State of New Jersey v. Glen K. Bachelder

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2908-05T42908-05T4

State of New Jersey,

Plaintiff-Respondent,

v.

Glen K. Bachelder,

Defendant-Appellant.

 
________________________________________

Submitted March 14, 2007 - Decided April 19, 2007

Before Judges Collester and Lyons.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 03-05-0251.

Yvonne Smith Segars, Public Defender, attorney for appellant (Robert L. Sloan, Assistant Deputy Public Defender, of counsel and on the brief).

Stuart Rabner, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

In this case, defendant Glen K. Bachelder, appeals from a judgment of conviction for eluding. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

On March 3, 2003, a final restraining order was issued against defendant restricting him from having any contact with his ex-wife. On April 2, 2003, Sergeant Richard Recine ("Recine") of the Franklin Township Police Department responded to a radio report that defendant was at his ex-wife's Franklin address in violation of the order. Recine was on his way to the address when he received another radio transmission providing a detailed description of defendant's 1999 white Ford Escort vehicle.

While on his way, Recine spotted defendant's vehicle traveling northbound in the opposite direction. Defendant was the only occupant of the vehicle. Recine made a U-turn, turned on the unit's strobe lights and sirens and began to follow the automobile. Defendant accelerated his vehicle above the thirty-five mile per hour speed limit and fled; Recine pursued behind. Corporal Philip Rizzo ("Rizzo") of the Franklin Township Police Department was in a marked police car in the area, turned on his unit's lights and sirens and joined the pursuit.

As defendant approached the end of South Middlebush Road, he made a turn, passed two vehicles on the right, disregarded a stop sign, and continued to accelerate. Rizzo positioned his vehicle between defendant's car and Recine's car. Defendant continued to drive westbound, however, making a left turn from the "right turn only lane" towards Hillsborough Township. Although both officers had their lights and sirens activated, defendant did not stop his car and continued to drive between twenty-five to thirty miles per hour over the posted speed limit of forty-five miles per hour. During the pursuit, defendant's vehicle passed a truck at the crest of a hill and crossed over double-yellow lines to pass obstructing vehicles. At one point in the pursuit, the police were approximately three car lengths behind defendant's vehicle and traveling about fifty to fifty-five miles per hour.

Before entering the Borough of Millstone, the officers were advised by headquarters to break off the pursuit, whereupon defendant ran a red light at an intersection, nearly striking another car. He continued westward-bound when the officers deactivated their lights and sirens and began heading to the station. Within one minute later, the officers received a radio call from a Franklin detective notifying that defendant's vehicle had been involved in a motor vehicle accident at the bypass of Amwell Road and Millstone River Road.

Recine and Rizzo turned their police cars around and proceeded toward the scene of the accident, an intersection controlled by a traffic light, approximately three to four miles from where Recine first spotted defendant's vehicle. Defendant and another vehicle were involved in the collision, although defendant had already fled the scene by the time the police arrived. The driver of the other vehicle was not injured.

A trail of what appeared to be radiator fluid began at the site of the accident. Recine followed the trail in search of defendant. It ended around Sunnymeade Road in Hillsborough. Hillsborough police then assisted in locating defendant's vehicle.

Detective Robert Fariello ("Fariello") and his partner, Officer Kelly Howard ("Howard") of the Hillsborough Police Department, were on routine patrol in a marked police unit. Shortly after the accident, they received a dispatch that the Franklin police were involved in a motor vehicle pursuit that had entered Hillsborough, that the vehicle was a white Ford Escort, and that they should respond to the area of Hamilton Road and Sunnymeade Road.

Fariello noticed the white Ford Escort parked in the lot of a local business. The police checked the car, but it was unoccupied. Fariello then advised dispatch that the vehicle had been located and requested additional units to secure the area. Upon the arrival of the assisting units, Fariello and Howard approached businesses in the area and informed them that an individual wearing a white hat and yellow t-shirt was being sought by the authorities.

The police were notified a short time later that a person fitting that description had been identified at a local hardware store, approximately one-tenth of a mile from where the Ford vehicle had been located. Consequently, Fariello went to the site of the identification and noticed defendant standing alone in the parking lot with a jacket and bag in hand. Fariello removed his revolver and ordered him to drop his belongings; defendant complied. Defendant was then advised to place his hands in the air, turn around and face the opposite direction; he again complied. Defendant was then searched by the officer, who found a partially smoked marijuana cigarette and narcotic paraphernalia on his person, and magazines, a wallet, a mobile phone and cigarettes in his bag.

Defendant was handcuffed, placed into an ambulance and taken to the Somerset Medical Center for a psychiatric examination as it appeared that he was suicidal. He was accompanied by Fariello, who he referred to as "gun boy." At the hospital, defendant was treated in the psychiatric emergency unit. Rizzo subsequently arrived at the hospital and took custody of defendant. At the medical center, defendant asked Rizzo if he was the one "chasing him" and said, "I am sorry."

