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Eluding Must Be Knowingly Engaged








April 30, 2009


                  Submitted October 21, 2008 - Decided

                  Before Judges Collester and Grall.

                  On appeal from Superior Court of New Jersey,

                  Law Division, Monmouth County, Indictment

                  No. 06-02-0323-I. NOT FOR PUBLICATION WITHOUT THE


                                                               SUPERIOR COURT OF NEW JERSEY

                                                               APPELLATE DIVISION

                                                               DOCKET NO.  A-6027-06T

                  Yvonne Smith Segars, Public Defender, attorney

for appellant (William Welaj, Designated

Counsel, of counsel and on the brief).

Anne Milgram, Attorney General, attorney for

Respondent (Teresa A. Blair, Deputy Attorney

General, of counsel and on the brief).


       Tried to a jury before Judge Ira E. Kreizman, Stephen D. Calhoun was convicted of third-degree eluding a law enforcement officer, contrary to N.J.S.A. 2C:29-2b, and third-degree creating a false public alarm, contrary to N.J.S.A. 2C:33-3.  Defendants motion for judgment of acquittal notwithstanding the verdict or a new trial was denied, and he was sentenced on April 20, 2007 to a three-year probationary term.

         The facts are largely undisputed.  Belmar Police Officer Darian Vitello was on patrol at about 4:30 a.m. on November 18, 2005, when he saw a man, later identified as defendant, running from an alley near an all-night 7-Eleven store to a parked van.  After the defendant jumped into the van and drove away, Vitello followed it north on Ocean Avenue and activated his emergency warning lights.  When the van did not stop, Vitello then activated his siren and overhead lights.  The van continued at thirty-five to forty miles an hour despite Vitellos attempts to stop it.  At this time, Vitello turned on his troop cars mobile vision camera and notified his police headquarters.  In turn, other neighboring police departments dispatched patrol vehicles to assist.  When the van reached the Asbury Park circle it went around the circle some four to six times while police cars from Neptune City, Neptune Township, and the State police fanned out around the circle to prevent traffic from entering.  Finally, the van stopped, and the defendant was handcuffed and placed in Vitellos patrol car.

         Vitello testified that defendant was excited and asked, "Has 9-1-1 happened yet?"  He also said something about the Oyster Creek power plant.  On the way back to headquarters Vitello stopped the patrol car near where he had seen the defendant throw an object from the van window.  He found nothing and returned to the patrol car at which time defendant volunteered that he had placed a bomb in the basement of the Mayfair Hotel where he lived.  Defendant explained that the bomb was kerosene and would explode because the hotel owner kept the rooms too hot.  Vitello radioed this information to the police dispatcher while on the way to police headquarters.

Belmar Police Chief Jack Hill alerted the Belmar Fire Department, first aid and the Office of Emergency Management of the situation and arranged for the Monmouth County Sheriffs department to bring a bomb-sniffing dog to the hotel.  The owner of the hotel shut off the gas supply, and the hotel and hotel annex were evacuated.  The hotel was searched, including defendants room and his van.  No explosives were found.

         After arrival at police headquarters, defendant was given his Miranda[1] warnings and put into a holding cell.  Belmar Sergeant Patrick McGovern went to see defendant and asked, "Steve, whats this I hear about a bomb at the Mayfair?"  Defendant denied that he placed a bomb at the hotel.  McGovern then asked defendant why he had told Officer Vitello that there was a bomb, and defendant replied he did not know why he had said it.  McGovern testified that after this conversation with defendant, he went to defendants room where a search revealed one pound boxes of baking powder with the tops ripped off, a kitchen timer, a soldering iron, and a collection of books dealing with espionage, German war tactics, and a Russian-English translation book.

         McGovern returned to police headquarters and again spoke to defendant.  This time he asked him why he had been running from the 7-Eleven, and defendant told that he ran because poisonous gas was being released from his room at the Mayfair annex.  But as he got to the 7-Eleven, he felt gas was being released there as well so that he ran to his van.  He said that he did not stop when Officer Vitello activated his lights and siren because he believed the government was after him.

