On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-03126.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2012
Before Judges Graves and Guadagno.
Tried to a jury, defendant William Manderville was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b). The trial court sentenced defendant to a term of eight years with a four-year period of parole ineligibility. On appeal defendant challenges his conviction and his sentence. For the reasons that follow, we affirm.
Police Officer Gary Tremont, a member of the Newark Police Street Crimes Auto Theft Task Force, was on patrol January 6, 2008, in a high crime area of Newark. Tremont and his partner, Officer Costerra, were driving in a white Ford Explorer wearing black Newark Police tactical uniforms with large yellow "Police" lettering and an arm-patch bearing the Newark police logo. Other members of the Task Force accompanying Tremont and Costerra included Detectives Padilla and Costa who were riding in a marked police vehicle and Sergeant Roe who was riding alone, also in a marked car. The three police vehicles were traveling together in a line with Tremont's car in the lead.
At approximately 1:50 a.m., Tremont was driving south on Eighteenth Street. As he was turning right onto Seventeenth Avenue, he observed a black Cadillac Eldorado traveling in the opposite direction on Seventeenth Avenue. The Cadillac drew Tremont's attention because it had tinted windows which are illegal. Tremont's vehicle and the Cadillac passed within four to five feet of each other.
Tremont radioed to the other officers that he was going to stop the Cadillac and motioned to the driver of the Cadillac to pull over to the curb. He then turned his own car around, activated his grill lights, and pulled up behind the Cadillac which had come to a complete stop. As Tremont got out of his car to approach the Cadillac, the driver sped off, traveling south on Eighteenth Street toward Eighteenth Avenue. The other officers, who were still on Eighteenth Street, activated their lights and pursued the Cadillac. Sergeant Roe attempted to pull the Cadillac over, but the driver refused to comply. While attempting to turn right onto Eighteenth Avenue, the Cadillac lost control and crashed into a utility pole, shearing the pole off the base.
Tremont approached the driver's side of the vehicle while Costa and Padilla came to the passenger side. Defendant was in the driver's seat and Tremont ordered him out and placed him under arrest.
Two others were in the car, Shaquan Johnson and Qaiym Ali. When Officer Padilla opened the passenger door, he observed pills, later confirmed to be Ecstasy, on Johnson's lap and on the floor in front of him. Johnson was arrested as was Ali when he refused the officers' commands to get out of the car.
On October 28, 2008, an Essex County Grand Jury returned an indictment charging all three defendants. Defendant was charged with second-degree eluding, N.J.S.A. 2C:35-10(a) (count one), and third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a) (count two).
A jury trial began on January 27, 2010, and concluded the following day. Defendant was found guilty of eluding and not guilty of the drug charge. He was sentenced to eight-years in prison with a four-year parole disqualifier.
On appeal, defendant raises the following issues:
POINT I THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL SHOULD HAVE BEEN GRANTED.
POINT II 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 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 TRIAL COURT'S FAILURE TO INSTRUCT JURORS ACCURATELY AND COMPLETELY ON THE LAW OF PRIOR INCONSISTENT STATEMENTS AND OMISSIONS (NOT RAISED BELOW)
POINT IV 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 STATE'S FAILURE TO SHOW THAT ITS LAW ...