NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 10-11-2024.
Joseph E. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
Before Judges Yannotti and Hoffman.
Tried before a jury, defendant Anthony R. Korecky appeals following his conviction and sentencing for second-degree eluding, contrary to N.J.S.A. 2C:29-2b. We affirm.
The following evidence was introduced at trial. On the evening of August 27, 2010, defendant was drinking alcohol and four-wheeling in a privately-owned gravel pit in Berkley Township when his pickup truck got stuck in a mud hole. The local police, who had been dispatched to the gravel pit to investigate a report of an unrelated incident, asked defendant if he wanted them to call for a tow truck and explained there would be a fee for the tow. Defendant accepted the offer and the police called for a tow truck operator; however, before the tow truck arrived, another vehicle successfully pulled defendant's vehicle out of the mud. Because defendant's vehicle had already been pulled out of the mud, the tow truck operator agreed to charge defendant only $125, instead of his normal fee of $350. Defendant agreed, but stated he needed to drive to a nearby gas station where there was an ATM machine to get cash to pay the fee. At the time of all relevant events, defendant had a seventeen-year-old passenger, R.C., in his vehicle.
As defendant drove out of the gravel pit, a police officer who was standing outside his patrol vehicle at the entrance to the gravel pit, attempted to stop defendant's vehicle by signaling him verbally and with a flashlight. Rather than stopping his vehicle, defendant hit the accelerator and took off. R.C testified that the driver's side window was down and that he heard the officer's command. R.C. then told defendant to stop and he replied "fuck it . . . . fuck the tow truck . . . I ain't going to pay it." A high-speed chase ensued with defendant refusing to pull over in response to overhead lights and sirens of at least two police cars. Eventually, defendant lost control of his vehicle and hit a tree. He then fled on foot before police finally found him hiding in the bushes of a nearby house.
At trial, defendant did not testify and presented no witnesses. Defendant's blood alcohol content (BAC) of .155 was stipulated. No specific jury charge was requested by defendant, and no objections were made to the charge. After instructing the jury as to the elements of eluding, including the requisite mental state of "knowing, " the trial judge charged the jury regarding the defense of intoxication, by giving the Model Jury Charge, "Intoxication Negating An Element of the Offense, " (2005), verbatim.
The jury rejected defendant's intoxication defense and found defendant guilty of second degree eluding a police officer, in violation of N.J.S.A. 2C:29-2b. Because of defendant's extensive prior record, the State moved for imposition of an extended term. N.J.S.A. 2C:44-3a. The court rejected the application, and ...