STATE OF NEW JERSEY VS WAYNE WALLACE

(NOTE: This decision was approved by the court for publication.)
This case can also be found at 313 N.J. Super. 435.

NOT FOR PUBLICATION WITHOUT THE
 
APPROVAL OF THE APPELLATE DIVISION
 

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-440-96T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

WAYNE WALLACE,

Defendant-Appellant.
___________________________________

Submitted: December 3, 1997 - Decided: July 2, 1998.

Before Judges Muir, Jr., Kestin and Steinberg.

On appeal from the Superior Court of New Jersey,
Law Division, Criminal Part, Passaic County.

Ivelisse Torres, Public Defender, attorney for
appellant (Philip V. Lago, Designated Counsel,
on the brief).

Ronald S. Fava, Passaic County Prosecutor, attorney
for respondent (Robert H. Corrado, Assistant
Prosecutor, on the brief).

The opinion of the court was delivered by

KESTIN, J.A.D.

Defendant appeals from his conviction for second degree eluding a police officer. He was also convicted of unlawfully possessing a handgun (third degree), possessing hollow nose bullets (fourth degree), and disorderly persons resisting arrest, as well as various motor vehicle statute violations, including careless driving. All charges, criminal and motor vehicle, had been tried to a jury.

Defendant also appeals from the sentence for the criminal convictions and the disorderly persons offense, an aggregate eight-year term consisting of concurrent sentences, respectively, of eight years, four years, eighteen months, and six months. Appropriate fines, assessments and fees were also ordered.
On appeal, defendant raises the following issues:
POINT I THE CONVICTION FOR RESISTING ARREST SHOULD HAVE BEEN MERGED WITH THE CONVICTION FOR ELUDING A POLICE OFFICER.

POINT II THE SENTENCE IMPOSED BY THE COURT IS EXCESSIVE.

POINT III THE TRIAL COURT FAILED TO INSTRUCT THE JURY ON THE DEFINITION OF INJURY EVEN THOUGH THE RISK OF INJURY WAS AN ESSENTIAL ELEMENT OF SECOND DEGREE ELUDING. (NOT RAISED BELOW)

POINT IV BECAUSE THE JURY WAS PERMITTED TO INFER THAT DEFENDANT'S CONDUCT CREATED "A RISK OF DEATH OR INJURY" IF IT DETERMINED THAT HIS CONDUCT VIOLATED A MOTOR VEHICLE LAW, AND SUCH RISK IS AN ELEMENT OF SECOND- DEGREE ELUDING, THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT FAILED TO DELIMIT THE UNDERLYING MOTOR VEHICLE OFFENSES. (NOT RAISED BELOW).

POINT V DEFENDANT'S MOTION FOR ACQUITTAL ON THE SECOND-DEGREE ELUDING CHARGE SHOULD HAVE BEEN GRANTED BECAUSE DEFENDANT'S CONDUCT DID NOT CREATE A RISK OF DEATH OR INJURY TO ANY PERSON.

At about 10:45 p.m. on October 15, 1994, Paterson police officers Brian DeProspo and Orlando Robinson were on routine patrol in a marked police vehicle. Officer Robinson was driving.
Officer DeProspo testified at trial. In response to a radio dispatch regarding a blue Honda driven by a black male, the officers proceeded to the vicinity of East 23rd Street. While

travelling south, they passed a blue Honda proceeding north on East 23rd Street. The officers turned their vehicle around and activated the lights and siren. They attempted to stop the Honda, but it accelerated. It circled the block twice, travelling erratically, in an apparent effort to evade the police vehicle.
DeProspo testified that he and his partner pursued the Honda for about a mile, covering about thirteen or fourteen city blocks. During the course of the pursuit, according to the detail of DeProspo's testimony, the driver of the Honda, later identified as defendant, proceeded through stop signs six times, sometimes slowing down and sometimes not. At one time, he drove on the left of the roadway; at another, he drove the wrong way on a one-way street. The vehicles traveled no faster than 30 miles per hour throughout the chase.
Eventually, the path of defendant's vehicle was blocked and he was apprehended. The Honda was stopped at the intersection of Broadway and 23rd Street where, according to DeProspo, defendant "jumps out, leaves the door open and attempts to run." The police officers left their vehicle and "immediately grabbed him," placing him under arrest.
During the chase, defendant had thrown an object from his car, which landed in front of a yellow house. After the chase ended, the officers returned to the particular location and recovered a .38 caliber handgun loaded with hollow nose bullets.
In the circumstances established, the conviction for disorderly persons resisting arrest should have been merged with

