STATE OF NEW JERSEY v. JAMES DEROSE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5714-05T55714-05T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JAMES DeROSE,

Defendant-Appellant.

__________________________________

 

Argued: November 8, 2007 - Decided:

Before Judges Cuff, Lihotz and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-04-0470, Summons Nos. 2009-L-8411; 2009-L-8412; 2009-L-8413; 2009-L-8415; 2009-L-8421; 2009-L-8422; 2009-L-4370.

Julian Wilsey argued the cause for appellant (Franzblau Dratch, P.C., attorneys; Mr. Wilsey, on the brief).

Sara B. Liebman, Assistant Prosecutor, argued the cause for respondent (Theodore J. Romankow, Union County Prosecutor, attorney; Ms. Liebman, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant James DeRose was convicted of four counts of third degree theft by deception, N.J.S.A. 2C:20-4 (Counts One to Four); second degree eluding, N.J.S.A. 2C:29-2B (Count Five); and fourth degree resisting arrest, N.J.S.A. 2C:29-2A (Count Eight). The trial judge found him guilty of reckless driving, N.J.S.A. 39:4-96; improper passing, N.J.S.A. 39:4-85; failing to observe a traffic signal, N.J.S.A. 39:4-81; leaving the scene of an accident, N.J.S.A. 39:4-129, and careless driving, N.J.S.A. 39:4-97. Defendant was sentenced to a three-year term of imprisonment on Count One and concurrent five-year terms of imprisonment on Counts Two, Three and Four. The judge merged the conviction on Count Eight and the motor vehicle convictions with Count Five and imposed an eighteen-year term of imprisonment with a six-year period of parole ineligibility, concurrent to Counts Two, Three and Four and consecutive to Count One. Defendant is also required to pay $3204.12 in restitution. The appropriate fees and assessments were also imposed.

The theft by deception charges rose from a scheme by which defendant posed as a representative of an on-site truck repair facility to obtain authorization codes for payment orders used by trucking companies to facilitate repairs to trucks that breakdown on highways. The remaining charges, including resisting arrest, aggravated assault and eluding, occurred when defendant fled from a check cashing site to avoid arrest. We will focus on the theft charges first because these are the charges which are affected by several of the errors asserted by defendant.

At trial, the State produced evidence that outlined the procedure used in the trucking business to facilitate repairs of trucks that break down on the highway and the general terms of the scheme in which defendant was involved. In order to pay for road repairs, a trucking company has an account with a company that issues a T-Chek, a COMCHEK, or an instrument known as an EFS. When contacted by a repair company, a trucking company provides a code to the repair company. The code is based on a formula generated by the company that issues the instrument and is unique to the instrument and the transaction. The repair company fills in the code and other data, such as the name of the payee, calls another organization for an authorization code, places that number on the check and presents the instrument at a bank or check cashing service for payment. Once the authorization code is given, the payee can put any name on the instrument and cash it upon presentation of appropriate identification. The bank or check cashing facility then gives cash to the presenter of the instrument. Once an authorization code is issued, the check is the same as cash.

According to the State, defendant used this payment method to obtain over $3204.12. He did so by calling a trucking company and advising it that he had repaired one of their trucks on the New Jersey Turnpike. He used the name of a truck repair facility that approximated the name of an actual truck repair operation. He stated that the State Police had authorized the repairs and that he needed to be paid for the repairs. Defendant provided enough information, such as the truck and trailer numbers, to convince truck operators to issue a check. A trucking company representative provided the appropriate payment codes, defendant filled out the blank checks with the approved codes and presented the checks for payment under his name.

At trial, the State presented evidence of four incidents between September 1 and November 3, 2004. The victims were four trucking companies: Casa Trucking in Elizabeth; Gilster-Mary Lee Corp. (Gilster) in Perryville, Missouri; RLN National Lease (RLN) in Fargo, North Dakota; and Distribution Technologies (DistTech) in Allentown, Pennsylvania. We will discuss the details of the transactions involving Gilster and RLN because defendant asserts that the evidence presented by the State in support of the charges involving these trucking companies was based on inadmissible hearsay.

