STATE OF NEW JERSEY v. ERIC SEEGERS
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2588-07T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC SEEGERS,
Defendant-Appellant.
______________________________
Submitted March 23, 2010 - Decided April 30, 2010
Before Judges Parrillo and Ashrafi.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Docket No. 98-07-0772.
Yvonne Smith Segars, Public Defender, attorney for
appellant (Karen E. Truncale, Assistant Deputy Public
Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor,
attorney for respondent (Christopher W. Hsieh, Senior
Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Following a jury trial in absentia, defendant Eric Seegers
was found guilty of third-degree receiving stolen property,
N.J.S.A. 2C:20-7 and 2C:20-2b(2)(b); and second-degree eluding,
N.J.S.A. 3C:29-2b. In addition, the trial judge found defendant
guilty of reckless driving as charged in the complaint. On the
State's application, the court sentenced defendant, as a
persistent offender, N.J.S.A. 2C:44-3a, to an extended term of
twenty years with a ten-year parole bar on the eluding offense
and a concurrent five-year term on the receiving stolen property
crime. Appropriate fees and penalties were also imposed.
Defendant appeals. We remand for resentencing in accordance
with State v. Pierce,
188 N.J. 155, 169-70 (2006), for merger of
the reckless driving violation with the eluding offense, and for
consideration of defendant's request for gap time credit. We
affirm the judgment of conviction in all other respects.
According to the State's proofs, on May 27, 1998, Paterson
Police Officers Alex Popov and William Perry were patrolling the
north sector of the city near the Christopher Columbus housing
project in a marked patrol car. Around 2:00 p.m., they observed
a Buick Regal driving out of the housing complex with a "loud
muffler" and "tending to lean to the right a little bit." From
a distance of about twenty-five to thirty yards behind, the
officers observed three occupants in the car, one of whom was
defendant, the driver. As defendant made a right turn onto
Temple Street, Officer Popov radioed the license plate number to
the dispatcher, who then reported that the vehicle was stolen.
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Popov activated his overhead lights and siren and pursued
defendant in an effort to effectuate a motor vehicle stop.
Defendant accelerated and, according to Popov, reached a
top speed of 70 miles per hour (m.p.h.).1 Defendant made a
series of right turns, passing several cars stopped at a red
light, and headed towards the housing project. The area of the
pursuit consisted of two public elementary schools in session, a
multi-building residential housing project, and four 16-floor
apartment buildings, the "Presidential Towers[.]" The posted
speed limit was 25 m.p.h. in this heavily populated area. As
defendant drove into the housing complex, several pedestrians
had to jump onto the sidewalk to avoid being run over.
The officers pursued defendant into the parking lot of the
housing project where the three occupants then jumped out of the
moving vehicle and fled on foot. The Buick, moving about three
to five m.p.h., struck a parked vehicle and came to rest.
Defendant fled into one of the buildings and was apprehended by
Officer Popov on the second floor stairwell. The front seat
passenger fled in the opposite direction into a nearby house,
where he was apprehended by Officer Perry.
Officer Popov later examined the Buick, and noted that the
steering column was broken, enabling the car to be operated
1
Officer Perry estimated defendant's speed at about 55 m.p.h.
A-2588-07T4
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without an ignition key. The owner of the Buick, Reynaldo
Otero, explained that on the night before the incident, May 26,
he had parked his car on West Broadway near his home. The next
morning, Otero discovered that the car was gone and reported it
stolen. After the vehicle was recovered by the police on May
27, Otero noticed that the trunk had been "popped" and the
contents of the trunk had been stolen. In addition, the
exterior door lock was damaged and the steering column was
broken.
At the close of evidence and following instructions, the
jury convicted defendant of third-degree receiving stolen
property and second-degree eluding. On appeal, defendant raises
the following issues:
I. THE COURT ERRED IN DENYING THE MOTION
FOR JUDGMENT OF ACQUITTAL ON THE
SECOND-DEGREE ELUDING CHARGE BECAUSE
THERE WAS NO PROOF THAT A RISK OF
INJURY WAS CREATED.
