State v. Bauman

Decision Date27 February 1997
Citation689 A.2d 173,298 N.J.Super. 176
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Joseph BAUMAN, Defendant-Appellant.
CourtNew Jersey Superior Court — Appellate Division
Susan L. Reisner, Public Defender, for Defendant-Appellant (Mark S. Carter, Designated Counsel, Hackensack, of counsel and on the brief)

Jeffrey S. Blitz, Atlantic County Prosecutor, for Plaintiff-Respondent (James F. Smith, Assistant County Prosecutor, of counsel and on the brief).

Before Judges MICHELS, KLEINER, and COBURN.

The opinion of the court was delivered by

KLEINER, J.A.D.

Defendant Joseph Bauman appeals from his conviction on numerous counts of a superseding indictment returned by the Atlantic County Grand Jury and from his sentence to an aggregate prison term of twenty-three years with a ten-year period of parole ineligibility.

The criminal charges relate to a series of acts occurring on October 6, 7, and 8, 1992. At defendant's trial, he readily acknowledged his guilt of the crimes charged, and offered no specific evidence to rebut the State's proofs other than evidence that he contends supports his defense of intoxication or, alternatively, diminished capacity.

Defendant contends that the trial judge erred in: (1) failing to instruct the jury, sua sponte, on the defenses of intoxication and diminished capacity; (2) denying his motion to dismiss the superseding indictment and to reinstate the original indictment; (3) denying his motion for a new trial based on prosecutorial misconduct; and (4) denying his motion for a judgment of acquittal on one of his second-degree armed burglary convictions. Defendant also maintains that the judge abused his discretion by imposing an extended term on his third-degree conviction of aggravated assault while eluding a police officer and by imposing consecutive sentences for his conviction of third-degree aggravated assault of a police officer and on one of his second-degree armed burglary convictions.

We conclude that defendant's contentions, though requiring substantial discussion, are without merit. We therefore affirm.

I

It is not necessary to describe each of the many crimes that defendant committed. A short review of the sequence of events will suffice. Defendant, a New York resident, stole a 1984 Volvo with New York license plates, from an auto body repair shop on Long Island, New York. Defendant drove to the Trump Plaza Hotel in Atlantic City and parked in its parking garage. Defendant proceeded to the casino floor and gambled at the blackjack tables. At one point, defendant was winning approximately $4,000. Defendant continued to gamble and thereafter lost the entire $4,000 and any remaining money that he had brought with him from New York.

Defendant then left the casino floor, returned to the Trump Plaza parking garage, and slept in the Volvo. The next day, October 7, he broke into numerous automobiles parked in the garage and belonging to casino patrons and employees. Personal property was removed from many of those automobiles. Defendant then left the Trump Plaza and made his way up the Boardwalk to another casino-hotel, the Taj Mahal. He entered the Taj Mahal parking garage, broke into numerous automobiles, and removed valuable personal property. Defendant, carrying these stolen items, then returned to the Trump Plaza. On two occasions, defendant had contact with Officer Jones of the Atlantic City Police Department.

Among the many items that defendant stole were two registered handguns and two registered rifles removed from two different vehicles. From the proof it is clear that defendant possessed these weapons when he thereafter entered other parked motor vehicles. Additionally, defendant took a suitcase in which he found Valium, which had been prescribed for the owner of the suitcase.

Victims of defendant's crimes started reporting the thefts to the casino security officers and the police. Defendant's activities were also reported by a casino employee who spotted defendant breaking into a car.

The next morning, October 8, 1992, Officer Jones witnessed defendant acting strangely. As a result, defendant's description was reported to the Atlantic City Police Department. 1 Defendant took New Jersey license plates off of an automobile parked at a nearby casino training school and placed those plates on the Volvo. He then proceeded to depart Atlantic City.

A.

Shortly before noon on October 8, 1992, Officers Harold Cooper and Thomas McGowan were on bicycle patrol at the intersection of Arkansas and Atlantic Avenues, about one-and-a-half blocks from the Trump Plaza, when they received a radio transmission to be on the lookout for a white Volvo with New York license plates loaded with stolen property. The officers spotted a Volvo traveling from the direction of the Trump Plaza. The officers pedalled up to the Volvo, which was stopped in traffic, and ordered defendant to pull his vehicle over. Defendant, who appeared very calm, looked at the officers and drove away at a high rate of speed. The officers broadcasted a description of the vehicle and its direction of travel--towards the Atlantic City Expressway--over the radio.

