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State of New Jersey v. Derrick Younger

October 19, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DERRICK YOUNGER, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 06-12-3753 and 07-05-1601.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2012

Before Judges Fisher, Alvarez and Waugh.

Tried to a jury in absentia on August 7, 8, and 9, 2007, defendant Derrick Younger was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b). Almost a year later, on June 9, 2008, defendant entered a guilty plea to third-degree possession of cocaine with the intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-7, and second-degree employing a juvenile to distribute drugs, N.J.S.A. 2C:35-6, on an unrelated indictment.

On July 25, 2008, he was sentenced on all outstanding matters, including the eluding as well as the drug offenses. A term of five years imprisonment was imposed in accord with the negotiated plea agreement on the drug charges, subject to two years of parole ineligibility, concurrent on each. Appropriate fines and penalties were also imposed. After granting the State's application to sentence defendant to an extended term as a persistent offender, N.J.S.A. 2C:44-3(a), the court separately sentenced defendant on the eluding conviction to a concurrent ten years. A probation term defendant had been serving on a third indictment was terminated without improvement.

Defendant appeals his eluding conviction and sentence, as well as the negotiated sentence imposed on the drug offenses. We affirm.

The judge conducted a pretrial conference on the eluding indictment, and defendant signed the pretrial memorandum on May 4, 2007. See R. 3:9-1(e). In accord with the pretrial conference rule, defendant was advised of his July 30, 2007 trial date and the fact that the trial would proceed even if he failed to appear. The judge also explained that if the matter was adjourned, defendant was nonetheless expected to appear, and that the trial would go forward on the adjourned date even in his absence. The form defendant signed, required by the pretrial conference rule, states in bold print:

1. I have been advised of my right to be present at the trial of this case. If I fail to appear for trial on the date scheduled for trial, the Court has the right to conduct the trial in my absence. If my case is not reached for trial on that date the judge will schedule a new date for trial. If I am not present on the original trial date, or any rescheduled trial date, the trial will proceed without me and I will be bound by the jury's verdict.

After jury selection, prior to opening statements, counsel informed the court that defendant had failed to respond to "four or five different correspondence [sic] . . . subsequent to the May 4 pretrial . . . ." The court responded that defendant had been advised of his obligation to appear on the scheduled trial date during the course of the pretrial conference, and had signed a pretrial memo memorializing that understanding.

The facts can be briefly summarized. On August 18, 2006, at approximately 11:40 p.m., East Orange Police Department Sergeant Larry Martin was dispatched to the area of Park and North Fourteenth Streets because of a report that a stolen motor vehicle, a red minivan, had crashed into a wall. As the officer approached the abandoned minivan, he saw a black Toyota Supra, occupied by a male driver and a female passenger, backing away from the intersection down the street at about twenty miles per hour for an entire block. Sergeant Martin gave chase through several intersections, deploying his lights and siren. He observed the motor vehicle run a stop sign immediately before speeding onto Route 280 West. Once on Route 280 West, the driver turned off his lights and began to weave in and out of traffic.

Eventually, Sergeant Martin turned off his siren and lights, fearing that the driver's manner of operation would just "continue to put everybody at risk." Since the officer could not exit from Route 280 at that location, he continued following the car and saw it swerve from the far left to the far right, hitting a curb in the process, causing sparks to fly out from beneath the vehicle. The right front tire bent, the axle snapped, and the car became immobilized. The officer quickly pulled up alongside, blocking the driver's side door, drew his weapon, and told the vehicle occupants to stay in the car with their hands raised until backup arrived. Defendant, who was the driver, was issued a summons for careless driving and for driving without a license in addition to the eluding charge.

Defendant raises the following points of error for our ...


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