STATE OF NEW JERSEY v. ISMAEL MENDEZ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2286-10T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ISMAEL MENDEZ, a/k/a GORDO

MENDEZ, and ISMAEL MENDEZ, JR.,

Defendant-Appellant.

________________________________________________________________

December 7, 2012

 

Submitted September 20, 2012 - Decided

 

Before Judges Koblitz and Lisa.

 

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-12-3562.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Sylvia M. Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

 

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

 

Appellant filed a pro se supplemental brief.

PER CURIAM

Defendant Ismael Mendez appeals from the November 16, 2010 judgment of conviction and subsequent sentence for various crimes stemming from a police chase. Newark police officers chased defendant after he failed to stop when they attempted to pull him over for speeding. Defendant's car ultimately collided with that of a Newark Police Sergeant. Defendant claims that the judge's jury charge was improper, he permitted prejudicial repetition of the State's testimony, and other errors occurred. Defendant also maintains that his sentence was excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.

An Essex County Grand Jury returned Indictment No. 08-12-3562, charging defendant with committing the following crimes on June 28, 2008: second-degree eluding, N.J.S.A. 2C:29-2(b) (count one); second-degree aggravated assault while attempting to flee or elude a law enforcement officer, N.J.S.A. 2C:12-1(b)(6) (count two); third-degree aggravated assault on a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count three); third-degree aggravated assault with a deadly weapon, a motor vehicle, N.J.S.A. 2C:12-1(b)(2) (count four); fourth-degree unlawful possession of a weapon, a motor vehicle, N.J.S.A. 2C:39-5(d) (count five); third-degree possession of a weapon, a motor vehicle, for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count six); third-degree criminal mischief, N.J.S.A. 2C:17-3 (count seven); and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count eight).

The State presented the following facts through the testimony of Newark police officers. Officers Wyhidi Wilson and Orlando Rivera were driving a marked patrol car at approximately 2:30 p.m. Sergeant Joseph Frost was alone in a separate marked unit in the area. Wilson and Rivera observed a green Chevy Impala with tinted windows driving at a high rate of speed in a twenty-five miles per hour zone. Wilson stated that the driver's side window was rolled down halfway so that he could see defendant was driving. Wilson activated his lights and sirens and pulled up behind the Impala. Shortly thereafter, the Impala "slowed down and pulled over almost to a complete stop." The Impala did not stop, however, but instead "sped off again." Wilson testified that, at the time of the attempted motor vehicle stop, defendant had not committed a crime that would permit a pursuit under the Attorney General's vehicular pursuit policy.

Defendant almost struck another car. Officers Wilson and Rivera, with activated lights and sirens, continued trailing the Impala, which was approximately one half-block ahead of their patrol car. The Impala accelerated and Wilson also accelerated the patrol car to forty or forty-five miles per hour in an "attempt[] to close the distance" with the Impala. After realizing that defendant was too far ahead, Wilson turned off the siren while Rivera contacted the dispatcher to alert other police units. The patrol car's lights remained activated.

Sergeant Frost heard the radio transmission and proceeded to assist. He noticed the Impala traveling at a high rate of speed and "fish-tailing." Frost turned, disregarding a stop sign at the intersection.

With Officers Wilson and Rivera trailing approximately one-half block behind, the Impala continued until it struck the front quarter-panel and driver's side door of Frost's vehicle at the intersection. Wilson testified to observing the Impala "jam on the brakes" before striking Frost's patrol car in the intersection. Wilson estimated that the entire episode, from the time he first observed the Impala speeding until it struck Frost's patrol vehicle, lasted "[a] little over" a minute.

Wilson heard the Impala's engine rev after the collision, "as if [defendant] was trying to accelerate[.]" The Impala continued down the street for a short time until it came to a complete stop.

As Wilson approached the driver's side of the Impala, he observed defendant "reach under the driver's side seat." Out of concern that defendant was trying to either "conceal or retrieve a weapon[,]" Wilson checked the driver's side floor and saw a "clear Ziploc bag containing a green leafy substance, which" he believed was marijuana.

Wilson testified that after the collision Frost was "completely disoriented." Frost was leaning against a gate, swaying from side-to-side and "was holding his head and his shoulder." Frost testified that he was "woozy" and in pain after the crash, but did not go to the hospital until the following day.

