STATE OF NEW JERSEY v. PATRICK AMATO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4770-05T44770-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PATRICK AMATO,

Defendant-Appellant.

 

Submitted January 23, 2008 - Decided

Before Judges Winkelstein, Yannotti and LeWinn.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-04-0486-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Steven E. Braun, Chief Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant appeals from convictions for disorderly persons simple assault, third-degree aggravated assault on a law enforcement officer, second-degree eluding, disorderly persons resisting arrest, and third-degree receiving stolen property. The court sentenced him to concurrent terms of ninety days (time served) for the simple assault and the resisting arrest convictions; four years for the aggravated assault conviction; and eight years for the eluding conviction. The court imposed a three-year consecutive term for the receiving stolen property conviction.

On appeal, defendant raises the following points:

Point 1 The jury charges were insufficient (plain error).

A. Defendant's receiving stolen property conviction under count 14 should be vacated because the trial court did not tell the jury that they had to find that the van was stolen, and charging the jury on theft by unlawful taking as an alternate version of the offense was improper.

B. Defendant's conviction for eluding under count 11 should be vacated because the trial court did not follow the model charge on eluding and should have instructed the jury that "attempts to elude" required purposeful conduct by defendant.

C. Defendant's conviction for assault against a police officer under count 2 should be vacated because the trial court did not adhere to the model charge.

Point 2 Defendant's conviction for assault against a law enforcement officer under count 2 should be amended or clarified to reflect a fourth-degree crime because the State did not prove and the jury never found that the officer sustained injury as a result of the alleged attempted assault (plain error).

Point 3 Permitting the jury to hear that defendant might have used or possessed cocaine on the night in question deprived defendant of his right to a fair trial on the charges presented.

Point 4 Defendant's sentence is illegal and excessive.

We find merit to defendant's argument in point 1A and reverse his conviction for receiving stolen property. We also agree with defendant's second point, that his conviction for assault against a law enforcement officer should be amended to a fourth-degree offense. Although we find no merit to defendant's remaining points, to the extent that we reverse his conviction for receiving stolen property and amend his conviction for assault against a law enforcement officer to a fourth-degree crime, we remand for retrial on the receiving stolen property charge and for resentencing.

I.

Between 2:00 a.m. and 2:30 a.m. on December 26, 2003, John Debel arrived at his business, Debel's Dairy in Totowa, where he noticed that his red Ford van was missing from where he had parked it. He saw broken glass on the ground in the parking lot. He reported the van missing to the Totowa Police.

At about the same time, Paterson Police Officers Audrey Cooley and Wayne Smith were in a patrol car at the intersection of Broadway and Auburn Street in the City of Paterson when they observed a red van proceed through the red light. Officer Smith activated the car's lights and siren to pull the van over; as the van was stopping, Officer Cooley noticed a man "hanging off of the driver's side of the window."

The man hanging from the van was Gregory Reed, who testified that his cousin gave defendant "a dime of crack" and defendant, rather than paying for it, drove off in the van. Reed jumped on the side of the van and tried to pull the steering wheel to prevent defendant from getting away.

Paterson Police Sergeant Edwin Rodriguez was on patrol in downtown Paterson that night, wearing his uniform and driving a marked Ford Explorer. He heard a radio transmission from Officers Cooley and Smith that they were attempting to stop a red van with an individual hanging from the driver's side window. When he arrived at the scene, he saw a "red van moving back and forth with a black male hanging from the car holding on to the steering wheel," yelling, "Please help me, please help me." The van almost struck Officers Cooley and Smith's patrol car.

Sergeant Rodriguez activated his lights and siren and parked his car facing the front of the van. He approached the passenger's side of the van and saw defendant behind the van's steering wheel. John Debel testified that he owned the van that defendant was driving.

Rodriguez yelled to defendant to stop the van and get out. He saw defendant bite the other man's arm, causing him to let go of the van. Reed testified that defendant bit his hand.

