STATE OF NEW JERSEY v. MARK TOMPKINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5006-04T45006-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MARK TOMPKINS,

Defendant-Appellant.

_________________________________________________________

 

Submitted November 9, 2006 - Decided December 8, 2006

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

Indictment No. 03-03-0893.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Sylvia M. Orenstein, Assistant

Deputy Public Defender, of counsel and on the

brief).

Paula T. Dow, Essex County Prosecutor, attorney

for respondent (Maryann K. Lynch, Assistant

Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was found guilty at a jury trial of second degree eluding, in violation of N.J.S.A. 2C:29-2b, and sentenced to an extended term of fifteen years with seven and one-half years to be served before parole eligibility. On this appeal he argues:

POINT I BECAUSE THE STATE'S EVIDENCE WAS INSUFFICIENT TO PROVE BEYOND A REASONABLE DOUBT THAT IT WAS THE DEFENDANT WHO WAS STOPPED AT THE ENTRANCE TO THE RAMP TO ROUTE 78, THE TRIAL COURT SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL; MOREOVER, BECAUSE THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE, THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL.

POINT II THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY, SUA SPONTE, ON THE CENTRAL TRIAL ISSUE OF IDENTIFICATION DENIED DEFENDANT A FAIR TRIAL AND WAS CLEARLY CAPABLE OF PRODUCING AN UNJUST RESULT IN THIS CASE. U.S. CONST., AMENDS. VI, IV; N.J. CONST., (1947), ART I., 1, 9, 10) (Not Raised Below)

POINT III BECAUSE THE PERSON IDENTIFIED AS THE DEFENDANT WAS SEEN LEAVING THE CAR ONLY AFTER THE ACCIDENT, AND THERE WAS NO TESTIMONY THAT HE WAS GIVEN A COMMAND TO STOP, THE TRIAL JUDGE ERRED IN FAILING TO CHARGE THE LESSER-INCLUDED OFFENSE OF RESISTING ARREST. (Not Raised Below)

POINT IV THE IMPOSITION OF AN EXTENDED TERM, BASED ON AN UNTIMELY MOTION BY THE PROSECUTOR AND WITHOUT A FINDING THAT IT WAS NECESSARY TO PROTECT THE PUBLIC, CONSTITUTES AN ABUSE OF DISCRETION. IN ADDITION, IT VIOLATES THE PRINCIPLES OF APPRENDI V. NEW JERSEY, BLAKELY V. WASHINGTON, AND STATE V. NATALE. (Partially Raised Below)

Our careful review of the record leads us to conclude that the arguments concerning the conviction are without merit and warrant only the following discussion. R. 2:11-3(e)(2).

The evidence at trial revealed the following. On October 24, 2002, Officer Kevin Wright, Sr., of the Newark Police Department, was assigned to traffic enforcement at the entrance ramp to Route 78 on Lyons Avenue in Newark. Officer Wright was in uniform standing in front of his marked car which was parked on the shoulder on the ramp. Officer Wright was there to prevent drivers from making illegal left turns from the middle lane of Lyons Avenue, which is not designated as a turn lane, onto Route 78.

Shortly before 3:00 p.m., Officer Wright "observed a gray vehicle make an illegal turn from the center lane." The officer made "a hand signal" directing the driver "to pull the car over." The driver stopped the vehicle about three car lengths in front of the officer's vehicle. The officer returned to his patrol car, put the lights on and "moved up closer behind the [defendant's] vehicle," intending to get the driver's credentials and issue him a summons. However, before Officer Wright could exit his patrol car, the driver made an "obscene" "hand gesture in the rearview mirror" and "took off down the ramp."

Officer Wright then "activated" his siren, and proceeded to follow the vehicle "down the ramp" onto Route 78 eastbound, where he observed the car, a Pontiac Grand Prix, "dart across three lanes of traffic" at approximately eighty miles per hour. At that time, Officer Wright discontinued his pursuit because the car "wasn't going to stop for [him]" and he deemed that "the situation was dangerous." The officer had "documented" the license plate of the vehicle, and continued down Route 78 to the Clinton Avenue exit, which was the "next exit," to return to the police precinct to file a report. However, the officer did not call in the pursuit to the dispatcher at the time of its occurrence, as mandated by the Attorney General's Guidelines.

Upon exiting Route 78 at the Clinton Ave exit, onto West Runion, Officer Wright observed that "the same gray vehicle had been involved in an accident" with another car at the intersection of West Runion and Hillside Avenues. As the officer pulled up to the scene and observed the accident, he saw the "actor" of the gray vehicle, later identified as the defendant, dressed in a gray sweatshirt and blue jeans, "exit the car and begin to run."

Officer Wright got out of his patrol car, called in a description of defendant's clothing and his location, and "engaged in foot pursuit" of defendant. The officer pursued defendant west from Hillside Avenue, "through an open lot, into [a] backyard," onto Irvin Turner Boulevard, 'through another open lot," "then through the rear yards of the houses on Irvin Turner" Boulevard. With the assistance of responding officers, Officer Wright eventually apprehended defendant in a stairwell leading to the cellar of an abandoned house on Irvin Turner Boulevard, approximately two blocks from the accident. He was wearing the same clothes as described when the officer saw him leave his vehicle and begin to run.

