Conviction affirmed on eluding BASSEM M. ABDOLRAZEK

Conviction affirmed on eluding BASSEM M. ABDOLRAZEK, STATE OF NEW JERSEY, Plaintiff-Respondent, v. BASSEM M. ABDOLRAZEK, Defendant-Appellant. NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO.  A->3244-03T4 _________________________________________________     November 3, 2005 Submitted October 6, 2005 - Decided Before Judges Weissbard and Winkelstein. On appeal from Superior Court of New Jersey, Law Division, Ocean County, 01-10-1342. Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief). Peter C. Harvey, Attorney General, attorney for respondent (Natalie A. Schmid Drummond, Deputy Attorney General, of counsel and on the brief). PER CURIAM Defendant Bassem M. Abdolrazek appeals from his conviction following a three-day jury trial on both counts of an indictment charging second-degree eluding, N.J.S.A.  2C:29-2b (count one) and fourth-degree resisting arrest, N.J.S.A.  2C:29-2a (count two).On November 14, 2003, defendant was sentenced on count one to nine years in prison with three-years parole ineligibility and a concurrent eighteen-month prison term on count two.  Appropriate penalties were imposed. On appeal, defendant presents the following arguments for our consideration: POINT I THE JUDGES COMMENTS TO THE JURY, AS A PART OF THE JURY CHARGE, WHICH PRAISED THE POLICE OFFICER AND UNDERSCORED HIS "DUTY TO STOP" DEFENDANT, IMPROPERLY SERVED TO LET THE JURY KNOW THAT THE JUDGE PERSONALLY BELIEVED AND ADMIRED THE POLICE OFFICER, IN GROSS VIOLATION OF DEFENDANTS RIGHTS TO DUE PROCESS AND A FAIR TRIAL.  (Not Raised Below) POINT II THE DEFENDANTS SECOND-DEGREE ELUDING CONVICTION MUST BE REVERSED BECAUSE THE TRIAL JUDGES CHARGE RELIEVED THE STATE OF ITS BURDEN OF PROVING THE MATERIAL ELEMENT OF KNOWINGLY CREATING A RISK OF DEATH OR INJURY.  (Not Raised Below) A.  N.J.S.A.  2C:2-2c(1) Requires The Knowing Mental State Be Applied To The Result-Of-Conduct Element Of Second-Degree Eluding Because The Mental State Is Defined As Knowingly For The Other Material Elements Of Second Degree Eluding And It Does Not "Plainly Appear" That The Legislature Intended To Make Second Degree Eluding A Strict Liability Offense. B.  State v. Dixon , 346 N.J. Super.  126 (App. Div. 2001,certif. denied , 172 N.J.  181 (2002), Was Wrongly Decided Because The Panel Failed To Interpret The Second-Degree Eluding Statute In Accordance WithN.J.S.A.  2C:2-2c(1) And The Principle That Penal Statutes Must Be Strictly Construed. C.  The Erroneous Jury Instructions, Objected To By Defense Counsel Below, Relieved The State Of Its Burden Of Proof And Thus Defendants Conviction For Second-Degree Eluding Must Be Reversed. POINT III THE SENTENCE IS MANIFESTLY EXCESSIVE AND UNCONSTITUTIONAL. A.  Absence Of Finding Of Mental-Illness Mitigating Factor And The Resulting Balance Of Factors. B.  The Apprendi/Blakely  Error. We conclude that none of the arguments warrants reversal of defendants conviction, but his sentence must be vacated and the matter remanded for a new sentencing in light of State v. Natale , 184 N.J.  458 (2005). Based on the guilty verdict, we set out the facts in the light most favorable to the State. On August 15, 2001, at 6:42 p.m., Officer Theodore Kucowski, of the Jackson Township Police Department, was on patrol in a marked police vehicle. Kucowski was sitting in his vehicle on Steuben Lane, observing traffic.  The weather and road conditions were clear and dry. As Kucowski monitored traffic, he observed a black Ford Probe, driven by defendant, exit a shopping center onto Steuben Lane at a high rate of speed.Kucowski continued to observe defendants vehicle travel to the intersection of Steuben Lane and South New Prospect Road, which was controlled by a stop sign, and make a right onto South New Prospect Road without stopping.  Upon observing this violation, Kucowski decided to conduct a motor vehicle stop of defendants vehicle. He followed defendants vehicle, traveling on South New Prospect Road towards West County Line Road. Defendant approached the intersection of South New Prospect Road and West County Line Road, which was controlled by a traffic light that was signaling red. Defendant drove through the intersection without stopping at the red light, almost colliding with an oncoming vehicle, and then turned left onto West County Line Road. At that time, Kucowski was approximately seven to ten car lengths behind defendants vehicle. Kucowski activated the lights and siren on his patrol vehicle and proceeded through the intersection behind defendants car. Kucowski continued to follow defendants vehicle on West County Line Road, a four-lane highway with two lanes in both directions of travel.  Other vehicles were traveling eastbound in both lanes at that time. Kucowski observed defendants car exit the roadway and travel onto the grass area of a golf course located next to the road. As defendant drove on the grass, he passed another vehicle on the right and then drove back into the roadway, nearly striking the vehicle he had passed. The driver of the other vehicle slammed on the brakes and pulled to the right as defendant reentered the roadway.  