NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3472-17T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LUIS A. LORA,

Defendant-Appellant.

_____________________________

Argued December 2, 2020 – Decided

Before Judges Fuentes, Whipple and Firko.

On appeal from the Superior Court of New Jersey, 

Law Division, Somerset County, Indictment No. 14-

07-0465.

David J. Reich, Designated Counsel, argued the cause 

for appellant (Joseph E. Krakora, Public Defender, 

attorney; David J. Reich, on the briefs).

Paul H. Heinzel, Assistant Prosecutor, argued the 

cause for respondent (Michael H. Robertson, Somerset 

County Prosecutor, attorney; Paul H. Heinzel, of 

counsel and on the brief).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

FIRKO, J.A.D.

December 29, 2020

APPROVED FOR PUBLICATION

AS REDACTED

December 29, 2020

APPELLATE DIVISION
A-3472-17T2 2

Defendant Luis Lora appeals from a March 1, 2018 judgment of 

conviction following a jury trial. He was convicted of third-degree theft of a 

Mercedes Benz luxury sedan from a dealership's parking lot, second-degree 

eluding, second-degree aggravated assault while eluding, and third-degree 

aggravated assault upon a law enforcement officer. The trial court sentenced 

defendant to nine years' imprisonment, subject to the No Early Release Act 

(NERA), N.J.S.A. 2C:43-7.2, and ordered restitution in the amount of 

$77,382.87. Defendant contends the trial court erred by prohibiting 

introduction into evidence of the Attorney General's Guidelines on Vehicular 

Pursuit of a Fleeing Suspect (the Guidelines) and declining to consider the 

Guidelines as a defense on the element of causation. We disagree, affirm the 

conviction, but reverse and vacate the award of restitution and remand for an 

ability to pay hearing.

I.

The following facts are derived from the record. On June 25, 2013, at 

approximately 7:00 p.m., defendant and co-defendant visited Open Road 

Mercedes Benz, a car dealership located on Route 22 in Bridgewater. A 

salesperson, Gregory Fiorino, prepared an intake form called an "upsheet" 

regarding the customer's contact information and vehicle interest. According 
A-3472-17T2 3

to the upsheet, one of the men's names was Jose Acevedo, and he was 

interested in purchasing a car having a V-8 engine.

Fiorino showed the men a new "S class" luxury sedan and two preowned vehicles—a silver 2012 S550 with a price range of $75,000 to $80,000, 

and a blue 2010 E550 with a sales price of $42,000. The keys for the two 

vehicles were kept in a closet out of sight of the customers. Each vehicle had a 

"smart key," which allows drivers to touch the key fob to the lock and unlock 

the car. The key fob also had a "valet key," which can unlock the door and 

start the engine if the smart key battery died.

A surveillance video showed Fiorino and the two men, one wearing a 

black shirt and the other wearing a white shirt, looking at the two pre-owned 

cars, sitting in the driver's seats, and returning the vehicles to their parking 

spaces. The two men left without purchasing either vehicle.

Several hours later on June 26, 2013 at 1:52 a.m., the dealership's 

motion-sensitive surveillance system was activated, notifying police of a 

potential vehicle theft. The system showed the blue Mercedes with its 

headlights on at 1:53 a.m., and the men removing a flag from the window, used 

by the dealership to identify pre-owned vehicles. At 1:54 a.m., the video 

revealed the silver Mercedes with its headlights on. The man wearing the 
A-3472-17T2 4

white shirt drove off with the blue Mercedes, and the man wearing the black 

shirt drove off in the silver Mercedes.

The prior evening when the men were at the dealership, they performed 

a "key swap," meaning they gave the dealership back "dummy keys," identical 

to the actual set, and retained the real keys. The dealership had no way of 

knowing the real keys were missing without attempting to start the vehicles 

with the "dummy" pair. The dealership's general manager called the ploy 

"unfortunately . . . very common."

At 1:54 a.m., Bridgewater Township Patrol Sergeant Michael Maxwell 

responded to the dispatch call advising of the theft. He drove down Route 22, 

passed the dealership, and proceeded to take the onramp for Route 287 South, 

when he observed the two Mercedes vehicles matching the description. 

Maxwell drove behind the blue Mercedes, activated his emergency lights, and 

attempted to effectuate a motor vehicle stop. Almost immediately, the driver 

of the blue Mercedes pulled over to the shoulder lane. The officer observed 

the driver was dark-skinned, wearing a black baseball cap and a white shirt. 

As Maxwell approached the driver's door, the driver shifted the car into drive 

and sped away. Maxwell radioed other units to advise them of what had 

occurred while quickly returning to his vehicle.
A-3472-17T2 5

Another Bridgewater Township patrol officer, Brian Schubert, received 

the same dispatch call regarding the two stolen Mercedes and responded to the 

incident simultaneously. Because Maxwell was pursuing the blue Mercedes, 

Schubert radioed that he would drive ahead to track the silver one. Schubert 

passed by Maxwell's vehicle on Route 298 South as he was pulling the blue 

Mercedes over.

Schubert was only about a quarter mile past where Maxwell had pulled 

the blue vehicle over when he was advised on his radio that the driver of the

blue Mercedes had fled. Schubert chose to abandon his pursuit of the silver 

car and instead slowed down to wait for the blue Mercedes to effectuate a stop 

of that vehicle instead. Schubert noticed the blue car approaching at a "high 

rate of speed." He moved his car from the center of the highway to the left, 

and observed the approaching car move in the same direction. Schubert

responded by moving his car to the right, which was also mirrored by the blue 

Mercedes.

As the vehicle moved closer, Schubert moved to the right again and the 

vehicle followed, this time making impact with the police car in front of it. 