Several summonses were issued by the New Jersey State Police and the Franklin Township Police Department. The original charges by the State Police included: (1) one count of eluding in the second degree contrary to N.J.S.A. 2C:29-2b (Indictment No. 03-05-00251-I); (2) leaving the scene of a motor vehicle accident contrary to N.J.S.A. 39:4-129d (Summons No. SP1-499823); (3) failure to report a motor vehicle accident contrary to N.J.S.A. 39:4-130 (Summons No. SP1-499824); and (4) reckless driving, contrary to N.J.S.A. 39:4-96 (Summons No. SP1-499825). Summonses issued by the Franklin Township Police included: (1) careless driving contrary to N.J.S.A. 39:4-97 (Summons No. 1808-F-101550); (2) reckless driving contrary to N.J.S.A. 39:4-96 (Summons No. 1808-F-102451); (3) improper passing contrary to N.J.S.A. 39:4-85 (Summons No. 1808-F-102452); and (4) failure to observe a signal contrary to N.J.S.A. 39:4-81 (Summons No. 1808-F-102453).

Defendant was arrested on April 3, 2003. On the same date, he was transferred from the Somerset County jail to the Trenton Psychiatric Hospital due to indications of depression and suicidal tendencies. Specifically, defendant expressed that he was unable to see his son and wanted his ex-wife to see him hanging from a tree. He remained at the hospital until May 6, 2003.

On or about April 15, 2003, officers from the Hillsborough Police Department filed a complaint for "disorderly unlawful possession of marijuana." Defendant plead guilty to this offense. On or about May 1, 2003, a Somerset County Grand Jury returned Indictment No. 03-05-00251-I, charging defendant with eluding in the second-degree contrary to N.J.S.A. 2C:29-2b.

Defendant entered a plea of "not guilty" to this indictment.

A motion to dismiss the indictment on grounds of double jeopardy was heard before Judge Edward Coleman on February 25, 2005. In the motion, defendant argued that the State should have been barred from prosecuting him because it was "seeking to show one continuous knowing state of mind [in that] . . . the defendant had the same state of mind for [d]omestic [v]iolence issues and marijuana charges as he had at the eluding." The State asserted that defendant's double jeopardy argument carried no merit. The judge concurred with the State, finding that "defendant's Fifth Amendment right to be free of double jeopardy [was] not violated by the present prosecution eluding" and dismissed the motion. On February 28, 2005, a jury trial was commenced before Judge Coleman and ended on March 3, 2005.

On the first day of trial, a jury of fourteen individuals was selected. Opening statements were made on March 1, 2005. Officer Recine was the first witness to give testimony, recounting the events summarized above concerning the pursuit. Officer Rizzo was the second witness to testify, giving explanatory testimony of a police video of the pursuit viewed by the jury at trial.

According to Rizzo, the video showed several vehicles in the middle of the pursuit pulling over to the right section of the road lane and slowing down as they observed the lights and sirens of the police units. The video also showed defendant's vehicle "run the red light and then have to make a quick evasive maneuver to avoid being struck by a vehicle about to make a left turn."

Officer Fariello was the third witness to testify and recounted that at the time of defendant's arrest, he was compliant and did not act out in any physical or verbal fashion. Fariello also testified that defendant called him "gun boy" while in custody.

Gail Bachelder Edelman ("Edelman"), defendant's mother, was the last person to testify on March 1, 2005. According to Edelman, defendant has experienced psychiatric problems for the past fifteen to twenty years. Edelman testified that her son married in 1991, divorced in 1994, and suffered from depression during the marriage. Edelman also stated that her son married again in 1999, divorced, and still suffers from depression.

Moreover, she gave testimony that defendant displayed sudden mood swings, disappeared for days during his second marriage and often demonstrated fragmented speech and "hyper, jittery symptoms." Edelman stated that her son began to make suicidal statements because "he could not stop his thoughts from racing in his mind." According to Edelman, defendant once told her, "there is a railroad train going through my head . . . and I can't make it stop. I'm going to have to hang myself on a tree. I have to make it stop." She testified that her son was seeing a psychiatrist and was on medication for a significant time before the date of the pursuit.

The trial continued on March 2, 2005. Defendant moved for a mistrial on the ground that his first wife, who was scheduled to testify on his behalf concerning his mental history, was unable to appear. The court denied this motion finding that there were alternative witnesses that would provide sufficient, credible information about his mental state. Consequently, the first person to testify on this date was Dr. Daniel Greenwald ("Dr. Greenwald"), a forensic psychiatrist who examined defendant on October 21, 2003, utilizing prior medical records and police documents in his analysis.

