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Date: 06-02-2016

Case Style: STATE OF NEW JERSEY VS. SHARAF D. SPEARS

Case Number: A-2782-14T2

Judge: Clarkson S. Fisher

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Plaintiff's Attorney: Carolyn A. Murray, Acting Essex County Prosecutor, Stephen A. Pogany, Special Deputy Attorney General

Defendant's Attorney: Joseph E. Krakora, Public Defender, Stefan Van Jura, Deputy Public Defender II

Description: 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.
3 If the judge's mention of tinted windows was "fleeting," then so too were her references to reckless driving and fleeing the (continued)
A-2782-14T2 4
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
(continued) scene of an accident, as they were all mentioned at the same time and with equal emphasis and description:
You may infer risk of death or injury to any person if the defendant's conduct in fleeing or attempting to elude the officer involved a violation of the motor vehicle laws of this State.
It is alleged the defendant's conduct involved violations of the motor vehicle laws. Specifically, it is alleged the defendant recklessly drove the vehicle. Drove — defendant drove a vehicle with tinted windows. And the defendant fled the scene of an accident.
Whether he's guilty or not . . . of those offenses will be determined by an appropriate [c]ourt. In other words, it is not your job to decide whether he's guilty or not guilty of the motor vehicle offenses. However, you may consider the evidence that he committed motor vehicle offenses in determining whether he created a risk of death or injury.
[Emphasis added.]
A-2782-14T2 5
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.

Outcome: Because of 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. Reversed and remanded for a new trial.4

Plaintiff's Experts:

Defendant's Experts:

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