Cooley and Smith drew their guns and told defendant to turn off the van's engine and put his hands on the steering wheel. Defendant did not follow their instructions. Rodriguez stood in front of the van and pointed his gun at defendant. Defendant drove the van directly at him. Rodriguez jumped out of van's path, avoiding being hit.

Defendant drove away with the officers in pursuit. A high speed chase ensued, beginning along several streets in Paterson, where the van ran stop signs and red lights. Defendant then drove through Elmwood Park, Fair Lawn, and Saddle Brook, on local streets as well as Routes 80 and 46. Multiple police officers from different municipalities were involved, and they testified that, at times, defendant traveled up to eighty miles per hour. Defendant was also observed traveling in lanes against oncoming traffic. He nearly struck several police cars, and he did collide with Clifton Police Officer John Klementovich.

State Trooper Mark Hanselman pursued defendant at speeds as high as seventy-eight miles per hour in a fifty or fifty-five mile-an-hour zone. On Route 80 westbound, Hanselman saw the following:

[Defendant's] driver's side door opened, and I could see part of his body and he threw . . . a small package which was red; it appeared to be red and white. You can't see it [on the video], but it comes right under my car. My experience, it appeared to be a crack vial.

The item was not recovered.

Defense counsel objected to this testimony. The judge found that Hanselman's testimony about the object was not intentional, and he offered to provide a curative instruction to the jury. Because the court had previously permitted testimony that defendant had cocaine in his system that night, defense counsel declined the instruction so as not to draw further attention to the testimony.

While on Route 80, defendant slowed the van; Officer Klementovich attempted to drive his car in front of the van, passing it on the left. As he did so, defendant's van collided with Klementovich again, this time hitting the passenger's side of Klementovich's vehicle. The van veered off the road to the right, struck the rail, then traveled back across all three lanes of traffic and struck the left rail. At that point, the van became disabled and stopped.

The police broke the van's windows because the doors were locked. They ordered defendant out of the van, but he was lying between the driver's side and passenger's side seats, and he did not respond to officers' commands. After defendant "put up a struggle," an officer pulled him out through the back door.

Before trial, defense counsel argued that evidence that defendant had been under the influence of cocaine during the incident should be barred. The court disagreed, and allowed evidence that a urine test at the hospital following defendant's arrest showed that he had cocaine in his system. The judge gave a preliminary instruction to the jury on the use of the evidence:

[You] heard me ask questions of you during the jury selection process . . . about . . . whether or not it would [a]ffect your objectivity if you heard information in the case that the defendant had used cocaine . . . before he was driving . . . a motor vehicle that he was alleged to have been driving . . . . There are no charges here about being in possession of cocaine or using cocaine . . . . But you will be allowed to hear evidence . . . that the defendant used cocaine. That evidence is allowed for . . . a limited purpose only. It must not be used for you in any other way. By that I mean you must not take that evidence and think well, there's evidence that the defendant used cocaine, that means he must be a bad person, that would make him likely to have committed these things he's accused of in the indictment. . . .

First you must decide whether or not to accept the evidence that the defendant had used cocaine, then you must decide whether or not it has any bearing on the limited purpose for which it has been allowed. What is the limited purpose for which it has been allowed? The State contends that the defendant's connection to the cocaine is . . . what explains his motivation in attempting to flee from the police. . . . How you must not use it is to feel that it shows a general disposition of the defendant to commit bad acts, and consequently means he's likely to have committed the things he's charged with in the indictment.

In his final charge to the jury, the court again told the jurors that if they decided to use the evidence of cocaine use, they were only to use it to determine whether they would accept the State's allegation that cocaine "was the motive or the reason for why the defendant eluded the police." The court told the jury not to consider the evidence "as showing that the defendant has a general disposition to commit bad acts such as those alleged in the indictment."

II.