Jaquilla White, defendant's girlfriend, was in the front passenger seat of the Impala. She was the only witness for the defense. She indicated that she and defendant had been together all morning and that at no point had defendant driven erratically. She claimed that she never heard sirens or saw flashing lights. She stated that she never saw a police vehicle until, stopped at an intersection, she observed a marked police car speeding towards them. According to White, they attempted to get out of the way, but were struck by the police vehicle as they turned the corner. When shown a photograph of the damage to Frost's patrol car, White testified that she and defendant were hit by a different police vehicle.

The jury found defendant guilty of all counts before them.1 Defendant later pled guilty to Accusation No. 10-08-0800, which charged him with fourth-degree simulating a motor vehicle insurance identification card, N.J.S.A. 2C:21-2.3(b). The judge sentenced defendant on all charges to an aggregate term of sixteen years' imprisonment with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal defendant raises the following issues:

POINT I: IN LIGHT OF THE POLICE'S FAILURE TO COMPLY WITH THE ATTORNEY GENERAL'S GUIDELINES ON PURSUIT, THE JUDGE SHOULD HAVE CHARGED THE JURY ON CAUSATION. (Not Raised Below).

 

POINT II: TRIAL COURT ERRED TO THE DEFENDANT'S PREJUDICE BY GIVING THE INSTRUCTION ON FAILURE TO TESTIFY WITHOUT THE DEFENDANT'S CONSENT. (Not Raised Below).

 

POINT III: THE JUDGE'S FAILURE TO CONTROL THE TRIAL RESULTED IN THE ADMISSION OF CUMULATIVE, WASTEFUL EVIDENCE, DEPRIVING THE DEFENDANT OF DUE PROCESS AND A FAIR TRIAL BY OVER-OVEREMPHAS[IZ]ING THE TESTIMONY OF THE STATE'S WITNESSES.

 

POINT IV: THE DEFENDANT'S DISCRETIONARY EXTENDED TERM OF A SIXTEEN-YEAR BASE TERM WITH AN 85% PERIOD OF PAROLE INELIGIBILITY IS MANIFESTLY EXCESSIVE AND REQUIRES REMAND.

 

Additionally, defendant raises the following points in his pro se supplemental brief:2

POINT I: SINCE THE TRIAL COURT LACKED JURISDICTION TO PROSECUTE DEFENDANT ON AN INVALID COMPLAINT FOR AGGRAVATED ASSAULT WHILE ELUDING[,] DEFENDANT['S] CONVICTION AS WELL AS HIS SENTENCE ON COUNTS (2) AND (3) OF THE INDICTMENT MUST BE VACATED. (Partially Raised Below).

POINT II: DEFENDANT['S] CONVICTION FOR SECOND DEGREE ELUDING MUST BE DOWNGRADED TO A THIRD DEGREE ELUDING. (Not Raised Below).

POINT III: UPON REMAND FOR RESENTENCE THE TRIAL COURT MUST EVALUATE DEFENDANT['S] PROGRESS SINCE INITIAL SENTENCE.

 

I

 

Defendant asserts in Point I of his brief that, on the day of the incident, the officers failed to comply with the New Jersey Attorney General's guidelines on police vehicular pursuit. He contends that the trial judge erred by failing to provide a jury instruction on causation, as "[t]here was a strong basis in the evidence for a properly-instructed jury to conclude that . . . the collision would not have occurred" but for "the police's blatant disregard for the guidelines."

As defendant did not raise this issue at trial, it must be considered under the plain error rule. R. 2:10-2. Although a defendant generally "waives the right to contest an instruction on appeal [under Rule 1:7-2] if he does not object to the instruction" at trial, State v. Torres, 183 N.J. 554, 564 (2005), a reviewing court "may reverse on the basis of unchallenged error if [it] find[s] [an] error that was 'clearly capable of producing an unjust result.'" Ibid. (quoting R. 2:10-2).

"[A]ccurate and understandable jury instructions in criminal cases are" vital to safeguard "a defendant's right to a fair trial[.]" State v. Tierney, 356 N.J. Super. 468, 482 (App. Div.), certif. denied, 176 N.J. 72 (2003). Therefore, "it is sometimes necessary to go beyond the Model Jury Charges to properly guide the jury." Ibid. (citing State v. Concepcion, 111 N.J. 373, 379 (1988)). "It is not plain error [however,] when jury instructions are not incorrect but merely capable of being improved." Id. at 481 (citing State v. Delibero, 149 N.J. 90, 106-07 (1997)).