Schubert testified that he believed the Mercedes attempted to move to the left 

either right before or simultaneously upon making impact with his vehicle. A 

motor vehicle recording (MVR) on Schubert's police vehicle captured the
A-3472-17T2 6

accident. During summation, defense counsel characterized the same set of 

facts as the officer's vehicle repeatedly moving in front of the blue Mercedes 

to prevent it from passing. He then claimed the police car attempted to "hip 

check" and stop the Mercedes, causing the car to hit him.

Another patrol officer, Joseph Greco, was following behind Schubert 

when the collision occurred. Greco never lost sight of the blue Mercedes and 

watched as it approached Schubert's police car. According to Greco's 

testimony, the blue Mercedes was driving "recklessly" and had been 

mimicking Schubert's movements before the collision.

The front of the Mercedes came into contact with the passenger side rear 

bumper of Schubert's police car. The police car spun counterclockwise, slid 

across three left lanes of the highway into the center median, and eventually 

landed on the southside of the highway facing north. The Mercedes was also 

stopped near the median, with heavy damage to the front-end of the vehicle.

Schubert was able to exit his vehicle and assist the other officers with

apprehending the driver of the Mercedes. This tactical procedure consisted of 

Schubert and the other officers using Maxwell's police vehicle, which had 

since arrived at the scene of the accident, as a shield to slowly approach the 

stolen car with their weapons drawn while giving instructions to the driver to 
A-3472-17T2 7

safely exit the vehicle. However, the Mercedes was unoccupied by the time 

the officers approached it.

A few minutes later, Schubert advised Maxwell that he felt pain in his 

lower back and neck. The rescue squad arrived shortly thereafter and 

transported him to the hospital. While he was at the hospital, Schubert

experienced increased muscle spasms and tightness in his lower back, as well 

as tightness and restricted movement in his neck.

At the scene of the collision, Maxwell instructed the other officers to 

search the area for the driver of the Mercedes. Maxwell also requested a 

helicopter, K9 units, and the county accident reconstruction team for 

assistance. A canvass of the area was not fruitful, but the officers recovered 

the driver's black baseball cap, towel, and cell phone that were left inside the 

vehicle.

The cell phone was brought to the New Jersey Regional Computer 

Forensics Lab and was searched pursuant to a communications data warrant. 

A search of the cell phone revealed a Facebook page belonging to "Lenny" 

Lora and his date of birth. Motor Vehicle Commission records contained a 

photograph of an individual named Luis Lora with the same birthdate. A 

buccal swab taken from defendant on February 28, 2014 matched the DNA on 
A-3472-17T2 8

the air bag of the stolen vehicle, and the baseball cap found in the car. 

Defendant was taken into custody on July 14, 2014.

Defendant was charged with third-degree theft of an automobile, 

N.J.S.A. 2C:20-3(a) (count one); second-degree eluding, N.J.S.A. 2C:29-2(b) 

(count two); second-degree aggravated assault while eluding, N.J.S.A. 2C:12-

1(b)(6) (count three); and third-degree aggravated assault upon a law 

enforcement officer, N.J.S.A. 2C:12-1(b)(5) (count four).

On September 28, 2017, the State moved in limine to bar defense 

counsel from introducing evidence regarding the Guidelines and any argument 

that the officers contributed to the collision. The trial court heard oral 

argument on the motion and issued a written opinion the following day. The 

court ruled that the Guidelines would not be allowed into evidence and 

precluded defense counsel from arguing that the officer's deviation from the 

Guidelines impacted the causation element of N.J.S.A. 2C:12-1(b)(6), a strict 

liability offense. However, the court permitted defense counsel to use the 

Guidelines for impeachment purposes and to argue that the officers' conduct 

and any deviation from the Guidelines impacted the State's ability to meet its 

burden of proof on the mens rea element of N.J.S.A. 2C:12-1(b)(5)(a). A 

memorializing order was entered.
A-3472-17T2 9

Trial was conducted before a jury in September and October 2017. The 

jury found defendant guilty on all counts. On October 25, 2017, defendant 

moved for a new trial. The court heard oral argument on the motion on 

January 25, 2018, denied defendant's motion, and entered a memorializing 

order that day.

On February 22, 2018, the court sentenced defendant to nine years' 

imprisonment on count two; a concurrent nine-year prison term with an 85% 

percent parole disqualifier and three years of parole supervision, pursuant to 

NERA on count three; and concurrent five-year prison terms on counts one and 

four. The court also ordered $77,382.87 in restitution and a one-year driver's 

license suspension. A judgment of conviction was entered on March 1, 2018. 

This appeal followed.

In his counseled brief, defendant presents the following arguments:

POINT I: [DEFENDANT] MUST BE GRANTED A 

NEW TRIAL IN VIEW OF THE PREJUDICE HE 

SUSTAINED AS A RESULT OF THE COURT'S 

LEGALLY ERRONEOUS PROHIBITION OF THE 

USE OF EVIDENCE CONCERNING OFFICER 

SCHUBERT'S VIOLATION OF THE ATTORNEY 

GENERAL'S GUIDELINES REGARDING MOTOR 

VEHICLE PURSUIT.

POINT II: A NEW TRIAL IS REQUIRED IN VIEW 

OF ERRONEOUS JURY INSTRUCTIONS 

RELATING TO THE CAUSATION COMPONENT 

OF THE AGGRAVATED ASSAULT WHILE 
A-3472-17T2 10

ELUDING CHARGE AND THE ATTORNEY 

GENERAL'S GUIDELINES.

POINT III: A REVERSAL IS WARRANTED IN 

VIEW OF THE PROSECUTOR'S IMPROPER 

REMARKS DURING HIS SUMMATION (Not raised 

below).