A grand jury indicted defendant for the following offenses arising out of the incident: three counts of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1) (counts one, two, and eight); four counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (counts three, five, seven, and ten); three counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(2) (counts four, six, and nine); second-degree eluding, N.J.S.A. 2C:29-2b (count eleven); third-degree resisting arrest, N.J.S.A. 2C:29-2a(3) (count twelve); third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5b (count thirteen); and third-degree receiving stolen property, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b(2)(b) (count fourteen). Before trial, the State dismissed counts four, six, nine and thirteen; and before submitting the case to the jury, the court dismissed count three.

On July 21, 2005, following five days of trial, the jury convicted defendant of the following: disorderly persons simple assault of Gregory Reed, N.J.S.A. 2C:12-1a(1) (count one); third-degree aggravated assault upon a law enforcement officer, Edwin Rodriguez, N.J.S.A. 2C:12-1b(5)(a) (count two); second-degree eluding law enforcement officers, N.J.S.A. 2C:29-2b (count eleven); disorderly persons resisting arrest, N.J.S.A. 2C:29-2a (count twelve); and receiving stolen property, N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b(2)(b) (count fourteen). The jury acquitted defendant of the remaining charges.

III.

Defendant claims that a number of the court's jury instructions were erroneous. He raised no objections to the charges at trial, so we review his arguments under the plain error standard; that is, whether the error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2; State v. Brown, 190 N.J. 144, 160 (2007). In evaluating the sufficiency of a jury instruction, we "read the charge 'as a whole in determining whether there was' plain error." Brown, supra, 190 N.J. at 160 (citation omitted). "[T]he failure to charge the jury on an element of an offense is presumed to be prejudicial error, even in the absence of a request by defense counsel." State v. Federico, 103 N.J. 169, 176 (1986); see also State v. Vick, 117 N.J. 288, 289 (1989) ("[E]rroneous instructions are almost invariably regarded as prejudicial.").

We begin with the instruction for receiving stolen property. Defendant argues that his conviction should be vacated because the court failed to instruct the jury that the State had to prove that the van was stolen, and because the court expressly instructed the jury that the State did not have to prove that the van was stolen. The State, while conceding that the court erred in its instruction, argues that defendant, having been indicted and charged in conjunction with N.J.S.A. 2C:20-2, could have been, and was in fact convicted of theft by unlawful taking, N.J.S.A. 2C:20-3, for which the court did properly instruct the jury.

The court instructed the jury on the receiving stolen property charge first by reading the indictment:

That on the date in question and place, the defendant, Patrick Amato, did commit a theft by knowingly receiving movable property belonging to Dairy Debels namely . . . a '94 Ford van knowing that it had been stolen or believing that it was probably stolen in violation of the law that's cited here.

The court then charged the jury with the following:

A person is guilty of theft if he knowingly receives a motor vehicle of another knowing that it has been stolen or believing that it has probably been stolen.

Under this law the State must prove three elements beyond a reasonable doubt to establish defendant's guilt . . . . [They] are: one, the defendant received the motor vehicle of another; two, that the defendant acted knowingly when he received the movable property of another; three, that the defendant either knew the motor vehicle had been stolen or believed it had probably been stolen at the time he received the property.

. . . .

The State is not required to prove that the motor vehicle, in fact, had been stolen. . . . [T]he State must prove that the defendant either knew that the motor vehicle was stolen or believed it had probably been stolen. A belief that property has probably been stolen is a belief that it is more likely than not that the motor vehicle had been stolen.

The court explained each of these elements in more detail. Then it explained that the law recognizes the consolidation of theft offenses. It stated:

There are different forms of theft that exist in the law. Consolidation means that if a defendant is charged with one form of theft and a different form of theft is proven beyond a reasonable doubt, the defendant is guilty of that form of theft that has been proven even though it has not been charged initially.

I've just instructed you as to the elements of . . . theft by receiving a stolen motor vehicle.

