULING DENYING ACCESS TO DESIGNATED INTERNAL AFFAIRS FILES OF THE NEWARK POLICE DEPARTMENT, DENIED DEFENDANT HIS CONSTITUTIONAL RIGHTS TO A FAIR ...