At that time, Kucowski was still seven to ten car lengths behind defendants car. Other vehicles traveling ahead of Kucowski heeded his vehicles lights and siren and pulled over out of his way.  Kucowski saw defendant turn his head over his right shoulder and look out the back window at the police car. Defendant then approached the intersection of West County Line Road, Hope Chapel Road, and Cathedral Drive with Kucowski still in pursuit. The intersection was controlled by a traffic light, which was signaling red. Traffic was stopped at the red light in both eastbound lanes of travel.  Defendant drove into the westbound, opposing lane of travel, traveled around the stopped vehicles, proceeded through the red light into oncoming traffic, and then made a left turn onto Cathedral Drive. Kucowski continued to pursue defendant with his lights and siren still activated. Other vehicles that were stopped at the intersection pulled out of the way to allow Kucowskis vehicle to proceed. The officer made a left turn onto Cathedral Drive, following defendants car. Defendants automobile was within the officers sight this entire time. Kucowski continued to follow defendants vehicle eastbound on Cathedral Drive, a residential street ending in a cul-de-sac, at a distance of ten car lengths.As defendants vehicle approached the cul-de-sac, Kucowski observed the brakes lock and the car lurch forward.  At that point, smoke was coming from the tires of the car as it veered towards the driveway of a residence. Defendant opened the drivers side door and was preparing to jump from the car, but as the vehicle entered the driveway, he fell out of the vehicle and held onto the drivers side door. The vehicle continued traveling forward, with defendant hanging from the door until it struck the house.  Kucowski pulled his vehicle into the driveway behind defendants car. After his vehicle came to a stop, defendant proceeded to run towards the backyard of the house.  Kucowski chased after defendant on foot, yelling, "Police stop, police stop."  Defendant completely ignored the officer and continued running. In the backyard of the residence, defendant reached an embankment with a fifteen-foot drop to the bottom.  Defendant jumped off the edge of the embankment.  When Kucowski reached the edge, he saw defendant lying face down at the bottom of the embankment. As Kucowski proceeded down the embankment, defendant got up and ran into a heavily wooded area behind the residence.  Kucowski lost defendant in the heavy woods and brush. Kucowski communicated a description of defendant to other officers on his police radio, describing defendant as a black male with dreadlocks, wearing a white tank top and camouflage pants. Officer Raymond Hallock, of the Lakewood Township Police Department, heard the description of defendant on his police radio and proceeded to the wooded area to look for defendant.  Hallock found defendant hiding in a crawl space in an abandoned residence, located across the street from the residence struck by defendants car. The officer took defendant into custody and escorted him back to the scene of the crash.  Kucowski was at the residence, and, upon seeing defendant, stated, "Thats him," acknowledging that this was the same subject he saw driving the vehicle during the pursuit.  Kucowski noticed that defendant had abrasions on the front of his body, which had been sustained while defendant was hanging from the vehicle. The officer further observed that defendant had numerous scratches on his body from running through the woods and brush. While defendant was incarcerated at the Ocean County Jail, a phone call was monitored in which defendant called his girlfriend, telling her that he did not stop for the police officer during the pursuit because he had bags of "something" in the vehicle that he di d not want the police to find. Defendant testified on his own behalf at trial.According to defendant, on the day of the incident, he had taken methadone and was hearing voices in his head. He acknowledged that when he was driving that day, he saw the police officer and a stop sign, but supposedly did not stop because female voices in his head told him not to. Defendant indicated that the voices told him to make a left at the red light, although defendant admitted that he knew a right turn was safer. According to defendant, he thought the police were behind him, but when he looked in the rear-view mirror, he saw a bright flash or star. Defendant claimed the voices continued telling him what was happening. Defendant testified that at the end of the pursuit, the voices told him to jump out of the vehicle, even though he did not want to do so. Defendant acknowledged that the vehicle struck a house. He testified that the voices in his head