The thief commits the crime of theft by unlawful taking of a motor vehicle of another with the purpose to deprive the other thereof. Consequently, there are two forms of theft that you are to consider. One, theft by receiving a stolen motor vehicle; two, theft by unlawful taking of a motor vehicle of another with the purpose of depriving the other thereof.

. . . .

[You] do not need to be unanimous or in agreement as to which form of theft has been proven beyond a reasonable doubt as long as each of the . . . jurors believe it was either theft by receiving or theft by unlawful taking that was proven beyond a reasonable doubt.

The court then explained the elements of theft by unlawful taking.

We agree with defendant that the charge was capable of producing an unjust result. New Jersey law provides the following definition of the crime of receiving stolen property:

A person is guilty of theft if he knowingly receives or brings into this State movable property of another knowing that it has been stolen, or believing that it is probably stolen. . . .

[N.J.S.A. 2C:20-7a.]

The Model Jury Charge at the time of this trial indicated that the State must prove the following three elements beyond a reasonable doubt to establish guilt of receiving stolen property: "1. That the defendant knowingly received (or brought into this State) movable property of another; 2. That the property was stolen; 3. That the defendant either knew that the property had been stolen at the time he/she received the property (or brought the property into this State)." Model Jury Charge (Criminal), "Receiving Stolen Property" (2005).

The charge here did not conform to the model charge. Not only did the court fail to tell the jury that the State was required to prove that the van was stolen, but the court told the jury the opposite that it did not have to find that the van was stolen. The failure to correctly charge the jury requires a reversal of defendant's conviction.

What happened here was analogous to what occurred in State v. Hodde, 181 N.J. 375 (2004). There, the New Jersey Supreme Court reversed the defendant's conviction for receiving stolen property under N.J.S.A. 2C:20-7a and N.J.S.A. 2C:20-2b(2)(b) (which provides that theft is a third-degree crime if the property stolen is a motor vehicle) and remanded for retrial because the trial court failed to instruct the jury that the State was required to prove that the property was stolen. Id. at 376-77, 385. The trial court in that case also erroneously told the jurors that they did not have to find that the property was stolen in order to make a guilty finding. Id. at 384-85. To obtain a conviction under N.J.S.A. 2C:20-7, the State has to prove that the property was stolen. Id. at 381.

Here, similar to Hodde, defendant was indicted and tried for receiving stolen property under N.J.S.A. 2C:20-7 and N.J.S.A. 2C:20-2b(2)(b). The court erroneously instructed the jurors by expressly telling them that they did not have to find that the van was stolen. The instruction was prejudicial error warranting reversal and retrial. Hodde, supra, 181 N.J. 375.

Nevertheless, the State argues, "If one is charged with a theft offense, he can be found guilty of any of the theft type offenses provided sufficient evidence exists on the record." The State claims that the record supports a conviction for theft by unlawful taking of movable property, N.J.S.A. 2C:20-3a. Although we agree with the State that there are situations in which a charge of a theft offense "may be supported by evidence that it was committed in any manner that would be theft," N.J.S.A. 2C:20-2a, the facts here, when viewed in light of the jury charge and the jury verdict sheet, do not support a conviction for theft by unlawful taking of movable property as the State claims.

After the giving the erroneous charge for receiving stolen property, the trial court instructed the jury on theft by unlawful taking. A person is guilty of that crime, defined in N.J.S.A. 2C:20-3a, when "he unlawfully takes, or exercises unlawful control over, movable property of another with purpose to deprive him thereof." After charging the elements of receiving stolen property, the court told the jury:

[T]here are two forms of theft that you are to consider. One, theft by receiving a stolen motor vehicle; two, theft by unlawful taking of a motor vehicle of another with the purpose of depriving the other thereof.

. . . .

. . . [Y]ou do not need to be unanimous or in agreement as to which form of theft has been proven beyond a reasonable doubt as long as . . . all the 12 deliberating jurors believe it was either theft by receiving or theft by unlawful taking that was proven beyond a reasonable doubt. . . .