Larry Kerley, a fleet maintenance manager for Gilster, testified that on September 18, 2004, a shop foreman received a call from Pete at Standard Tire and Towing (Standard) that one of its trucks was on the New Jersey Turnpike with two flat tires and that Standard had to replace those tires. The cost was $888.28. The shop foreman authorized the payment for the repair without speaking to the driver of the Gilster truck. Kerley testified that the foreman told him that he did not speak to the driver because the driver was on a tight schedule and the foreman did not want to cause any further delay. When the driver informed Kerley that he had not experienced a flat and new tires were not placed on the truck, Kerley obtained the check and discovered that the payee was James DeRose.

On October 4, 2004, Rick Borgeron was the maintenance director of RLN. His duties included tracking, maintaining, and handling equipment repairs in the shop and on the road. He testified that his boss was in his office when a call was received from a firm called Standard Rapid Service Repair or Standard Recovery Service or a name approximating that name. His boss initially took the call and then Borgeron spoke to a man calling from the New Jersey Turnpike who reported that he had been called by the State Police. According to the caller, the State Police advised him that an RLN truck had broken down with two flat tires and was blocking the roadway. The caller also gave Borgeron a badge number, precinct number and name of the State Police officer who purportedly had called him to repair the RLN truck.

The caller also said Borgeron could not speak to the driver because the truck was located in a hazardous area and the driver and the trooper were no longer on the scene. Borgeron testified that his boss authorized him to issue a T-Chek and he did so in the amount of $845.88. Borgeron testified that he later learned that no repairs were performed on the truck and the payee on the negotiated T-Chek was James DeRose.

Similar calls were received by Casa Trucking on September 1, 2004, and DistTech on November 3, 2004. Casa Trucking issued a COMCHEK to Total Recovery in the amount of $655.08. No repairs were performed on Casa Trucking equipment on that date. The payee on the negotiated COMCHEK was James DeRose. DistTech issued an EFS Check to Standard in the amount of $814.08 following a call from Sal from that organization. No repairs were required or performed on the truck. The payee on the negotiated EFS Check was James DeRose.

Just before noon on November 19, 2004, defendant appeared at Quick Cash on North Wood Avenue in Linden. A State Police detective had requested Harry Patel, the owner of Quick Cash, to contact him if defendant appeared at any of Patel's check cashing operations. Patel requested his employees to inform him if defendant appeared at any store, and an employee did so when defendant appeared at the Linden establishment on November 19. Patel called the detective and advised his employee to keep defendant occupied until the police arrived.

When defendant approached the window staffed by Jazmin Sanker, another employee informed Patel of defendant's presence and also triggered the automatic lock that locked the front door. Defendant presented a check to Sanker, who acted as if she was verifying the check. Defendant inquired why it was taking her so long and eventually asked her to return the check to him, but she refused. Defendant left her window and tried to leave by the front door. When he realized it was locked, defendant frantically tried to open the door.

Meanwhile, Kris Tomko, the first police officer to arrive at the scene, went to the front door. Sanker tried to direct him by motions to go to an unlocked door. Defendant moved to that door, pushed it open and hit the officer who was standing in front of the door. Sanker thought that defendant also kicked the officer. Tomko testified that defendant "just blew the door open with his hands" and "cocked back and caught me in the chest, punched me in the chest." Tomko denied that the door hit him or that defendant kicked him.

Defendant then ran across the street to his vehicle. Although the punch knocked Tomko off balance and caused some bruising, he followed defendant across the street. As defendant tried to start the car, Tomko reached into the car to try to prevent defendant from doing so. As defendant repeatedly punched the officer's arm, Tomko removed his arm, drew his service revolver, and pointed the weapon at the side of defendant's head. A front seat passenger in defendant's car saw the gun, quickly exited the car, and fled from the scene. As Tomko drew his weapon, the car started and defendant moved the car from its parking space. At this time, Tomko's arm was still partly through the open driver's window and the car struck him.

As defendant fled the scene, he crossed into the left lane and then over the double yellow lines into the oncoming lanes of traffic. He proceeded through a red light, drove onto the sidewalk as he made a left turn and hit and felled an aluminum pole. Another officer, Rashon Elias, commenced a chase in a patrol car. Tomko saw and heard the lights and siren of the chase car.

During the chase, Elias observed defendant travel in the wrong lane on one street, execute a right turn by cutting across a lawn, and proceed the wrong way on a one-way street. Elias terminated the chase because defendant was traveling through a residential neighborhood and the situation had become too dangerous. Defendant was arrested on December 7, 2004.

On appeal, defendant raises the following arguments:

POINT I

DEFENDANT'S CONSTITUTIONAL RIGHTS TO A FAIR TRIAL WERE VIOLATED BY HIS COUNSEL'S INEFFECTIVENESS (NOT RAISED BELOW).