POINT IV: THE TRIAL COURT ERRED IN 

ORDERING RESTITUTION WITHOUT 

CONDUCTING A HEARING CONCERNING 

EITHER THE AMOUNT OF RESTITUTION 

PROPERLY OWING OR [DEFENDANT'S]

ABILITY TO PAY.

In a supplemental pro se brief, defendant asserts the following 

arguments:

POINT I: THE TRIAL COURT'S FAILURE TO 

GIVE ADEQUATE JURY CHARGE(S)/ 

INSTRUCTIONS DEPRIVED APPELLANT DUE 

PROCESS AND A FAIR TRIAL [U.S. CONST. 

AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10.] 

(Not raised below).

(a) FAILURE TO GIVE NONPRODUCTION OF WITNESS/ 

ADVERSE INFERENCE 

INSTRUCTION A/K/A CLAWANS

CHARGE.

(b) FAILURE TO GIVE ADEQUATE 

"INTERESTED WITNESS" 

CHARGE

(i) STATE'S [BOLSTERING] 

POLICE CREDIBILITY
A-3472-17T2 11

(c) FAILURE TO CLARIFY 

"CAUSATION" CHARGE

(d) FAILURE TO CHARGE ALIBI 

AND MISIDENTIFICATION 

DEFENSE CHARGE

POINT II: APPELLANT'S CONVICTIONS ARE 

BASED ON INSUFFICIENT EVIDENCE AND 

THEREFORE MUST BE REVERSED [U.S. CONST. 

AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10; 

N.J.S.A. 2C:1-13.] (Partially Raised Below).

(A) THEFT OF MOVABLE 

PROPERTY

(B) AGGRAVATED ASSAULT UPON 

LAW ENFORCEMENT OFFICER 

N.J.S.A. 2C:12-1(b)(6) 2C:12-

1(b)(5)

(C) BODILY INJURY ELEMENT

POINT III: TRIAL COURT UNDULY 

ENCROACHED UPON APPELLANT'S EXERCISE 

OF HIS RIGHT TO TESTIFY ON HIS OWN 

BEHALF [U.S. CONST. AMENDS. V, VI, XIV; N.J. 

CONST. ART. I, ¶¶ 1. 10.] (Not raised below).

POINT IV: THE TRIAL COURT UNDULY 

INTERFERED WITH DEFENSE COUNSELOR'S 

REPRESENTATION WHEN THE COURT 

REFUSED TO ALLOW JURORS THE 

OPPORTUNITY TO FULLY CONSIDER THE 

ATTORNEY GENERAL'S GUIDELINES FOR 

MOTOR VEHICLE PURSUITS [U.S. CONST. 

AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10.]

(Partially raised below).
A-3472-17T2 12

POINT V: THE SENTENCING COURT FAILED TO 

FOLLOW AND APPLY THE APPROPRIATE 

SENTENCING GUIDELINES WHEN ANALYZING, 

APPLYING AND BALANCING AGGRAVATING 

AND MITIGATING FACTORS, THUS VIOLATING 

APPELLANT'S DUE PROCESS RIGHTS [U.S. 

CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1.] 

(Partially raised below).

(A) THE SENTENCING COURT 

INFLATED DEFENDANT'S 

CRIMINAL HISTORY WHEN 

ASSESSING AGGRAVATING 

AND MITIGATING FACTORS 

PURSUANT TO [N.J.S.A.] 2C:44-

1(a) [AND] (b) BY DOUBLE 

COUNTING INDIVIDUAL 

COUNTS OF THE INDICTMENT

(B) DEFENDANT DID NOT 

CONTEMPLATE THAT HIS 

CONDUCT WOULD CAUSE OR 

THREATEN SERIOUS HARM 

[N.J.S.A.] 2C:44-1(b)(2)

(C) THE VICTIM OF DEFENDANT'S 

CONDUCT INDUCED OR 

FACILITATED ITS 

COMMISSION [N.J.S.A.] 2C:44-

1(b)(5)

(D) DEFENDANT HAS NO 

CRIMINAL HISTORY OR 

MINIMUM HISTORY OF 

CRIMINAL ACTIVITY [N.J.S.A.]

2C:44-1(b)(7)

(E) DEFENDANT'S CONDUCT WAS 

THE RESULT OF 

CIRCUMSTANCES UNLIKELY 
A-3472-17T2 13

TO REOCCUR [N.J.S.A.] 2C:44-

1(b)(8)

(F) RISK DEFENDANT WILL 

COMMIT ANOTHER OFFENSE 

[N.J.S.A.] 2C:44-1(A)(3)

POINT VI: THE SENTENCING COURT FAILED TO 

MERGE AGGRAVATED ASSAULT 

CONVICTIONS DENIED APPELLANT DUE 

PROCESS [U.S. CONST. AMEND XIV; N.J. 

CONST. ART. I, ¶ 1] (Not raised below).

POINT VII: CUMULATIVE EFFECT OF ALL 

ERRORS DENIED APPELLANT HIS RIGHT TO A 

FAIR TRIAL AND DUE PROCESS [U.S. CONST. 

AMENDS. VI, XIV; N.J. CONST. ART. I, ¶¶ 1, 10] 

(Not raised below).

II.

We note defendant raises several arguments in his counsel and pro se 

briefs for the first time on appeal. As the Supreme Court explained,

"[a]ppellate review is not limitless." State v. Robinson, 200 N.J. 1, 19 (2009). 

It is well-established that "our Rules envision the making of contemporaneous 

objections as the principal and almost exclusive means of preserving an issue 

for appeal." Id. at 20 (citing R. 1:7-2).