According to Dr. Greenwald, defendant visited psychologist, Marilyn Oldman, Ph.D. in 1995 to determine whether he was fit to have parenting time with his child under a restraining order. Dr. Oldman first concluded in May 2005 that visits supervised by family members would be appropriate, however, one month later, she saw no need for supervised visits.

Dr. Greenwald also reviewed a letter from defendant's first wife who stated that "in the days, weeks and perhaps a month or two preceding the incident in question, he had become more and more distraught, more and more agitated, confused, had episodes of depression, episodes of despair, had felt that life wasn't worth living, felt that he might as well be dead." She stated that defendant called her many times a day, "usually with a mood of despair . . . confused and concerned about his future . . . he said that his mind was racing."

According to Dr. Greenwald, defendant visited Dr. Felix Krupa, M.D., a psychiatrist, in August 1998. Dr. Krupa indicated a diagnosis of "bipolar disorder with depression, poor impulse control and episodic dependence on alcohol." Complaints included "poor impulse control, anger, rage, depressive mood, mood swings, and hiodina . . . [an] inability to enjoy one's self, and episodes of aggression and acting out, usually preceded by drinking."

Dr. Greenwald testified that defendant was examined by Dr. James J. Hutchins, a psychiatrist, on February 25, 2002, who noted in his initial report, a "possible diagnosis of bipolar disorder . . . [a]lcoholism, currently in remission, and possible attention deficit disorder." In a later letter, Dr. Hutchins "gave a definite diagnosis of bipolar disorder."

Dr. Greenwald also noted that defendant was examined in April 2002 by Steven Gordon Ph.D., who "definitely felt that [defendant] met the criteria for the diagnosis of [a]ttention [d]eficit [d]isorder." He also testified that defendant received psychotherapy from psychologist Steven Hammil, Ph.D., for several years. Dr. Hammil believed that defendant "suffered from depression, attention deficit disorder, alcohol abuse and mood swings." Dr. Hammil noted a "continued need of psychotherapy and medication and possibly an inpatient program . . . without psychiatric treatment, the prognosis was poor for [defendant]."

Following his one-month stay at the Trenton Psychiatric Hospital, defendant was diagnosed with bipolar disorder NOS and alcohol abuse. According to Dr. Greenwald, this diagnosis meant that, "he was near the specific category [of bipolar disorder] . . . he was either very depressed, totally manic, that he had been manic and depressed before but is now manic."

Dr. Greenwald then testified as to his interview with defendant, which, revealed that his parents separated when he was three, that he began using drugs and alcohol in his mid-teens, and left school in the tenth grade. Although defendant stated that he had stopped using drugs, a blood test taken after his arrest indicated the presence of both alcohol and marijuana. Dr. Greenwald gave further testimony that in the days leading up to the arrest, defendant was troubled about his recent separation from his second wife, the loss of his job, the deaths of his grandfather and brother-in-law, and the loss of several friends in the World Trade Center attacks. Dr. Greenwald noted that he:

had various thoughts of hurting his wife, various thoughts of hurting himself, or of ending his own life. He got the idea that he would take things from the house and that he would put them or attach them to trees along the way that . . . his second wife . . . took going to work, and then hang himself from one of those trees so that as she drove to work one day she would see the various things from the house and then see him hanging from a tree.

During the interview, defendant was able to recount what occurred on the day of the pursuit. According to Dr. Greenwald,

defendant stated that:

As he was driving away [from his second wife's home] he decided that he would either crash the car into something to end his life that way or find some way of killing himself or hang himself from a tree. He noticed that the police were after him and so he eluded the police, he kept on driving. He said he doesn't - - didn't know for sure what he was doing, he was just trying to find a way that he could get away from her, get away from the police, and kill himself or somehow get away from all of this so that he could end his tension.

Dr. Greenwald also stated that defendant indicated to him that on the date of the pursuit he did not take his medication, that he had run out of it a few weeks prior, and that there was no amphetamine in his urine at the time he went into the hospital. Dr. Greenwald then rendered his opinion with respect to defendant's mental state on April 2, 2003:

My opinion was that he really did not know the nature of what he was doing. To him, running away was a way to get away from his wife, to get away from the tension, to see if he could try to kill himself, see if he could find some way to end his tension and end his despair. He did not think of it as eluding police and did not realize that what he was doing was a crime of eluding police.

Dr. Greenwald denied that defendant was acting knowingly and

stated that he did not understand the difference between right

and wrong at that point in time.

Following Dr. Greenwald's testimony, Officer Rizzo was again called to the stand by the State and testified that defendant had apologized for causing the chase.

