NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 15, 2012
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-11-01045.
Joseph E. Krakora, Public Defender, attorney for appellant (Ruth Bove Carlucci, Assistant Deputy Public Defender, of counsel and on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Before Judges Fuentes and Hayden.
Following a three-day trial, a jury found defendant Ricardo M. Sudlow guilty of second-degree eluding an officer, N.J.S.A. 2C:29-2(b); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5); third-degree receiving stolen property, N.J.S.A. 2C:20-7; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a). The jury acquitted defendant of second-degree aggravated assault while attempting to elude, N.J.S.A. 2C:12-1(b)(6), and third-degree criminal mischief, N.J.S.A. 2C:17-3(a)(1).
On April 26, 2011, defendant received an eight-year term of imprisonment with a four-year period of parole ineligibility for the eluding count; a four-year term of imprisonment on the aggravated assault count, concurrent to the eluding sentence; a four-year term of imprisonment on the receipt of stolen property count consecutive to the eluding sentence; and a twelve-month term of imprisonment on the resisting arrest count concurrent with the other sentences. In addition, the judge imposed all appropriate fines and penalties.
Defendant raises the following points on appeal:
POINT I - GIVEN THE FACT THAT DEFENDANT WAS NOT CHARGED WITH CARJACKING, THE ADMISSION OF THE HIGHLY AND UNDULY PREJUDICIAL EVIDENCE THAT THE ACURA INVOLVED IN THE ELUDING HAD BEEN STOLEN EARLIER THAT DAY DURING A CARJACKING AT GUNPOINT DENIED DEFENDANT A FAIR TRAIL.
POINT II - THE PROSECUTOR'S CROSS-EXAMINATION, WHICH SUGGESTED TO THE JURY THAT THE DEFENDANT WAS GUILTY BECAUSE HE FAILED TO PROVIDE THE IDENTITY OF DENNIS WEBSTER AFTER HIS ARREST AND PRIOR TO TRIAL, IMPROPERLY SHIFTED THE BURDEN OF PROOF TO
THE DEFENDANT, AND VIOLATED HIS RIGHT TO REMAIN SILENT, DENYING HIM A FAIR TRIAL. U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PARAS. 1, 9, 10.
POINT III - THE PROSECUTOR COMMITTED SEVERAL ACTS OF MISCONDUCT WHEN HE IMPROPERLY BOLSTERED THE CREDIBILITY OF STATE WITNESSES ON CROSS-EXAMINATION AND IN SUMMATION.
We have considered these arguments in light of the record and applicable legal standards. We affirm.
The record revealed that on June 28, 2009, an unidentified man carjacked an Acura at gunpoint from the driveway of the owner's home in New York. Defendant was not the carjacker.
Later that day, Mountainside Police Officer Shaun Bendik observed defendant driving the stolen Acura in a residential neighborhood under construction in Mountainside. The officer became suspicious after defendant parked the vehicle in the unpaved driveway of a newly-constructed, unoccupied home. He shined a spotlight into the vehicle and saw defendant sitting in the vehicle alone. Defendant then backed the Acura out of the driveway and the officer activated the lights on his patrol car to signal defendant to stop the vehicle. Instead of stopping, defendant drove the vehicle in the direction of nearby Route 22.
As defendant merged onto the highway, Mountainside Police Officer Jeffrey Stinner joined Bendik in the pursuit. Defendant drove the vehicle erratically at an extremely high rate of speed, weaving in and out of traffic. Mountainside Police Corporal Kenneth Capobianco was driving nearby in a marked pickup truck when he heard police radio transmissions about the chase. He positioned his truck in front of the Acura and drove at a low rate of speed. The Acura collided into the rear of the patrol vehicle, flipped over, and eventually came to a stop. Defendant fled, hiding nearby until the police found and arrested him.
At trial, the three police officers involved identified defendant as the driver and sole occupant of the stolen Acura. Defendant testified at trial that his friend Dennis Webster was the driver of the Acura and he was just a passenger. According to defendant, because he refused to tell the Mountainside police the name of the driver, the police falsely testified that he was the only person in the Acura.
Defendant first contends that the trial court committed reversible error in permitting the prosecution to present evidence concerning the carjacking of the Acura, because defendant was not charged with that offense. Defendant maintains that this evidence was irrelevant under N.J.R.E. 401, unduly prejudicial pursuant to N.J.R.E. 403, ...