Defendant was arrested and transported to the police precinct by two other responding officers, while Officer Wright executed an accident report and "tow sheet." Officer Wright observed front fender damage to defendant's vehicle and damage to the front grill, hood and fender of the other vehicle. The gray Pontiac Grand Prix was registered to Bernice Tompkins, defendant's mother.

Officer Wright issued "a summons for the illegal left turn, a summons for reckless driving, [a] summons for leaving the scene of an accident, and a summons for driving while suspended."

Defendant did not request an identification charge, and voiced "no objection" to the jury instructions.

In State v. Cromedy, 158 N.J. 112, 128 (1999), the Supreme Court held that "when identification is a critical issue in the case, the trial court is obligated to give the jury a discrete and specific instruction that provides appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification." See also State v. Green, 86 N.J. 281, 287 (1981) ("[a]ppropriate and proper charges to the jury are essential for a fair trial"); State v. Frey, 194 N.J. Super. 326, 329 (App. Div. 1984). However, "[t]he cases addressing an omitted identification charge demonstrate that whether the omission requires reversal is highly fact-sensitive," State v. McNeil, 303 N.J. Super 266, 272 (App. Div. 1997), and the facts of this case do not warrant reversal as a matter of plain error. R. 2:10-2. Here, there was no contention that defendant was not the driver of the vehicle in question -- defendant through his counsel's arguments acknowledged that he was. The issue was only whether he eluded a police officer before the accident occurred.

Defense counsel began his opening statement by stating:

The Prosecutor has spoken to you about a lot of details concerning a pursuit that eventually led to an accident. I submit to you that the evidence in this case is going to show that the accident is where this case began.

According to the defense, when Officer Wright pursued defendant, he "believed that the car was stolen." The defense also asserted that Officer Wright further "believed" that certain items found in the back seat were stolen, and that "the suspect was fleeing a stolen car." Defendant contended that there was no "recorded conversations between the officers and dispatch" before the accident was observed, that "the officers at the scene believed that there was an accident between a stolen vehicle and a civilian vehicle, and that the operator of the stolen vehicle fled the scene." The defense suggested that the eluding charge was fabricated to justify the arrest. As stated in defendant's summation:

He admitted that he put in the report the game system and the controllers, and the wires were possibly stolen, according to him. Why did he put that in the report if he didn't believe it? He ran a check on the car, the car turns out to not be stolen. What is he left with? Well, he's left with a few traffic summonses for the accident, he's left with somebody who left the scene of an accident. He doesn't have a criminal charge that can be brought to court.

So what does the officer do? The officer inflates the story, adds details, cannot corroborate them here, in court, today. And my client faces second degree charges as a result.

Thus, this is not a case in which identification was in dispute or in which there was a claim that defendant was not the driver of the car in question. As a result, we cannot conclude that defendant was prejudiced by the absence of an identification charge. Cf. State v. Salaam, 225 N.J. Super. 66, 69 (App. Div. 1988) (no basis for reversal where there was uncontradicted corroborative evidence that defendant was apprehended near scene of robbery in possession of items as described by victim).

Defendant also seeks reversal of the eluding conviction because the judge failed to charge the lesser included offense of resisting arrest. According to defendant, "this case began at the scene of an accident," and "there was a rational basis for informing the jury that under the facts elicited at trial, [defendant] could be found guilty of resisting arrest."

However, as defendant in essence acknowledges, he did not request an instruction on the lesser offense, because he was asserting that his guilt was limited to leaving the scene of an accident, a motor vehicle offense to be decided by the judge, not the jury. State v. Muniz, 118 N.J. 332-334 (1990)."

In these circumstances, while an instruction on the lesser offense of resisting arrest may have been warranted if requested, in the absence of such request, we find the charge would not have been clearly indicated, and there is no plain error warranting reversal of the eluding conviction. See State v. Thomas, 187 N.J. 119, 130-34 (2006); State v. Garron, 177 N.J. 147, 180-81 (2003); State v. Choice, 98 N.J. 295, 296-99 (1985).

State v. Pierce, 188 N.J. 155, 163 (2006), now details the means of handling a discretionary extended term application and sets forth the range as the ordinary term minimum to the extended term maximum. This case was in the pipeline when Pierce was decided, and must be remanded for resentencing. See also State v. Thomas, 188 N.J. 137, 152-54 (2006). Moreover, the remand proceedings will present an opportunity for the State to notify defendant of the prior convictions on which it relies for imposition of the extended term and for defendant to defend against its imposition under N.J.S.A. 2C:44-3a. See R. 3:21-4(e).

Affirmed and remanded for resentencing.

 

We have used the spelling of defendant's last name as embodied in the indictment, verdict sheet and judgment of conviction.

We use the spelling as contained in the transcript, although we believe the proper spelling to be Runyon. The same is true of Irvine Turner Boulevard.

The State does not contend that resisting arrest is not a lesser included offense of eluding. The judge charged on second and third degree eluding.

The judge instructed the jury that whether defendant was guilty of reckless driving, which was presented as part of the eluding charge, "will be determined by another court or fact finder." The trial judge did not make findings on the motor vehicle violations.

(continued)

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A-5006-04T4

December 8, 2006