the conviction for second degree eluding. All of the elements of the lesser offense are contained in the greater. N.J.S.A. 2C:1-8a(1); State v. Johnson, 203 N.J. Super. 127, 134-35 (App. Div.), certif. denied, 102 N.J. 312 (1985) ("N.J.S.A. 2C:1-8[a(1)] . . . provides that a defendant may not be convicted of two offenses if one is a lesser included offense of the other."). Moreover, the proofs established no separate crime as a matter of fact. Defendant was arrested immediately upon the conclusion of the vehicular chase as he "attempted" to run from his automobile. The chase was the factual predicate of the eluding conviction. At its conclusion, defendant had no opportunity to engage in any separate resistive conduct and, therefore, cannot be treated as if he had committed an additional, distinct crime apart from second degree eluding.
Based on similar reasoning, we conclude that the conviction for careless driving should also have been merged with the conviction for second degree eluding. Cf. State v. Dorko, 298 N.J. Super. 54, 56 (App. Div.), certif. denied, 150 N.J. 28 (1997) (reckless driving conviction merged into eluding conviction). N.J.S.A. 39:4-97 defines the motor vehicle offense as "driv[ing] a vehicle on a highwaySee footnote 1 carelessly, or without due caution and circumspection, in a manner so as to endanger, or be likely to endanger, a person or property[.]" Manifestly, every significant element of this offense is embodied in second degree eluding.

No other issue raised with respect to the sentence has merit. R. 2:11-3(e)(2). Except for the absence of the necessary mergers, we regard every aspect of the sentences imposed herein to have been well within the trial judge's discretion. We remand for the entry of an amended judgment of conviction to reflect the required mergers. On remand, the trial court may consider whether the last sentence of the first paragraph of N.J.S.A. 2C:29-2b is a mandatory provision requiring the suspension of defendant's driving privileges for a period, see State v. Mercadante, 299 N.J. Super. 522, 528-29 (App. Div.), certif. denied, 150 N.J. 26 (1997) ("An illegal sentence is correctable at any time, even after the sentence has begun."), and whether, in the circumstances, it is appropriate to apply that provision.
The remaining issues defendant raises bear upon his conviction for second degree eluding, and implicate the reasoning in Dorko, supra. In his first argument in this regard, defendant contends that his conviction for second degree eluding must be reversed because the "risk of death or injury to any person" is an essential element of the crime as established by N.J.S.A. 2C:29-2b, and the trial judge failed to instruct the jury on the definition of "injury." Defendant cites Dorko as authority for the proposition that a conviction for second degree eluding must be reversed when such an instruction was not given. We agree with defendant in his reading of Dorko, but we respectfully disagree with our brethren therein that an instruction defining "injury" is required.

It is clear from the very terms of N.J.S.A. 2C:29-2b that the Legislature intended to include within the ambit of conduct constituting second degree eluding the operation of a motor vehicle or vessel, during flight from the police, in such a manner as to create a risk of death or any kind of injury to any person. The statutory phrase "injury to any person" is clear and all-inclusive. If there were any reason to discern that the Legislature intended to include some types of risked injury as elements of second degree eluding and exclude others it would, of course, be necessary for a jury to be clearly instructed as to which types were covered and which were not. But with injury risks of all types included, there is no more need to define the term "injury" than there is to define the term "death" in this context. See State v. Worlock, 117 N.J. 596, 612-13 (1990) (No merit in argument that court failed to define "wrong" for jury: "an instruction is necessary only if the distinction [between legal wrong and moral wrong] is critical to the facts on which a . . . defense" or an element of the crime is based.); State v. Johnson, 309 N.J. Super. 237, 264-65 (App. Div. 1998) (Response to jury request for a definition of "safe place" as used in kidnapping statute was proper, where the supplemental instruction stated it was "a factual determination for the jury to make."); State v. Scher, 278 N.J. Super. 249, 270-71 (App. Div. 1994), certif. denied, 140 N.J. 276 (1995) (Conviction for reckless manslaughter upheld where jury was told to rely on its "good common sense" and its "understanding of the English language" concerning the term "casual drinking" as a factor in determining whether

