On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-09-2114.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.S. Fisher and Grall.
Following a trial, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2(b), third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1), third-degree receiving a stolen automobile, N.J.S.A. 2C:20-7, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2. The resisting arrest and eluding convictions were ordered merged and defendant sentenced to a ten-year term of imprisonment with a five-year period of parole ineligibility. Concurrent four-year terms were imposed on the other convictions.
Defendant appealed, raising the following arguments for our consideration:
I. BY ONLY MOLDING THE JURY CHARGE TO THE STATE'S VERSION OF EVENTS, THE TRIAL COURT BECAME AN ADVOCATE FOR THE STATE AND DIRECTED THE VERDICT IN VIOLATION OF DEFENDANT'S RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.) (Not Raised Below).
II. THE DEFENDANT'S MAXIMUM BASE SENTENCE OF TEN YEARS WITH FIVE YEARS TO BE SERVED PRIOR TO BECOMING ELIGIBLE FOR PAROLE IS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following regarding Point I.
The trial consisted of the testimony of three police officers, who described their pursuit of defendant through heavy traffic in East Orange. Defendant, who was driving a stolen vehicle, abandoned the vehicle when a tire blew out. The officers chased defendant on foot and eventually captured him. Defendant did not testify, nor did he call any witnesses.
In his charge, the judge instructed the jury as to how to consider the testimony that identified defendant as the person who had driven a stolen vehicle through East Orange in the manner described above. In this regard, the judge briefly mentioned that the State had "presented the testimony of three police officers, all of who identified Maurice Campbell as the person who committed the various crimes," and also mentioned, without elaboration, that "all three detectives testified that they made observations of Mr. Campbell at the scene of the crime."
Despite having failed to object to this or any other part of the charge, defendant has argued on appeal that the trial judge erred by briefly commenting on the content of the testimony elicited from the State's witnesses. We find no merit in this contention. The trial judge said nothing more about the officers' testimony than that which we have quoted, and the little he did say merely placed in context for the jury the meaning of the judge's instructions regarding identification evidence. The content of these instructions was a matter which is left to the judge's sound discretion. State v. Pigueiras, 344 N.J. Super. 297, 316 (App. Div. 2001), certif. denied, 171 N.J. 337 (2002). The judge's brief description of the subject matter of the officers' testimony in the context of the identification instructions did not by any means suggest to the jury any view the judge may have harbored about the weight or sufficiency of the officers' testimony. Moreover, defendant's failure to object requires that defendant now demonstrate that the alleged error was capable of producing an unjust result. R. 2:10-2. We find no error in the judge's instruction, let alone plain error.