were telling him that people inside the house were going to "lynch" him. Defendant acknowledged that as he was running, he looked behind him and saw a police officer. He further testified that as he ran, the bushes were moving and looked like "the Tasmanian Devil." Defendant admitted making a phone call to his girlfriend from the Ocean County Jail on August 23, 2001. According to defendant, he told her that he fled from the police officer because he had bags of "something" in the vehicle that he did not want the police to find. Defendant claimed he gave this explanation because he wanted to appear "normal" or "average" to his girlfriend. Defendants first argument focuses on certain comments made by the judge at the conclusion of his instructions to the jury on eluding, and just before the charge on resisting arrest.  The challenged remarks were as follows: Also, with regard to the conduct of the officer in this case, theres absolutely no evidence in this case that this officer in pursuit did anything wrong or inappropriate, or failed to do what he should do. A police officer does have a duty to stop people who violate the motor vehicle laws by going through stop lights or through red lights.  And its his duty to stop those people and, if they dont stop, to pursue them reasonably in an effort to get them to stop; otherwise, I guess we could all feel free to do what we wanted to do if the officer couldnt pursue us and stop us. Defendant argues that, [t]his instruction has no place in a criminal trial because it serves to inform the jury that the judge believes the purs[u]ing officers account of what happened and admires the work done by that officer and all officers in such situations, thereby improperly tipping the scale of justice in favor of the States case.Consequently, defendants rights to due process and a fair trial under both the Fourteenth Amendment and the State Constitution were violated, and the defendants convictions should be reversed and the matter remanded for retrial. We agree that these comments were entirely inappropriate and served to bolster the credibility of the police officer and to thereby enhance the States case.  The fact that defense counsel also acknowledged in summation that the officer "was doing his job that day," does not excuse the judges statement.  It is one thing for counsel to make a concession on some subsidiary issue in an effort to persuade the jury on the larger issue of defendants innocence.  It is quite a different matter for the judge to make remarks which may, as a result of his imposing position in the trial, serve to tip the balance in favor of the State.  It is no defense to respond, as the State does, that the judges remarks constituted a correct statement of the law.The validity of the officers actions in chasing defendant were not the issue; rather, it was defendants actions in eluding the officer which the jury had to judge. While the judges comments were inappropriate, we conclude that they were harmless in that they did not have the capacity to sway the jury on the central issue in the case.  State v. Pillar , 359 N.J. Super.  249, 278-79 (App. Div.), certif. denied , 177 N.J.  572 (2003).  As posited by the defense, that central issue was defendants intent.  Despite the possibility that the improper remarks may have enhanced Kucowskis credibility, his credibility was not critical to the defense.  Indeed, both Kucowski and Hollock provided testimony helpful to the defense by stating that defendant was not acting normally but appeared under the influence of "something."  Of course, the defense relied primarily on defendants own testimony which called on the jury to assess his credibility. Although defense counsel did not object to the remarks in question, thereby arguably demanding a plain error analysis, R.  2:10-2, we choose to decide the issue on the basis of harmless error which invokes essentially the same standard. Compare  R.  2:10-2 with R.  1:7-5; see also  State v. Macon , 57 N.J.  325, 340-41 (1971).  While the error does not require reversal in this case, we caution that a different result would likely obtain if the case turned on the officers credibility. Defendant argues that the judge committed plain error in failing to charge an appropriate mental state with respect to that portion of the eluding statute which raises the offense from third degree to second degree "if the flight or attempt to elude creates a risk of death or injury to any person."  Although the argument is not without merit, and is well-briefed on both sides, we are not persuaded. As defendant concedes, we rejected the same argument in State v. Dixon , 346 N.J. Super.  126, 135-36 (App. Div. 2001), certif. denied , 172 N.J.  181 (2002).Here, as in Dixon , defendant contends that the Model Jury Charge is defective in this respect and that Dixon was wrongly decided.  