The State then called Dr. Martin Weinapple ("Dr. Weinapple"), a forensic psychiatrist retained by the prosecutor's office. Dr. Weinapple conducted an interview of defendant in his office for an hour and a half on February 2, 2004, and reviewed the police videotape, Dr. Greenwald's report, and various other documents concerning his mental state. According to Dr. Weinapple, defendant "has had some emotional difficulties, possibly bipolar, more likely ADHD, but they don't rise to the level of significance or severity whereby they would impair or interfere with his cognitive abilities to know right from wrong." Dr. Weinapple testified that he "has a substance abuse history, which could explain to a large degree a lot of the types of behaviors that he's exhibited." In rendering his ultimate opinion as to defendant's state of mind on April 2, 2003, Dr. Weinapple stated:

he knew right from wrong . . . he basically was not cognitively impaired as a result of anything that was going on at that time . . . he acted knowingly, purposely, and though he may have had some problems, that in itself would not render him insane in my opinion . . . . [b]eing bipolar, as I say in my report, does not mean you are necessary

- - it does not follow that you are insane.

Dr. Weinapple noted, "ADHD, bipolar, drug usage" but stated that he did not meet all the criteria for bipolar disorder as he did not show grandiosity, hallucinations, delusions, or a thought disorder.

Summations were made on March 3, 2005. Defendant did not testify at trial, but his counsel asserted that he had mental issues dating back fifteen years and that he was not aware that his actions were wrongful at the time he eluded the police. The State acknowledged that while defendant has emotional issues, they do not rise to the level of insanity such that he did not know the difference between right and wrong. The jury was charged as to the crime of eluding, the insanity defense, the parties' respective burdens and the standards of proof.

Following the jury charge, the trial court considered the motor vehicle summonses issued on the date of the pursuit. The judge entered a finding of not guilty on the summons for failure to report an accident because there was no proof of a person being injured. Defendant was found guilty, however, of reckless driving, leaving the scene of an accident, careless driving, improper passing, and failure to observe a traffic signal.

The jury returned their verdict on March 3, 2005, finding defendant guilty as to the charge of second-degree eluding and finding "beyond a reasonable doubt that while in flight or in an attempt to flee" defendant "created a risk of death or injury to any person."

On November 10, 2005, defendant moved for a new trial or, in the alternative, for judgment of acquittal. The court denied the motion. The State then moved for the imposition of an extended term of imprisonment. Same was denied as untimely under the court rules, and the court proceeded to sentencing.

Defendant was sentenced to serve ten years at the New Jersey State Prison, running concurrently with unrelated convictions in Ocean County for burglary and theft by unlawful taking and possession of controlled dangerous substances, along with fines and the suspension of his driving privileges for two years. He was also given forty-one days credit for time already spent in custody. On February 8, 2006, defendant filed the instant appeal from the judgment of conviction.

On appeal, defendant presents the following arguments for our consideration:

POINT I

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON DIMINISHED CAPACITY DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below)

POINT II

THE INTRODUCTION OF OTHER EVIDENCE (THE PRIOR ISSUANCE OF A FINAL RESTRAINING ORDER AGAINST DEFENDANT) WITHOUT A LIMITING INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10.

POINT III

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

POINT IV

DEFENDANT IS ENTITLED TO 146 DAYS OF GAP-TIME CREDIT.

POINT V

DEFENDANT'S MOTOR VEHICLE CONVICTIONS MUST BE MERGED WITH HIS ELUDING CONVICTION.

We begin our consideration of these arguments by stating the applicable legal principles.

I.

Defendant presented an insanity defense under N.J.S.A. 2C:4-1, but did not seek a charge for diminished capacity under N.J.S.A. 2C:4-2. He claims that the trial court committed plain error and deprived him of his State and Federal due process rights when it charged the jury on insanity but did not charge, sua sponte, on diminished capacity. The State argues that there was no basis for the trial court to charge the jury, sua sponte, with a diminished capacity charge.

The differences between the concepts of diminished capacity and insanity are complex, have "long troubled the law" and, are entitled to careful analysis. State v. Delibero, 149 N.J. 90, 98 (1997). Diminished capacity "describes a disease or defect of mind that may negate the mental state that is an element of the offense charged. The insanity defense exculpates an actor from guilt for conduct that would otherwise be criminal." Id. at 92-93. In contrast to insanity, which is an affirmative defense that a defendant must prove by a preponderance of the evidence, "diminished capacity refers to evidence that can negate the presence of an essential mental element of the crime . . . [a] jury considers evidence of diminished capacity in relation to the State's burden to prove the essential elements of the crime." Id. at 98-99; see also State v. Breakiron, 108 N.J. 591, 600-01 (1987); State v. Harris, 141 N.J. 525, 555 (1995). In addition, the consequences of a judgment by reason of insanity differ from one of diminished capacity. "A judgment of not guilty by reason of insanity does not result in a defendant being set free; rather, the defendant is subject to further commitment proceedings. A judgment of not guilty because of the defendant's diminished capacity does result in a defendant being set free." Delibero, supra, 149 N.J. at 105; see also State v. Humanik, 199 N.J. Super. 283, 299 (App. Div.), certif. denied, 101 N.J. 266 (1985). Thus, the two concepts are inherently different both in their substance and in their consequences.