When charging the jury on count two, aggravated assault while attempting to flee or elude a law enforcement officer, the judge instructed the jury that "[a] person is guilty of [a]ggravated [a]ssault if he causes bodily injury to another person while fleeing or attempt[ing] to elude a law enforcement officer in violation of the statute defined in the offense of eluding . . . ." See N.J.S.A. 2C:12-1(b)(6). The judge continued:

Bodily injury is defined as physical pain, illness, or any other impairment or physical condition. In order to find [] defendant caused bodily injury to Sergeant Frost, you must find beyond a reasonable doubt first that Sergeant Frost would not have been injured but for [] defendant's conduct; and second, the bodily injury was a probable consequence of [] defendant's conduct.

 

A probable consequence is one that is not too remote, accidental in its occurrence or too dependent on conduct of another, but having just bearing on [] defendant's liability or gravity of his offense.

This instruction tracks the language of the applicable Model Jury Charge. See Model Jury Charge (Criminal), "Aggravated Assault - While Fleeing or Attempting to Elude a Law Enforcement Officer" (1999).

As to count three, aggravated assault on a law enforcement officer, the judge instructed the jury that:

a person [is] guilty of [a]ggravated [a]ssault[] [if] he attempts to cause or purposefully, knowingly or recklessly causes bodily injury to any law enforcement officer acting in the performance of his duties while in uniform, or exhibiting evidence of his authority, or because of his status as a law enforcement officer.

[See N.J.S.A. 2C:12-1(b)(5)(a).]

 

The judge read a portion of the applicable Model Jury Charge when instructing the jurors that if they found defendant caused bodily injury to Frost, "the State must prove beyond a reasonable doubt that he would not have been injured but for [] defendant's conduct." The applicable Model Jury Charge also provides that "[i]f causation is contested, a fuller explanation of causation may be needed." See Model Jury Charge (Criminal), "Aggravated Assault - Upon Law Enforcement Officer (Attempting To Cause Or Purposely, Knowingly Or Recklessly Causing Bodily Injury)[,]" n.9 (2001) (citing N.J.S.A. 2C:2-3a(1)). In contrast to his instruction on count two, the judge did not provide the "probable consequence" language in his instruction on count three.

The issue, then, is whether the omission of "a fuller explanation of causation" under these circumstances was "clearly capable of producing an unjust result." R. 2:10-2; see Model Jury Charge (Criminal), "Aggravated Assault - Upon Law Enforcement Officer (Attempting To Cause Or Purposely, Knowingly Or Recklessly Causing Bodily Injury)[,]" n.9 (2001) (citing N.J.S.A. 2C:2-3a(1)).

When the causal relationship between a defendant's conduct and the actual result is in issue, the jury must be given the opportunity, under proper instruction, to consider alternative theories regarding causation. State v. Eldridge, 388 N.J. Super. 485, 498 (App. Div. 2006), certif. denied, 189 N.J. 650 (2007) (discussing State v. Martin, 119 N.J. 2, 16-17 (1990)). Frost testified that he charged defendant with aggravated assault (count three) as a result of defendant's recklessness in eluding law enforcement. Defendant asserts that the judge should "have instructed the jury on the concept of causation." N.J.S.A. 2C:2-3(c) provides:

When the offense requires that the defendant recklessly . . . cause a particular result, the actual result must be within the risk of which the actor is aware or, . . . if not, the actual result must involve the same kind of injury or harm as the probable result and must not be too remote, accidental in its occurrence, or dependent on another's volitional act to have a just bearing on the actor's liability or on the gravity of his offense.

 

Defendant claims the crash was both "accidental in its occurrence and dependent on [Frost's] volitional act" of violating the Attorney General's guidelines on police pursuit. A police officer's violation of the Attorney General's pursuit guidelines may lead to disciplinary action being taken against the officer, or may lead to a finding that the officer is no longer immune from tort liability. See Fielder v. Stonack, 141 N.J. 101, 125 & n.5 (1995); see also Tice v. Cramer, 133 N.J. 347, 384 (1993). Such a violation would not, however, allow a defendant to escape liability for his criminal behavior.

