NJSA 2C:29-2 Resisting Arrest, Eluding Officer |
Kenneth Vercammen's Law office represents individuals charged with criminal and serious traffic violations throughout New Jersey. 2C:29-2. Resisting Arrest; Eluding Officer. a. (1) Except as provided in paragraph (3), a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (2) Except as provided in paragraph (3), a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest. (3) An offense under paragraph (1) or (2) of subsection a. is a crime of the third degree if the person: (a)Uses or threatens to use physical force or violence against the law enforcement officer or another; or (b)Uses any other means to create a substantial risk of causing physical injury to the public servant or another. It is not a defense to a prosecution under this subsection that the law enforcement officer was acting unlawfully in making the arrest, provided he was acting under color of his official authority and provided the law enforcement officer announces his intention to arrest prior to the resistance. b.Any person, while operating a motor vehicle on any street or highway in this State or any vessel, as defined pursuant to section 2 of P.L.1995, c.401 (C.12:7-71), on the waters of this State, who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle or vessel to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the persons conduct involves a violation of chapter 4 of Title 39 or chapter 7 of Title 12 of the Revised Statutes. In addition to the penalty prescribed under this subsection or any other section of law, the court shall order the suspension of that persons drivers license, or privilege to operate a vessel, whichever is appropriate, for a period of not less than six months or more than two years. In the case of a person who is at the time of the imposition of sentence less than 17 years of age, the period of the suspension of driving privileges authorized herein, including a suspension of the privilege of operating a motorized bicycle, shall commence on the day the sentence is imposed and shall run for a period as fixed by the court. If the driving or vessel operating privilege of any person is under revocation, suspension, or postponement for a violation of any provision of this Title or Title 39 of the Revised Statutes at the time of any conviction or adjudication of delinquency for a violation of any offense defined in this chapter or chapter 36 of this Title, the revocation, suspension, or postponement period imposed herein shall commence as of the date of termination of the existing revocation, suspension, or postponement. Upon conviction the court shall collect forthwith the New Jersey drivers licenses of the person and forward such license or licenses to the Director of the Division of Motor Vehicles along with a report indicating the first and last day of the suspension or postponement period imposed by the court pursuant to this section. If the court is for any reason unable to collect the license or licenses of the person, the court shall cause a report of the conviction or adjudication of delinquency to be filed with the director. That report shall include the complete name, address, date of birth, eye color, and sex of the person and shall indicate the first and last day of the suspension or postponement period imposed by the court pursuant to this section. The court shall inform the person orally and in writing that if the person is convicted of personally operating a motor vehicle or a vessel, whichever is appropriate, during the period of license suspension or postponement imposed pursuant to this section the person shall, upon conviction, be subject to the penalties set forth in R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. A person shall be required to acknowledge receipt of the written notice in writing. Failure to receive a written notice or failure to acknowledge in writing the receipt of a written notice shall not be a defense to a subsequent charge of violation of R.S.39:3-40 or section 14 of P.L.1995, c.401 (C.12:7-83), whichever is appropriate. If the person is the holder of a drivers or vessel operators license from another jurisdiction, the court shall not collect the license but shall notify the director who shall notify the appropriate officials in the licensing jurisdiction. The court shall, however, in accordance with the provisions of this section, revoke the persons non-resident driving or vessel operating privileges, whichever is appropriate, in this State. For the purposes of this subsection, it shall be a rebuttable presumption that the owner of a vehicle or vessel was the operator of the vehicle or vessel at the time of the offense. Amended 1979, c.178, s.57; 1981, c.290, s.28; 1989, c.84; 1991, c.341, s.3; 1993, c.219, s.5; 1995, c.401, s.54; 2000, c.18, s.2. 2C:29-3 Hindering apprehension or prosecution. 