. . . Let me explain to you the elements of theft by unlawful taking, which essentially you've heard already in the theft by receiving charge.

. . . An unlawful taking occurs when a person takes or exercises unlawful control over the property of another with the purpose, that is the conscious object, of depriving the other of it permanently or for so extended a period as to appropriate a substantial portion of its economic value.

[(emphasis added)]

The court then explained what makes a taking unlawful, defined "property of another," and referred to the definition of "purpose" that it had previously charged the jury.

The verdict sheet the court provided to the jury did not have a separate section for theft by unlawful taking of movable property. It presented the following question on the charge of receiving stolen property:

With regard to the charge that the defendant . . . did commit a theft by knowingly receiving movable property belonging to Dairy Debels, namely a 1994 Ford Van, knowing it had been stolen or believing that it was probably stolen, or did take the movable property belonging to Dairy Debels, namely a 1994 Ford Van with the purpose to deprive Dairy Debels of the property, we find defendant: _____

The verdict sheet, while including elements of theft by unlawful taking of movable property, combined those elements with the incomplete elements for the charge of receiving stolen property. Although they may constitute alternate theories of theft, they are two distinct forms of theft, with separate and distinct elements. The means of proving these alternate theories require alternative factual bases they are "conceptually distinct" and "so disparate as to exemplify two different offenses." See State v. Bzura, 261 N.J. Super. 602, 608 (App. Div.) ("One test to determine whether a jury verdict is unanimous when a defendant is alleged to have committed separate acts, any one of which could constitute the offense charged, is whether those acts are 'conceptually distinct.' . . . Another test is whether a statute recognizes that a single offense may be committed by different means and those means are not 'so disparate as to exemplify two inherently different offenses.'"), certif. denied, 133 N.J. 443 (1993)). Receiving stolen property requires proof the property was stolen; this element is not required for theft by unlawful taking. Theft by unlawful taking requires proof that a defendant had a purpose to deprive the other person of movable property; that element is independent of the elements necessary for a conviction for receiving stolen property. The verdict sheet contained some, but not all, of the elements for the two offenses in such a manner as to make it unclear which offense the jury was considering.

Given the inadequate jury instruction for receiving stolen property, and the similarly inadequate, and confusing, language of the verdict sheet, we are not satisfied that defendant was properly convicted of either theft by receiving stolen property or theft by unlawful taking of movable property; we are not assured that the jury came to a unanimous verdict on the elements to convict defendant of either theft offense. Accordingly, we reverse the conviction for receiving stolen property and remand for retrial on that charge. See Hodde, supra, 181 N.J. at 385 (reversing conviction and remanding for retrial after similar erroneous jury instruction).

IV.

Defendant asserts that his conviction for eluding under count eleven should be reversed because the trial court committed errors in the jury charge. We reject his arguments.

Defendant was indicted for second-degree eluding. N.J.S.A. 2C:29-2b provides:

Any person, while operating a motor vehicle . . . 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 . . . 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. . . .

The Model Jury Charge provided for the following instruction when second-degree eluding was charged:

In order to convict the defendant of eluding, the State must prove beyond a reasonable doubt each of the following six (6) elements: 1. That [the defendant] was operating a motor vehicle on a street or highway in . . . this state[;] 2. That _____ was a police or law enforcement officer[;] 3. That _____ signaled [the defendant] to bring the vehicle . . . to a full stop[;] 4. That [the defendant] knew that the officer had signaled (him/her) to bring the vehicle . . . to a full stop[;] 5. That [the defendant] knew that _____ was a police or law enforcement officer[;] 6. That the defendant knowingly fled or attempted to elude the officer.

. . . .

