STATE OF NEW JERSEY VS. JOHN SELLOWÂ Â (14-06-0579, PASSAIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1526-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JOHN SELLOW,
Defendant-Appellant.
________________________________________________________________
Submitted May 2, 2017 – Decided August 10, 2017
Before Judges Koblitz and Rothstadt.
On appeal from Superior Court of New Jersey,
Law Division, Passaic County, Indictment No.
14-06-0579.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marcia Blum, Assistant Deputy
Public Defender, of counsel and on the brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah E. Ross, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant John Sellow appeals from his conviction after a
jury found him guilty of second-degree eluding, N.J.S.A. 2C:29-
2(b), and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a)(2).
On appeal, he challenges his conviction, arguing that the trial
court improperly instructed the jury as to "flight." Specifically
he argues:
BECAUSE DEFENDANT FLED BEFORE HE COMMITTED ANY
OFFENSE, AND BECAUSE HE WAS SUBSEQUENTLY
CHARGED WITH OFFENSES FOR WHICH FLIGHT WAS THE
CENTRAL ELEMENT, IT WAS PREJUDICIAL ERROR TO
INSTRUCT THE JURY THAT IT COULD CONSIDER HIS
FLIGHT AS EVIDENCE THAT HE WAS CONSCIOUS OF
HIS GUILT OF THOSE OFFENSES.
We have considered defendant’s argument in light of our review
of the record and the applicable legal principles. We affirm.
The facts surrounding defendant's arrest and conviction are
not disputed and can be summarized as follows. On January 8,
2014, three Passaic County Sheriff’s officers sought to execute
two warrants issued for defendant's arrest relative to his failure
to pay child support. While on duty in plain clothes with their
badges visible, the officers activated their vehicle's overhead
lights and approached defendant as he sat in his automobile,
located outside his home. One officer approached defendant's
driver-side window while the other went to the passenger side.
When defendant was informed they were there to execute an arrest
warrant and an officer directed him to step out of his vehicle,
defendant backed his car up and then proceeded to drive away from
the officers, jumping a curb as he did so and forcing the officers
to get out of defendant's way to avoid being hit.
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The officers pursued defendant in their vehicle and
additional officers in other police cars joined the chase. During
the pursuit, defendant drove in excess of 20 to 25 miles-per-hour
over the speed limit, through numerous stop signs and down the
wrong way on one-way streets. Defendant eventually stopped his
vehicle, got out and attempted to run away, leaving his car in
gear, allowing it to roll into a utility pole.
The officers followed on foot and pursued him. One of them
quickly subdued defendant. As the officer attempted to handcuff
him, defendant began to wave his arms in an attempt to avoid being
handcuffed. Several police officers joined to force the handcuffs
onto defendant.
The officers issued two traffic summonses to defendant for
failure to obey stop signs and two additional summonses for
careless and reckless driving. A grand jury later indicted
defendant and charged him with the second-degree eluding and
fourth-degree resisting for which he was convicted, as well as a
third-degree resisting, N.J.S.A. 2C:29-2(a)(3).
After the presentation of evidence, Judge Adam E. Jacobs
conducted a charge conference during which defense counsel raised
an objection to the court charging "flight" as evidence of a
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consciousness of guilt.1 According to counsel, a flight charge
was not warranted because there was no underlying crime that
defendant was accused of committing, as the officers were trying
to arrest defendant only for outstanding child support warrants
and his driving and running away from the officers were not
separate acts. The prosecutor disagreed, contending that driving
away from the officers was an eluding relating to defendant's
attempt to avoid the warrants being executed, and his running away
was flight from the eluding.
After considering counsels' arguments, Judge Jacobs decided
that the flight charge was warranted. The judge observed that
defendant committed three separate acts in his encounter with the
officers – "the underlying eluding and the subsequent . . . jogging
away, and resistance by using [his] arms, arguably force." The
judge reasoned that once defendant stopped his vehicle, the eluding
was complete and defendant's ensuing attempt to run away could be
found to be an expression of defendant's consciousness of his
guilt on that charge.
In his subsequent instructions to the jury, Judge Jacobs
distinguished defendant's "flight" from the eluding charge. He
stated:
1
See Model Jury Charge (Criminal), "Flight" (2010).
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There has been some testimony in this
case from which you . . . may infer that the
defendant fled shortly after the alleged
commission of the crime of eluding. The
defendant denies any flight. The question of
whether the defendant fled after the
commission of the purported crime is another
question of fact for your determination.