II. THE COURT FAILED TO CHARGE THE LESSER-
INCLUDED OFFENSE OF FOURTH-DEGREE
UNLAWFUL TAKING OF A MEANS OF
CONVEYANCE.
III. SEEGERS WAS SENTENCED AS A PERSISTENT
OFFENDER TO AN EXTENDED TERM OF 20
YEARS WITH A 10 YEAR PAROLE BAR WHICH
TERM IS MANIFESTLY EXCESSIVE.
ADDITIONALLY, THE DEFENDANT IS ENTITLED
TO GAP-TIME CREDIT AND MERGER OF THE
RECKLESS DRIVING TICKET.
The Quantum of The Sentence Is
A.
A-2588-07T4
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Excessive.
B. The Defendant Is Entitled To Gap
Time Credit.
C. The conviction for reckless
driving should be merged with the
second-degree eluding.
In a supplemental brief, defendant pro se raises the following
arguments:
I. DEFENDANT WAS DEPRIVED OF DUE PROCESS
OF LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I PAR. I OF THE
NEW JERSEY CONSTITUTION WAS VIOLATED
WHEN THE TRIAL COURT COMMITTED
REVERSIBLE ERROR WHEN IT FAILED TO
CHARGE THE JURY THAT THE
"IDENTIFICATION" OF THE DRIVER IS AN
ELEMENT OF ELUDING (NOT RAISED BELOW).
II. DEFENDANT WAS DEPRIVED DUE PROCESS OF
LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I PAR. I OF THE
NEW JERSEY CONSTITUTION WAS VIOLATED
WHEN THE TRIAL COURT ERRED IN FAILING
TO INSTRUCT JURY ON "SCIENTER" AS AN
ELEMENT OF THE OFFENSE OF ELUDING (NOT
RAISED BELOW).
III. THE DEFENDANT'S RIGHT TO DUE PROCESS OF
LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ART. I PAR. 1 OF THE
NEW JERSEY CONSTITUTION WAS VIOLATED BY
THE TRIAL COURT'S FAILURE TO INSTRUCT
THE JURY ON THE LAW OF "BODILY INJURY"
EVEN THOUGH THE RISK OF INJURY WAS AN
ESSENTIAL ELEMENT OF SECOND[-]DEGREE
ELUDING (NOT RAISED BELOW).
A-2588-07T4
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IV. DEFENDANT WAS DEPRIVED DUE PROCESS OF
LAW AS GUARANTEED BY THE FOURTEENTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART. I PAR. I OF THE
NEW JERSEY CONSTITUTION WAS VIOLATED
WHEN THE TRIAL COURT FAILED TO CHARGE
THE LESSER[-]INCLUDED OFFENSES OF
CARELESS DRIVING FOR RECKLESS DRIVING,
AND CONSTITUTES REVERSIBLE ERROR. (NOT
RAISED BELOW).
V. THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S MOTION TO ACQUIT AGAINST
THE WEIGHT OF THE EVIDENCE.
VI. DEFENDANT ENTITLED TO GAP TIME CREDITS
PURSUANT TO N.J.S.A. 2C:44-5b(2).
VII. THE SENTENCING COURT ABUSED ITS
DISCRETION WHEN IT EXCESSIVELY
SENTENCED AND PUNISHED DEFENDANT FOR
INVOKING HIS SIXTH AMENDMENT RIGHT TO A
JURY TRIAL.
VIII. DEFENDANT WAS DEPRIVED DUE PROCESS OF
LAW AS GUARANTEED BY THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION AND ART.
1 PAR. 9 & 10 OF
THE NEW JERSEY CONSTITUTION WAS
VIOLATED WHEN DEFENSE COUNSEL FAILED TO
CHALLENGE THE IDENTITY OF THE DRIVER ON
THE ISSUE OF SUGGESTIBILITY AND
RELIABILITY, AND CONSTITUTE INEFFECTIVE
ASSISTANCE OF COUNSEL.
I.
In challenging the sufficiency of evidence to support his
eluding conviction, defendant argues that the State failed to
prove that his actions created a risk of death or injury to a
specific person. We conclude there was ample evidence to
support this conviction.