If you find that the State has proven all six of the above elements beyond a reasonable doubt, you must go on in your deliberations to consider a seventh element. The State must prove beyond a reasonable doubt: 7. That the flight or attempt to elude created a risk of death or injury to any person. "Injury" means physical pain, illness, or any impairment of physical condition. In order to find this element, you must determine that there was at least one person put at risk by the defendant's conduct, which could include defendant himself . . . any person along the chase route, any police officer in a chasing vehicle . . . or anyone in the eluding vehicle . . . .

. . . .

If you find that the State has proven beyond a reasonable doubt all seven elements . . . then you must find the defendant guilty of eluding while creating a risk of death or injury to any person . . . . [I]f you find that the State has failed to prove the seventh element . . . but has proven the first six elements . . . then you must find the defendant not guilty of eluding while creating a risk of death or injury to any person, but guilty of eluding . . . .

[Model Jury Charge (Criminal), "Eluding an Officer" (2004).]

Jury charges that differ from the model charge may still be valid if they do not "misinform the jury as to the controlling law" and are not "ambiguous []or misleading." State v. R.B., 183 N.J. 308, 325 (2005). Here, the court's instruction was structured differently from the model charge; but, it nevertheless conveyed the appropriate information and was not misleading. The court first instructed the jury that it must determine whether the State proved all seven elements of eluding while creating a risk of death or injury, and it enumerated each of them in the context of the case. It then stated:

On the other hand, if you find that the State has failed to prove any one or more of the elements beyond a reasonable doubt, then you must find the defendant . . . not guilty of eluding while creating a risk of injury or death to any person.

. . . If your verdict is not guilty, then you are to consider the lesser included offense of eluding, which is identical to the offense I just charged in that it contains the identical first six elements; it does not . . . contain the seventh element of creating a risk of injury or death to another person.

The court then restated the first six elements, omitting the seventh, in context of this case. Viewed as a whole, the charge given by the court was clear as to the elements of each degree of eluding. The jury verdict sheet also accurately reflected the charged offense. Thus, the court's deviation from the model charge was not clearly capable of producing an unjust result.

Defendant further argues that the court was required to instruct the jury that defendant must have purposefully attempted to elude police. We disagree. We addressed this issue in State v. Mendez, 345 N.J. Super. 498, 509 (App. Div. 2001), aff'd, 175 N.J. 201 (2002), where we held that the culpability requirement for eluding under N.J.S.A. 2C:29-2b is "knowingly" and not "purposely." We reject defendant's suggestion that we reach a different conclusion from our conclusion in Mendez.

V.

We next turn to defendant's argument that his conviction for assault against a police officer, count two, should be vacated because the trial court failed to adhere to the model jury charge. We disagree.

Defendant was indicted for second-degree aggravated assault of a law enforcement officer under N.J.S.A. 2C:12-1b(1); the court also charged the jury with the lesser included offense of aggravated assault, under N.J.S.A. 2C:12-1b(5)(a), which provides:

A person is guilty of aggravated assault if he . . . (5) Commits a simple assault as defined in subsection a. (1), (2) or (3) of this section upon: (a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer.

[N.J.S.A. 2C:12-1b(5)(a).]

A person is guilty of simple assault if he: "(1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another; or . . . (3) Attempts by physical means to put another in fear of imminent serious bodily injury." N.J.S.A. 2C:12-1a(1) and (3).

The Model Jury Charge for aggravated assault upon a law enforcement officer provides that the State must prove the following elements:

1. that the defendant purposely attempted to cause or purposely, knowingly or recklessly caused bodily injury [to the victim]; 2. that [the victim] was a law-enforcement officer; and 3a. that the defendant knew that [the victim] was a law-enforcement officer acting in the performance of (his/her) duties or while in uniform or exhibiting evidence of (his/her) authority; or 3b. that the defendant knew that [the victim] was a law-enforcement officer and purposely committed the act against (him/her) because of (his/her) status as a law-enforcement officer.

[Model Jury Charge (Criminal), "Aggravated Assault Upon Law Enforcement Officer (Attempting to Cause or Purposely, Knowingly or Recklessly Causing Bodily Injury)" (2001).]