Diminished capacity is defined in N.J.S.A. 2C:4-2, which, provides as follows:

Evidence that the defendant suffered from a mental disease or defect is admissible whenever it is relevant to prove that the defendant did not have a state of mind which is an element of the offense. In the absence of such evidence, it may be presumed that the defendant had no mental disease or defect which would negate a state of mind which is an element of the offense.

To successfully claim diminished capacity, a defendant must show that "he or she suffered from a mental disease or defect that is relevant to the mental state of the offense . . . 'it is not enough for defendant to simply present evidence of a mental illness or deficiency because that does not provide any basis for defense.'" Breakiron, supra, 108 N.J. at 611.

The Supreme Court has held that a jury instruction on diminished capacity is warranted:

when defendant has presented evidence of a mental disease or defect that interferes with cognitive ability to prevent or interfere with the formation of the requisite intent or mens rea . . . [A]ll mental deficiencies, including conditions that cause a loss of emotional control, may satisfy the diminished capacity defense if the record shows that experts in the psychological field believe that that kind of mental deficiency can affect a person's cognitive faculties, and the record contains evidence that the claimed deficiency did affect the defendant's cognitive capacity to form the mental state necessary for the commission of the crime.

[State v. Galloway, 133 N.J. 631, 647 (1993).]

"Only when the evidence is viewed in the light most favorable to the defendant, and still no suggestion appears that the defendant's faculties had been so affected as to render the defendant incapable of purposeful and knowing conduct, may the trial court deny the diminished-capacity defense." Id. at 648. Moreover, where, as in the instant case, a defendant does not request a charge dealing with diminished capacity at trial, "the failure to deliver such a charge can lead to reversal only if it constitutes plain error." R. 2:10-2; State v. Nataluk, 316 N.J. Super. 336, 346 (App. Div. 1998). "A finding of 'plain error,' in turn, must rest on a conclusion that the error is likely to have been prejudicial and to have produced a prejudicial result." Nataluk, supra, 316 N.J. Super. at 346; see also State v. Hock, 54 N.J. 526, 538 (1969), cert. denied, 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970).

A person commits the crime of eluding an officer where he or she "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 . . . creat[ing] a risk of death or injury to any person." N.J.S.A. 2C:29-2b (emphasis added). For defendant to be entitled to a jury charge for diminished capacity, he would have had to produce evidence that his mental condition or disease prevented him from "knowingly" fleeing or attempting to elude an officer. While it is undisputed that defendant suffers from one or more mental conditions, the proofs in this case do not support the argument that such conditions prevented him from knowing he was committing an unlawful act by eluding the police.

According to defendant's trial expert, Dr. Greenwald, defendant was able to recount the events of the chase, knew that he had violated the restraining order and "noticed the police were after him so he eluded the police, he kept driving." Dr. Greenwald expressed that defendant had a purpose in eluding the police, "[he] was just trying to find a way that he could get away [from his ex-wife], get away from the police, and kill himself." Both Dr. Greenwald and Dr. Weinapple testified that defendant saw and heard the police lights and sirens but continued to drive. Moreover, according to the testimony of Officer Rizzo, defendant later apologized for the flight, indicating that he knew his conduct was wrongful.

The Supreme Court has recognized that "many mentally disturbed persons are [quite] capable of acting purposefully or knowingly in the minimal senses intended by [the statute]." State v. Reyes, 140 N.J. 344, 360 (1995). Here, the testimonial evidence reveals that defendant knew he was wrongly eluding the police in violation of the statute.

Defendant relies substantially on Nataluk, supra, for the proposition that the court should have charged diminished capacity, sua sponte. In that case, we overturned convictions for eluding, possession of a weapon and criminal mischief because the diminished capacity defense should have been submitted to the jury and the trial court's failure to do so constituted plain error. The instant matter is distinguishable, however. Although defendant in Nataluk fled from the police and ignored their signals, he did not engage in a high-speed chase or flee on foot afterwards. Most importantly, in that case, MRI evidence was presented at trial that he had sustained injuries to impulse control portions of his brain in the past, frequently experienced hallucinations and delusions, was insane, and blacked-out at the time of the incident.

Contrastingly, defendant erratically fled from the police at speeds well over the posted limits, struck another vehicle, crossed municipal lines, fled on foot, and surrendered himself to the authorities only after his vehicle was no longer operable. Unlike in Nataluk, defendant was able to recall the events of the chase by his own memory, did not experience blackouts or hallucinations, presented no evidence of injury to his brain or a medical diagnosis that he was insane during the course of the chase.

