(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

State v. Vernon Green (A-10-99)

(NOTE: The Court wrote no full opinion in this case. Rather, the Court's affirmance is based substantially on Judge Steinberg's written opinion below.)

Argued February 29, 2000 -- Decided April 10, 2000

PER CURIAM

The matter comes before the Court based on a limited issue raised in a partial dissent in the Appellate Division. The specific issue is whether a criminal defendant may be convicted under N.J.S.A. 2C:29-2(b), the eluding statute, when the course of fleeing or eluding a law enforcement officer begins in a parking lot instead of on a street or highway. The statute expressly proscribes fleeing from or attempting to elude law enforcement "on a street or highway."

Following a trial, Vernon Green was convicted by a Cumberland County jury of second-degree aggravated assault, (count one); third-degree aggravated assault on a police officer, (count two); second-degree eluding a law enforcement officer, (count three); and second-degree aggravated assault while eluding a law enforcement officer, (count four). Green was sentenced to a term of ten years of imprisonment with a five-year-period of parole ineligibility.

The facts leading to Green's conviction were disputed at trial. On November 10, 1995, Millville Detectives Felice, Chard, and Harvey were conducting a surveillance operation at a known crack house. The detectives observed Green enter the house and return to his car five or ten minutes later. The detectives followed Green as he pulled into a well-lit parking lot at the Elks Lodge approximately fifteen to twenty yards from a public telephone. The detectives parked their vehicle nose-to-nose with Green's car. The detectives, in plain clothes, exited their vehicle. Felice approached the driver's side of Green's car. Felice testified that he identified himself as a police officer and displayed his badge. Green backed his car up then pulled forward hitting Felice in the leg. Felice testified that he hung onto the car, broke the driver's window and continued to shout at Green to stop the vehicle. Eventually, Felice could not hold on and fell to the ground, suffering additional injuries. Chard continued to pursue Green on a high speed chase down a residential road until Green was apprehended.

Green testified at trial that he drove to the parking lot after smoking crack cocaine, waiting to call his wife. Green claims that the officers did not announce who they were and that he fled because he thought they were drug dealers who might want to hurt him. Green claims that he did not realize that they were police officers.

On appeal, the Appellate Division reversed the convictions on counts one, two and four. The appellate panel concluded that the independent and cumulative effect of the failure of the trial judge to charge the jury regarding causation on count one, as well as the failure of the judge to limit the jury's consideration on count one to an attempt to cause serious bodily injury, and the failure of the judge to charge the lesser-included offense of simple assault on count two deprived Green of his constitutional right to a fair trial on those two counts. The court found that those errors were clearly capable of producing an unjust result. The Appellate Division also reversed the conviction on count four because of the failure of the trial judge to charge the jury on that count. The Appellate panel affirmed Green's conviction on count three, second-degree eluding a law enforcement officer.

One judge concurred in the panel's reversal of Green's convictions on counts one, two, and four but dissented from the panel's decision to uphold the conviction on count three. The dissent noted that the panel determined that the trial court had committed plain error in respect of count two by failing to charge the jury on simple assault when Green had testified that the officers had not identified themselves and that he was unaware that they were police officers. Based on that conclusion, the dissent reasoned that the trial court should have crafted a charge on count three to address Green's theory since he could not have known he was fleeing from the police. The dissent further found the conviction improper because the parking lot did not qualify as a street or highway within the intendment of the eluding statute. Thus, a proper jury instruction would have referred specifically to Green's conduct after he left the parking lot and was being chased by Chard under a separate count of eluding police.

In its opinion, the Appellate Division panel addressed the dissent's position, finding its colleague's interpretation of street or highway too narrow and not within the intent of the Legislature when it drafted the statute. The panel found that the chase, initially to elude Felice, was one continuous chase. In addition, the panel reasoned that on count three, the jury was clearly and unequivocally instructed that it must find, as one of the elements of the offense, that Green was aware that the victim was a law enforcement officer. The jury was not similarly instructed on count two, resulting in plain error.

Green appealed to the Supreme Court as of right based on the partial dissent in the Appellate Division.

HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Steinberg's opinion. A defendant may be convicted under N.J.S.A. 2C:29-2(b), even if his or her course of fleeing or eluding a law enforcement officer begins in a parking lot instead of on a street or highway.

CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO, AND LAVECCHIA join in this PER CURIAM opinion.