On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-00273.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano and Yannotti.
Following a jury trial, defendant Cornelius C. Utley was convicted of third-degree burglary, N.J.S.A. 2C:18-2 (count one); third-degree theft, N.J.S.A. 2C:20-3 (count two); second-degree eluding, N.J.S.A. 2C:29-2(b) (count five); and three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(6) (counts six, seven and eight). The judge sentenced defendant to concurrent terms of four years' imprisonment on counts one and two. On count five, the judge sentenced defendant to a seven-year term, consecutive to the sentence imposed on counts one and two. On counts six, seven, and eight, the judge sentenced defendant to concurrent seven-year terms with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to the sentence imposed on count five.
Defendant moved for reconsideration of the sentence, and, in an oral decision, the judge merged counts one and two and reversed her earlier determination that aggravating factor eight, N.J.S.A. 2C:44-1(a)(8), applied. The judge did not otherwise modify the sentence imposed.
Before us, defendant raises the following arguments:
THE DEFENDANT'S RIGHT TO REMAIN SILENT AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND NEW JERSEY COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION THAT JURORS COULD CONVICT THE DEFENDANT OF THEFT BECAUSE HE POSSESSED THE ITEM A SHORT TIME AFTER IT HAD BEEN STOLEN (Not Raised Below)
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INCOMPLETE, CONFUSING, ERRONEOUS, AND PREJUDICIAL INSTRUCTION TO THE JURY ON THE LAW OF ATTEMPTED ELUDING (Not Raised Below)
A. THE TRIAL COURT OMITTED AN INSTRUCTION ON THE LAW OF ATTEMPTED ELUDING EVEN THOUGH ATTEMPTED ELUDING WAS AN ESSENTIAL ELEMENT OF THE OFFENSE
B. THE TRIAL COURT FAILED TO INSTRUCT JURORS THAT THE LAW OF ATTEMPTED ELUDING REQUIRES PURPOSEFUL CONDUCT AND THAT THEY CANNOT FIND [THAT THE DEFENDANT] KNOWINGLY ATTEMPTED TO ELUDE POINT III THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE PROSECUTOR'S RELIANCE ON IRRELEVANT EVIDENCE TO EVOKE JURY SYMPATHY FOR THE VICTIMS (Not Raised Below)
POINT IV THE STATE FAILED TO PROVE EACH AND EVERY ELEMENT OF THE OFFENSES OF ELUDING AND AGGRAVATED ASSAULT BEYOND A REASONABLE DOUBT POINT V DOUBLE JEOPARDY AND MERGER LAW REQUIRES THAT THE CONVICTION FOR ELUDING WHILE CREATING A RISK OF INJURY MERGE WITH THE CONVICTIONS FOR AGGRAVATED ASSAULT WHILE FLEEING
THE SENTENCE IS EXCESSIVE.
A. THE TRIAL COURT IMPROPERLY BALANCED THE AGGRAVATING AND MITIGATING CIRCUMSTANCES
B. THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's conviction. We remand the matter to the trial court to vacate the sentence imposed on count five, and merge the conviction in that count into the convictions on counts six, seven and eight. In all other respects, we affirm the sentence imposed.
Wade Housen lived on Scotland Road in Orange and owned a black Infiniti sedan. At approximately 8:30 p.m. on May 3, 2008, Housen parked and locked his car across the street from his house. After later re-checking that the car was locked, Housen retired for the evening. The following morning, he found another car parked where his Infiniti had been. As he approached the parking spot, Housen stepped on tinted glass that appeared to have come from his car's window. He notified the police and reported the car stolen. At trial, Housen stated that he did not give anyone permission to drive his vehicle and had not provided anyone with its keys.
Elizabeth police officer Louis Figueiredo was working with his partner in plain clothes in an unmarked police car on the night of May 3 into the morning hours of May 4. At approximately 2:00 a.m., he observed two vehicles, a white and black Infiniti, later identified as Housen's car, following each other in close proximity. Figueiredo testified that this maneuver screens an officer's vision of the first vehicle's license plate and usually means it is stolen.
The officers followed the two cars. Eventually, the white Infiniti pulled over, and the black Infiniti turned and proceeded in the wrong direction down a one-way street. When the officers activated the sirens and lights on their unmarked car, the vehicle "stop[ped] for a few seconds" and reversed direction. Figueiredo testified that the driver looked at the officers and took off at a high rate of speed. The officers followed in pursuit with lights and sirens operating.
The Infiniti eventually ran a red light and struck a car driven by Mariana Beltran in the intersection. Princess Arroyo and Jason Cruz were passengers in Beltran's car. Upon seeing the cars collide, Figueiredo ran to the Infiniti and found defendant "pinned" inside. He also observed that the vehicle's ignition was damaged, and he saw two ...