Although defendant argued at trial that his condition prevented him from knowingly violating the statute, the proofs strongly show otherwise. "If a defendant acts purposefully or knowingly, he does not necessarily have to 'intend' a certain result." State v. Murray, 240 N.J. Super. 378, 401 (App. Div.), certif. denied, 122 N.J. 334 (1990) (quoting State v. Rovito, 99 N.J. 581, 584 (1985)). Here, there is sufficient evidence that defendant knew he violated a restraining order, fled the police and in the process, committed several vehicular infractions. No competent evidence that defendant suffered from a mental disease or defect negating the mental state of "knowingly" eluding the police was produced. Accordingly, because defendant did not present evidence of a mental disease or illness that interfered with his ability to knowingly commit the crime of eluding, the trial court did not commit plain or reversible error in not charging diminished capacity, sua sponte.

II.

Defendant submits that the trial court deprived him of due process and a fair trial under the Federal and State Constitutions when it did not provide the jury with a limiting instruction concerning the use of other-crimes evidence, particularly the prior issuance of the final restraining order against defendant. The State argues that defendant's violation of the restraining order did not amount to other-crimes evidence but was res gestae evidence, not requiring a limiting instruction.

Under N.J.R.E. 404(b), "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such a person acted in conformity therewith." Such evidence may be used, however, to show "motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to material issue in dispute." N.J.R.E. 404(b). It is admissible when found to be relevant to a disputed material issue, similar in kind and reasonably close to the charged offense, is clear and convincing, and when its probative value is not outweighed by its apparent prejudice. State v. Cofield, 127 N.J. 328, 338 (1992). Where other-crimes evidence is "otherwise admissible but involves inflammatory and other unduly prejudicial facts, the judge is obliged to require the evidence to be sanitized to the extent necessary to accommodate both the State's right to establish a fact in issue and the defendant's right to a fair trial." State v. Collier, 316 N.J. Super. 181, 185 (App. Div. 1998), certif. granted, 158 N.J. 71, aff'd, 162 N.J. 27 (1999).

"N.J.R.E. 404(b), does not apply 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); see also State v. Ortiz, 253 N.J. Super. 239, 243 (App. Div.), certif. denied, 130 N.J. 6 (1992). "In contrast to other-crimes evidence . . . res gestae evidence relates directly to the crime for which a defendant is being tried, rather than involving a separate crime." State v. L.P., 338 N.J. Super. 227, 235 (App. Div.), certif. denied, 170 N.J. 205 (2001); see also State v. Martini, 131 N.J. 176, 242, (1993), cert. denied, 516 U.S. 875, 116 S. Ct. 203, 133 L. Ed. 2d 137 (1995).

Res gestae evidence "serves to paint a complete picture of the relevant criminal transaction." L.P., supra, 338 N.J. Super. at 235. Therefore, "evidence of conduct occurring 'during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.'" Ibid. (quoting Cherry, supra, 289 N.J. Super. at 522). It is unnecessary to instruct the jury on the limited uses of other- crimes evidence when the uncharged conduct is admitted as part of the res gestae of the crime. L.P., supra, 338 N.J. Super. at 235.

Res gestae evidence may be used to "prove or explain acts or conduct of a defendant-declarant. Such statements of defendant-declarant are admissible 'because they are so connected with an act, itself admissible as part of the res gestae, as to have become incorporated with it.'" State v. Long, 173 N.J. 138, 157 (2002). "In deciding whether to exclude evidence based on its potential for prejudice, 'a court must consider the availability of other evidence that can be used to prove the same point.'" Id. at 164; (quoting State v. Covell, 157 N.J. 554, 569 (1999)).

In this case, the evidence pertaining to defendant's violation of the final restraining order amounted to res gestae evidence because it laid the foundation for much of the witnesses' testimony, explained why the police detained defendant, and provided his motive for fleeing.

Both Officers Recine and Rizzo testified that they responded to a possible violation of a restraining order. Their response to the violation was an initial event leading up to the chase. Both medical experts testifying at trial stated that defendant fled because he knew he had violated a restraining order. Such testimony explained defendant's motive for fleeing.

Moreover, the use of this evidence at trial did not unduly surprise defense counsel. Defense counsel twice acknowledged at pre-trial that evidence of the restraining order was "probably going to come out one way or -- another because, unfortunately, the case can't be tried in a vacuum." Despite this advanced knowledge, defense counsel made no specific request for a limiting instruction other than a minor reference in a long colloquy between court and counsel:

[DEFENSE COUNSEL]: Judge, I think that the State can, you know - there are allegations defendant violated the restraining order. He was at 56 Topaz. The Court would normally in other cases where there is some indication of some other crime advise the jury at the end what other - or during the trial you have heard testimony about the restraining order, it is not for you to decide guilt or innocence of that, it is not before his jury, it is only put before the jury to put it in context of what follows.