In addition, defendant did not object at trial to the prosecutor's alleged 

improper remarks during his summation; the jury charge; or raise 

constitutional challenges. Therefore, we consider these issues under the plain 

error standard, that is whether the error was "of such a nature as to have been 
A-3472-17T2 14

clearly capable of producing an unjust result . . . ." R. 2:10-2. Not any 

possibility of an unjust result will suffice as plain error, only one "sufficient to 

raise a reasonable doubt as to whether the error led the jury to a result it 

otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971). 

Applying these legal principles, none of the alleged errors not raised before the 

trial court were clearly capable of producing an unjust result.

III.

We first consider whether the trial court erred in barring the use of the 

Guidelines as evidence related to causation in the strict liability offense 

codified in N.J.S.A. 2C:12-1(b)(6). Specifically, defendant claims Schubert's 

purported violation of the Guidelines was a vital component to his defense in 

support of his theory that the officer was out-of-control and was the cause in 

fact of the collision. Defendant asserts that the court ignored the plain 

language of N.J.S.A. 2C:12-1(b)(6); erroneously compared the analysis to the 

eluding statute, N.J.S.A. 2C:29-2(b); erroneously predicated his ruling on 

irrelevant case law; failed to consider the text of the model jury charges; and 

incorrectly treated N.J.S.A. 2C:12-1(b)(6) and N.J.S.A. 2C:12-1(b)(5)(a) as 

dissimilar.

Defendant contends there is a substantial likelihood the errors impacted 

the ultimate outcome of the case. The trial court granted the State's motion in 
A-3472-17T2 15

limine, in part, and prevented defendant from introducing the Guidelines into

evidence as a means of defense to the two aggravated assault charges and 

precluded him from arguing that the officers contributed to the collision. The 

court also denied the State's motion in limine, in part, focusing on the different 

mens rea requirements of the respective statutes at issue.

The Guidelines authorize a pursuit if any officer reasonably believes a 

suspect committed a second- or first-degree offense, or certain other specified 

offenses, including automobile theft, or if the officer reasonably believed the 

suspect posed an immediate threat to public safety. Before engaging in the 

pursuit, the pursuing and supervising officers must also consider the risk to the

public, the danger, and the pursuing officer's characteristics.

Once the decision to pursue is made, the Guidelines require officers to 

activate their emergency sirens and signals and continually apprise 

communications officers of "pertinent information" including their speed. The 

Guidelines require that supervising officers "ensure, for the duration of the 

pursuit, that this policy and agency procedures are followed by all officers." 

Revision to the New Jersey Police Vehicular Pursuit Policy issued by (former)

Attorney General Anne Milgram to the Superintendent of the New Jersey State 

Police, All County Prosecutors, and All Law Enforcement Chief Executives on 

Sept. 17, 2009, § V(E). The supervisor must "decide as quickly as possible 
A-3472-17T2 16

whether or not the pursuit should continue." Id. at §V. The supervisor must 

be satisfied that the suspect has committed an enumerated offense or 

reasonably believes the violator poses an immediate threat to public or officer 

safety. Id. at § V(A). The pursuit must be terminated if the supervisor 

concludes "the danger to the pursuing officers or the public outweighs the 

necessity for immediate apprehension of the violator." Id. at § V(B).

A trial court's evidential ruling is "subject to limited appellate scrutiny." 

State v. Buckley, 216 N.J. 249, 260 (2013) (quoting State v. Buda, 195 N.J. 

278, 294 (2008)) (internal quotation marks omitted). It should be upheld 

"absent a showing of an abuse of discretion" or "a clear error of judgment." 

State v. Perry, 225 N.J. 222, 233 (2016) (quoting State v. Brown, 170 N.J. 138, 

147 (2001)) (internal quotation marks omitted). A reviewing court applying 

this standard "should not substitute its own judgment for that of the trial court, 

unless the trial court's ruling was so wide of the mark that a manifest denial of 

justice resulted." Ibid. (citations and internal quotation marks omitted). 

However, any "interpretation of the law and the legal consequences that flow 

from established facts are not entitled to any special deference" and are 

reviewed de novo. Buckley, 216 N.J. at 260-61 (citations omitted).

Under N.J.S.A. 2C:12-1(b)(6), a person is guilty of aggravated assault if 

he "[c]auses bodily injury to another person while fleeing or attempting to 
A-3472-17T2 17

elude a law enforcement officer . . . or while operating a motor vehicle . . . . 

Notwithstanding any other provision to the contrary, a person shall be strictly 

liable for a violation of this paragraph . . . ." In its motion, the State contended 

that the aggravated assault while eluding charge is a strict liability crime, so 

whether the officers deviated from the Guidelines or were otherwise 

contributorily responsible was irrelevant to the trial court's analysis. 

Alternatively, the defense argued N.J.S.A. 2C:12-1(b)(6) has a causation 

element––whether defendant's actions in eluding arrest created the risk of 

death or bodily injury––and that the Guidelines were relevant to whether the 

officers were responsible for creating that risk and causing the injury. 

In its statement of reasons, the trial court explained:

Regarding the issue of causation in the [a]ggravated 

[a]ssault while eluding arrest charge under N.J.S.A. 

[2C:12-1(b)(6)], the Guidelines['] probative value as 

to whether [d]efendant's flight and attempts to elude 

created a risk of death or bodily injury is limited and 

the risk of confusing or misleading the jury outweighs 

that probative value. A reasonable jury could confuse 

deviation from the Guidelines with causation in 

creating the risk outlined in the statute. 

. . . .

