On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-01099-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 27, 2009
Before Judges Parker and LeWinn.
Tried to a jury on April 10, 2007, defendant was convicted of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); and second-degree aggravated assault, causing serious bodily injury while fleeing, N.J.S.A. 2C:12-1(b)(6). On July 13, 2007, defendant was sentenced to two concurrent ten-year terms with an eighty-five percent parole ineligibility period on the second count.
On appeal, defendant raises the following issues for our consideration:
1. Defendant's Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1 Par. 1 of the New Jersey Constitution was violated by the Prosecutor's Misconduct. [Not Raised Below]
a. The Prosecutor's summation expressing his belief that [Officer] Fidalgo testified credibly substantially prejudiced Defendant's fundamental right to have the jury fairly evaluate the merits of his defense.
b. The Prosecutor's summation implicitly expressing his belief that Defendant's Witness was not credible substantially prejudiced [D]efendant's fundamental right to have the jury fairly evaluate the merits of his defense.
2. Because The Jury Was Permitted To Infer That Defendant's Conduct Created A "Risk Of Death Or Injury" If It Determined That His Conduct Violated Any of The Motor Vehicle Offenses Set Forth In Chapter 4 of Title 39, And Such Risk Is An Element Of The Second Degree Crime of Eluding, The Trial Court Committed Reversible Error When It Failed To Define And Delimit The Underlying Motor Vehicle Offenses. [Not Raised Below]
Having considered defendant's contentions in light of the record and the applicable law, we affirm.
The trial evidence may be summarized as follows. Officer Paulo Fidalgo, of the Elizabeth Police Department, testified that on September 1, 2006, just after midnight, he and his partner, Officer Jean-Marie, were patrolling downtown Elizabeth in a marked police vehicle. While stopped at an intersection, Fidalgo "observed a vehicle cross [their] intersection at a high rate of speed." Fidalgo was able to see the driver whom he described as a "[p]ossible Hispanic male with facial hair."
Fidalgo and his partner pursued the vehicle and activated their lights after the vehicle "gained speed." The vehicle "proceeded to pick up speed," and "ran a red light on Elizabeth Avenue . . . ." Fidalgo estimated the vehicle's speed to be "[r]oughly 50 miles [per] hour," in a thirty-five mile speed zone.
After running the red light at Elizabeth Avenue, the vehicle "veered left . . . and appeared to have lost control and . . . then went into a ditch next to a utility pole ...