At no other point during the proceedings did counsel expressly seek a limiting instruction for the restraining order evidence.

Throughout trial, defense counsel indicated that he understood this evidence would be used to explain the infractions committed. Counsel noted that the evidence would be used to "put in the context that [the police] had a valid reason to stop the guy" [sic], referred to the violation in his opening statement stating that, "the police were responding to a call of violation of that restraining order," and made a reference in his closing statement as well.

The use of the restraining order evidence by the defense reveals that it was utilized not as restricted other-crimes evidence under N.J.R.E. 404(b), but as res gestae evidence, providing the jury with the background leading up to the pursuit. The violation of the restraining order did not involve a separate act that took place at another time, but occurred at the same place and time as the eluding. See Cofield, supra, 127 N.J. at 338. Moreover, the violation itself did not have the potential to create an inference that defendant had a propensity to commit a crime. Ibid. Thus, because the restraining order did not touch on the central issue that was before the jury, that is, whether defendant was insane when he eluded the police, there was no prejudice suffered by him when evidence of its violation was utilized at trial without a limiting instruction. Ibid.

Defendant relies significantly on State v. Chenique-Puey for the proposition that undue prejudice arose from evidence of the mere issuance of a restraining order and the court's failure to provide a limiting instruction. 145 N.J. 334 (1996). In that case, the Supreme Court held, "[e]vidence of a previously-issued domestic violence restraining order generally will be inadmissible" in severed trials concerning contempt of a domestic violence restraining order and an underlying criminal offense when the charges arise from the same criminal episode. Id. at 343. Defendant's reliance on this case is misplaced, however, because in the instant case, there was little danger that the jury would infer a propensity for eluding the police from defendant's violation of a restraining order.

Based on the foregoing, we conclude that contrary to the assertions of defendant, the court was under no obligation to provide a limiting instruction concerning the restraining order evidence and his constitutional rights were not violated. See L.P., supra, 338 N.J. Super. at 235.

III.

Defendant next submits that the sentence imposed by the trial court was manifestly excessive because the trial court failed to properly consider mitigating factors, among them: his lack of contemplation of serious harm, N.J.S.A. 2C:44-1b(2); substantial grounds tending to excuse his conduct, N.J.S.A. 2C:44-1b(4); conduct from circumstances unlikely to recur, N.J.S.A. 2C:44-1b(8); the unlikelihood that he would commit another offense, N.J.S.A. 2C:44-1b(9); and excessive hardship to his dependents, particularly his son, N.J.S.A. 2C:44-1b(11). The State argues that the sentence was not manifestly excessive because the trial court adequately balanced all mitigating and aggravating factors.

The Supreme Court has outlined the respective roles of trial and reviewing courts with regard to the consideration of mitigating and aggravating factors: "a trial court should identify the relevant aggravating and mitigating factors, determine which factors are supported by a preponderance of the evidence, balance the relevant factors, and explain how it arrives at the appropriate sentence." State v. O'Donnell, 117 N.J. 210, 215 (1989); see also State v. Kruse, 105 N.J. 354, 359-60 (1987); State v. Roth, 95 N.J. 334, 359-60 (1984). "Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience." O'Donnell, supra, 117 N.J. at 215-16. In contrast, an appellate court "is bound to affirm a sentence, even if it would have arrived at a different result, as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record." Id. at 215. Given a careful balancing of mitigating and aggravating factors by the trial court, a reviewing court should not substitute its judgment for that of the trial court. Id. at 220; see also State v. Malik, 365 N.J. Super. 267, 283 (App. Div. 2003), certif. denied, 180 N.J. 354 (2004) (holding that "a sentencing court's consideration of mitigating factors is discretionary.")

In sentencing defendant in this case to ten years in prison, the trial court observed that his conduct over the years placed the community "at great peril." According to his criminal history, the instant conviction for eluding was his fourth indictable offense. Defendant's penal record reflects numerous other infractions, among them, sentences for burglary and drug possession. Considering the evidence before the trial court in this matter, we find no fault in the trial court's reasoning, that, if defendant was not incarcerated, he would violate the law again and pose a threat to himself and to the community at large.

The facts of this case certainly demonstrate that defendant would risk the lives of others, including motorists and police officers, to commit a crime in the future. Moreover, contrary to defendant's assertions, the record shows that the trial court properly balanced mitigating factors against his criminal history, concluding that only one applied, that his psychological conditions tend to explain his conduct. N.J.S.A. 2C:44-1b(4). We disagree with defendant's assertions that his conduct is unlikely to reoccur because he expressed remorse and that the court's sentence shocks the conscience. Given his history of repeated violations of family court orders, we also disagree with his claim that his dependents will suffer as a result of his incarceration. We are satisfied that the trial court recognized the seriousness of defendant's offenses in this case and sentenced him accordingly.

