STATE OF NEW JERSEY v. SHAHIED A. ABDULLAH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAHIED A. ABDULLAH,

Defendant-Appellant.

________________________________

March 11, 2016

Submitted February 9, 2016 Decided

Before Judges Leone and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 07-01-0254.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Special Deputy Attorney General/ Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant appeals from a March 5, 2008 conviction for second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and second-degree aggravated assault by eluding, N.J.S.A. 2C:12-1b(6). We affirm.

We discern the following facts from the record. On September 29, 2006, while on patrol in his police vehicle, an officer from the East Orange Police Department (the Department) noticed a car with a tinted license plate cover, which he attempted to pull over by activating his emergency lights and siren. The car sped away and the officer pursued. The car ran through numerous stop signs, finally colliding with another vehicle and injuring its driver. After the collision, the officer saw defendant climb from the vehicle and run on foot from the scene of the collision. The officer chased defendant on foot over a fence, where he was apprehended by two other officers. The officer did not lose sight of defendant during the foot chase, and made a positive in-court photo identification of defendant.

Defendant was indicted for second degree aggravated assault, N.J.S.A. 2C:12-1b(1)1, second degree aggravated assault by eluding N.J.S.A. 2C:12-1b.(6), and second degree eluding, N.J.S.A. 2C:29-2b. He was tried, in absentia, before a jury on March 4 and 5, 2008.

During the charge to the jury, the trial judge read from the Model Jury Charge, entitled "Eluding an Officer," to reference the text of N.J.S.A. 2C:29-2b for the jury

Any person while operating a motor vehicle on any street or any highway in this state, who 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, commits the crime of eluding.

After the jury began its deliberations, it sent out a note containing the question "[d]oes the charge of eluding apply to his leaving the vehicle on foot, or driving away from the officer?" In the ensuing colloquy between the court and counsel, the court proposed either stating that eluding pertains to driving away from the officer, or reading the statute to the jury. The prosecutor suggested re-charging the offense, but defense counsel indicated that giving the full charge, or even the statute itself, was excessive.

The court explained that the statute clearly specified that it applied to flights from police "while operating a motor vehicle." The court re-read the statutory portion of the Model Charge to the jury. Defendant was convicted of aggravated assault and aggravated assault by eluding, but was acquitted of eluding. Defendant was sentenced on June 30, 2014 to two concurrent seven-year terms. This appeal followed.

On appeal, defendant argues

WHEN THE JURY ASKED A QUESTION DURING DELIBERATIONS "[D]OES THE CHARGE OF ELUDING APPLY TO HIS LEAVING THE VEHICLE ON FOOT, OR DRIVING AWAY FROM THE OFFICER?" RATHER THAN SIMPLY, AND CORRECTLY, ANSWERING THE QUESTION AS SHE FIRST INDICATED SHE WOULD, THE TRIAL JUDGE IMPROPERLY GAVE IN TO THE PROSECUTOR'S REQUEST OVER THE OBJECTION OF DEFENSE COUNSEL TO JUST RE-READ THE STATUTE TO THE JURORS, THEREBY GIVING NO GUIDANCE AS TO WHAT THE CORRECT ANSWER WAS.

Defendant asserts that the trial judge erred in re-reading the statutory language rather than answering the question in her own words. Specifically, defendant argues that because the jury was already confused about the statute, re-reading it left the jury with no more guidance than it had originally received, thus depriving defendant of a fair trial. We disagree.

Because defendant only objected that reading either the full charge or the statute would be excessive, the trial court was not on notice as to defendant's concern regarding jury confusion. Accordingly, we apply the plain error rule. An appellate court may consider and reverse on the basis of an unchallenged trial error if the court finds that the error was plain error "clearly capable of producing an unjust result." R. 2:10-2. In the context of a jury charge, a defendant generally waives his right to appeal an instruction if he fails to object to the instruction as required by Rule 1:7-2. However, we may take notice if an error in the charge prejudices the substantial rights of the defendant in a sufficiently grievous way to justify notice by this court. State v. Jordan, 147 N.J. 409, 422 (1997). In these cases, we may find plain error if we are convinced that the error, itself, possessed a clear capacity to bring about an unjust result. Id.

The language of the eluding statute is clear and unambiguous, we do not find that the trial court's re-reading the statutory language was clearly capable of producing an unjust result. Although defendant objected that it was "excessive", it was not error to re-read the statute, which makes clear that eluding must occur "while operating a motor vehicle".

Affirmed.

1 Count One was dismissed prior to trial.