"'[T]he prejudicial effect of an omitted instruction must be evaluated in light of the totality of the circumstances--including all the instructions to the jury, [and] the arguments of counsel.'" State v. Adams, 194 N.J. 186, 207 (2008) (second alteration in original) (quoting State v. Marshall, 123 N.J. 1, 145 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993)). Taken as a whole, the jury instructions on counts two and three show significant overlap, considering the charges were derived through essentially the same conduct and the same bodily injury to Frost. The judge's instruction on bodily injury with respect to count two, which included an explanation of "probable consequence" and all that it entails, immediately preceded the judge's instruction on count three. Though a repeat of the "probable consequence" language may have given the jury greater clarity in assessing causation with respect to count three, its absence did not render the instruction erroneous or misleading.

Defendant also did not seek an additional charge with regard to causation. The failure to "'interpose a timely objection constitutes strong evidence that the error belatedly raised here was actually of no moment.'" Tierney, supra, 356 N.J. Super. at 481-82 (quoting State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999), certif. denied, 163 N.J. 397 (2000)).

The jury charge's purported deficiencies were not clearly capable of producing an unjust result. See Tierney, supra, 356 N.J. Super. at 477 (citing R. 2:10-2).

II

Defendant asserts in Point II of his brief that the trial judge committed plain error, R. 2:10-2, by failing to obtain defendant's explicit consent before instructing the jury as to his decision not to testify.

The judge spoke with defendant on two separate occasions about his decision whether or not to testify. After swearing in defendant, the judge conducted the following voir dire examination:

THE COURT: You have an absolute right to testify, if you wish to do so. You also have an absolute right not to testify. If you choose not to do so, the jury can't hold that against you. That will be explained in a jury charge, All right?

 

Now, [defense counsel] is a very experienced lawyer, I'm sure he's explained it to you. Have you discussed this matter with your attorney?

 

DEFENDANT: Yes.

 

THE COURT: All right. Do you have any questions at this point you want to ask him?

 

DEFENDANT: (No verbal response recorded.)

THE COURT: All right, he's explained to you both the positive and negative aspects of testifying versus not testifying, correct?

 

DEFENDANT: Yes.

 

THE COURT: All right. Have you decided whether you wish to testify or not testify on your own behalf in this case?

 

DEFENDANT: No. I haven t decided yet.

 

THE COURT: Okay, you haven't decided yet?

 

DEFENDANT: I haven t decided yet.

 

THE COURT: You haven't decided yet.

 

[DEFENSE COUNSEL]: We'll do it tomorrow morning.

 

THE COURT: All right. Before we finish this up, obviously, that's the last thing on the list that we have to do. So, if you want to think about it, talk about it overnight, that's fine. And we will do it first thing tomorrow morning before we start.

 

[ (emphasis added).]

 

Defendant did not object to the judge's comment that, if defendant chose not to testify, the judge would give a no adverse inference charge to the jury.

The next day, prior to summations, the following colloquy took place between the judge and defendant.

THE COURT: Also, I know, Mr. Mendez, we had inquired yesterday and you wished to sleep on it overnight with regard to whether you wish to testify or not. Just for the purposes of the record, do you wish to testify or not testify?

DEFENDANT: Not at all.

 

THE COURT: Okay, you have declined the request. . . . So noted for the record defendant's desire not to testify.

 

. . . [A]nything else before summations?

 

[DEFENSE COUNSEL]: No, Judge.

The judge charged the jury the next day before its deliberations began. With reference to the charge at issue, the judge advised:

Now, as you know, [] defendant elected not to testify in this trial. It is his constitutional right to remain silent. You must not consider for any purpose or in any manner in arriving at your verdict the fact that he did not testify. That fact should not enter your deliberations or discussions in any manner at any time.

 

Mr. Mendez is entitled to have the jury consider all the evidence presented in [the] trial. He is presumed innocent whether he testifies or not.

 

Defendant did not object to the charge.

Defendant contends that, in New Jersey, a defendant must consent before a judge may give this charge to a jury. He first points to State v. Smith, 100 N.J. Super. 420, 424-25 (App. Div. 1968), in which the defendant explicitly requested that the jury be given a no adverse inference charge with respect to the defendant's decision not to testify. Id. at 422. The trial court refused the defendant's request as improper. Ibid. We reversed. Id. at 425. We acknowledged that a defendant who elects not to testify may "benefit[] by not having the attention of the jury directed to that fact by such instruction[.]" Id. at 424. We also determined, however, "that [a] jury is not likely to overlook defendant's failure to testify even if the [judge] is silent on the subject, and may very well draw adverse inferences if not instructed to the contrary." Ibid. We concluded "that [a] trial court's refusal to charge the jury" in accordance with a defendant's explicit request to do so constituted "prejudicial error requiring reversal." Id. at 425. In Smith, supra, the defendant affirmatively requested the instruction. Here, defendant remained silent as to the charge on the two occasions when the decision of whether he chose to testify was discussed by the judge.