[T]he [c]ourt [finds] the probative value of the 

Guidelines to be limited as it relates to the causation 

element. The element of causation does not present 

the issue of whether [d]efendant's conduct during the 

flight and eluding created the risk of death or injury, 

but rather whether the act of flight and eluding itself 
A-3472-17T2 18

created a risk of the same. Whether or not the 

officers' conduct in pursuing [d]efendant deviated 

from the Guidelines does not aid the trier of fact in 

reaching a conclusion on this causation element and 

instead[,] presents a significant risk of confusing or 

misleading the jury. The [c]ourt is precluding 

[d]efendant from making the argument that deviation 

from the Guidelines somehow impacts this element of 

causation of [N.J.S.A. 2C:12-1(b)(6)], [d]efendant 

may refer to the Guidelines during cross 

[-]examination for the limited purpose of 

impeachment.

Thus, the court granted the State's request as to N.J.S.A. 2C:12-1(b)(6) and 

precluded defendant's use of the Guidelines or any argument in respect of the 

officers' contributory conduct on the aggravated assault while eluding charge.

First, defendant argues the trial court ignored the plain language of the 

statute, which requires a defendant cause bodily injury to another person in 

order to be held responsible, and that the court mistakenly emphasized 

N.J.S.A. 2C:12-1(b)(6) was a strict liability offense. Instead, defendant 

contends Schubert's own actions cutting off the defendant while he was 

driving, in violation of the Guidelines, resulted in a self-inflicted injury to the 

officer and could not be attributed to the but-for actions of defendant, 

regardless of the mens rea required. Had the Guidelines been admitted as 

evidence, defendant claims the jury would have concluded Schubert's actions 

while operating his police car clearly violated the Guidelines and induced his 

own injury. Relatedly, defendant challenges the trial court's use of the 
A-3472-17T2 19

language from the eluding statute, N.J.S.A. 2C:29-2(b), in its analysis granting 

that portion of the State's motion.

The full text of N.J.S.A. 2C:12-1(b)(6), aggravated assault while 

eluding, includes:

Aggravated assault. A person is 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 paragraph 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 . . . .

The eluding statute, N.J.S.A. 2C:29-2(b), incorporated by reference into 

N.J.S.A. 2C:12-1(b)(6), mandates:

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.
A-3472-17T2 20

Considered together, an individual who eludes a law enforcement officer 

in a way that creates a risk of injury or death, as described in the eluding 

statute, who actually does cause an injury to another person, is guilty under the 

aggravated assault while eluding statute. Having reviewed the record, to the 

extent the trial court referred to the eluding statute analyzing the aggravated 

assault while eluding statute, we discern no reversible error. As long as a 

defendant knowingly flees or attempts to elude a law enforcement officer, and 

the act of doing so "creates a risk of death or injury to any person," the 

defendant is guilty of second-degree eluding. State v. Thomas, 187 N.J. 119, 

137 (2006). There is no mens rea element attributable to the secondary portion 

of that statute. Ibid. Moreover, if the defendant's act of eluding causes a 

bodily injury to another, defendant is guilty of aggravated assault while 

eluding. N.J.S.A. 2C:12-1(b)(6).

Likewise, there is no mens rea element in the aggravated assault while 

eluding statute, and therefore, no requirement a defendant intend to cause

bodily injury to another. See N.J.S.A. 2C:12-1(b)(6). Therefore, a defendant 

need not knowingly create a risk or purposely cause an injury to be found 

guilty of aggravated assault while eluding if the defendant is found to have the 

requisite culpability for fleeing or eluding the law enforcement officers under 

the eluding statute. Thomas, 187 N.J. at 137.
A-3472-17T2 21

There can be no consideration of the aggravated assault while eluding 

charge without an analysis of the eluding statute. To be found guilty of 

aggravated assault while eluding, a defendant must: (1) knowingly flee or 

attempt to elude a law enforcement officer after being signaled to stop; (2) 

create a risk of bodily injury or death; and (3) cause bodily injury to another 

while fleeing. See State v. Green, 318 N.J. Super. 361, 381 (App. Div. 1999) 

(reversing the conviction for aggravated assault while eluding because the 

judge failed to instruct on the charge entirely, or "at the very least, referr[ing]

to her prior instructions on eluding a police officer and bodily injury."). 

Therefore, any reference the trial court made to N.J.S.A. 2C:29-2(b) or its 

language was proper and necessary to its decision. We are satisfied the trial 

court did not err in its approach to the N.J.S.A. 2C:12-1(b)(6) analysis. 

Because it is enough for defendant to be found guilty of aggravated 

assault while eluding if the State proves that he "knowingly fle[d] or 

attempt[ed] to elude any police or law enforcement officer" and that an injury 

to another occurred as a result, the trial court found the officer's actions would 

not contribute to the statutory analysis and precluded defendant from using the 

Guidelines to make the argument otherwise. The trial court did not abuse its 

discretion in doing so. 
A-3472-17T2 22

Aggravated assault while eluding is a strict liability offense. See

N.J.S.A. 2C:12-1(b)(6). To convict a defendant of this offense, the jury must 

find the following two elements beyond a reasonable doubt: (1) defendant 

caused bodily injury to another person; and (2) defendant did so while fleeing 

or attempting to elude a law enforcement officer in violation of the statute 

defining the eluding offense. According to the Criminal Code's section titled, 

in part, Causal Relationship Between Conduct and Result, "[w]hen causing a 

particular result is a material element of an offense for which absolute liability 

is imposed by law, the element is not established unless the actual result is a 

probable consequence of the actor's conduct." N.J.S.A. 2C:2-3(e). In the strict 

liability offense codified in N.J.S.A. 2C:12-1(b)(6), whether the police officers 

involved in the pursuit of an eluding individual adhere to the Attorney General 

Guidelines is neither a relevant consideration nor an affirmative defense. 