We evaluate defendants argument in light of several accepted principles.N.J.S.A.  2C:2-2c provides in pertinent part: (1) Prescribed culpability requirement applies to all material elements. When the law defining an offense prescribes the kind of culpability that is >sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears. . . . . (3) Construction of statutes not stating culpability requirement. Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state.A statute defining a crime, unless clearly indicating a legislative intent to impose strict liability, should be construed as defining a crime with the culpability defined in paragraph b.(2) of this section. This provision applies to offenses defined both within and outside of this code. The reference to "the culpability defined in paragraph b.2" refers to "knowingly."  As the leading commentator states, "the failure of the legislature to prescribe a particular type of culpability to an element of an offense should not be read as imposing strict liability unless a clear legislative intent to do so is apparent."  John M. Cannel, New Jersey Criminal Code Annotated , comment 7 on N.J.S.A.  2C:2-2 at 138 (2005). The eluding statute at issue here states in pertinent part: b. 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; 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. [N.J.S.A.  2C:29-2b.] This statute does not present a situation where there is no culpability requirement stated and resort must be had to the "gap filler" provisions of N.J.S.A.  2C:2-2c(3), quoted above.  Here, the statute contains the culpability requirement of "knowingly."  And that culpability requirement applies not only to the "attendant circumstances" of being signaled to stop by a law enforcement officer, but to the "forbidden conduct" of fleeing or attempting to elude as well.State v. Mendez , 345 N.J. Super.  498, 507 (App. Div. 2001), affd , 175 N.J.  201 (2002).  Mendez  was concerned only with third-degree eluding which does not include any "result of conduct" element.  Ibid. Second-degree eluding does contain such a conduct element in that the flight or attempt to elude must create "a risk of death or injury to any person."N.J.S.A.  2C:29-2b. "[W]hether considered a sentence enhancer or element of the second-degree crime," the risk of death or injury must be proven beyond a reasonable doubt.  Dixon , supra , 346 N.J. Super.  at 136.  The question then narrows itself to whether the "risk of death or injury" clause is an element to which the knowing culpability state applies or whether it is a strict liability requirement, standing alone without a scienter requirement. Dixon  held that: the term "knowingly" does not relate to the risk which aggravates the eluding and makes it a second-degree crime.  The relevant clauses in N.J.S.A.  2C:29-2b are separated by a semi-colon, and there is no culpability requirement independent of the third-degree crime. . . .  [T]he structure of N.J.S.A.  2C:29-2b, and a reasonable reading of its provisions, results in a construction that a defendant need not knowingly create the risk so long as the defendant, as in this case, is found to have committed third degree eluding with the requisite knowing culpability. [Dixon , supra , 346 N.J. Super.  at 135-36.] In support of its argument that Dixon  reached the correct result, the State points to that portion of the eluding statute immediately following the "risk of death or injury" clause creating "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 one or more motor vehicle statutes during the chase.  See  State v. Wallace , 158 N.J.  552, 558-60 (1999) (quoting N.J.S.A.  2C:29-2b); Dixon , supra , 346 N.J. Super.  at 135.  Indeed, in this case, the judge did instruct the jury on this permissive inference.  As the State points out, the use of this permissive inference relieves the State of the burden of proving that any person was actually placed at risk of death or injury.  That is, since the motor vehicle violations do not contain a culpability requirement, and the risk of death or injury can be proven through such violations, it follows that the legislature was thereby plainly expressing "a contrary purpose," N.J.S.A.  2C:2-2c(1), to the normal requirement attaching a culpability state to all elements of the offense. Further, the argument for strict liability with respect to the risk of death or injury element is supported byN.J.S.A.  2C:11-4(2) which includes within manslaughter "caus[ing] the death of another person while fleeing or attempting to elude a law enforcement officer in violation of" N.J.S.A.  2C:29-2b, and goes on to provide: Notwithstanding the provision of any other law to the contrary, the actor shall be strictly liable for a violation of this paragraph upon proof of a violation of subsection b. of N.J.S.A.  2C:29-2 which resulted in the death of another person. Similarly, N.J.S.A.  2C:12-1b(6) renders one guilty of aggravated assault if the person: Causes bodily injury to another person while fleeing or attempting to elude a law enforcement officer in violation of subsection b. of N.J.S.A.  2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.A. 2C:20-10. Notwithstanding any other provision of law to the contrary, a person shall be strictly liable for a violation of this subsection upon proof of a violation of subsection b. of N.J.S.A.  2C:29-2 or while operating a motor vehicle in violation of subsection c. of N.J.S.A. 2C:20-10 which resulted in bodily injury to another person. While it certainly would have been helpful if the eluding statute also spoke in terms of strict liability, we do not view that omission as fatal to the States argument and our conclusion.  