State v. Green

• Decision Date: 22 January 1999
• Citation: 724 A.2d 254,318 N.J. Super. 361
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Vernon GREEN, Defendant-Appellant.
• Court: New Jersey Superior Court

724 A.2d 254

318 N.J. Super. 361

STATE of New Jersey, Plaintiff-Respondent, v. Vernon GREEN, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Submitted November 10, 1998.

Decided January 22, 1999.

Ivelisse Torres, Public Defender, for defendant-appellant (Sylvia Orenstein, Assistant Deputy Public Defender, of counsel and on the brief).

Peter Verniero, Attorney General, for plaintiff-respondent (Craig V. Zwillman, Deputy Attorney General, of counsel and on the brief).

Before Judges BROCHIN, KLEINER and STEINBERG. The opinion of the court was delivered by STEINBERG, J.A.D

Following a trial by jury, defendant Vernon Green was convicted of second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1) (count one); third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5) (count two); second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b) (count three); and second-degree aggravated assault while eluding a law enforcement officer, N.J.S.A. 2C:12-1(b)(6) (count four).

The trial judge sentenced defendant to ten years of imprisonment with a five-year period of parole ineligibility on count one to run consecutively to a sentence defendant was then serving; a concurrent five-year term of imprisonment on count two; a concurrent ten-year term of imprisonment on count three; and a concurrent ten-year term of imprisonment on count four. The appropriate monetary penalties were also assessed. However, on count four the trial judge neglected to impose the mandatory drivers license revocation prescribed by 2C:29-2(b). On appeal defendant raises the following issues:

POINT I THE TRIAL COURT'S REFUSAL TO CHARGE THE JURY ON THE DEFENSE OF DEFENDANT'S INTOXICATION AT THE TIME OF THE OFFENSE DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10).

POINT II THE TRIAL COURT SHOULD HAVE ENTERED A JUDGMENT OF ACQUITTAL ON THE CHARGE OF SECOND-DEGREE AGGRAVATED ASSAULT SUA SPONTE BECAUSE THE STATE FAILED TO PROVE, BEYOND A REASONABLE DOUBT, THAT DETECTIVE FELICE HAD SUFFERED SERIOUS BODILY INJURY.

POINT III IN A CASE WHERE DETECTIVE FELICE'S INJURIES WERE CAUSED BY HIS OWN ACTIONS, IT WAS PLAIN ERROR FOR THE TRIAL COURT NOT TO CHARGE THE JURY ON CAUSATION. (NOT RAISED BELOW).

POINT IV THE TRIAL COURT ERRED BY FAILING TO INSTRUCT THE JURY ON THE LESSER-INCLUDED OFFENSE OF SIMPLE ASSAULT, THUS DEPRIVING HIM OF A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9, 10)(NOT RAISED BELOW).

POINT V THE PROSECUTOR'S MISCONDUCT BOTH DURING TRIAL AND IN SUMMATION DENIED MR. GREEN A FAIR TRIAL, IN VIOLATION OF THE CONSTITUTIONS OF THE UNITED STATES AND NEW JERSEY. U.S. CONST. AMENDS. V, VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 9, 10 (NOT RAISED BELOW).

POINT VI IF A JUDGMENT OF ACQUITTAL IS NOT ENTERED ON COUNT ONE, DEFENDANT'S CONVICTION FOR SECOND-DEGREE AGGRAVATED ASSAULT MUST BE MERGED WITH THAT FOR SECOND-DEGREE AGGRAVATED ASSAULT WHILE ELUDING, TO PREVENT VIOLATION OF HIS RIGHT TO BE FREE OF DOUBLE PUNISHMENT UNDER THE STATE AND FEDERAL CONSTITUTIONS (NOT RAISED BELOW).

POINT VII BECAUSE THE JUDGE FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING CIRCUMSTANCES, DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.

We conclude that the independent and cumulative effect of the failure of the trial judge to charge the jury regarding causation on count one, see N.J.S.A. 2C:2-3, as well as the failure of the trial judge to limit the jury's consideration on count one to an attempt to cause serious bodily injury, and the failure of the trial judge to charge the lesser-included offense of simple assault, N.J.S.A. 2C:12-1(a)(1) on count two, deprived defendant of his constitutional right to a fair trial on those counts. See State v. Orecchio, 16 N.J. 125, 129-30, 106 A.2d 541 (1954). Those errors were clearly capable of producing an unjust result regarding the convictions on counts one and two, and we reverse those convictions. We also reverse the conviction on count four due to the absence of a charge on that count. We affirm the conviction on count three.