2C:29-3. Hindering Apprehension or Prosecution. a.A person commits an offense if, with purpose to hinder the detention, apprehension, investigation, prosecution, conviction or punishment of another for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes he: (1)Harbors or conceals the other; (2)Provides or aids in providing a weapon, money, transportation, disguise or other means of avoiding discovery or apprehension or effecting escape; (3)Suppresses, by way of concealment or destruction, any evidence of the crime, or tampers with a witness, informant, document or other source of information, regardless of its admissibility in evidence, which might aid in the discovery or apprehension of such person or in the lodging of a charge against him; (4)Warns the other of impending discovery or apprehension, except that this paragraph does not apply to a warning given in connection with an effort to bring another into compliance with law; (5)Prevents or obstructs, by means of force, intimidation or deception, anyone from performing an act which might aid in the discovery or apprehension of such person or in the lodging of a charge against him; (6)Aids such person to protect or expeditiously profit from an advantage derived from such crime; or (7)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16). The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against the person aided would constitute a crime of the second degree or greater, unless the actor is a spouse, parent or child of the person aided, in which case the offense is a crime of the fourth degree. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense. b.A person commits an offense if, with purpose to hinder his own detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of Title 39 of the New Jersey Statutes or a violation of chapter 33A of Title 17 of the Revised Statutes, he: (1)Suppresses, by way of concealment or destruction, any evidence of the crime or tampers with a document or other source of information, regardless of its admissibility in evidence, which might aid in his discovery or apprehension or in the lodging of a charge against him; or (2)Prevents or obstructs by means of force or intimidation anyone from performing an act which might aid in his discovery or apprehension or in the lodging of a charge against him; or (3)Prevents or obstructs by means of force, intimidation or deception any witness or informant from providing testimony or information, regardless of its admissibility, which might aid in his discovery or apprehension or in the lodging of a charge against him; or (4)Gives false information to a law enforcement officer or a civil State investigator assigned to the Office of the Insurance Fraud Prosecutor established by section 32 of P.L.1998, c.21 (C.17:33A-16). The offense is a crime of the third degree if the conduct which the actor knows has been charged or is liable to be charged against him would constitute a crime of the second degree or greater. The offense is a crime of the fourth degree if such conduct would constitute a crime of the third degree. Otherwise it is a disorderly persons offense. Amended 1981, c.290, s.29; amended 1999, c.297. If someone is indicted for the Serious criminal charge of "ELUDING AN OFFICER", the Judge will read portions of the following to the Jury: (N.J.S.A. 2C:29-2b) [Second and Third Degree] The indictment charges the defendant with committing the crime of eluding an officer. The indictment reads as follows: (Read Indictment) The statute on which this charge is based reads as follows: Any person, while operating a motor vehicle on any street or highway in this State, who 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 commits a crime of the third degree. [CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH SECOND AND THIRD DEGREE] [That person] is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury to any person. [CHARGE FOLLOWING SENTENCE IF SUBMITTING BOTH SECOND AND THIRD DEGREE] [I will ask you to consider both third degree and second degree eluding, and will begin by defining third degree.] In order to convict the defendant of third degree eluding, the state must prove beyond a reasonable doubt each of the following six (6) elements: 1. That was operating a motor vehicle on a street or highway in this state. 2. That was a police or law enforcement officer. 3. That signaled to bring the vehicle to a full stop. 4. That knew that the officer had signaled (him/her) to bring the vehicle to a full stop. 5. That knew that was a police or law enforcement officer. 