The state alleges that [defendant] exited
the vehicle he was driving. He fled on foot
until apprehended by police officers. Mere
departure from a place where crime has been
committed does not constitute flight. If you
find that the defendant fearing that an
accusation of [sic] arrest would be made
against him on the charge of eluding involved
in the indictment, took refuge and flight for
the purpose of evading the accusation or
arrest on that charge, then you may consider
such flight in connection with all other
evidence in the case as an indication or proof
of consciousness of guilt. Flight may only
be considered as evidence of consciousness of
guilt if you should determine that the
defendant's purpose in leaving was to evade
accusation or arrest for the offense charged
in the indictment, that being eluding.
[(Emphasis added).]
The judge continued by charging the jury about each of the
offenses charged in the indictment, including lesser-included
offenses, explaining the elements that the State had to prove
beyond a reasonable doubt.
After the jury convicted defendant of the two offenses, the
court merged the resisting charge into the eluding and sentenced
defendant to six years. This appeal followed.
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We begin our review by recognizing that appropriate and
"proper jury charges are essential to a fair trial." State v.
Baum, 224 N.J. 147, 159 (2016) (quoting State v. Reddish, 181 N.J.
553, 613 (2004)). Proper instructions consist of "a comprehensible
explanation of the questions that the jury must determine,
including the law of the case applicable to the facts that the
jury may find." Ibid. (quoting State v. Green, 86 N.J. 281, 287-
88 (1981)). "[T]he court has an 'independent duty . . . to ensure
that the jurors receive accurate instructions on the law as it
pertains to the facts and issues of each case, irrespective of the
particular language suggested by either party.'" Ibid.
(alteration in original) (quoting Reddish, supra, 181 N.J. at
613); see also State v. Scharf, 225 N.J. 547, 580 (2016). "Because
proper jury instructions are essential to a fair trial, 'erroneous
instructions on material points are presumed to' possess the
capacity to unfairly prejudice the defendant." Baum, supra, 224
N.J. at 159 (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004));
see also State v. McKinney, 223 N.J. 475, 495 (2015).
With these guiding principles in mind, we conclude from our
review that Judge Jacob's instructions on flight were not
erroneous. "Evidence of flight . . . by an accused generally is
admissible as demonstrating consciousness of guilt, and is
therefore regarded as probative of guilt." State v. Mann, 132
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N.J. 410, 418 (1993). "The most common example of conduct that
can give rise to an inference of consciousness of guilt is flight."
State v. Randolph, 441 N.J. Super. 533, 562 (App. Div. 2015),
aff'd in and part rev'd in part on other grounds, 228 N.J. 566
(2017). Evidence of flight need not be unequivocal, but it "must
be 'intrinsically indicative of a consciousness of guilt.'"
Randolph, supra, 228 N.J. at 595 (quoting Randolph, supra, 441
N.J. Super. at 562).
Contrary to defendant's contention, the fact that up until
the point defendant began to elude the sheriff's officers he had
not committed any crime did not prohibit the judge from instructing
on "[f]light from the scene of [the] crime" of eluding. Randolph,
supra, 228 N.J. at 594. "A jury may infer that a defendant fled
from the scene of a crime by finding that he departed with an
intent to avoid apprehension for that crime." State v. Wilson,
57 N.J. 39, 49 (1970) (emphasis added). As Judge Jacobs explained,
the eluding was completed when defendant stopped his vehicle.
Defendant's running away on foot from police after having eluded
them was not part and parcel of the same offense, which relates
to a defendant's use of an automobile to escape prosecution. 2
2
A person is guilty of second-degree eluding if:
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Moreover, Judge Jacobs was careful to ensure that the jury limited
its consideration of defendant's flight to the eluding offense and
did not consider the flight charge with regard to the others.
while operating a motor vehicle [he] knowingly
flees or attempts to elude any police or law
enforcement officer after having received any
signal from such officer to bring the vehicle
. . . to a full stop [and] if the flight or
attempt to elude creates a risk of death or
injury to any person.
[N.J.S.A. 2C:29-2(b) (emphasis added).]
In order to convict the defendant of eluding,
the State must prove beyond a reasonable doubt
each of the following six (6) elements:
1. That [the defendant] was operating
a motor vehicle on a street or highway[.]
2. That [the individual giving chase]
was a police or law enforcement officer.
3. That [the officer] signaled [the
defendant] to bring the vehicle . . . to a
full stop.
4. That [the defendant] knew that the
officer had signaled (him/her) to bring the
vehicle . . . to a full stop.
5. That [the defendant] knew that [the
individual signaling defendant] was a police
or law enforcement officer.
6. That defendant knowingly fled or
attempted to elude the officer.
[Model Jury Charge (Criminal), Eluding an
Officer (Second and Third Degree) (2004).]
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Affirmed.
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