defendant's conduct was reckless); State v. McClary, 252 N.J. Super. 222, 229 (App. Div. 1991), certif. denied, 130 N.J. 6 (1992) (Not necessary to define the word "force" in jury charge on robbery); State v. Rombolo, 91 N.J.L. 560, 563 (E. & A. 1918) ("[A] trial judge . . . is not required to give the jury definitions or synonyms of common English words used in a statute in their ordinary meaning."). See also State v. Cooper, 151 N.J. 326, 385 (1997) (It was error in penalty phase of trial of capital offense not to define the term "purpose," an element distinguishing one aggravating factor from another since "courts must define terms for the jury" even though "commonsensical" where they are central to any essential, discriminating finding a jury is required to make.); State v. Alexander, 136 N.J. 563, 571-73 (1994) (Court must explain even statutory terms with common, well-understood meanings, such as "leader," or "drug kingpin," when their "intended scope of application" is in question and when "clarification is essential to ensure that the jury will fully understand and actually find those elements in determining . . . guilt."); State v. Kimbrough, 109 N.J. Super. 57, 64 (App. Div. 1970) (Where, in a prosecution for receiving a stolen automobile, defendants alleged they were passengers in the car, the court erred in failing to instruct on the qualities of and distinctions between "actual physical possession" and "constructive possession" to assist the jury in applying "the statutory inference of guilty knowledge.") Accordingly, we conclude that there was no error in the trial

court's charge to the jury in this regard, which did not define "injury."
Defendant's next argument based on Dorko concerns the "permissive inference" established in N.J.S.A. 2C:29-2b "that the flight or attempt to elude creates a risk of death or injury to any person" if the conduct alleged "involves a [motor vehicle] violation." The premise of defendant's argument in this regard, that the trial court "failed to delimit the underlying motor vehicle offenses," is not supported by the record. That omission was a fundamental flaw in the trial in Dorko, but this case is free of any such defect. Here, unlike in Dorko, the motor vehicle violations were before the jury for determination as well as the criminal charges, and the trial judge carefully charged the elements of each alleged motor vehicle offense which, in addition to being found by the jury, might also lead to the "permissive inference" established in N.J.S.A. 2C:29-2b.
In a related vein, defendant's last argument based on Dorko is that there was no proof of any person in the vicinity of the chase endangered by defendant's conduct. As observed in Dorko:
If the statutory inference cannot be made, then the State would be required to prove affirmatively that there was at least one person put at risk within the zone of danger created by defendant's conduct, because the statute clearly requires that defendant be shown to have "create[d] a risk of death or injury to any person." N.J.S.A. 2C:29-2b. The statutory inference is provided to avoid the necessity for such proof, but, as noted, the court must give the jury proper guidance to invoke the inference.

[Dorko, supra, 298 N.J. Super. at 60-61.]

Although we also disagree with the underlying premise of this observation, we have concluded that the jury in this trial was properly guided in all respects given a predicate in the proofs for application of the statutory inference.
Further, by way of factual distinction between this case and Dorko, we note the observation in Dorko concerning the circumstances therein:
We cannot read into the statute hypothetical persons who might have been in the area. We thus draw a distinction between a case where a defendant runs stop signs and red lights and speeds, all through a heavily-traveled area, thus clearly fulfilling the element of the statute of putting persons in danger, and a case (as here) where a defendant commits the same offenses at 3:00 a.m. on deserted streets.

[Id. at 61.]

It seems rather obvious that a motor vehicle pursuit through the city streets of Paterson in a residential/commercial area at 10:45 p.m. creates a risk of death or injury.
The conviction under appeal is affirmed. The matter is remanded for resentencing to reflect the required mergers. In all other respects the sentences are affirmed.
Fisher also alleged that her attire at work became an issue. Regulation 3:3.8 of the Burlington County Sheriff's Department establishes a civilian clothing standard for "officers," specifying male attire and goes on to provide: "Female officers permitted to wear civilian clothing shall wear clothing that conforms to standards normally required of office personnel in private business

