NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

PER CURIAM.

At the conclusion of a two-day trial in September 2013, a jury convicted defendant of a single count of second-degree eluding, N.J.S.A. 2C:29-2(b), based on evidence that defendant was driving his tinted-window vehicle1 at an excessive speed and failed to comply with a police officer's direction that he come to a stop. Defendant was sentenced to a nine-year prison term and appeals, arguing that the judge erroneously instructed the jury as to what types of motor vehicle violations could give rise to an inference that defendant created "a risk of death or injury." We agree that the judge's erroneous charge requires reversal and a new trial.

A police officer testified2 that, during the evening of February 16, 2011, he saw defendant's vehicle and ran a computer check that disclosed the vehicle's owner had an outstanding warrant. When the vehicle departed the Short Hills Mall, the officer illuminated his police lights, but defendant failed to stop. The officer sounded his siren and the vehicle, which again did not stop, erratically weaved through traffic before approaching a ramp onto Route 24; the officer estimated the vehicle was traveling at approximately sixty-five miles per hour in a twenty-five mile per hour zone. Defendant's vehicle struck a guardrail while attempting to navigate the on-ramp, and, upon arrival, the officer arrested defendant.

Defendant was charged with second-degree eluding, N.J.S.A. 2C:29-2(b). The act of knowingly fleeing or attempting to elude a law enforcement officer "after having received any signal from such officer to bring the vehicle . . . to a full stop" is a crime of the third-degree, except, however, that the same conduct becomes a crime of the second-degree "if the flight or attempt to elude creates a risk of death or injury to any person," which may be "infer[red]" "if the person's conduct involves a violation of chapter 4 of Title 39." Ibid. The judge charged the jurors about this inference, and instructed that, among other alleged motor vehicle violations, the jury could infer a "risk of death or injury" if it found defendant's vehicle had tinted windows. The State does not dispute that the tinted-window aspect of the charge was erroneous — there is no doubt the tinted window proscription appears at N.J.S.A. 39:3-74 and not in chapter 4 of Title 39, as mandated by N.J.S.A. 2C:29-2(b) — but the State argues the judge's mention of tinted windows was "fleeting"3 and, also, that defendant failed to object to the charge.

It is true defendant did not object, requiring that we consider whether the erroneous instruction constituted plain error, see R. 2:10-2, but jury instructions are "poor candidates for rehabilitation under the harmless error philosophy." State v. Simon, 79 N.J. 191, 206 (1979); see also State v. Maloney, 216 N.J. 91, 105 (2013); State v. Wilson, 128 N.J. 233, 241 (1992). To convict defendant of a second-degree offense, the jury was required to find his conduct caused a risk of death or injury. The judge properly instructed the jury that it could make that finding through application of an inference arising from a violation of chapter 4 of Title 39, and the judge informed the jury of the alleged motor vehicle violations from which it might infer risk of death or injury. The judge, however, erroneously included within those options one violation — defendant's tinted windows — that could not legally support the inference allowed by N.J.S.A. 2C:29-2(b).

It may be, as the State argues, that during deliberations the jury found some other motor vehicle violation supported the statutory inference, but it is equally likely the jury seized on the tinted-window violation as the ground upon which it convicted defendant of second-degree eluding. Because one of multiple choices provided to the jury was legally insufficient to support a second-degree conviction, the only available remedy is reversal and a remand for a new trial. See State v. Branch, 155 N.J. 317, 326 (1998).

Reversed and remanded for a new trial.4