6. That defendant knowingly fled or attempted to elude the officer. If you find that was the owner of the vehicle, you may infer that (he/she) was operating that vehicle at the time of the offense. However, you are never required or compelled to draw this inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept them or reject them if you wish. Mere failure to stop does not constitute flight. To find flight, you must find that the defendants purpose in leaving was to avoid being stopped by the officer. A person attempts to perform an act if (he/she) does or omits to do anything with the purpose of performing that act without further conduct on (his/her) part, or purposely does or omits to do anything which, under the circumstances as a reasonable person would believe them to be, is an act or omission constituting a substantial step planned to culminate in the performance of that act. A person acts purposely with respect to the nature of (his/her) conduct or a result thereof if it is (his/her) conscious object to engage in conduct of that nature or to cause such a result. A person acts knowingly with respect to the attendant circumstances of his/her conduct if he/she is aware that such circumstances exist, or is aware of a high probability of their existence. "Knowing" or "with knowledge" or equivalent terms have the same meaning. If you find that the State has failed to prove any one of these elements beyond a reasonable doubt you must find the defendant not guilty. [CHARGE FOLLOWING SENTENCE IF SUBMITTING ONLY THIRD DEGREE] On the other hand, if you find that the State has proven all of these elements beyond a reasonable doubt, you must find the defendant guilty. [CHARGE REMAINING PARAGRAPHS IF SUBMITTING SECOND DEGREE] If you find that the State has proven all six of the above elements beyond a reasonable doubt, you must go on in your deliberations to consider a seventh element, which will distinguish third-degree eluding from the greater offense of second-degree eluding. The State must prove beyond a reasonable doubt: 7. That the flight or attempt to elude created a risk of death or injury to any person. "Injury" means physical pain, illness, or any impairment of physical condition.1 In order to find this element, you must determine that there was at least one person put at risk by the defendants conduct, including persons along the chase route, police officers in the chasing vehicle, or persons in the eluding vehicle.2 [CHARGE IF APPLICABLE:]3 You may infer risk of death or injury to any person if the defendants conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle law of this State [OR: the law regulating power vessels]. It is alleged that defendants conduct involved [a] violation[s] of the motor vehicle law [OR: the law regulating power vessels]. Specifically, it is alleged that defendant [list motor vehicle violations or power vessel violations alleged, and list their elements, taking care to list only those violations that allegedly occurred after the signal to stop]. Whether (he/she) is guilty or not guilty of that [those] offense[s] will be determined by an appropriate court.4In other words, it is not your job to decide whether (he/she) is guilty or not guilty of the motor vehicle [OR: power vessel] offense[s]. However, you may consider the evidence that (he/she) committed [a] motor vehicle offense[s] [OR: power vessel offense[s] ] in deciding whether (he/she) created a risk of death or injury. At the same time, remember that you are never required or compelled to draw this inference. As I have already explained, it is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inference and you are always free to accept or reject any inference if you wish. If you find that the State has proven beyond a reasonable doubt all seven elements of the offense, then you must find the defendant guilty of the second degree crime of eluding an officer. On the other hand, if you find that the State has failed to prove the seventh element beyond a reasonable doubt, but has proven the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of second degree eluding and guilty of third degree eluding. Finally, if you find that the State has failed to prove any of the first six elements beyond a reasonable doubt, then you must find the defendant not guilty of either crime. 1 State v. Wallace, 158 N.J. 552, 558 (1999), holds that the term "injury" should be defined for the jury, using the Code definition of "bodily injury," N.J.S.A. 2C:11-1a. Property damage, psychological injury, or other nonphysical injury do not satisfy the statutory requirement. Id. 2 Wallace, 158 N.J. at 560. 3 Only violations of Chapter 4 of Title 39 (motor vehicles) or Chapter 7 of Title 12 (power vessels) will support this statutory inference. However, not all such violations will support the inference, and it should not be submitted where no reasonable juror on the evidence as a whole, including the evidence of the motor vehicle or power vessel violation, could find a risk of death or injury to any person beyond a reasonable doubt. N.J.R.E. 303b; State v. DiRienzo, 53 N.J. 360, 378 (1969). 