Rather, based on these related statutes, as well as the structure of the eluding statute itself, we reject defendants argument that the legislature failed to evidence a clear intent to make the risk of death or injury a strict liability element, with no culpability requirement, and that the separation of that clause from the third degree portion of the statute by a semi-colon does not provide such clear evidence of legislative intent.  As a result, although the issue is a close one, we agree with the conclusion reached inDixon . We comment briefly on State v. Worthy , 329 N.J. Super.  109 (App. Div. 2000), relied upon by defendant.  That case involved construction of the criminal restraint statute which provides in pertinent part that a person commits a third-degree crime "if he knowingly:  a. restrains another unlawfully in circumstances exposing the other to risk of serious bodily injury."  N.J.S.A.  2C:13-2.  We held that the mental state of knowingly applied to the "risk of serious bodily injury" to the victim element of the offense.  We found support for that conclusion in the fact that (1) "knowingly" introduces the entire statute, (2) the legislative history, making clear that the actor must be aware of the risk to the victim, and (3)N.J.S.A.  2C:2-2, and particularly its gap filler provision, N.J.S.A.  2C:2-2c(3).  Worthy , supra , 329N.J. Super.  at 114-16.  While the gap filler provision is particularly helpful when it is unclear whether the stated culpability requirement "applies to all elements of the offense or only to the element that is immediately introduced," id.  at 116 (quoting The New Jersey Penal Code:  Report of the New Jersey Criminal Law Revision Commission , supra , at 46), we find no such ambiguity here.  Thus, we have no need to resort to the "established rule of construction" that penal statutes are to be construed strictly against the State.Id.  at  116.  We do not find sufficient ambiguity here to invoke that rule. The charge as given accorded with the construction of the statute in Dixon , with which we concur.Accordingly, defendants eluding conviction is affirmed. Finally, defendant contends that his sentence was "manifestly excessive and unconstitutional."Specifically, he argues that the judge failed to consider and weigh his mental illness as a mitigating factor.  In sentencing defendant, the judge addressed defendants mental illness contention as follows: This Court has had an extensive number of proceedings with regard to the matter involving medical testimony.  Ive made factual findings in that regard on the record that will be incorporated, of course, with the record of trial in this matter. I have been and still am satisfied that you were more than competent to stand trial, to assist your counsel in the defense of this matter, and that you have no mental illness, disease or defect which would rise to the level of a justifiable defense. Your counsel talks about not being on your medication, but it appears to the Court, from your extensive criminal history, that your primary medication would be drugs and alcohol. As the judge made clear, he had conducted proceedings dealing with defendants competency to stand trial and was, as a result, quite familiar with the medical evidence concerning defendants mental health.  However, neither the fact that defendant was found competent to stand trial nor that his alleged mental illness did not "rise to the level of a justifiable defense" ruled out consideration of mental illness as a mitigating factor under N.J.S.A.  2C:44-1b(2), (3), (4) or (8).  In making his earlier determinations the judge may have concluded that defendant had no mental illness at all.  If so, then he was justified in rejecting it as a mitigating factor.  His remarks at sentencing do not make this entirely clear.  In any event, we need not resolve the issue since the matter will be remanded for resentencing at which time the issue can be raised again and resolved by the judge. Defendant was sentenced to a prison term in excess of the presumptive term based on the judges finding of aggravating factors, N.J.S.A.  2C:44-1a(3), (6) and (9).To some extent at least, these factors were not based on criminal history alone.  As a result, Natale , supra , requires a new sentencing hearing. Conviction affirmed; remanded for a new sentencing.