(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued February 29, 2000 -- Decided April 10, 2000
PER CURIAM
The matter comes before the Court based on a limited issue raised in a partial dissent in the Appellate
Division. The specific issue is whether a criminal defendant may be convicted under N.J.S.A. 2C:29-2(b), the
eluding statute, when the course of fleeing or eluding a law enforcement officer begins in a parking lot instead of on
a street or highway. The statute expressly proscribes fleeing from or attempting to elude law enforcement “on a
street or highway.”
Following a trial, Vernon Green was convicted by a Cumberland County jury of second-degree aggravated
assault, (count one); third-degree aggravated assault on a police officer, (count two); second-degree eluding a law
enforcement officer, (count three); and second-degree aggravated assault while eluding a law enforcement officer,
(count four). Green was sentenced to a term of ten years of imprisonment with a five-year-period of parole
ineligibility.
The facts leading to Green's conviction were disputed at trial. On November 10, 1995, Millville
Detectives Felice, Chard, and Harvey were conducting a surveillance operation at a known crack house. The
detectives observed Green enter the house and return to his car five or ten minutes later. The detectives followed
Green as he pulled into a well-lit parking lot at the Elks Lodge approximately fifteen to twenty yards from a public
telephone. The detectives parked their vehicle nose-to-nose with Green's car. The detectives, in plain clothes,
exited their vehicle. Felice approached the driver's side of Green's car. Felice testified that he identified himself as
a police officer and displayed his badge. Green backed his car up then pulled forward hitting Felice in the leg.
Felice testified that he hung onto the car, broke the driver's window and continued to shout at Green to stop the
vehicle. Eventually, Felice could not hold on and fell to the ground, suffering additional injuries. Chard continued
to pursue Green on a high speed chase down a residential road until Green was apprehended.
Green testified at trial that he drove to the parking lot after smoking crack cocaine, waiting to call his wife.
Green claims that the officers did not announce who they were and that he fled because he thought they were drug
dealers who might want to hurt him. Green claims that he did not realize that they were police officers.
On appeal, the Appellate Division reversed the convictions on counts one, two and four. The appellate
panel concluded that the independent and cumulative effect of the failure of the trial judge to charge the jury
regarding causation on count one, as well as the failure of the judge to limit the jury's consideration on count one to
an attempt to cause serious bodily injury, and the failure of the judge to charge the lesser-included offense of simple
assault on count two deprived Green of his constitutional right to a fair trial on those two counts. The court found
that those errors were clearly capable of producing an unjust result. The Appellate Division also reversed the
conviction on count four because of the failure of the trial judge to charge the jury on that count. The Appellate
panel affirmed Green's conviction on count three, second-degree eluding a law enforcement officer.
One judge concurred in the panel's reversal of Green's convictions on counts one, two, and four but
dissented from the panel's decision to uphold the conviction on count three. The dissent noted that the panel
determined that the trial court had committed plain error in respect of count two by failing to charge the jury on
simple assault when Green had testified that the officers had not identified themselves and that he was unaware that
they were police officers. Based on that conclusion, the dissent reasoned that the trial court should have crafted a
charge on count three to address Green's theory since he could not have known he was fleeing from the police. The
dissent further found the conviction improper because the parking lot did not qualify as a street or highway within
the intendment of the eluding statute. Thus, a proper jury instruction would have referred specifically to Green's
conduct after he left the parking lot and was being chased by Chard under a separate count of eluding police.
In its opinion, the Appellate Division panel addressed the dissent's position, finding its colleague's
interpretation of street or highway too narrow and not within the intent of the Legislature when it drafted the statute.
The panel found that the chase, initially to elude Felice, was one continuous chase. In addition, the panel reasoned
that on count three, the jury was clearly and unequivocally instructed that it must find, as one of the elements of the
offense, that Green was aware that the victim was a law enforcement officer. The jury was not similarly instructed
on count two, resulting in plain error.
Green appealed to the Supreme Court as of right based on the partial dissent in the Appellate Division.
HELD: Judgment of the Appellate Division is affirmed substantially for the reasons expressed in Judge Steinberg's
opinion. A defendant may be convicted under N.J.S.A. 2C:29-2(b), even if his or her course of fleeing or
eluding a law enforcement officer begins in a parking lot instead of on a street or highway.
CHIEF JUSTICE PORITZ and JUSTICES O'HERN, STEIN, COLEMAN, LONG, VERNIERO,
AND LAVECCHIA join in this PER CURIAM opinion.
SUPREME COURT OF NEW JERSEY
A-
10 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON GREEN,
Defendant-Appellant.
Argued February 29, 2000-- Decided April 10, 2000
On appeal from the Superior Court, Appellate
Division, whose opinion is reported at 318
N.J. Super. 361 (1999).
Sylvia M. Orenstein, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender,
attorney).
Christine M. D'Elia, Deputy Attorney
General, argued the cause for respondent
(John J. Farmer, Jr., Attorney General of
New Jersey, attorney).
PER CURIAM
Based on the partial dissent filed in the Appellate Division
and reported at
318 N.J. Super. 382 (1999), defendant filed an
appeal as of right pursuant to Rule 2:2-1(a)(2). In respect of
that appeal, the judgment of the Appellate Division is affirmed,
substantially for the reasons expressed in Judge Steinberg's
majority opinion, reported at
318 N.J. Super. 361 (1999).
Chief Justice Poritz and Associate Justices O'Hern, Stein, Coleman, Long, Verniero, and LaVecchia join in the Court's opinion.
NO. A-10 SEPTEMBER TERM 1999
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERNON GREEN,
Defendant-Appellant.
DECIDED April 10, 2000
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY
DISSENTING OPINION BY