A-2588-07T4
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On a motion for judgment of acquittal:
At the close of the State's case or after
the evidence of all parties has been closed,
the court shall, on the defendant's motion
or its own initiative, order the entry of a
judgment of acquittal of one or more
offenses charged in the indictment or
accusation if the evidence is insufficient
to warrant a conviction.
[R. 3:18-1.]
Whether at trial or on appeal, the standard for determining the
sufficiency of evidence to uphold a conviction is the same,
namely
whether, viewing the State's evidence in its
entirety, be that evidence direct or
circumstantial, and giving the State the
benefit of all its favorable testimony as
well as all of the favorable inferences
which reasonably could be drawn therefrom, a
reasonable jury could find guilt of the
charge beyond a reasonable doubt.
[State v. Reyes,
50 N.J. 454, 458-59
(1967).]
"On such a motion the trial judge is not concerned with the
worth, nature or extent (beyond a scintilla) of the evidence,
but only with its existence, viewed most favorably to the
State." State v. Kluber,
130 N.J. Super. 336, 342 (App. Div.
1974), certif. denied,
67 N.J. 72 (1975).
Second-degree eluding requires a "risk of death or injury
to any person." N.J.S.A. 2C:29-2b (emphasis added). The term
"any person" is intended to encompass "all natural persons,
A-2588-07T4
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including the defendant." State v. Bunch,
180 N.J. 534, 543
(2004). The State need not show that a member of the public was
in the vicinity of the chase. A risk of injury to the police
officers, who by definition are present, is sufficient under the
State v. Wallace,
158 N.J. 552, 560 (1999). As the
statute.
Wallace Court held:
We are satisfied that the Legislature
intended to protect all persons by the
eluding statute, including the police
officers occupying the chasing vehicle and
any persons in the eluding vehicle, as well
as any people who could potentially be
exposed to injury or death along the chase
route. [T]he statute was designed to punish
[creation of] a possibility of injury to
others.
[Ibid.]
The State is relieved of the affirmative requirement of
showing a "risk of death or injury," and the jury may properly
infer such a fact, if the defendant's conduct involves a motor
vehicle violation under Chapter 4 of Title 39. Id. at 558-59.
This requirement does not mean that the jury must find a motor
vehicle or other violation before it may apply the permissive
inference; all that is necessary is that the jury be given a
standard -- i.e., the elements of the alleged motor vehicle
offenses -- by which to determine whether a violation occurred
and thus whether to apply the inference. See State v. Dixon,
346 N.J. Super. 126, 138-39 (App. Div. 2001), certif. denied,
A-2588-07T4
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172 N.J. 181 (2002). The judge remains the arbiter of the
defendant's guilt of the motor vehicle infractions.
Separate and apart from whether the permissive inference
applied here, the State produced ample direct evidence that
defendant's eluding in fact created a risk of death or injury.
In a heavily populated area, consisting of elementary schools,
housing projects and residential high-rise apartment buildings,
defendant drove at estimated speeds as high as 70 m.p.h. through
both vehicular and pedestrian traffic. See, e.g., State v.
Thomas,
187 N.J. 119, 137-38 (2006), rev'd on other grounds,
195 N.J. 431 (2008). In fact, several pedestrians had to jump out
of defendant's way to avoid being hit by his car. Defendant
himself "bailed" out of the moving vehicle, which continued
moving until it struck a parked vehicle. The happenstance that
no one was actually injured during the pursuit does not absolve
defendant of second-degree criminal liability since the
statute's protective scope encompasses any person who could
potentially be exposed to injury or death along the chase route.
Wallace, supra,
158 N.J. at 560. Here, the potential for such
consequences is obvious and well established in the record.
A-2588-07T4
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II.
Defendant next argues the court erred in not charging the
lesser-included offense of fourth-degree unlawful taking of a
means of conveyance (joyriding). We disagree.