IV.

Defendant was sentenced in Ocean County to serve consecutive four-year terms for a prior burglary and a drug offense on June 17, 2005. The court in this case imposed a concurrent ten-year term on November 10, 2005. Both defendant and the State concur that he is entitled to 146 days of gap-time credit toward the present sentence representing the time served between these convictions. N.J.S.A. 2C:44-5b(2) provides the applicable guidelines for gap-time credit:

When a defendant who has previously been sentenced to imprisonment is subsequently sentenced to another term for an offense committed prior to the former sentence, other than an offense committed while in custody:

(2) Whether the court determines that the terms shall run concurrently or consecutively, the defendant shall be credited with time served in imprisonment on the prior sentence in determining the permissible aggregate length of the term or terms remaining to be served.

The statute permits defendant's request for gap-time credit. Accordingly, the matter is remanded to the trial court to provide defendant with 146 days gap-time credit.

V.

In addition to his eluding conviction, defendant's driving privileges were suspended and he was ordered to pay fines and costs for leaving the scene of an accident, reckless driving, careless driving, improper passing, and failure to observe a signal. He argues that these penalties should be vacated because the vehicular offenses were part of the eluding charge and should be merged. The State argues that only reckless driving, careless driving, or improper passing should be merged with eluding.

N.J.S.A. 2C:1-8(a)(1) provides that a defendant may not be convicted of more than one offense "if one offense is included in the other." N.J.S.A. 2C:1-8(a)(1); State v. Dillihay, 127 N.J. 42, 47 (1992). Indeed, "the problem of merger often arises when an accused participates in a single, continuous criminal episode and then is prosecuted for several crimes each of which represents a different stage of the episode." State v. Allison, 208 N.J. Super. 9, 22 (App. Div.), certif. denied, 102 N.J. 370 (1985). "A court considering whether to merge convictions should focus on elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case." Dillihay, supra, 127 N.J. at 47. In examining merger, the court may consider factors such as:

the time and place of each purported violation; whether the proof submitted as to one count of the indictment would be a necessary ingredient to a conviction under another count; whether one act was an integral part of a larger scheme or episode; the intent of the accused; and the consequences of the criminal standards transgressed.

[Allison, supra, 208 N.J. Super. at 23-24.]

Turning to the case at hand, "the eluding offense requires the 'risk of death or injury to any person.'" State v. Dorko, 298 N.J. Super. 54, 60 (App. Div.), certif. denied, 150 N.J. 28 (1997) (quoting N.J.S.A. 2C:29-2b). Defendant was convicted of both reckless driving contrary to N.J.S.A. 39:4-96 and careless driving contrary to N.J.S.A. 39:4-97. Both of these offenses "require that the driving be 'in a manner so as to endanger or be likely to endanger, a person or property.'" Dorko, supra, 298 N.J. Super. at 60. Seeing as the significant elements of reckless and careless driving are embodied in second-degree eluding, these motor vehicle convictions should have been merged with the eluding conviction. See, e.g., State v. Wallace, 313 N.J. Super. 435 439 (App. Div.), certif. granted, 157 N.J. 544 (1998), aff'd, 158 N.J. 552 (1999). Moreover, the reckless and careless driving convictions arose out of the same facts and are presented under the same evidence as the eluding conviction. Likewise, since the charges for improper passing contrary to N.J.S.A. 39:4-85 and failure to observe traffic signals contrary to N.J.S.A. 39:4-81 arose from defendant's reckless or careless driving, these offenses also merge into the second-degree eluding.

The only offense which does not merge into the eluding conviction is leaving the scene of the accident contrary to N.J.S.A. 39:4-129. This offense did not arise out of defendant's careless or reckless driving, contains different elements than the eluding offense and would require different proofs such as evidence of "injury or death to any person." Consequently, this matter is remanded so that all of the motor vehicle convictions except for leaving the scene of an accident may be merged with the eluding offense.

 
Affirmed, but remanded to the trial court to award gap-time credit and to merge the motor vehicle convictions, other than leaving the scene of an accident, into the eluding conviction.

In determining the sentence, the trial court considered the following aggravating factors: (1) risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); (2) the extent of defendant's criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and (3) the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The trial court also considered that "there are grounds that tend to explain [his] conduct, i.e. [his] psychological problems, but that doesn't amount to a defense" as a mitigating factor, N.J.S.A. 2C:44-1(b)(4).

Defendant's penal record contains five convictions at the municipal level, sentences for four violations of restraining orders, and community service and probation for defrauding the administration of a drug exam.

(continued)

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35

A-2908-05T4

April 19, 2007