POINT II

THE TRIAL COURT'S JURY INSTRUCTIONS VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL; SPECIFICALLY, THE COURT FAILED TO PROVIDE INSTRUCTIONS REGARDING THE STATUTORY INFERENCE CONTAINED IN N.J.S.A. 2C:29(b); A SPECIFIC UNANIMITY CHARGE REGARDING THE ELUDING AND THEFT BY DECEPTION CHARGES, AND THE CHARGE DEALING WITH PRIOR CONTRADICTORY STATEMENTS OF WITNESSES (NOT RAISED BELOW).

POINT III

THE PROSECUTOR'S QUESTIONS DURING THE TRIAL AND HIS COMMENTS IN THE SUMMATION REGARDING DEFENDANT'S SILENCE VIOLATED THE RIGHTS ACCORDED TO THE DEFENDANT BY WELL ESTABLISHED PRECEDENTS AND CONSTITUTE REVERSIBLE ERROR. (NOT RAISED BELOW).

POINT IV

THE STATE'S FAILURE TO PRODUCE WITNESSES WITH PERSONAL KNOWLEDGE OF THE ALLEGATIONS RELATING TO COUNTS II [GILSTER MARYLEE CORPORATION] AND III [RLN LEASE, INC.], SHOULD HAVE RESULTED IN JUDGMENTS OF ACQUITTAL REGARDING THOSE COUNTS.

POINT V

THE CUMULATIVE EFFECT OF THE ERRORS REQUIRE REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT VI

THE TRIAL COURT ABUSED ITS DISCRETION BY IMPOSING AN EXTENDED TERM AND BY IMPERMISSIBLE "DOUBLE COUNTING" AGGRAVATING FACTORS TO ACHIEVE AN EXCESSIVE SENTENCE.

I

We commence our review by focusing on the theft by deception convictions and defendant's contention that the use of hearsay to prove the events of Count Two (Gilster), the introduction of evidence of other bad acts allegedly committed by defendant through the testimony of State Police Detective William Tietjen, and two instances of prosecutorial misconduct during the summation singly or in combination require a new trial. We agree that the cumulative effect of these errors requires a new trial on the theft by deception charges (Counts One to Four).

As related earlier in this opinion, the State presented the testimony of Larry Kerley to establish the theft from Gilster. It was evident throughout his testimony that he had no interaction with the caller who sought payment for a purported repair to a Gilster truck on the New Jersey Turnpike. In fact, other than his testimony that he inspected the COMCHEK when it was returned to his firm, his testimony was almost entirely hearsay. The only objections occurred when he was asked the substance of any subsequent discussion with the truck driver and the State Police and whether defendant had authorization to cash the COMCHEK. We, therefore, consider the error according to the plain error standard. R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971).

This error infects only the conviction on Count Two. As to this count, we must determine whether the use of hearsay testimony to establish this theft by deception offense was clearly capable of producing an unjust result. Under the unique circumstances of this case where a telephone conversation was the means to deceive a person to authorize payment of fictitious repairs, it was critically important that the evidence of this charge be related by the person who received the call and authorized the issuance of the payment instrument. The jury, however, was deprived of this opportunity because Kerley was not a party to the call and his testimony relied solely on information reported to him by another.

Moreover, the problem of using hearsay to establish the theft from Gilster was compounded during the testimony of Detective Tietjen. He related that he called Gilster and spoke to Kerley. Tietjen told the jury that Kerley told him that Gilster had received a call to authorize payment for repair services that were not performed on a Gilster truck. Defendant objected to this testimony and the objection was sustained. The judge instructed the jury that it could not consider Tietjen's version of Kerley's testimony, but it could consider the evidence provided by Kerley. Yet, this testimony was also infected with hearsay. Under the unique circumstances of this case, the use of hearsay to establish the offense cannot be considered harmless, and the conviction on Count Two is reversed.

We reject defendant's argument that the testimony pertaining to Count Three, the RLN theft, is similarly tainted. Borgerson testified that his boss initially spoke to the caller, but Borgerson joined the call, received all the pertinent information, and authorized payment.

Defendant also argues that the Tietjen testimony contained multiple references to other bad acts committed by defendant that caused undue prejudice to him. In his brief testimony, Tietjen told the jury five times that he knew defendant from other investigations. He also informed the jury that he charged defendant with theft and served defendant with the charge while he was in the Hudson County jail.