At the charge conference, the trial judge raised the issue
of whether unlawful taking of a conveyance under N.J.S.A. 2C:20-
10, either a fourth- or third-degree offense, could be a lesser-
included offense of receiving stolen property given the evidence
presented. In ultimately rejecting defense counsel's request to
charge fourth-degree joyriding, the judge reasoned:
What I'm trying to explain is the fact that
if the jury concludes that it wasn't the
defendant Seegers' intention to permanently
deprive Otero of the vehicle, but to rather
temporarily deprive, and he was the operator
of the vehicle, then potentially you could
charge unlawful taking by a means of
conveyance, fourth degree. Why I can't in
this case is because there is no disputed
fact as to the property damage. There was
property damage, and if there was property
damage that resulted from the operation of
the vehicle which was being taken without
the consent of the owner and was being taken
to temporarily deprive him, then I could
only charge third degree, because that's
what the law says it is. And if I charge
third degree, I'm then charging a different
substantive offense. I'm giving the jurors
two bites at the apple to convict your
client, and I don't think I should be doing
that.
[Emphasis added).]
We agree with this rationale.
A-2588-07T4
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Where a defendant requests a jury charge on a lesser-
included offense, the trial court examines the record thoroughly
to determine if "the evidence at trial presents a rational basis
for the jury to acquit the defendant of the greater offense and
State v. Brent, 137 N.J.
convict him or her of the lesser."
107, 123 (1994); N.J.S.A. 2C:1-8e. A defendant is entitled to a
charge on a lesser offense that is supported by the evidence,
regardless of whether the charge is consistent with the theory
Brent, supra,
137 N.J. at 118
of the defendant's defense.
(citing State v. Powell,
84 N.J. 305, 317 (1980)).
A person is guilty of the crime of receiving stolen
property if he knowingly receives movable property of another
knowing that it had been stolen, or believing that it was
N.J.S.A. 2C:20-7. A person commits fourth-
probably stolen.
degree joyriding if, "with purpose to withhold temporarily from
the owner, he takes, operates or exercises control over a motor
vehicle without the consent of the owner or other person
N.J.S.A. 2C:20-10b. The offense
authorized to give consent."
is elevated to third-degree if, in addition, the person
"operates the motor vehicle in a manner that creates a risk of
injury to any person or a risk of damage to property." N.J.S.A.
2C:20-10c.
A-2588-07T4
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Clearly, third-degree joyriding is not a lesser-included
offense of theft because it involves additional proofs relating
to the greater risk of harm to person or property, not from
taking the vehicle, but rather in its manner of operation, which
is not one of the elements of the crime of receiving stolen
property. State v. Robinson,
356 N.J. Super. 332, 341 (Law Div.
2002). Because it was not a lesser-included offense of
receiving stolen property, but rather an entirely different and
distinct crime not charged in the indictment, there was no error
in refusing to instruct the jury on third-degree joyriding.
Nevertheless, defendant argues the court should have
instructed on fourth-degree joyriding instead. This offense,
however, was not indicated in the record. The undisputed proofs
demonstrate there was physical damage not only to the stolen
vehicle, but an unattended parked car as well, and therefore,
the grade of the offense necessarily escalated to third-degree.
A jury could not rationally acquit defendant of third-degree
joyriding and convict him of the fourth-degree offense. Neither
was there a rational basis upon which the jury could acquit on
the greater offense of receiving stolen property and convict on
the so-called lesser offense of fourth-degree joyriding. Here
again, the proofs are undisputed that the contents of the trunk
had been removed without the owner's consent and the steering
A-2588-07T4
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column had been broken, enabling the vehicle to be operated
without a key. This evidence of permanent deprivation
undeniably refutes any intention to drive the car only
temporarily for pleasure and thus forecloses a jury from
rationally convicting on the lesser offense.
In an analogous case, State v. Richardson,
208 N.J. Super.
399, 402-03 (App. Div. 1986), the defendant eluded police in a
Cadillac, exited the vehicle, and fled on foot. The steering
column and ignition column had been broken, and the radio had
Id. at 403. We
been partially removed from the dashboard.
concluded that fourth-degree joyriding was not a lesser offense
of receiving stolen property:
We find a complete absence of any
rational basis in the evidence which even
remotely suggests that defendant only
intended to drive the car for pleasure. The
unlawful taking of a means of
transportation, or joyriding, is not a
lesser included offense of receiving stolen
property. The elements of the two offenses
are different. The unlawful taking of a
means of transportation and joyriding does
not involve stripping of a motor vehicle as
was demonstrated in the present case.