In the matter under review, the actual result––Schubert's injury––is not 

"established" unless the injury was "the probable consequence" of defendant's 

actions. The trial court identified State v. Pantusco, 330 N.J. Super. 424 (App. 

Div. 2000) as "analogous" to the case at hand. In Pantusco, the defendant was 

charged with felony murder after killing an innocent motorist in an automobile 

crash while fleeing from police. Id. at 428. In the context of felony murder, 

also a strict liability crime, we articulated, "the fact that one or more police 
A-3472-17T2 23

officers may have deviated from the Guidelines for a safe pursuit, or otherwise 

proceeded unsafely through heavy traffic, cannot excuse defendant's conduct 

or his statutory responsibility." Id. at 442. Because police deviation from 

"preferred practice" is far from a "remote" possibility, we held that the 

resulting fatal accident was not so unexpected or unusual as to make it unjust 

to hold defendant responsible for the victim's death. Ibid.

The only actions able to break the causal link in strict liability crimes are 

those that are so remote or unforeseeable as to forgive the defendant's 

culpability. That a police officer would pursue a defendant recklessly driving

a stolen vehicle, in a manner that failed to comport with preferred police 

behavior, is far from remote or unforeseeable. A police-related injury in the 

pursuit of a criminal is a risk created by that criminal, and we should not allow 

him to escape liability for his behavior. To hold otherwise would be 

inconsistent with the statutory framework and sound case law. 

Unquestionably, Schubert's injury was the direct consequence of defendant's 

actions.

Because defendant eluded the police, creating a risk and resulting in

Schubert's injury, defendant violated the aggravated assault while eluding 

statute, N.J.S.A. 2C:12-1(b)(6). Police deviation from preferred procedure or 

mandated Guidelines is not a remote or unforeseeable intervening cause of the 
A-3472-17T2 24

harm. Nothing Schubert did in his pursuit broke the chain of causation nor 

provided defendant with a cognizable defense.

Given the trial court's weighing of the applicable statutes and case law, it 

aptly concluded that "the probative value of the Guidelines [is] limited as it 

relates to the causation element" because the issue of causation is not about 

whether defendant created a risk of harm and caused an injury due to his own 

conduct, but due to the act of fleeing itself. And, allowing the Guidelines in as 

evidence would "not aid the trier of fact in reaching a conclusion on [the] 

causation element and instead presents a significant risk of confusing or 

misleading the jury." Under the circumstances, we agree with the trial court's 

interpretation of the relevant statutes and case law in preemptively barring 

defendant from introducing the Guidelines as evidence to the contrary.

Additionally, defendant claims the trial court ignored the language in the 

model jury charge for N.J.S.A. 2C:12-1(b)(6), which includes language about 

the statute's causation element. The causation language defendant refers to 

mirrors the "probable consequence" language of N.J.S.A. 2C:2-3(e). 

Defendant contends that if Schubert had not cut in front of the driver of the 

Mercedes, the accident would not have occurred, making the incident too 

remote or accidental hold defendant liable. Stated differently, defendant's 

argument is predicated on the absurd proposition that the police officer, who 
A-3472-17T2 25

was driving his marked police vehicle at a speed of less than fifty miles per 

hour, should have yielded the right of way to defendant, who was attempting to 

elude apprehension while driving a stolen car.

We are not persuaded by defendant's argument. As expressed above, 

since a police-related injury in a pursuit that strays from preferred procedures 

does not constitute unforeseeable conduct, the language contained in the model 

jury instructions is not supportive of defendant's argument.

"Correct [jury] charges are essential for a fair trial," and therefore, 

"erroneous instructions on material points are presumed to be reversible error." 

State v. Martin, 119 N.J. at 15. A reviewing court "must evaluate a challenged 

jury instruction in the context of the entire charge to determine whether the 

challenged language was misleading or ambiguous . . . ." State v. Nelson, 173 

N.J. 417, 447 (2002). Generally, an appellate court "will not reverse if an 

erroneous jury instruction was incapable of producing an unjust result or 

prejudicing substantial rights." Washington v. Perez, 219 N.J. 338, 351 (2014) 

(citations and internal quotation marks omitted). However, the instruction will 

constitute reversible error "where the jury outcome might have been different 

had the jury been instructed correctly." Ibid. (citations omitted). We are 

satisfied there was no error in the charge as given even though it did not use 

the exact verbiage as the model jury charge.
A-3472-17T2 26

Lastly, defendant claims the court's refusal to allow the use of the 

Guidelines as to the aggravated assault while eluding charge but allowing their 

introduction on the other aggravated assault charge, underscores the error in 

the trial court's analysis. Specifically, defendant challenges that the court 

deemed the Guidelines "highly probative" in regard to N.J.S.A. 2C:12-

1(b)(5)(a), but not for N.J.S.A. 2C:12-1(b)(6). Defendant claims the

Guidelines are equally probative as to these related statutes.

N.J.S.A. 2C:12-1(b)(5)(a) charges that an individual is guilty of 

aggravated assault if the person commits a simple assault as defined in 

N.J.S.A. 2C:12-1(a) upon "[a]ny law enforcement officer acting in the 

performance of the officer's duties while in uniform or exhibiting evidence of 

authority or because of the officer's status as a law enforcement officer . . . ." 

Under that statute, defendant must "knowingly" or "recklessly" cause bodily 

injury to the law enforcement officer. See N.J.S.A. 2C:12-1(a).