4 Because it is inappropriate to submit to a jury a lesser motor-vehicle offense related to an indictable prosecution properly before them, State v. Muniz, 118 N.J. 319, 331-32 (1990), the jury should be instructed, if appropriate, that any outstanding motor vehicle charge will be determined by an appropriate court. At the same time, the failure to explain, in appropriate circumstances, the elements of the motor vehicle offenses that form the basis for the statutory inference of recklessness, so that the jury can make an accurate determination whether the defendants conduct "created the danger of death or injury," is reversible error. State v. Dorko, 298 N.J. Super. at 59-60. Accordingly, the court should explain the elements of the applicable motor vehicle offenses to the jury, but inform them that the defendants guilt or innocence of those offenses will be determined by an appropriate court. The jury should be instructed not to speculate as to whether any such charges have been filed or disposed of. The same principles would appear to apply if a power vessel offense, rather than a motor vehicle offense, is alleged as the basis for the statutory inference. Consequences of a Criminal Guilty Plea 1. You will have to appear in open court and tell the judge what you did that makes you guilty of the particular offense(s) 2. Do you understand that if you plead guilty:
3. If you are on Probation, you will have to submit to random drug and urine testing. If you violate Probation, you often go to jail. 4. In indictable matters, you will be required to provide a DNA sample, which could be used by law enforcement for the investigation of criminal activity, and pay for the cost of testing. 5. You must pay restitution if the court finds there is a victim who has suffered a loss and if the court finds that you are able or will be able in the future to pay restitution. 6. If you are a public office holder or employee, you can be required to forfeit your office or job by virtue of your plea of guilty. 7. If you are not a United States citizen or national, you may be deported by virtue of your plea of guilty. 8. You must wait 5-10 years to expunge a first offense. 2C:52-3 9. You could be put on Probation. 10. In Drug Cases, a mandatory DEDR penalty of $500-$1,000, and lose your drivers license for 6 months - 2years. You must pay a Law Enforcement Officers Training and Equipment Fund penalty of $30. 11. You may be required to do Community Service. 12. You must pay a minimum Violent Crimes Compensation Board assessment of $50 ($100 minimum if you are convicted of a crime of violence) for each count to which you plead guilty. 13. You must pay a $75 Safe Neighborhood Services Fund assessment for each conviction. 14. If you are being sentenced to probation, you must pay a fee of up to $25 per month for the term of probation. 15. You lose the presumption against incarceration in future cases. 2C:44-1 16. You may lose your right to vote. The defense of a person charged with a criminal offense is not impossible. There are a number of viable defenses and arguments which can be pursued to achieve a successful result. Advocacy, commitment, and persistence are essential to defending a client accused of a criminal offense. Jail for Crimes and Disorderly Conduct: If someone pleads Guilty or is found Guilty of a criminal offense, the following is the statutory Prison/Jail terms. NJSA 2C: 43-8 (1) In the case of a crime of the first degree, for a specific term of years which shall be fixed by the court and shall be between 10 years and 20 years; (2) In the case of a crime of the second degree, for a specific term of years which shall be fixed by the court and shall be between five years and 10 years; (3) In the case of a crime of the third degree, for a specific term of years which shall be fixed by the court and shall be between three years and five years; (4) In the case of a crime of the fourth degree, for a specific term which shall be fixed by the court and shall not exceed 18 months. 2C:43-3 Fines have been increased recently! 2C:43-3. Fines and Restitutions. A person who has been convicted of an offense may be sentenced to pay a fine, to make restitution, or both, such fine not to exceed: a. (1) $200,000.00 when the conviction is of a crime of the first degree; (2) $150,000.00 when the conviction is of a crime of the second degree; b. (1) $15,000.00 when the conviction is of a crime of the third degree; (2) $10,000.00 when the conviction is of a crime of the fourth degree; c. $1,000.00, when the conviction is of a disorderly persons offense; d. $500.00, when the conviction is of a petty disorderly persons offense; If facing any criminal charge, retain an experienced attorney immediately to determine you rights and obligations to the court. Current criminal charge researched by Kenneth Vercammen, Esq. 732-572-0500 |
Monday, December 19, 2011
NJSA 2C:29-2 Resisting Arrest, Eluding Officer