[Id. at 405-06 (internal citations
omitted).]
The cases relied upon by defendant, on the other hand, are
inapposite, involving passengers in stolen vehicles whom the
jury could reasonably have acquitted of receiving stolen
A-2588-07T4
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property, as their mere presence in the stolen car, as opposed
to possession thereof, may have been evidential of only a
See, e.g., State v. Moore, 330 N.J.
temporary use for pleasure.
Super. 535, 544 (App. Div.), certif. denied,
165 N.J. 531
(2000); State v. McCoy,
222 N.J. Super. 626, 633-34 (App. Div.
1988), aff'd,
116 N.J. 293 (1989); and State v. Alexander,
215 N.J. Super. 523, 529-31 (App. Div. 1987). Unlike these cases,
the evidence in the present matter simply affords no rational
basis for the jury to acquit defendant of receiving stolen
property and convict him of fourth-degree joyriding.
Accordingly, the trial court properly refused to instruct on the
lesser offense.
III.
Aside from the sentencing issues, the remaining arguments
raised by defendant pro se are without sufficient merit to
warrant extended discussion in a written opinion. R. 2:11-
3(e)(2). Suffice it to say, the court's eluding instruction,
read as a whole, State v. Wilbely,
63 N.J. 420, 422 (1973),
adequately informed the jury of the State's obligation to prove
that defendant was the person who committed the offenses
charged. Moreover, defense counsel never requested a separate
identification instruction, see State v. Gaines,
377 N.J. Super.
612, 623 (App. Div.), certif. denied,
185 N.J. 264 (2005) and,
A-2588-07T4
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in any event, identification was not a key issue in the case.
State v. Green,
86 N.J. 281, 291 (1981). In this regard,
Officer Popov's identification testimony was unequivocal and
unchallenged on cross-examination, which focused instead on
establishing that the eluding did not involve a risk of injury
to other vehicles in the roadway.
Nor was the eluding instruction deficient in any other
respect. The court properly charged all the elements of the
offense including defendant's knowledge he was being pursued by
police officers who had signaled him to stop.
As for defendant's ineffective assistance of counsel claim
based on counsel's failure to request a Wade2 hearing to suppress
proof of identification, such a claim relies on evidence outside
the record and, as such, is more appropriately considered on
post-conviction review, not direct appeal. State v. Preciose,
129 N.J. 451, 460 (1992).
IV.
Defendant challenges his sentence on multiple grounds, two
of which are conceded by the State. Thus, the State agrees that
there should be a limited remand for merger of defendant's
reckless driving violation with his eluding conviction. See
2
United States v. Wade,
388 U.S. 218,
87 S. Ct. 1926,
18 L. Ed. 2d 1149 (1967).
A-2588-07T4
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State v. Wallace,
313 N.J. Super. 435, 439 (App. Div. 1998),
aff'd,
158 N.J. 552 (1999). The State also agrees that a remand
is required under Pierce, supra,
188 N.J. at 169-70, to allow
the court to consider the full sentencing range for the
discretionary extended-term sentence imposed under N.J.S.A.
2C:44-3a, which "starts at the minimum of the ordinary-term
range and ends at the maximum extended-term range." Id. at 169.
In light of this remand, we need not consider defendant's
additional argument that the quantum of sentence imposed --
twenty years with a ten-year parole bar -- is manifestly
excessive. We also need not consider defendant's argument,
raised for the first time on appeal, that he is entitled to 256
days of gap time credit for the sentence he served on his Bergen
County conviction before he was sentenced on the instant
charges, Nieder v. Royal Indem. Ins. Co.,
62 N.J. 229, 234
(1973), and leave resolution of this issue for the trial judge
on remand.
The matter is remanded for resentencing. The judgment of
conviction is affirmed in all other respects.
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