According to the Code, "[w]hen the offense requires that the defendant 

purposely or knowingly cause a particular result, the actual result must be 

within the design or contemplation . . . of the actor, or, if not, the actual result 

must involve the same kind of injury or harm as that designed or contemplated 

and not be too remote, accidental . . . or dependent on another's volitional act 

. . . ." N.J.S.A. 2C:2-3(b). Similarly, "[w]hen the offense requires that the 
A-3472-17T2 27

defendant recklessly or criminally negligently cause a particular result, the 

actual result must be within the risk of which the actor is aware, or, if not, the 

actual result must involve the same kind of injury . . . as the probable result 

and must not be too remote, accidental . . . or dependent on another's volitional 

act . . . ." N.J.S.A. 2C:2-3(b).

Under this statute, as opposed to the aggravated assault while eluding 

statute, the trial court found the Guidelines "highly probative as to the cause of 

the bodily injuries resulting from the collision and [d]efendant's intent 

regarding the same." In a Rule 403 analysis, which allows a court to exclude 

relevant evidence "if its probative value is substantially outweighed" by the 

risk of undue prejudice, confusion of the issues, or misleading the jury, the 

trial court determined the officer's conduct before the collision causing the 

bodily injury "[was] extremely relevant to whether [d]efendant acted 

'knowingly', 'purposefully', or with 'reckless' intent or if [d]efendant's conduct 

'caused' the resulting bodily injury" so as to contest the State's ability to prove 

the mens rea element of N.J.S.A. 2C:12-1(b)(5)(a). However, the court found 

the Guidelines would "not aid the trier of fact in reaching a conclusion on [the] 

causation element [of N.J.S.A. 2C:12-1(b)(6)] and instead presents a 

significant risk of confusing or misleading the jury."
A-3472-17T2 28

We are convinced the trial court did not abuse its discretion in 

disallowing the Guidelines from being introduced into evidence as to the 

aggravated assault while eluding charge, but not the aggravated assault of an 

officer charge. Moreover, the court's decision was not "so wide of the mark 

that a manifest denial of justice resulted." See Perry, 225 N.J. at 233. The 

court based its ruling on the probative value of the evidence when compared to 

its potential to confuse or mislead the jury.

Because defendant intended to use the Guidelines as evidence that 

Schubert contributed to the cause of the accident, but the officer's actions were 

irrelevant to the statutory analysis of N.J.S.A. 2C:12-1(b)(6), the Guidelines 

could not be probative of that issue and would only serve to confuse or mislead 

the jury. As long as the jury found that defendant knowingly eluded the 

police, and that the eluding, regardless of defendant's intention or the officer's 

actions, created a risk and caused an accident, no other foreseeable intervening 

causes matter. Consequently, introducing the Guidelines into evidence to 

speak to the officer's actions would serve no purpose.

However, because N.J.S.A. 2C:12-1(b)(5)(a) requires defendant 

knowingly or recklessly cause bodily injury, defendant's actions are more 

probative to that charge. If the jury considered the officer's actions in light of 

the Guidelines and determined Schubert induced and caused the accident, the 
A-3472-17T2 29

mens rea element of aggravated assault of a law enforcement officer would not 

be met. Therefore, the trial court properly concluded that as to the aggravated 

assault of an officer charge, the probative value outweighed any prejudice to 

the introduction of the Guidelines as evidence.

We conclude the trial court was well within its discretion to allow the 

Guidelines to be introduced as evidence as to the aggravated assault of a law 

enforcement officer charge, which includes a mens rea element that makes 

causation relevant, but not as to the aggravated assault while eluding charge, a 

strict liability crime, not requiring a showing of criminal intent.

IV.

Next, defendant claims the trial court erred by failing to include portions 

of the aggravated assault while eluding charge regarding causation in its jury 

charge. Defendant also contends the court did not tailor the jury charge to 

defendant's theory of the case and that the instructions as to the Guidelines 

were confusing and unnecessary. In his pro se brief, defendant asserts that the 

court failed to give other relevant charges, including those relating to the nonproduction of a witness, interested witnesses, and a misidentification defense,

warranting reversal and a new trial.

"Appropriate and proper charges to a jury are essential for a fair trial." 

Green, 86 N.J. at 287. The court must "explain the controlling legal principles 
A-3472-17T2 30

and the questions the jury is to decide." Martin, 119 N.J. at 15. Instructions 

demand careful attention and "must provide a comprehensible explanation of 

the questions that the jury must determine, including the law of the case 

applicable to the facts that the jury may find." State v. Montalvo, 229 N.J. 

300, 320 (2017) (citations and internal quotation marks omitted). Proper 

instruction is so critical that "erroneous instructions on material points are 

presumed to be reversible error." Martin, 119 N.J. at 15. Adequate charges 

are particularly important where the State and the defendant offer contrasting 

theories of causation. Ibid.

Where a party requests a particular charge, "[t]he court should instruct 

the jury with respect to [the request if it involves] essential and fundamental 

issues and . . . deal[s] with substantially material points." Green, 86 N.J. at 

290. Typically, a judge must "comply with requests for instructions that 

correctly state the controlling legal principles in relation to the evidence, and 

concern the material issues and points of the case." Ibid. (quoting State v. 

Spruill, 16 N.J. 73, 81 (1954)). However, a court need not "utilize the 

language of the request and none need be honored if the matter has otherwise 

been covered . . . ." Ibid. (citing State v. Thompson, 59 N.J. 396, 411 (1971)). 