The model charge also defines bodily injury, purposely, knowingly, and recklessly, and it explains the meaning of "state of mind." Ibid.

Here, the court instructed the jury on each element of the charge. As the judge indicated to the jury, he had already defined attempt, purposely, recklessly, and bodily injury in the context of the first count of the indictment, aggravated assault of Gregory Reed, and he later defined knowingly during the eluding instruction. Although the court did not define the terms attempt, bodily injury, purposely, and recklessly in the context of the aggravated assault of a law enforcement officer charge, it instead instructed the jurors to adopt the definitions he had previously given for those terms. The judge gave the definition of "knowingly" in another part of the instruction. As a whole, the charge as given was not clearly capable of producing an unjust result. We consequently find no basis to reverse the conviction on count two.

VI.

That said, defendant claims his conviction for assault upon a law enforcement officer under count two should be amended to clarify that it was a fourth-degree crime, in that the State failed to prove, and the jury never found, that the officer sustained an injury as a result of the assault. We agree.

A person is guilty of aggravated assault if he "[a]ttempts to cause serious bodily injury to another, or causes such injury purposely or knowingly or under circumstances manifesting extreme indifference to the value of human life recklessly causes such injury." N.J.S.A. 2C:12-1b(1). A person is also guilty of aggravated assault if, among other things, that person "[c]ommits a simple assault as defined in subsection a. (1),(2) or (3) of this section upon: (a) Any law enforcement officer acting in the performance of his duties while in uniform or exhibiting evidence of his authority or because of his status as a law enforcement officer." N.J.S.A. 2C:12-1b(5)(a). "Aggravated assault under subsection[] b. (1) . . . is a crime of the second degree; . . . and under subsection b. (5) is a crime of the third degree if the victim suffers bodily injury, otherwise it is a crime of the fourth degree." N.J.S.A. 2C:12-1b.

Here, defendant was charged with and tried for attempting to cause bodily injury to Sergeant Rodriguez, "contrary to the provisions of N.J.S. 2C:12-1b(1)." The completed jury verdict sheet reflected the following:

Aggravated Assault Serious Bodily Injury[:] With regard to the charge that the defendant . . . did purposely attempt to cause serious bodily injury to Edwin Rodriguez, we find the defendant: Not Guilty.

. . . .

If you find the defendant not guilty of Aggravated Assault Serious Bodily Injury, then consider whether or not the defendant is guilty of the lesser-included crime of Aggravated Assault Upon a Law Enforcement Officer.

Aggravated Assault Upon a Law Enforcement Officer[:] With regard to the charge that the defendant . . . did purposely attempt to cause bodily injury to Edwin Rodriguez, a law enforcement officer of the City of Paterson while the said officer was in uniform and acting in the performance of his duties, we find defendant[:] Guilty.

The Judgment of Conviction indicates that defendant's final charge under count two was third-degree aggravated assault on a law enforcement officer under N.J.S.A. 2C:12-1b(5)(a). That statute specifically provides that aggravated assault under subsection b. (5) is a third-degree crime if the victim suffers bodily injury, and is otherwise a fourth-degree crime. N.J.S.A. 2C:12-1b. The court did not instruct the jury that it must determine whether Rodriguez suffered bodily injury. More to the point, the State did not present evidence that Rodriguez suffered bodily injury as a result of defendant's actions. Rodriguez testified that he jumped out of the way of the van; he did not testify that he was injured. Defendant should have been convicted of, and sentenced for, fourth-degree, not third-degree, aggravated assault on a law enforcement officer. We therefore vacate the conviction for third-degree aggravated assault on a police officer and remand for amendment of the judgment of conviction to reflect a conviction for fourth-degree aggravated assault under count two, and for resentencing on that charge.

VII.