Defendant points to the Model Jury Charge, which, in footnote one, states that a "defendant's individual consent should be obtained when giving this charge." See Model Jury Charge (Criminal), "Defendant's Election Not to Testify," n.1 (2009) (emphasis added). The instructions of model jury charges are not, however, binding authority. State v. Bryant, 419 N.J. Super. 15, 28 (App. Div. 2011).

The United States Supreme Court addressed a similar argument in Lakeside v. Oregon, 435 U.S. 333, 98 S. Ct. 1091, 55 L. Ed 2d 319 (1978). In Lakeside, supra, the defendant explicitly objected to the no adverse inference charge, arguing that "the giving of the cautionary instruction . . . is like 'waving a red flag in front of the jury.'" Id. at 340, 98 S. Ct. at 1095, 55 L. Ed 2d at 325 (quoting the petitioner). The Supreme Court disagreed, noting that such an argument "require[s] indulgence in two very doubtful assumptions[.]" Ibid. "First, that the jurors have not noticed that the defendant did not testify and will not, therefore, draw adverse inferences on their own[;] [s]econd, that the jurors will totally disregard the instruction, and affirmatively give weight to what they have been told not to consider at all." Ibid., 55 L. Ed 2d at 325-26 (footnote omitted). The Supreme Court concluded "that the giving of such an instruction over the defendant's objection does not violate the privilege against compulsory self-incrimination[.]" Id. at 340-41, 98 S. Ct. at 1095, 55 L. Ed 2d at 326.

Defendant's silence, after being told the instruction would be given if he elected not to testify, and his subsequent failure to object to the charge, dictates a similar conclusion.

III

Defendant contends in Point III of his brief that he was deprived of a fair trial due to the judge's failure to limit Officer Wilson's repetitive testimony, which gave undue emphasis to the State's case. Given the wide discretion the trial judge may exercise in supervising the questioning of witnesses, State v. Cusumano, 369 N.J. Super. 305, 311 (App. Div.), certif. denied, 181 N.J. 546 (2004), this argument is without sufficient merit to require discussion in a written opinion. R. 2:11-3(e)(2).

IV

Defendant argues in Point IV of his brief that his sentence was excessive. He argues that an extended sentence was not warranted and that the judge erred in his assessment of the applicable aggravating and mitigating factors.

Pursuant to N.J.S.A. 2C:44-1(a), the judge found the following aggravating factors: the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record and the seriousness of the offenses of which he has been convicted, N.J.S.A. 2C:44-1(a)(6); and the need for deterring defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge found no mitigating factors. The judge also granted the State's application for a discretionary extended term, N.J.S.A. 2C:44-3(a), finding defendant to be a persistent offender.

The judge sentenced defendant on count one, second-degree eluding, to ten years' imprisonment. On count two, second-degree aggravated assault while attempting to flee or elude a law enforcement officer, the judge sentenced defendant to a term of sixteen years' imprisonment with an eighty-five percent period of parole ineligibility under NERA. On count three, third-degree aggravated assault on a law enforcement officer, the judge sentenced defendant to six years' imprisonment. On count seven, third-degree criminal mischief, defendant received a sentence of six years' imprisonment. The judge merged count eight, resisting arrest, into counts one and two. In exchange for his guilty plea to the accusation, defendant received a sentence of eighteen months' imprisonment.3 The judge imposed concurrent sentences on all counts.

"The persistent offender statute, N.J.S.A. 2C:44-3(a), grants the sentencing [judge] discretion to impose an extended sentence when the statutory prerequisites for an extended-term sentence are present." State v. Pierce, 188 N.J. 155, 161 (2006). Pursuant to this statute, a judge "'may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment' if the individual is found to be a persistent offender." State v. Hudson, 209 N.J. 513, 526 (2012) (quoting N.J.S.A. 2C:44-3). Defendant had two prior convictions, one for second-degree4 unlawful possession of a weapon and the other for third-degree possession of CDS. He received three years' probation on the weapons charge. The possession of CDS conviction occurred during defendant's probation and resulted in an additional probationary sentence. These two convictions rendered defendant eligible as a persistent offender for an extended term under N.J.S.A. 2C:44-3(a).