firms, unless otherwise directed. All articles of clothing shall be of a conservative nature" (Pa819).
According to Fisher, on June 21, 1993 Leavitt asked her, in private, "Are you trying to start a riot? You look provocative" (Pa106). He ordered her "to go home and get changed" (Pa106). Fisher alleges that Leavitt laughed at her and was "degrading" (Pa527). She contends that she was so humiliated and distraught that she became sick and could not return to work (Pa107).
She objected in an unsigned letter to Cummings dated June 22, 1993. She noted that she had been a county employee for thirteen years; she had never before been told that her attire was inappropriate; and "it is my fervent desire to continue to represent the Department in a professional manner" (Pa75).
When, the following day, Fisher and Leavitt appeared before Cummings about this incident, Leavitt denied that he had objected to her outfit. Leavitt said that his only problem was that Fisher was not carrying her weapon while on duty, as required by Sheriff's Department regulation section 3:3.6. Fisher asserted that she had worn her weapon earlier that day but removed it later in accordance with common practice in the Department.
In a memo dated June 23, 1993, Leavitt ordered Fisher to submit an itinerary every Friday "for the following week of warrant service" (Pa70). On June 24, 1993, Fisher wrote a memo to Cummings complaining that Leavitt was treating her differently than other personnel, constantly challenging her and reminding her of his

superior rank. He would barge into her office without knocking and tell her that "he was the boss" (Pa94).
Another memo from Fisher to Cummings followed on July 14, 1993; Fisher again protested that Leavitt had "singled [her] out" (Pa71). Fisher reported that Leavitt was asking her to produce itineraries further in advance than she could; that she was spending as much time accounting for her time as she was working; and that Leavitt did not bother to read her itineraries.
Fisher also asserted that Cummings had told her that she should not serve domestic violence warrants alone, but she "had a hard time getting help" with serving them (Pa836-837), and sometimes Leavitt directed her to serve a warrant alone. On these occasions, Fisher said she went to Cummings, who ordered Leavitt to assign an officer to accompany her. When Fisher complained to Cummings about Leavitt's behavior, Cummings told her, "Take it for what it's worth. . . . He gets carried away." (Pa838).
According to Fisher, on one occasion when she was required to make an arrest ordered by a judge, she "called for backup and another officer helped her." Soon after, that officer told Fisher he had been reprimanded for helping her. Fisher regarded herself as "in danger, because if people were going to get in trouble for helping me than I was going to get hurt." (Pa863)
On August 4, 1993, Fisher was assigned to report to another superior officer, but the harassment by both Leavitt and Cummings continued. Cummings berated at her for not being at her desk, although her job duties required her to leave her office. Fisher

noted that she filed a complaint in the Division on Civil Rights at this time, and notified Cummings and Leavitt that she had done so. This complaint was subsequently withdrawn.
On August 10, 1993, Fisher left work on her doctor's advice because of "stress-related medical problems." (Pa115-116) She never returned to work. Defendants' psychiatrist, after interviewing Fisher in connection with the ensuing litigation opined that she suffered from anxiety, depression, tearfulness, insomnia, hypersomnia, and concentration and memory problems; and that these conditions were partially related to Fisher's work.
On September 21, 1993, Leavitt wrote Fisher a memo ordering her to return her keys. Fisher claimed that this was not normal procedure because she was "still and employee." (Pa86d) Fisher also asserted that after she had stopped working Cummings, Leavitt, Wolfrom and other Sheriff's officers continued to harass her by surveilling her, doing "lookups" of license plates of cars in her driveway, telephoning her, and sending her duplicative letters.
In addition to the corroboration offered by Davis, an employee of the County Prosecutor's Office assigned to the Sheriff's Department, supported Fisher's claims, stating that Cummings and Leavitt had "targeted" the relationship between Fisher and Davis by harassment and discrimination of Fisher. (Pa366).
Plaintiff Davis alleged that when Cummings was elected Sheriff in January 1993, he retained Davis and appointed him Administrative Undersheriff. Cummings promised Davis ninety percent of Cummings's salary; "[t]he paperwork was filled in and sent down to the