The references to other bad acts by defendant were neither veiled nor oblique. When asked by the prosecutor if a driver's license did, in fact, belong to defendant, Tietjen responded, "I've run it before with various contacts with James DeRose and it was also run on this day also." Soon thereafter, the prosecutor asked Tietjen to identify another person. Tietjen replied, "His number has come up in other investigations involving Mr. DeRose."

The prosecutor also asked Tietjen if he was familiar with Quick Cash. Instead of a simple "yes" or "no," the detective stated, "From this investigation and others involving Mr. DeRose." When Tietjen commenced to relate his investigation of the check authorized by Gilster, he volunteered that he "was familiar with [Gilster] from two other investigations involving Mr. DeRose." An objection was lodged, the objection was sustained, and the judge instructed the jury to disregard the last comment. Then, instead of responding with a simple "yes" to the question posed by defense counsel about whether Tietjen knew if defendant was employed at his father's tire repair company, Tietjen responded that he had had "dealings" with defendant in August 2004.

Finally, Tietjen informed the jury that criminal charges were served on defendant while he was incarcerated in the Hudson County jail. Here, the judge recognized the obvious prejudice and inquired at sidebar whether defendant was incarcerated due to other charges. When informed that defendant was incarcerated on other charges, the judge advised the jury to disregard the information of defendant's incarceration.

It is of no moment whether Tietjen's testimony was motivated by ill will or ignorance. The result was severe prejudice to defendant. Defendant had been charged with four counts of theft by deception. The jury learned through Tietjen that this indictment simply scratched the surface of defendant's criminal activities. We also do not consider the lack of objection to four of the six incidents as an indication by defense counsel that the references to multiple other unindicted criminal acts was harmless. See State v. Loyal, 386 N.J. Super. 162, 173-74 (App. Div.) (recognizing that while lack of objection can indicate there was no perceived prejudie. There are situations, absent objection, which require trial court intervention because the argument or question is clearly improper), certif. denied, 188 N.J. 356 (2006). In fact, when Tietjen was recalled to provide some very brief testimony, the trial judge cautioned him as follows: "Do not add additional information beyond what you're asked." This comment indicates to us that the trial judge recognized the damage of these volunteered comments and belies any suggestion that the comments had no impact on the outcome of this trial, at least as to the theft by deception charges. As noted, the State's evidence in support of the four theft by deception charges is based entirely on four persons' recollections of a conversation with a person unknown to them and further evidence tracing the documentation to defendant. The detective's testimony seemed designed to resolve any doubts by the jury that defendant was the caller to each trucking company.

Defendant also complains that the prosecutor's questions to Tomko, the officer who responded to the call from Quick Cash, and a statement by the prosecutor in his summation violated defendant's right to remain silent. We agree that the prosecutor improperly commented on defendant's failure to provide a justification for his conduct and that this error, coupled with the other errors cited by defendant, requires a new trial on the four theft by deception charges.

Tomko responded to the call for assistance from Quick Cash and was struck by defendant as he ran from the store. The prosecutor asked Tomko whether defendant said anything to him as defendant emerged from the store. Tomko replied, "Not a word."

During his summation, the prosecutor used this brief reference as a springboard for the following comments in his summation:

Officer Tomko arrives. What does the defendant do[?] [Tomko] testified [defendant] runs to the opposite door of where the officer is, not right to the officer. And you heard me on my question that was objected and sustained to when I said what did he do if he feels these crazy people are holding him in there and not giving him his check. He should have been kissing the feet of Officer Tomko. Thank God you're here. They won't give me my check. Can you help here, sir. I'm so glad you showed up and now they lock me in.

Later, the prosecutor stated:

Now if the defendant is innocent of anything at this point on 11/19/05 -- 04, let's talk about what he didn't do if he's an innocent man in the situation. He didn't stay in the store. He didn't ask the clerks for help. He didn't ask the other people in the store for help. He didn't call the police. He didn't call any of these other companies. He didn't call Ghost Busters. He didn't call anyone. He didn't do anything.

When the officer showed up he didn't talk to the officer. He didn't say thank you you're here.

These statements suffer from two problems. First, the prosecutor improperly referred to a question that was apparently the subject of a sustained objection. By doing so, he placed the information contained in that question before the jury in direct contradiction of a prior ruling. Second, the statements that defendant said nothing to Tomko and the prosecutor's conjecture about what an innocent person would have said under similar circumstances implicates defendant's right to remain silent.

