PER CURIAM.
A jury found defendant guilty of eluding, in violation of
Defendant's convictions were based on the following evidence. On the morning of January 15, 2007, Manuel Souto and Miguel Sanabria, police officers with the Newark Police Department, were on duty. At 7:50 a.m., they were dispatched to 12th Avenue and 20th Street in Newark following a report of a car being stripped.
When they arrived on the scene, they observed up to ten men removing parts from a green 1995 Honda. A black Acura was parked in front of the Honda. As soon as the men saw the patrol car, they began to scatter.
The driver of the Acura, who Officers Sanabria and Souto identified as defendant, was in the car when they arrived, and another person jumped in the back window afterwards. Souto got out of the patrol car first and walked toward the Acura. Sanabria exited the patrol car on the sidewalk-side, and also walked toward the Acura.
Since the Acura was running, the officers told defendant several times to stop the car and exit the vehicle. Instead, defendant put the car in reverse and drove up on to the hood of the Honda, pushing it back between one-half to a full car length. At that point, both officers drew their weapons and continued ordering defendant to stop while trying to block his escape. Defendant quickly drove straight toward Souto, who again ordered him to stop, stepped out of the way, slipped, fell, and fired twice at the car because he was afraid he would be killed. Sanabria also fired his weapon at the car multiple times. However, none of their shots struck defendant, and he was able to drive away from the scene.
Defendant then headed east on 12th Avenue towards 18th Street, where he turned against traffic towards East Orange, driving at a speed of sixty-five to seventy miles per hour. At the intersection of 18th Street and Central Avenue, defendant went through a red light and collided with a Ford Explorer being driven by Lakeisha Jones. According to Jones, defendant did not slow down at all as he entered the intersection. Although Jones went to the hospital after the collision, she was not seriously injured. However, defendant and a passenger riding in the Acura with him were seriously injured.
On appeal, the Public Defender presents the following arguments on defendant's behalf:
In addition, defendant has submitted a pro se supplemental brief which presents the following arguments:
We agree with defendant's argument, presented under Point I(A) of the brief submitted by the Public Defender on defendant's behalf, that the part of the verdict sheet relating to the charge of aggravated assault upon Jones had the capacity to confuse the jury. Therefore, the conviction for that offense must be reversed and the case remanded for a new trial. We reject defendant's other arguments relating to the conduct of the trial, the imposition of consecutive sentences for eluding and the aggravated assault upon Souto, and jail credits.
Defendant was charged with second-degree aggravated assault upon Jones, in violation of
The trial court accepted this argument and denied defendant's motion to dismiss the charge of aggravated assault upon Jones. Defendant does not challenge this ruling.
At the charge conference, defense counsel argued that the State had not presented evidence from which the jury could find that Jones suffered either "serious" or "significant" bodily injury and therefore the only form of second-degree aggravated assault, in violation of
After instructing the jury regarding the charge of second-degree aggravated assault, of which defendant was acquitted, the trial court gave the jury the following instruction regarding the charge of third-degree aggravated assault:
After instructing the jury regarding third-degree aggravated assault, the court gave the following instruction regarding the additional lesser-included offense of simple assault, in violation of
The jury verdict sheet regarding the assault charges against defendant read as follows:
"A verdict sheet is intended for recordation of the jury's verdict and is not designed to supplement oral jury instructions."
The jury verdict sheet with respect to the charge of third-degree aggravated assault upon Jones was highly misleading. Although the State agreed that defendant could be found guilty of this offense only if the jury found he had "attempted to cause" significant bodily injury to Jones, which requires a showing of a "purpose" to inflict such injury, and the trial court instructed the jury on the basis of this theory, the verdict sheet indicated that defendant could be found guilty of this offense based on "knowing" or "reckless" conduct.
Furthermore, the jury question regarding the charge of third-degree aggravated assault upon Jones appeared immediately after the three jury questions regarding the charges of third-degree aggravated assault upon Officers Souto and Sanabria and second-degree aggravated assault upon Jones, each of which indicated that the State had to show that defendant had "attempt[ed] to cause" bodily injury or serious bodily injury. Therefore, a person reading the jury question relating to the charge of third-degree aggravated assault upon Jones could understandably have gotten the impression that even though defendant could be found guilty of the other aggravated assault charges only if he was found to have "attempt[ed] to cause" bodily injury, he could be found guilty of the charge of third-degree aggravated assault upon Jones based on a showing that he acted "knowingly" or "recklessly."
