On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3562.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 20, 2012 -
Before Judges Koblitz and Lisa.
Defendant Ismael Mendez appeals from the November 16, 2010 judgment of conviction and subsequent sentence for various crimes stemming from a police chase. Newark police officers chased defendant after he failed to stop when they attempted to pull him over for speeding. Defendant's car ultimately collided with that of a Newark Police Sergeant. Defendant claims that the judge's jury charge was improper, he permitted prejudicial repetition of the State's testimony, and other errors occurred. Defendant also maintains that his sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
An Essex County Grand Jury returned Indictment No. 08-12-3562, charging defendant with committing the following crimes on June 28, 2008: second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); second-degree aggravated assault while attempting to flee or elude a law enforcement officer, N.J.S.A. 2C:12-1(b)(6) (count two); third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count three); third-degree aggravated assault with a deadly weapon, a motor vehicle, N.J.S.A. 2C:12-1(b)(2) (count four); fourth-degree unlawful possession of a weapon, a motor vehicle, N.J.S.A. 2C:39-5(d) (count five); third-degree possession of a weapon, a motor vehicle, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six); third-degree criminal mischief, N.J.S.A. 2C:17-3 (count seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight).
The State presented the following facts through the testimony of Newark police officers. Officers Wyhidi Wilson and Orlando Rivera were driving a marked patrol car at approximately 2:30 p.m. Sergeant Joseph Frost was alone in a separate marked unit in the area. Wilson and Rivera observed a green Chevy Impala with tinted windows driving at a high rate of speed in a twenty-five miles per hour zone. Wilson stated that the driver's side window was rolled down halfway so that he could see defendant was driving. Wilson activated his lights and sirens and pulled up behind the Impala. Shortly thereafter, the Impala "slowed down and pulled over almost to a complete stop." The Impala did not stop, however, but instead "sped off again." Wilson testified that, at the time of the attempted motor vehicle stop, defendant had not committed a crime that would permit a pursuit under the Attorney General's vehicular pursuit policy.
Defendant almost struck another car. Officers Wilson and Rivera, with activated lights and sirens, continued trailing the Impala, which was approximately one half-block ahead of their patrol car. The Impala accelerated and Wilson also accelerated the patrol car to forty or forty-five miles per hour in an "attempt to close the distance" with the Impala. After realizing that defendant was too far ahead, Wilson turned off the siren while Rivera contacted the dispatcher to alert other police units. The patrol car's lights remained activated.
Sergeant Frost heard the radio transmission and proceeded to assist. He noticed the Impala traveling at a high rate of speed and "fish-tailing." Frost turned, disregarding a stop sign at the intersection.
With Officers Wilson and Rivera trailing approximately one-half block behind, the Impala continued until it struck the front quarter-panel and driver's side door of Frost's vehicle at the intersection. Wilson testified to observing the Impala "jam on the brakes" before striking Frost's patrol car in the intersection. Wilson estimated that the entire episode, from the time he first observed the Impala speeding until it struck Frost's patrol vehicle, lasted "[a] little over" a minute.
Wilson heard the Impala's engine rev after the collision, "as if [defendant] was trying to accelerate[.]" The Impala continued down the street for a short time until it came to a complete stop.
As Wilson approached the driver's side of the Impala, he observed defendant "reach under the driver's side seat." Out of concern that defendant was trying to either "conceal or retrieve a weapon[,]" Wilson checked the driver's side floor and saw a "clear Ziploc bag containing a green leafy substance, which" he believed was marijuana.
Wilson testified that after the collision Frost was "completely disoriented." Frost was leaning against a gate, swaying from side-to-side and "was holding his head and his shoulder." Frost testified that he was "woozy" and in pain after the crash, but did not go to the hospital until the following day.
Jaquilla White, defendant's girlfriend, was in the front passenger seat of the Impala. She was the only witness for the defense. She indicated that she and defendant had been together all morning and that at no point had defendant driven erratically. She claimed that she never heard sirens or saw flashing lights. She stated that she never saw a police vehicle until, stopped at an intersection, she observed a marked police car speeding towards them. According to White, they attempted to get out of the way, but were struck by the police vehicle as they turned the corner. When shown a photograph of the damage to Frost's patrol car, White testified that she and defendant were hit by a different police vehicle.
The jury found defendant guilty of all counts before them.*fn1
Defendant later pled guilty to Accusation No. 10-08-0800, which charged him with fourth-degree simulating a motor vehicle insurance identification card, N.J.S.A. 2C:21-2.3(b). The judge sentenced defendant on all charges to an aggregate term of sixteen years' imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal defendant raises the following issues:
POINT I: IN LIGHT OF THE POLICE'S FAILURE TO COMPLY WITH THE ATTORNEY GENERAL'S GUIDELINES ON PURSUIT, THE JUDGE SHOULD HAVE CHARGED THE JURY ON CAUSATION. (Not Raised Below).
POINT II: TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE DEFENDANT'S CONSENT. (Not Raised Below).
POINT III: THE JUDGE'S FAILURE TO CONTROL THE TRIAL RESULTED IN THE ADMISSION OF CUMULATIVE, WASTEFUL EVIDENCE, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL BY OVER-OVEREMPHAS[IZ]ING THE TESTIMONY OF THE STATE'S WITNESSES.
POINT IV: THE DEFENDANT'S DISCRETIONARY EXTENDED TERM OF A SIXTEEN-YEAR BASE TERM WITH AN 85% PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND REQUIRES REMAND.
Additionally, defendant raises the following points in his pro se supplemental brief:*fn2
POINT I: SINCE THE TRIAL COURT LACKED JURISDICTION TO PROSECUTE DEFENDANT ON AN INVALID COMPLAINT FOR AGGRAVATED ASSAULT WHILE ELUDING[,] DEFENDANT['S] CONVICTION AS WELL AS HIS SENTENCE ON COUNTS (2) AND (3) OF THE INDICTMENT MUST BE VACATED. (Partially Raised Below). POINT II: DEFENDANT['S] CONVICTION FOR SECOND DEGREE ELUDING MUST BE DOWNGRADED TO A THIRD DEGREE ELUDING. (Not Raised Below).
POINT III: UPON REMAND FOR RESENTENCE THE TRIAL COURT MUST EVALUATE DEFENDANT['S] PROGRESS SINCE INITIAL SENTENCE.
Defendant asserts in Point I of his brief that, on the day of the incident, the officers failed to comply with the New Jersey Attorney General's guidelines on police vehicular pursuit. He contends that the trial judge erred by failing to provide a jury instruction on causation, as "[t]here was a strong basis in the evidence for a properly-instructed jury to conclude that . . . ...