STATE OF NEW JERSEY v. EDWARD RIVERA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6508-04T46508-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

EDWARD RIVERA,

Defendant-Appellant.

__________________________________

 

Submitted October 25, 2006 - Decide

Before Judges Wefing, Parker and C.S. Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Union County, No. 04-07-0719.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Michael C. Kazer, Designated

Counsel, on the brief).

Theodore J. Romankow, Union County Prosecutor,

attorney for respondent (Steven J. Kaflowitz,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Tried to a jury, defendant was convicted of eluding, a crime of the second degree, N.J.S.A. 2C:29-2b, and two counts of resisting arrest, one in the third degree, one in the fourth degree, N.J.S.A. 2C:29-2a. He was found not guilty of fourth- degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a). The trial court sentenced defendant to seven years in prison for eluding; the other terms were concurrent. Appropriate fines and penalties were imposed. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we conclude that defendant's convictions must be reversed.

On January 9, 2004, Officers Diorio and Kiely of the Elizabeth Police Department were on routine patrol when they saw defendant exiting from an automobile that had an expired inspection sticker. Approximately one hour later, they saw the same automobile drive past them. Because of the car's tinted windows, they could not see who was driving. The officers put on their lights and siren to signal the car to stop.

The vehicle, however, accelerated. The officers saw a brown paper bag discarded from the car as they followed it through the streets of Elizabeth. The car went through five stop signs and a red light and eventually turned the wrong way on a one-way street. At some point during the pursuit, Officers Diorio and Kiely were joined by another patrol car. Eventually, the car stopped in front of 214 Erie Street in Elizabeth, and two men got out of the car and ran into the building at 214 Erie Street and down into the basement. Defendant was eventually apprehended in a shower stall in the basement. A scuffle occurred in the course of which defendant suffered a broken nose. After defendant was placed under arrest, he was searched and the police found a key in his pocket that matched the ignition switch of the car the officers had pursued. The police returned to the area where they had seen a paper bag thrown from the car but were unable to locate anything.

Defendant's trial was brief. The State presented one witness, Officer Diorio. Defendant did not testify.

In his initial brief, defendant raised the following contentions:

POINT I THE TRIAL COURT'S RULING WHICH "CONDITIONED" DEFENSE COUNSEL'S REPRESENTATION ON HIS AGREEMENT NOT TO SEEK AN ADJOURNMENT TO REVIEW THE DISCOVERY AND PREPARE A DEFENSE VIOLATED THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT.

POINT II THE DEFENDANT'S CONVICTIONS SHOULD BE REVERSED BECAUSE THE DEFENDANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. (NOT RAISED BELOW)

POINT III THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED THE DEFENDANT A FAIR TRIAL BY DENIGRATING DEFENSE COUNSEL IN THE PRESENCE OF THE JURY.

POINT IV THE SEVEN (7) YEAR CUSTODIAL SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION FOR SECOND DEGREE ELUDING ON COUNT ONE WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

(A)

IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM SENTENCE OF FIVE (5) YEARS FOR A SECOND DEGREE OFFENSE WAS MANIFESTLY EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION.

(B)

IMPOSITION OF A SENTENCE IN EXCESS OF THE STATUTORILY AUTHORIZED MINIMUM SENTENCE OF FIVE (5) YEARS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.

In a supplemental brief, defendant made the following contention:

POINT I THE TRIAL COURT COMMITTED PLAIN ERROR IN INSTRUCTING THE JURY ON FLIGHT AS CONSCIOUSNESS OF GUILT BECAUSE THE TRIAL COURT FAILED TO PROVIDE A CONTEXT FOR THE JURY TO APPLY THE DOCTRINE.

We do not find it necessary to address the majority of defendant's contentions because we are satisfied that in the context of this matter, the trial court erred when it included in its instructions to the jury a charge on flight.

Within its instructions, after charging the jury as to the elements of each of the offenses with which defendant was charged, the court told the jury the following:

There has been testimony in this case from which you might infer that the defendant fled shortly after the police attempted to pick him up and he eluded the police. The question of whether a defendant fled after commission of the crime is another fact for your determination. Mere departure from a place where a crime has been committed does not constitute flight. If you find the defendant, fearing that an accusation or arrest would be made against him on a charge involved in an indictment, took refuge in flight for purpose of evading accusation or arrest, then you may consider such flight in connection with all other evidence in this case as an indication of proof of consciousness of guilt. Flight may be only be [sic] considered as evidence of consciousness of guilt if you should determine the defendant's purpose in leaving was to evade accusation or arrest.

If, after consideration of all the evidence, you find the defendant fearing that an accusation or arrest can be made against him, purposely evaded the police from that, you may consider that in connection with all other evidence as an indication of proof of his consciousness of guilt. It is for you to decide whether or not evidence of flight shows consciousness of guilt and the weight to be given such flight and all the circumstances.

"[C]lear and correct jury instructions are essential for a fair trial." State v. Brown, 138 N.J. 481, 522 (1994), overruled by State v. Cooper, 151 N.J. 326 (1997). A judge must accurately set forth for the jury the fundamental principles of law controlling the case. State v. Martin, 119 N.J. 2, 15 (1990). The charge given to this jury was in accord with the generally recognized principle that "[e]vidence of flight or escape from custody by an accused generally is admissible as demonstrating consciousness of guilt, and is therefore regarded as probative of guilt." State v. Mann, 132 N.J. 410, 418 (1993); State v. Long, 119 N.J. 439, 499 (1990).

That principle only applies to flight which occurs subsequent to the offense charged. State v. Mann, supra, 132 N.J. at 418. Here, however, the flight itself was the conduct alleged to be criminal. We are satisfied that in this context the flight charge was inapplicable and unduly prejudicial to defendant. The flight charge as given, moreover, made no distinction between the separate offenses before the jury. We are unable to conclude that the jury considered defendant's flight with regard to one offense and not with regard to another.

Defendant's convictions are reversed, and the matter is remanded for a new trial.

 

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A-6508-04T4

December 7, 2006