At 12:08 p.m., Officer Cohen, who was in uniform in a marked police unit, heard the alert and observed a white Volvo heading out of Atlantic City on the expressway at a normal rate of speed. Cohen activated his unit's overhead lights, pulled defendant over to the side of the road, and after exiting his vehicle with his weapon drawn, ordered defendant, who looked "a little panicky," to turn off his motor, drop the car keys out the window, and place his hands on the steering wheel. Defendant did not comply but, instead, drove away at a high rate of speed. Cohen pursued defendant's vehicle and broadcasted his pursuit over the police radio.

Detective Hurley, then traveling on the expressway, heard Cohen's alert. Hurley looked in his rear view mirror and saw the Volvo traveling on the shoulder of the road at about forty miles per hour. Hurley attempted to change lanes in order to avoid the oncoming Volvo, as the shoulder of the road was becoming narrower. Hurley's car stalled and was struck in the rear by defendant's vehicle, rendering Hurley unconscious and causing other disabling injuries. Meanwhile, Cohen, who was still in pursuit, observed defendant exit his vehicle wearing black pants, a white shirt, work gloves, and a bandanna. Cohen watched defendant run across the expressway and enter an adjacent marshy area filled with tall weeds and a creek. Cohen lost sight of defendant and called for backup assistance and the canine patrol.

At approximately 1:30 p.m., a canine patrol officer found defendant laying in the mud, naked, and concealed under marsh grass. The officer instructed defendant, who appeared calm, to raise his hands and lock them on top of his head. When defendant failed to comply, after several repeated commands, and instead made a movement with his right hand, the officer ordered his dog to apprehend defendant. The dog grabbed defendant with his teeth. Defendant was then taken into custody by several other officers. Defendant's clothing was found underneath his hiding place.

Officer McGowan, who observed defendant as he was taken into custody, described him as looking "a little weird." According to McGowan, defendant was able to stand and walk.

State Trooper David Timko, however, claimed that defendant was unable to stand or walk without support. According to Timko, defendant staggered, appeared off balance, grasped for support, and fell to the ground on his hands and knees. Defendant, according to Timko, spoke in a loud and boisterous manner, rambled at times, cried, and appeared very excited and nervous. His eyes were watery and bloodshot. Although Timko did not smell alcohol on defendant's breath, he believed that defendant was under the influence of some type of intoxicant. Consequently, Timko charged defendant with driving under the influence.

Defendant was transported to the Atlantic City Medical Center's emergency department at about 3:00 p.m., where he received treatment for cuts and abrasions, and a sample of his blood was obtained. State Police laboratory tests disclosed that there was no alcohol in defendant's blood. A drug test indicated that defendant had taken an undetermined amount of the tranquilizer Diazepam, commonly known as Valium.

Thereafter, defendant was transported to police headquarters by Officer Janes. En route, defendant managed to slip out of one of his handcuffs. Upon their arrival at headquarters, Janes exited the police vehicle and opened the rear door. As he attempted to assist defendant out of the vehicle, defendant pushed Janes, causing him to fall to the ground, as defendant escaped. Defendant ran down an alley and Janes radioed for help.

At about 4:20 p.m., Officer Bruno, in uniform in a marked police vehicle, saw defendant running between two houses. Since Bruno had heard the radio broadcast about defendant's escape, he yelled at defendant to stop. Defendant ignored this command and continued to run. Bruno exited his car and ran after defendant. As Bruno approached, defendant turned around and swung the handcuff that was still attached to his hand, hitting Bruno in the head and hand. Bruno tackled defendant to the ground and struggled with him for about one minute until other officers arrived, who helped Bruno handcuff defendant. Bruno injured his knee during the struggle, necessitating surgery. Defendant was then transported to police headquarters after he was apprehended.

This series of events was the focus of the initial indictment by the Atlantic County Grand Jury. 2

After failing to reach a plea bargain agreement, the prosecutor obtained a superseding indictment, No. 93-11-2816-A, which charged defendant as follows: third-degree theft by receiving stolen property, N.J.S.A. 2C:20-7, (count one); second-degree aggravated assault, ...

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