If a court determines that a defendant qualifies as a persistent offender, "the permissible sentencing range expands; the maximum sentence of the higher-degree range becomes the top of the extended-term range, . . . while the bottom remains the minimum sentence of the ordinary-term sentencing range[.]" Id. at 527 (citing State v. Pierce, 188 N.J. 155, 169 (2006)). When fixing the appropriate sentence length for a defendant within that expanded range, the sentencing judge must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing judge will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 506-07 (2005). An abuse of discretion standard applies "to the sentencing [judge]'s explanation for [his] sentencing decision within the entire range." Pierce, supra, 188 N.J. at 169-70.

At sentencing, the judge reviewed defendant's criminal history. He noted seven juvenile petitions against defendant, three of which resulted in adjudications and probationary sentences. As an adult, defendant had been arrested fourteen times with three prior indictable convictions.

Defendant asserts the judge should have considered N.J.S.A. 2C:44-1(b)(11), "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents[.]" Defendant argues that because he has three young children, he is entitled to consideration of that factor. Having children does not in and of itself support this mitigating factor. See State v. Dalziel, 182 N.J. 494, 505 (2005) (discussing that the defendant had a child who he never lived with or supported and therefore the defendant's imprisonment would not cause an excessive hardship).

Defendant further argues that the judge should have considered mitigating factor nine, N.J.S.A. 2C:44-1(b)(9), "[t]he character and attitude of the defendant indicate that he is unlikely to commit another offense[.]" He cites to letters written on his behalf by counselors at a residential re-entry facility. Though the letters speak favorably of defendant's behavior at Delaney Hall, they do not establish that he is unlikely to commit another offense. In light of defendant's extensive criminal record, the judge did not abuse his discretion by disregarding mitigating factor nine.

Once the trial judge balances the aggravating and mitigating factors set forth in N.J.S.A. 2C:44-1(a) and (b), it "may impose a term within the permissible range for the offense." State v. Bieniek, 200 N.J. 601, 608 (2010) (citations omitted). The judge properly identified and weighed these factors.

V

In Point I of his supplemental brief, defendant argues that the court lacked jurisdiction to prosecute him on counts two and three of the indictment and therefore should have sua sponte dismissed those counts. He maintains that the criminal complaint was invalid because Frost, the victim of the aggravated assault, did not appear and swear to the complaint's contents while under oath. Defendant is incorrect in his analysis, confusing the requirements for an arrest warrant, Rule 3:3-1, which discusses that an arrest warrant may be issued on a complaint or an accompanying affidavit or deposition, with the requirements for filing a criminal complaint.

VI

Defendant argues in Point II of his supplemental brief that his conviction for second-degree eluding should be downgraded to third-degree eluding. Eluding is elevated to a second-degree crime "if the flight or attempt to elude creates a risk of death or injury to any person." N.J.S.A. 2C:29-2(b).

The jury had sufficient evidence presented to it to make the determination that a risk of death or injury existed.

VII

Defendant asserts in Point III of his supplemental brief that, should this matter be remanded for re-sentencing, the court must consider any progress defendant made during his incarceration when imposing a new sentence. He is correct in this legal analysis. State v. Randolph, 210 N.J. 330, 350-51 (2012). As we do not remand for re-sentencing however, this argument is not relevant.

Affirmed. Remanded only to correct defendant's judgment of conviction to reflect that the sentence for the municipal convictions is to run concurrent to the other custodial sentences.

1 The State dismissed counts four, five and six prior to trial.

2 Defendant initially submitted a pro se supplemental brief on April 12, 2012. On August 28, 2012, he filed a motion to substitute a different pro se supplemental brief. On August 31, 2012, we granted that motion, which was not opposed by the State, and therefore consider only the issues raised in defendant's second supplemental brief.

3 Sitting as a municipal court judge, he also found defendant guilty of reckless driving, improper passing, tinted windows, possession of a controlled dangerous substance (CDS) in a car and the disorderly persons charge of possession of CDS. The judge sentenced defendant to a six-month jail term concurrent to the other custodial sentences he imposed on the indictment and accusation. The judgment of conviction, however, mistakenly does not specify that this sentence is concurrent.

4 The pre-sentence report refers to this conviction as a second-degree crime although the judge stated it was a third-degree crime.