Next, we turn to defendant's allegation that he is entitled to a new trial because the State was permitted to introduce evidence that he had cocaine in his system on the night of the incident, and the jury was permitted to hear that defendant threw what Trooper Hanselman believed to be a "crack vial" out the van's window during the chase. Defendant alleges that the admission of that evidence violated N.J.R.E. 404(b), which provides that, "evidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith." The rule also provides, however, that "[s]uch evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute." N.J.R.E. 404(b). In examining whether the evidence was properly admitted, we "defer to trial court rulings on the admissibility of evidence of other crimes, unless those rulings constitute an abuse of discretion." State v. Erazo, 126 N.J. 112, 131 (1991).

The Supreme Court has formulated a four-part test to determine when other-crime evidence is admissible:

"1. The evidence of the other crime must be admissible as relevant to a material issue; 2. It must be similar in kind and reasonably close in time to the offense charged; 3. The evidence of the other crime must be clear and convincing; 4. The probative value of the evidence must not be outweighed by its apparent prejudice."

[State v. Williams, 190 N.J. 114, 122 (2007) (quoting State v. Cofield, 127 N.J. 328, 338 (1992)).]

Other criminal acts are admissible under N.J.R.E. 404(b) if they "relate[] directly to the crimes for which defendant was then standing trial and [their] admission serves to paint a complete picture of the relevant criminal transaction." State v. Martini, 131 N.J. 176, 242 (1993). Thus, the evidence rule does not bar other crimes evidence "when the 'other crimes' evidence is part of the total criminal conduct that occurred during the incident in question and may be considered within the res gestae of the charged crime." State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995).

Here, the court permitted Trooper Hanselman to testify that he saw defendant throw what appeared to be a "crack vial" out the car window during the chase. The court offered to provide a curative instruction, but defense counsel declined. The court also permitted Gregory Reed to testify that his cousin had given defendant "a dime of crack." Finally, the court permitted another witness to testify that a urine test showed that defendant had cocaine in his system on the night of the incident.

We conclude that the judge did not abuse his discretion in permitting the jury to hear this evidence, which he found was probative of defendant's motive for fleeing the police. The transaction between defendant and Reed's cousin occurred shortly before defendant's encounter with police; defendant's throwing the object out the window occurred during the chase; and the hospital test showing cocaine in defendant's system occurred shortly after the chase. The evidence "paint[ed] a complete picture of the relevant criminal transaction." Martini, supra, 131 N.J. at 242.

Defendant nonetheless argues that the prejudicial effect of this evidence substantially outweighed its probative value, and the judge should have barred the evidence under N.J.R.E. 403, which allows the judge to exclude relevant evidence if "its probative value is substantially outweighed by the risk of . . . undue prejudice." We disagree. The probative value of the evidence outweighed its risk of undue prejudice. The challenged testimony served to put defendant's crimes in context and to offer a motive for his actions. The judge provided the jury with specific instructions, both before the evidence portion of the trial and before deliberations, to use the evidence only for the purpose of showing that defendant's connection with cocaine might explain his motivation to flee the police. The evidence was highly probative and the court's failure to bar it under N.J.R.E. 403 was not an abuse of discretion.

VIII.

Finally, defendant challenges his sentence as excessive and illegal. Except as modified by this opinion in reversing defendant's conviction for receiving stolen property and amending his conviction for aggravated assault upon a law enforcement officer to a fourth-degree offense, we affirm defendant's sentence. The court properly considered and weighed the aggravating and mitigating factors, followed the appropriate sentencing guidelines, and the sentence imposed is supported by substantial evidence in the record. State v. Roth, 95 N.J. 334, 365-66 (1984); State v. Soto, 340 N.J. Super. 47, 71 (App. Div.), certif. denied, 170 N.J. 209 (2001).

 
Affirmed in part, reversed in part, and remanded. On remand the trial court shall resentence defendant for fourth-degree aggravated assault upon a police officer, and vacate defendant's sentence for the receiving stolen property conviction.

(continued)

(continued)

30

A-4770-05T4

February 15, 2008