Generally, a prosecutor is extended considerable leeway in fashioning a closing argument as long as the comments are reasonably related to the evidence and inferences that may reasonably be derived from the evidence. State v. Frost, 158 N.J. 76, 82 (1999). A prosecutor also must avoid comments that invade rights bestowed on a defendant, including the right to remain silent. See, e.g., State v. Daniels, 182 N.J. 80, 96-97 (2004) (prosecutor's comments improper because they punished defendant for exercising his right to be present at trial, to present witnesses and evidence in his defense, and to testify on his own behalf); State v. Deatore, 70 N.J. 100, 112 (1976) (questioning of defendant about his failure to provide an alibi to the police at or about the time of his arrest infringes on the right of a defendant against self-incrimination); State v. Sinclair, 49 N.J. 525, 549 (1967) (prosecutor has the right to make fair comment on the evidence, but where defendant was the only person that could have been called as a witness there is a danger that the prosecutor may reflect upon a defendant's Fifth Amendment right to remain silent).

A defendant has the right to remain silent when in police custody and during an interrogation. Deatore, supra, 70 N.J. at 114. This right to remain silent extends to the time at or near the time of arrest. State v. Muhammad, 182 N.J. 551, 569 (2005); State v. Brown, 118 N.J. 595, 610 (1990); Deatore, supra, 70 N.J. at 108-09. Thus, if defendant does not provide information about or an explanation for his activities at or near the time of arrest, the prosecutor may not comment on that silence in order to establish an inference of consciousness of guilt. Deatore, supra, 70 N.J. at 108-09, 115-16. On the other hand, a defendant does not have a right not to speak prior to arrest, so evidence of pre-arrest silence that does not occur during an interrogation or is not proximate in time to his arrest may be the subject of comment. Brown, supra, 118 N.J. at 613.

In Brown, the Court considered the pre-arrest silence of one of the two persons charged with death by auto. Id. at 600. The accident that took the life of the victim involved the vehicle driven by the victim and the vehicles driven by each of the defendants. Ibid. One defendant did not stop after the collision. Id. at 602. He returned later with the fire department and participated in extricating the victim from the wreck. Ibid. This defendant revealed his involvement as the driver of the "other" vehicle two days after the accident. Id. at 603, 609.

The Court held that the defendant's silence following the accident was admissible for impeachment purposes because no governmental compulsion was involved at the time the defendant remained silent. Id. at 613-14. The Court held that

We now hold that pre-arrest silence may be admitted for impeachment purposes provided no governmental compulsion is involved. In determining admissibility, the probative worth of pre-arrest silence as bearing on credibility must be assessed in light of all the surrounding circumstances. If it can be inferred by the fact-finder that a reasonable person situated as the defendant, prior to arrest, would naturally have come forward and mentioned his or her involvement in the criminal episode, particularly when this is assessed against the defendant's apparent exculpatory testimony, then the failure to have done so has sufficient probative worth bearing on defendant's credibility for purposes of impeachment.

[Ibid.]

Significantly, the Court limited the use of pre-arrest silence to impeachment in instances when the defendant offered exculpatory testimony and then only "when viewed objectively and neutrally in light of all circumstances, it generates an inference of consciousness of guilt." Id. at 615.

In Muhammad, supra, the defendant fell silent after the victim accused him of sexual assault. 182 N.J. at 561. He maintained that silence after his arrest and during interrogation. Id. at 561-63. At trial, the prosecutor repeatedly questioned witnesses and commented about the defendant's silence at or near the time of his arrest. Id. at 565-66, 573. The defendant did not testify at trial. Id. at 572. Noting that the prosecutor's inquiries and comments were designed to allow the jury to draw an inference of guilt, the Court held that the State was not allowed to use the defendant's silence to convict him. Id. at 573. Notably, the Court emphasized that it addressed the defendant's silence at or near the time of his arrest on the narrow ground that the silence referred to by the prosecutor was in a custodial setting. Ibid. n.8. In doing so, the Court recognized that it had never addressed the use of pre-arrest silence in any context other than impeachment when the defendant had testified at trial and offered exculpatory evidence. Ibid.

