STATE OF NEW JERSEY v. ROBERT E. SHEPPARD

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3422-04T43422-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT E. SHEPPARD,

Defendant-Appellant.

____________________________________________________________

 

Submitted May 16, 2006 - Decided November 2, 2006

Before Judges Lefelt and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, 03-04-00488-I.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert Carter Pierce, Designated Counsel, on the brief).

Zulima V. Farber, Attorney General, attorney for respondent (Karen Fiorelli, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant, Robert Sheppard, appeals from his convictions for eluding and reckless driving. A Burlington County Grand Jury returned Indictment No. 2003-03-0340-I, charging defendant, with second degree eluding, N.J.S.A. 2C:29-2b; and a Middlesex County Grand Jury returned Indictment 03-04-00488, also charging defendant with second degree eluding, N.J.S.A. 2C:29-2b. These two indictments were consolidated and defendant was found guilty of both counts. The court merged the Middlesex County eluding conviction into the Burlington County eluding conviction and sentenced defendant to a seven-year term in prison. The trial court also found defendant guilty of reckless driving, N.J.S.A. 39:4-96, and imposed a $200 fine.

On this appeal, defendant makes the following assertions of error:

POINT I: THE TRIAL COURT ERRED BY NOT PROPERLY CHARGING AND EXPLAINING TO THE JURY THE ELEMENTS OF RECKLESS DRIVING. (NOT RAISED BELOW).

POINT II: THE TRIAL COURT ERRED BY NOT MERGING [DEFENDANT'S] RECKLESS DRIVING CONVICTION INTO HIS SECOND DEGREE ELUDING CONVICTION. (NOT RAISED BELOW).

We affirm defendant's convictions, but we agree with defendant, and the State concedes, that a remand is necessary for correction of the sentence to merge the reckless driving violation into the eluding conviction.

On February 6, 2003, at about 6:30 a.m., New Jersey State Trooper Eric Ruczyniski had positioned his marked patrol vehicle at the U-Turn area at mile fifty of the New Jersey Turnpike, in Mansfield Township, Burlington County. Ruczyniski observed a white Ford Mustang convertible, driven by defendant, traveling northbound at a high rate of speed. He engaged his radar speed detector and it registered the Mustang's speed at 107 miles per hour. The posted speed limit was sixty-five miles per hour.

Ruczyniski entered the northbound roadway in pursuit of the Mustang. He positioned his vehicle behind the Mustang and shined a spotlight into the passenger compartment to gain defendant's attention. Defendant looked into his rear view mirror at Ruczyniski and appeared very calm. Defendant then looked to the right and the left. Immediately thereafter, he drove into the left lane and accelerated away from Ruczyniski's vehicle. Defendant continued passing vehicles by driving erratically on the left shoulder. During the pursuit, defendant's vehicle exceeded 120 miles per hour. Ruczyniski radioed other officers to alert them that the vehicle was continuing north on the Turnpike.

New Jersey State Trooper John Kampo received the information about the Mustang and observed it traveling at a high rate of speed. He entered the roadway and pursued defendant with his siren and lights engaged. Defendant looked back at the police vehicle and accelerated away from it. Defendant was still driving erratically by using the truck lanes and riding on the shoulder to pass slow moving trucks.

New Jersey State Trooper Darryl Gallin, driving a marked vehicle, engaged in the pursuit at approximately mile eighty-four, between Edison and Woodbridge, New Jersey. From a vantage point off the roadway, Gallin observed defendant's vehicle traveling in excess of 100 miles per hour. Gallin joined in the pursuit.

New Jersey State Trooper Donald Johnstone heard radio broadcasts about the ongoing pursuit and positioned himself at the Turnpike exit near the Goethals Bridge. Soon thereafter, he spotted defendant speeding through the Turnpike exit. He then began pursuing the Mustang. Both Gallin and Johnstone followed defendant over the bridge. Defendant was traveling about sixty-miles per hour on the two-lane bridge. He was weaving in and out of traffic and from lane to lane.

Officer Kevin Ford, a New York City Police Officer, had been dispatched to a fuel spill that occurred on the New Jersey bound lanes of the Goethals Bridge. He observed the Mustang approaching fast and exceeding the posted speed limit through the toll plaza from New Jersey with two marked New Jersey State Police cars and one unmarked car in pursuit. Ford began to pursue the Mustang and, after a half mile through Staten Island, the Mustang was successfully pulled over and defendant was arrested. Gallin issued defendant multiple traffic summonses, including reckless driving.

Defendant testified that he believed only one New Jersey State trooper was pursuing him. He asserted that he did not pull over because the trooper was overly aggressive. According to defendant, this aggression made him feel threatened.

Defendant's sole substantive assertion of error is that the trial court erred by reciting the statutory language of N.J.S.A. 39:4-96 (reckless driving), without any further explanation and without explicitly defining the terms "heedlessly," "willful" or "wanton." According to defendant, this error permitted the jury to infer that defendant's conduct caused or threatened death or injury. Defendant did not object or request a different charge.

Where a defendant fails to object to a jury charge at trial, as occurred in this case, we may presume that defense counsel did not perceive any prejudice in such charge. State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Macon, 57 N.J. 325, 333, 337 (1971). In the absence of an objection, we will reverse only if we find plain error. R. 2:10-2. Plain error, in the context of a jury charge, is "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Afanador, 151 N.J. 41, 54 (1997) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)) (alteration in original). Generally, "[e]rroneous instructions are poor candidates for rehabilitation as harmless, and are ordinarily presumed to be reversible error." Afanador, supra, 151 N.J. at 54. When, however, the trial court recites the model jury charge "and is consistent with controlling New Jersey precedent," we will not find plain error. See State v. Rodriguez, 365 N.J. Super. 38, 53-54 (App. Div. 2003), certif. denied, 180 N.J. 150 (2004).

Here, the trial court instructed the jury as follows:

You may infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officers involved a violation of the motor vehicle laws of this State.

It is alleged that the defendant's conduct involved violations of the motor vehicle laws of this State, specifically it is alleged that the defendant violated the following motor vehicle statutes, speeding, reckless driving and improper passing.

. . . .

Reckless driving under our motor vehicle law is defined as follows: A person who drives a vehicle heedlessly in willful or wanton disregard of the rights or safety of others in a manner so as to endanger or be likely to endanger any person or property shall be guilty of reckless driving.

Thus, the judge properly charged the jury on eluding in accordance with the model jury instructions and New Jersey law by charging the jury on all of the elements of the offense. The instruction was not incorrect. Defendant claims it was incomplete. We find no error in the trial court's utilization of the instruction which tracked the model jury charge, adequately informed the jury, and did not have the capacity to bring about an unjust result.

Remanded for correction of the judgment of conviction to reflect the merger of the disorderly persons reckless driving conviction into the conviction for second degree eluding. Otherwise, affirmed.

 

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A-3422-04T4

 

November 2, 2006