According to the State's proofs, on November 10, 1995, Millville Detectives Don Felice, Robert Chard, and Ron Harvey, all of whom testified against defendant, were conducting a surveillance operation at 46 North Third Street, the location of a known crack house. The detectives observed defendant drive up to the house in a red Mitsubishi sports car, enter the house for five or ten minutes, and return to his car. They recognized defendant from past surveillance and encounters with him, and began to follow him as he departed. Defendant pulled into a well-lit parking lot at the Elks Lodge approximately fifteen or twenty yards from a public telephone. The detectives followed defendant into the parking lot and parked their unmarked car in front of defendant's vehicle "nose-to-nose". Although all three detectives were in plain clothes, Felice said he was wearing a police jacket with the word "police" displayed on the rear and right chest area of the jacket. The detectives exited the undercover vehicle. Felice approached the driver's side of defendant's car. According to Felice, he identified himself as a police officer and, when he was twelve to eighteen inches from defendant's vehicle, displayed his badge and told defendant he would like to speak to him. Felice claimed that as he displayed his badge defendant put his vehicle in reverse and "peeled" backward quickly.

Felice testified that he ran after the car, shouting "police, stop the car, Vernon, stop the car". Nevertheless, defendant drove forward and the vehicle struck Felice in the left leg causing him to experience some pain in the leg. Felice continued to run alongside defendant's car and punched his right hand through the driver's side window, shattering the window and cutting his hand. His purpose was to gain entry into the vehicle to shut the ignition off. With the window broken, Felice testified that he continued shouting to defendant, "police, stop the car, Vernon". Defendant's vehicle was moving quickly and Felice rolled off onto the ground. Felice was later taken by ambulance to a hospital where it was determined that he had suffered lacerations to both hands, cuts to some of his fingers, and a bruise on his left leg. He was left with a scar on his palm approximately an inch and a half long. On cross-examination, Felice conceded that when his vehicle parked in front of defendant's vehicle, the police car's headlights may have been in defendant's eyes. On cross-examination Felice also said that once the window was broken he was no more than six inches from defendant, shouting in a loud voice, identifying himself as a police officer, and commanding defendant to stop the vehicle. Detectives Chard and Harvey testified and corroborated Felice's version of the incident. Harvey remained with Felice at the parking lot and Chard pursued defendant. A high speed chase ensued, at times at speeds of up to eighty miles per hour, on a winding, residential road. At one point defendant forced two cars off the road; at another point he forced a car into the other lane of travel. Chard was joined by two backup vehicles. The chase ended when defendant stopped. Chard pulled in front of defendant with his vehicle and blocked him, and defendant was apprehended.

According to Chard, at the station defendant said he fled because he thought the police were drug dealers who were after him. However, Chard also testified that defendant later changed his story, admitting that he recognized Chard when he first approached defendant in the parking lot. Chard further testified that he had seen defendant approximately fifty times over the course of fifteen years and defendant knew that he was a police officer.

Defendant testified that he had argued with his wife that evening and was upset when he left home. He admitted going to the crack house and smoking crack cocaine because he was depressed. He said he went to the Elks Lodge parking lot to telephone his wife. According to defendant he began to gather his thoughts as to what he would say to his wife when a vehicle pulled up behind him. He said he saw one individual get out and approach his car. He claimed to have been startled because the vehicle came up behind him quickly. Defendant said his window was up and his radio was playing loudly. He saw the person run towards his car but denied hearing him say anything to him. He put his car in reverse and then started to go forward when the window broke. He claimed he was frightened because he had just left a crack house and had previous altercations with drug dealers. Defendant asserted that he was under the influence of cocaine at the time. He denied that Felice was wearing a police jacket and denied that the detectives had identified themselves or commanded him to stop. He claimed he did not realize they were police officers. He also denied striking Felice with his vehicle and telling Chard at the station that he had recognized Chard at the parking lot.

Prior to summation the judge conducted a preliminary conference in chambers and then conducted a charge conference on the record. Defense counsel specifically requested a charge on intoxication. See N.J.S.A. 2C:2-8. The basis for that request was that defendant was observed leaving a crack house, that the detectives said they initially approached defendant because they believed his erratic driving was drug-induced, and that defendant testified he had ingested crack cocaine immediately prior to his arrest. The trial judge denied the request. Defense counsel made no other requests to charge. Specifically, defense counsel did not request the judge to charge any lesser-included offenses.

A

We first consider defendant's contention that the trial judge erred in denying his request to charge the jury on the defense of intoxication. We...