Here, defendant did not testify. Therefore, the State's question to the responding police officer and the discussion of what defendant should have said or would have been expected to say at the Quick Cash store can only be considered substantive evidence of his guilt. This is not permissible. State v. Brown, 190 N.J. 144, 159 n.1 (2007). We also reject the notion that defendant's silence cannot be considered pre-arrest silence at or near the time of arrest. Defendant was actually arrested approximately three weeks later. Yet, but for defendant's fortuitous escape, defendant would have been arrested as soon as Tomko entered the store. The State's comment on defendant's failure to pause and offer an innocent explanation for his presence and behavior in the store infringed his right to remain silent and provides a further basis to reverse the convictions on the theft by deception charges and to allow a new trial on these charges.

II

Defendant contends that the error that infected the theft by deception charges carried over to the aggravated assault, resisting arrest and eluding charges. He also argues that the jury instruction on the eluding charge is erroneous, that the eluding and theft by deception charges required a specific unanimity instruction, and that the instruction on prior contradictory statements of witnesses was inadequate. We disagree.

Defendant argues that the trial judge was required to inform the jury of the elements of each motor vehicle offense committed by defendant in the course of his flight from the Quick Cash store as an element to the eluding charge.

A person is guilty of third-degree eluding if, "while operating a motor vehicle on any street or highway in this State . . . [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 . . . ." N.J.S.A. 2C:29-2b. This crime becomes a second degree crime "if the flight or attempt to elude creates a risk of death or injury to any person." Ibid. The statute also contains "a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person's conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes." Ibid.

Defendant argues that the jury should have been instructed on the existence of defendant's eight motor vehicle violations and the elements of those offenses pursuant to State v. Dorko, 298 N.J. Super. 54, 59 (App. Div.), certif. denied, 150 N.J. 28 (1997). See also State v. Dixon, 346 N.J. Super. 126, 138 (App. Div. 2001), certif. denied, 172 N.J. 181 (2002). In Dorko, the judge instructed the jury that they could infer that the defendant's conduct created a risk of death or injury to any person based upon his violation of various motor vehicle laws. 298 N.J. Super. at 59. The judge did not charge the elements of the underlying motor vehicle offenses, which we found to be reversible error. Ibid.

Here, the trial judge delivered the Model Jury Charge (Criminal), 2C:29-2b, for second and third degree eluding. The trial judge did not instruct the jury on the permissible inference allowed by statute.

Unlike Dorko, supra, 298 N.J. Super. at 59, the State did not rely upon this statutory inference but presented direct evidence of defendant's conduct that created a risk of death or injury to any person. See State v. Bunch, 180 N.J. 534, 542 (2004). In Dorko, we noted that the statutory inference is provided to avoid the necessity of proving that defendant created a risk of death or injury to another person, so if the inference is invoked the jury must be given the proper guidelines. Dorko, supra, 298 N.J. Super. at 61. If the statutory inference is not invoked then no instruction on that issue is required. See Bunch, supra, 180 N.J. at 542, 547-48 (detailing jury instructions given in case where the State did not rely on statutory inference).

Here, the judge was not required to mention the motor vehicle violations in his charge, or instruct the jury that they could draw an inference from such violations. The State presented evidence that defendant crossed the double lines into on-coming traffic, drove onto a sidewalk and knocked down a street light/pole, and drove the wrong way on a one-way street in a residential area. This was more than sufficient evidence from which a rational jury could find, beyond a reasonable doubt, that defendant's behavior created a risk of death or injury to any person. See Bunch, supra, 180 N.J. at 549 (finding sufficient evidence for a second-degree eluding conviction where officers observed the defendant drive the wrong way on a one-way street, causing oncoming vehicles to pull over).

Defendant also argues that the court failed to provide specific unanimity charges with regard to the eluding and the theft by deception charges, which were required because the State presented different theories on which to convict defendant. These theories were not contradictory or distinct enough to warrant a specific unanimity charge.

"The notion of unanimity requires 'jurors to be in substantial agreement as to just what a defendant did' before determining his or her guilt or innocence." State v. Frisby, 174 N.J. 583, 596 (2002) (quoting United States v. Gipson, 553 F.2d 453, 457 (5th Cir. 1977)). Absent a specific request, a general unanimity instruction usually suffices to instruct the jury that they must be unanimous on whatever specifications they find to be the predicate of the guilty verdict. State v. Parker, 124 N.J. 628, 637-38 (1991), certif. denied, 503 U.S. 939, 112 S. Ct. 1483, 117 L. Ed. 2d 625 (1992). A general unanimity charge will not suffice in a situation that involves

"a single crime that can be proven by different theories based on different acts and at least two of these theories rely on different evidence and [when] the circumstances demonstrate a reasonable possibility that a juror will find one theory proven and the other not proven but that all of the jurors will not agree on the same theory."

