STATE OF NEW JERSEY v. MICHAEL FIELDS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0240-05T40240-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL FIELDS,

Defendant-Appellant.

______________________________

 

Submitted May 23, 2006- Decided July 14, 2006

Before Judges Hoens and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Criminal

Part, Mercer County, 04-10-0672.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Daniel V.

Gautieri, Assistant Deputy Public

Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney for respondent

(Dorothy Hersh, Assistant Prosecutor,

of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a). He appeals from the eluding conviction and from the custodial term of eight and one-half years imposed on that conviction. We affirm the conviction but remand for reconsideration of the sentence previously imposed.

The facts developed at trial may be briefly recited. On June 10, 2004, State Trooper Robert Linden was patrolling the New Jersey Turnpike when he observed a motorcycle tailgating another vehicle in the center lane. The motorcycle switched lanes without signaling, causing at least one vehicle to slow down. Linden turned on his overhead lights and siren but the motorcycle failed to respond. After the siren had sounded three times, the motorcycle moved into the right hand lane and accelerated. As Linden pursued it, the motorcycle made several un-signaled lane changes and reached speeds that Linden estimated to approach 110 miles per hour. Linden was unable to pursue the motorcycle after it accelerated onto the left shoulder because Linden's path was blocked by a vehicle in the left hand lane.

Eventually, Linden observed defendant sitting on the motorcycle on the grass shoulder near Exit 7A. When defendant saw the police car pull onto the shoulder, he dropped the motorcycle and ran off. An extensive hunt, involving over fifty troopers, located defendant, who was identified by Linden as the man observed by him on the motorcycle.

Defendant was charged with second-degree eluding, which is criminalized by N.J.S.A. 2C:29-2b. That statute provides

Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes.

The trial judge charged the jury in accordance with that statute. He permitted the jury to infer a risk of death or injury from defendant's un-signaled lane changes and excessive speed, without reference to whether defendant knew his actions created such a risk. There was no objection to that charge. On appeal, defendant contends that second-degree eluding requires the State to prove defendant's knowledge that his behavior created a risk of injury and the judge's failure to apprise the jury of that requirement requires reversal.

This argument has been previously considered by us and rejected. State v. Dixon, 346 N.J. Super. 126 (App. Div. 2001), certif. denied, 175 N.J. 181 (2002). Defendant asks us to reconsider that result and reach a contrary conclusion. We believe, however, that Dixon accurately analyzed the issue and we are in complete agreement with the result. We, therefore, reject defendant's contention that the State was obligated to prove that he knowingly created a risk of death or injury.

Although we find no basis to vacate the conviction, we are satisfied that a remand is required to allow the imposition of a new sentence. Defendant received a custodial sentence of eight and one-half years on a conviction of a second-degree crime. At the time sentence was imposed, the permissible sentencing range was between five years and ten years, N.J.S.A. 2C:43-6(a)(2), with a presumptive term of seven years. N.J.S.A. 2C:44-1(f)(c).

In imposing a sentence above the presumptive sentence the judge found one mitigating factor and three of the aggravating factors described in N.J.S.A. 2C: 44-1(a): "(3) The risk that defendant would commit another offense; . . . (6) The extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted; . . . [and] (9) The need for deterring defendant and others from violating the law[.]"

Since the trial court here imposed a sentence above the presumptive term and relied on factors other than defendant's prior criminal record, we are constrained by the language of State v. Natale, 184 N.J. 458 (2005), to remand for re-sentencing. The State argues that, since the sentence was the result of factors "simply derivative" of defendant's prior record, a remand is not necessary. We disagree. The language of State v. Abdullah, 184 N.J. 497, n.2 (2005), upon which the State relies, does not permit the use of factors (3), (6) and (9) to increase a sentence above the presumptive sentence in all cases. It only suggests that such use might be permissible if "the trial court [finds] that aggravating factors (3), (6) and (9) related to defendant's prior convictions as the basis for increasing defendant's sentence above the presumptive[.]" Id.

We believe the judge's comments were insufficient to relate factors (3) and (9) to defendant's prior convictions so as to justify a sentence above the presumptive seven years. We, therefore, believe a remand is necessary.

The conviction is affirmed and the matter is remanded for re-sentencing consistent with this opinion.

 

The Notice of Appeal indicates an intention to appeal from the conviction for resisting arrest and the concurrent eighteen-month sentence imposed. Defendant has failed to brief any arguments respecting the resisting conviction or the sentence imposed. Accordingly, we deem those issues abandoned. Liebling v. Garden State Indemn., 337 N.J. Super. 447, 465-66 (App. Div.), certif. denied, 169 N.J. 606 (2001).

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A-0240-05T4

July 14, 2006