careless driving convictions. Defendant had attempted
to evade police officers in his car for approximately a mile
as he drove no faster than thirty miles per hour, had run
stop signs, had driven on the left side of the road, had
driven the wrong way down a one-way street, and had
attempted to run from the officers after their vehicle was
stopped. Under these circumstances, defendant’s
resisting arrest and careless driving convictions should
have merged with his eluding conviction on both an
elemental and factual basis.
In State v. Fuqua, 303 N.J. Super. 40 (App. Div.
1997), the Appellate Division reversed defendant’s
conviction for eluding because the trial court failed to
charge the jury that a knowing scienter was an element of
the offense.
In State v. Green, 318 N.J. Super. 361 (App. Div.
1999), aff’d, 163 N.J. 140 (2000), the Appellate
Division held that a defendant could be convicted of
second degree eluding based on evidence that defendant
struck a police officer with a vehicle in a private parking
lot and that other police officers subsequently chased
defendant through city streets. The Green court also held
that a trial court’s failure to instruct the jury regarding
the offense of second-degree aggravated assault while
eluding law enforcement officers, which offense was set
forth in one count of a multi-count indictment alleging
aggravated assault and eluding law enforcement officers,
required reversal of the conviction on that count; the
court asked the question on the verdict sheet as to
whether defendant caused bodily injury to the officer
while fleeing or attempting to elude officer, but essential
to fair trial was guidance from court by way of specific
instructions on the count that, at the very least, referred
to court’s prior instructions on eluding police officer and
bodily injury, and required jury to deliberate anew on the
count. Id.
Police involvement was essential element of offense of
eluding police officers, and thus, police involvement
could not, by itself, constitute an aggravating factor for
sentencing purposes. State v. Nataluk, 316 N.J. Super.
336 (App. Div. 1998).
Second degree eluding may be a “violent crime” to
which the No Early Release Act is applicable. In State v.
Griffin, N.J. Super. (App. Div. 2000), the
Appellate Division affirmed a NERA sentence where a
defendant used or threatened the use of a deadly weapon
by intentionally ramming his vehicle into occupied
police cars. However, NERA does not apply to the
second degree eluding where a defendant recklessly
struck another vehicle during a police chase and no death
or serious bodily injury resulted. State v. Burford, 163
N.J. 16 (2000).