Freeholder[s'] Office," but the freeholders declined to raise Davis's salary because they were engaged in contract negotiations. (Pa120;Pa605) According to David, Cummings began to exclude him from meetings in March and April 1993. Also at this time subordinates who were supposed to report to Davis began reporting directly to Cummings. Some corroboration was offered of the "personal conflicts" between Cummings and Davis.
Davis also alleged that Cummings treated him differently from other employees appointed by the sheriff. When Davis's wife was injured and needed to be transported to her doctors, Cummings required Davis to take leave without pay. Other employees, however, were allowed "to come and go at will."
Davis and Fisher filed complaints with the Division on Civil Rights in early August 1993. Davis alleges that when he advised Cummings of his complaint in a memorandum, Cummings responded "that he deems this as a threat," and said: "Get out. There's a space for you out at Buttonwood, go for it." (Pa127-128)
Davis moved his office to Buttonwood Hospital in Pemberton that day and had no further contact with the Sheriff's Department. Assigned to a "security survey for Buttonwood," he no longer functioned as an Undersheriff. He was excluded from meetings. He did not receive his calls or messages, and he no longer supervised others. The clerical supervisor who opened the Sheriff's Office mail, told Davis that she was directed to forward his mail to Leavitt. Leavitt moved into Davis's office.

Davis's salary was not reduced, but he contends he was humiliated. After complaining that his office at Buttonwood was like a closet, with no window and no chair, and that it was unheated, Davis was moved from Buttonwood "to a trailer at the Fire Marshal's, which is way out in the woods in back of the Police Academy" (Pa140). Davis's next post was the Police Academy, where he was assigned to shred unneeded 911 listings, bag them and "put them out for garbage" (Pa141). In September 1994 Cummings sent Davis to Salem, Camden, Union and Ocean Counties to gather information on and critique the court security plans of other sheriffs' departments. Davis sent memos to the Board of Freeholders advising of these assignments.
A new sheriff, defendant Daniels, was elected and sworn in on January 1, 1996. On January 2, 1996, Daniels told Davis that his employment was terminated.
Davis recalled that in 1992 an employee in the prosecutor's office and a personal friend came to him with a complaint of sexual harassment. Davis took her to the Division on Civil Rights, where she filed a complaint against the prosecutor and defendant Daniels, who was an assistant prosecutor at that time. Davis asserted that those respondents had been served with the complaint sometime between July and September 1995, alleging that his dismissal was, "in part, a retaliation for assisting in the matter.
The motion judge on summary judgment dismissed Davis's discrimination claim because there was no proof that he had been terminated either because he was black or because he was

romantically involved with a white woman. The record revealed only that Cummings did not like Davis because he felt that Davis "treated women impropoerly" (T78). The judge found that Cummings unsuccessfully solicited Fisher "to try and get Davis," and then assigned Davis to duties away from the courthouse (T78). He reasoned:
[I]n the absence of anything else, but in the face of the fact that Fisher and Davis were black and white respectfully [sic], the Court's asked to conclude that all of this was done because there was a racial motivation. I can't and I won't. There's no evidence, and there is insufficient - direct evidence of it . . . for me to infer that.

[T78-14 to -19.]

The judge repudiated Davis's differeential treatment claim, finding that "he just didn't like the duties that were assigned to him," but there were "proper" (T76-T77). "And rejected the fact that Le[a]vitt may have taken some of Davis's duties as being without significance. The judge noted that Cummings did not demote or terminate Davis. Daniels, however, "had the absolute legal right" to terminate Davis, and the judge refused to infer that "in some manner Cummings got to Daniels" (T70). Further, Davis's theory of retaliation for helping his friend, Fitzgerald, file a complaint in the Division on Civil Rights was rejected as "sheer speculation."
The judge also rejected Fisher's gender discrimination claim: "[Her] reasoning is creative but tortured. She [was] solicited, she refuses, she's up for a promotion she doesn't get, gender discrimination, the formula doesn't work" (T72). The judge

accepted defendants' explanation that the hiring of Davis's son "use[d] up the financial capacity of the sheriff to give the promotion and the papers are then not resubmitted" (T72).
The judge declined to find a violation of plaintiffs' constitutional rights because of the absence of race or sex discrimination, noting that Fisher was neither demoted nor terminated (T73-T74). The judge determined that plaintiffs' emotional distress claims failed because Cummings's actions did not cause Fisher's problems, and Davis suffered only unpleasant job duties and embarrassment. Finally, the judge rejected plaintiffs' retaliation or "whistleblower" claims as lacking evidence.

Footnote: 1 Defined in N.J.S.A. 39:1-1 to include every public roadway used for vehicular travel. - -