The risk that the jury could have gained this misconception of the elements of the charge of third-degree aggravated assault upon Jones was increased by the fact that the court submitted to the jury the charge of simple assault upon Jones as an additional lesser included offense and correctly instructed the jury that it could find defendant guilty of this offense if it found he had "acted purposely, or knowingly, or reckless in causing bodily injury to Lakeisha Jones." Therefore, the erroneous jury verdict sheet question regarding the charge of third-degree aggravated assault upon Jones, considered in light of the court's instructions regarding the charge of simple assault upon Jones, created a substantial danger that the jury was given the erroneous impression that defendant could be found guilty of third-degree aggravated assault upon Jones based on a showing that he acted "knowingly or recklessly."
Moreover, it was especially important for the jury to have a correct understanding of the mental state that the State had to establish for defendant to be found guilty of third-degree aggravated assault upon Jones. Because the State's evidence indicated that defendant drove into the intersection at sixty-five to seventy miles per hour, the jury could easily have found that defendant acted recklessly. However, because Jones did not suffer a significant injury as a result of the collision, defendant could not be found guilty on that basis. Instead, the State had to show that defendant attempted to cause Jones significant bodily injury by deliberately ramming her car, which would have been a more problematic finding for the jury to make than that defendant acted recklessly. Therefore, the jury verdict sheet question that created the erroneous impression that defendant could be found guilty of the charge of third-degree aggravated assault upon Jones based on reckless conduct requires a reversal of defendant's conviction for that offense.
Defendant's other arguments relating to the conduct of his trial are without merit and require only brief discussion.
The trial court properly handled the issue involving the improper comments by a potential juror in the elevator. The court identified which jurors had been exposed to the comments, interviewed each privately, ascertained that none had repeated the comments to any other jurors, instructed each not to discuss the comments, and excused each of the jurors who had heard the comments. The trial court did not abuse its discretion in denying defendant's motion to dismiss the entire jury pool based on this prospective juror's comments in the elevator.
Although the prosecutor's questioning of defendant about whether there was any reason for Sanabria, Souto and Jones to lie was improper, this brief line of questioning during the prosecutor's cross-examination was not sufficiently prejudicial to deprive defendant of a fair trial.
Defendant argues that the trial court erred in imposing three consecutive maximum sentences for his convictions for eluding, aggravated assault upon Souto, and aggravated assault upon Jones. We have reversed defendant's conviction for the aggravated assault upon Jones for the reasons set forth in section I of this opinion. Thus, we only need to address defendant's ten-year sentence for eluding and consecutive five-year sentence for the aggravated assault upon Souto. Defendant's challenge to the sentence imposed for the aggravated assault upon Jones is moot, pending a retrial of that charge.
In
Applying these criteria, the trial court properly imposed consecutive sentences upon defendant for the aggravated assault upon Souto and eluding. These were two quite distinct crimes, "involv[ing] separate acts of violence or threats of violence," first upon Souto and second upon the police officers or members of the public such as Jones who were or could have been injured for eluding the police by his reckless operation of the Acura. Moreover, the crimes involved occurred at "separate places" and involved "multiple victims" and defendant's convictions were "numerous," including not only the aggravated assault and eluding but also conspiracy to receive stolen property, receiving stolen property, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose. Therefore, the trial court did not abuse its discretion in imposing consecutive sentences. We are also satisfied that the aggregate sentence of fifteen years that defendant must now serve as a result of the reversal of his conviction for the aggravated assault upon Jones is not excessive.
Defendant argues, and the State acknowledges, that there must be a remand for a hearing regarding defendant's ability to pay restitution. Therefore, we remand for such a hearing.
Defendant also argues, and the State acknowledges, that the judgment of conviction does not properly reflect either the jury's verdict or his sentence. Therefore, we remand for entry of an amended judgment of conviction that accurately reflects the jury's verdict and the court's oral sentence.
Accordingly, we reverse defendant's conviction for third-degree aggravated assault upon Jones and remand the case for a retrial of that charge. We affirm defendant's other convictions. We remand for a hearing on defendant's ability to pay restitution and correction of the judgment of conviction.