Defendant first challenges the court's instructions as to the causation 

element of the aggravated assault while eluding charge. Defendant claims that 
A-3472-17T2 31

a pivotal issue in the case was the parties' competing causation claims. The 

State claimed defendant caused the collision and resulting injury while 

defendant argued Schubert caused the collision and injury. Defendant 

contends that proper jury instructions would have given recognition and 

context to both positions, but the charges in this case omitted elements 

requiring the State to prove that Schubert's injury was a probable consequence 

of defendant's actions. Because defendant requested a charge that would have 

been proper and the trial court replaced it with an abbreviated version, 

defendant demands a reversal.1 

The relevant portion of the model jury charge on N.J.S.A. 2C:12-1(b)(6) 

reads:

In order for you to find the defendant guilty of this 

crime the State must prove the following elements 

beyond a reasonable doubt:

1. That defendant caused bodily injury to 

another person; and

2. That defendant did so while fleeing or 

attempting to elude a law enforcement 

officer in violation of the statute defining 

the eluding offense.

Bodily injury is defined as physical pain, illness or 

any impairment of physical condition. In order to find 

1 Defendant conceded that his proposed jury instruction was "virtually 

identical" to the model jury charge for the statutory violation.
A-3472-17T2 32

that the defendant caused bodily injury to (victim), 

you must find beyond a reasonable doubt, first, that 

(victim) would not have been injured but for 

defendant's conduct, and, second, that the bodily 

injury was a probable consequence of the defendant’s 

conduct. A probable consequence is one which is not 

too remote, accidental in its occurrence or too 

dependent on the conduct of another to have a just 

bearing on defendant's liability or the gravity of his 

offense. 

I have already instructed you on the crime of eluding, 

and you should apply those instructions here to 

determine whether the State has proven beyond a 

reasonable doubt that defendant was fleeing or 

attempting to elude a law enforcement officer. 

In conclusion, the two elements the State must prove 

beyond a reasonable doubt are:

1. That defendant caused bodily injury to 

another person; and

2. That defendant did so while fleeing or 

attempting to elude a law enforcement 

officer in violation of the statute defining 

the eluding offense.

If you are satisfied that the State has proven both of 

these elements beyond a reasonable doubt, then you 

must find the defendant guilty of aggravated assault. 

However, if you are not convinced that each of the 

elements has been proven beyond a reasonable doubt, 

then you must find the defendant not guilty.

[Model Jury Charges (Criminal), "Aggravated Assault 

– While Fleeing Or Attempting To Elude A Law 

Enforcement Officer (N.J.S.A. 2C:12-1b(6))" 

(approved Dec. 13, 1999).]
A-3472-17T2 33

At the close of trial, the court charged:

In order for you to find the defendant guilty of this 

crime, the State must prove the following elements 

beyond a reasonable doubt:

1. The defendant caused bodily injury to 

another person; and

2. The defendant did so by fleeing or 

attempting to elude a law enforcement 

officer in violation of the statute defining 

the eluding offense.

Bodily injury is defined as a physical pain, illness or 

impairment of physical condition.

I've already instructed you on the crime of eluding, 

and you should apply those instructions here to 

determine whether the State has proven beyond a 

reasonable doubt that the defendant was fleeing or 

attempting to elude a law enforcement officer.

Causation has a special meaning under the law. To 

establish causation, the State must prove the following 

beyond a reasonable doubt:

First, but for defendant's conduct, the result in 

question would not have happened. In other words, 

without defendant's actions, the result would not have 

occurred.

Second, the actual result must have been a probable 

consequence of the defendant's conduct. It must not 

be too remote, too accidental in its occurrence or too 

dependent . . . on another's volitional act to have a just 

bearing on the defendant's liability or on the gravity of 

his offense.
A-3472-17T2 34

As stated, the two elements the State must prove 

beyond a reasonable doubt are:

1. The defendant caused bodily injury to 

another person; and

2. The defendant did so while fleeing or 

attempting to elude a law enforcement 

officer in violation of the statute defining 

the eluding offense, N.J.S.A. 2C:29-

2[(b)].

If you are satisfied that the State has proven both of 

these elements beyond a reasonable doubt, then you 

must find the defendant guilty of aggravated assault. 

However, if you . . . are not convinced that each of the 

elements has been proven beyond a reasonable doubt, 

then you must find the defendant not guilty.

[(quotation marks omitted).]

We are satisfied there was no error with the charge as given. The charge 

was essentially the same as the model charge, not a "truncated version" as 

claimed by defendant. The court provided the jury with both the "but for" and 

"probable consequence" components of causation on the aggravated assault 

while eluding charge, which reflected both parties' arguments. The court's 

later charge on aggravated assault on a law enforcement officer instructed the 

jury on various causation requirements. In addition, the court explained 

fundamental parts of the charge, including causation. The jury charge, taken 

as a whole, was "incapable of producing an unjust result or prejudicing 

substantial rights," let alone error. See Washington, 219 N.J. at 351.
A-3472-17T2 35

Moreover, the jury charge as to the Guidelines was appropriate, and we 

discern no error in the court instructing the jury that the Guidelines "do not 

have the force of law." We also consider defendant's claim that the court erred 

by not instructing the jury on the non-production of witnesses, interested 

witnesses, and a misidentification defense. Defendant contends the first 

instruction was required because the State alleged Schubert sustained bodily 

injury as a result of the accident without presenting medical witnesses or 

documents to substantiate the claims. Defendant asserts the second instruction 

was required because most of the State's witnesses were law enforcement and 

have a propensity to embellish the truth to achieve a particular outcome. 

Lastly, defendant contends the third instruction was required because he 

continuously contested his involvement in the offense and was entitled to an 

instruction addressing identification as an issue in the case. Defendant's 

arguments are devoid of merit.

[At the direction of the court, the published version 

of this opinion omits Points V, VI, and VII 

addressing issues pertaining to prosecutorial error, 

restitution, and sentencing. See R. 1:36-3.]

Affirmed in part, reversed in part, and remanded for an ability to pay 

hearing on the question of restitution as explained in the unpublished version.