[Id. at 635 (quoting People v. Melendez, 274 Cal. Rptr. 599, 608 (Ct. App. 1990)).]

Defendant argues that since the charge on the eluding offense included reference to Officers Tomko and Elias, it was possible that some of the jury believed defendant was guilty of eluding Officer Tomko, while others believed that he was guilty of eluding Officer Elias. Defendant also argues that the theft by deception charge included two theories upon which the jury convicted the defendant. The theories presented were that defendant created or reinforced a false impression or defendant prevented another from acquiring information that would affect the person's judgment of a transaction.

Defendant's reliance on Frisby is misplaced. In Frisby, the State proffered two entirely distinct factual scenarios to support the third element of the crime of endangering. 174 N.J. at 599. In Frisby, the defendant endangered the child either because the defendant was with the child and inflicted injury on that child or because the defendant abandoned the child in a motel room. Id. at 598. Thus, the allegations in Frisby were not "conceptually similar" or even "marginally related" to each other, so they warranted a specific unanimity instruction. Id. at 599-600.

In this case the different theories relied upon were "conceptually similar" and one did not distinctly contradict the other. The eluding offense encompassed defendant's actions during a chain of events in which both Officers Tomko and Elias were involved. Defendant's actions constituted a continuing course of criminal conduct and did not require a specific unanimity charge. See Parker, supra, 124 N.J. at 634. Theft by deception is a single offense, but it provides for various modes of commission, so it does not require that the jury reach unanimity on which specific aspect of the offense occurred. Id. at 634-35.

Finally, defendant argues that multiple inconsistencies were revealed during Officer Elias's testimony and in his report of the incident, and this required an inconsistent statement charge in accordance with State v. Allen, 308 N.J. Super. 421, 428-32 (App. Div. 1998). The judge charged the jury generally on credibility with a reference to inconsistent statements, which was sufficient to address any inconsistencies that arose with Officer Elias's testimony.

The jury was well and amply equipped to deal with any inconsistencies in light of this credibility charge in conjunction with the vigorous arguments of defense counsel and the common sense of the jury. State v. Hammond, 338 N.J. Super. 330, 341 (App. Div.), certif. denied, 169 N.J. 609 (2001).

In summation, we reverse and remand the theft by deception convictions in Counts One through Four due to cumulative error that deprived defendant of a fair trial on these charges. We also hold that the error that infected the theft by deception convictions did not taint the convictions for aggravated assault, resisting arrest or eluding. In addition, we have identified no error in the instruction to the jury on these charges. Therefore, the resisting arrest, aggravated assault and eluding convictions are affirmed.

 
Affirmed in part, reversed in part and remanded for a new trial.

According to one witness, the bank or check cashing service will call the other organization to obtain the authorization code.

The witness referred to Perryville as being located in Montana, but Gilster's office is located in Perryville, Missouri.

Borgeron actually entered two T-Cheks because the maximum amount of a single T-Chek was $700.

Defendant cites this testimony and his attorney's failure to object to these statements in support of his argument that defense counsel provided ineffective assistance of counsel. He also includes this error and others in his argument that cumulative error mandates a new trial.

We reject the contention that the prosecutor formed his questions to facilitate the answers provided by Tietjen. In each case, the question could be answered simply with a "yes" or "no" or with some additional factual information that did not include any prior contacts between Tietjen and defendant.

The exchange that was the subject of the objection and the direction by the trial judge to "lay a more complete foundation" is the following:

"Q. What was Mr. DeRose doing at that point when you saw him inside the store? A. When I first got there Mr. DeRose was by the counter and I was outside the door. And Mr. DeRose turned around and saw me in uniform and he . . . . "

"You may infer risk of death or injury to any person if the defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of this State . . . ." Model Jury Charge (Criminal), 2C:29-2b. The instruction concludes,

[a]t the same time, remember that you are never required or compelled to draw this inference. As I have already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish.

[Model Jury Charge (Criminal), 2C:29-2b.]

Due to this disposition, we need not address defendant's contention that trial counsel was ineffective, an issue we usually do not consider on direct appeal. State v. Preciose, 129 N.J. 451, 460 (1992).

(continued)

(continued)

28

A-5714-05T5

February 26, 2008