         Shortly thereafter, defendant was transported to the Jersey Shore Medical Center and was admitted in the section for mental health patients.  He was hospitalized for about two weeks.  The diagnosis given at the time of his release was that he had experienced a psychotic disorder.

         The defense at trial was that the defendant suffered from a mental disease or defect at the time and did not have the requisite state of mind to commit either of the offenses charged.  See, e.g., State v. Galloway, 133 N.J.631, 647 (1993); State v. Nataluk, 316 N.J. Super. 336, 343 (App. Div. 1998); N.J.S.A. 2C:4-2.  Commonly referred to as the defense of "diminished capacity," the defense requires a mental condition that interferes with the formation of the mental state required for conviction of the offense.  See, e.g., State v. Overton, 357N.J. Super. 387 (App. Div.), certif. denied, 177 N.J. 219 (2003).  The State has the burden to prove the defendant had the requisite mental state defined by the charged offenses, and no burden is shifted to defendant when the defense is presented.  Nataluk, supra, 316 N.J. Super. at 343.  The jury is to be instructed that if there is a reasonable doubt as to whether defendants mental condition permitted him to form the mental state as an element of the crime, the defendant is entitled to an acquittal.  State v. Reyes, 140 N.J. 344, 356-57 (1995).

         Defendant presented the testimony of Dr. Kenneth Weiss, a psychiatrist, who conducted two interviews with the defendant and reviewed various medical records from the Monmouth Medical Center, as well as police reports and related documents.  Dr. Weiss opined that defendant suffered from a brief psychotic episode on November 18, 2005, and did not at that time have the mental capacity to knowingly form the criminal intent to elude the police or create a false public alarm.  The State called no expert witness in rebuttal.

         Following his conviction and sentence, defendant filed his notice of appeal.  He makes the following arguments before us:




         Defendant argues that the judge erred in denying his motion for a new trial or judgment of acquittal notwithstanding the verdict.  He contends that the jury verdict must be set aside as a miscarriage of justice because of Dr. Weiss uncontroverted testimony that defendant could not be criminally responsible for either of the crimes charged.

         Our scope of review is such that we will not reverse a trial court ruling on an application for a new trial or judgment of acquittal notwithstanding the verdict unless it clearly appears there was a miscarriage of justice under the law.  R. 2:10-1; State v. Sims, 65 N.J. Super. 359, 373-74 (1974).  A verdict must stand if the jury could rationally find that the essential elements of the crime were proved beyond a reasonable doubt.  State v. Martin, 119 N.J. 2, 8 (1990).

The mental state or culpability for both offenses with which defendant was charged is "knowingly." N.J.S.A. 2C:29-2(b); N.J.S.A. 2C:33-3(a).  A person knowingly engages in the course of action if he is aware of the nature of his conduct, and, as with any mental state, knowledge may be inferred from the circumstances. N.J.S.A. 2C:2-2(b)(2); State v. Breakiron, 108 N.J. 591, 605-06 (1987); State v. Speth, 323 N.J. Super. 67, 87 (App. Div. 1999).  Issues of the credibility of witnesses are for the jury, and in this case, the jurors were free to believe or disbelieve Dr. Weiss testimony.  State v. Grecco, 193 N.J. Super. 133, 150 (App. Div.), certif. denie d, 97 N.J. 651 (1984).  Obviously, they did not accept his opinion.

         There was ample proof before the jury that defendant knew that he was being pursued by police.  He admitted to Sergeant McGovern that he failed to stop after seeing the flashing lights on Vitellos patrol car and heard the police siren.  Furthermore, Vitello testified that while in his patrol car on the way to police headquarters defendant told him there was a bomb in the basement of the Mayfair Hotel.  These statements obviously caused alarm and required evacuation of the hotel and an emergency search of the premises.

There was substantial and credible evidence from which the jury could conclude beyond a reasonable doubt that defendant acted "knowingly" and was criminally responsible for his actions.  Therefore, we find no miscarriage of justice to overturn the jury verdict or reverse the denial by Judge Kreizman of defendants post-trial motion.

         The remaining arguments by defendant are without sufficient merit to warrant consideration in a written opinion.   R. 2:11-3(e)(2).



[1]  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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