On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-05-0421.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 10, 2011 - Decided Before Judges Grall and LeWinn.
A jury found defendant Michael Allan Treiber guilty of second-degree eluding a law enforcement officer and creating a risk of death or injury to any person, N.J.S.A. 2C:29-2b, and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2a. Based on defendant's prior convictions for sexual assault in May 1994 and possession of a controlled dangerous substance with intent to distribute in 2001, the judge granted the State's motion for an extended sentence pursuant to N.J.S.A. 2C:44-3a. The judge sentenced defendant to a twelve-year term of imprisonment with a forty-month period of parole ineligibility for eluding and a concurrent twelve-month term for resisting arrest. The judge also imposed the appropriate fines, penalties, assessments and license suspension. Thereafter, defendant moved for reconsideration of sentence, and the judge denied relief.
The following evidence of defendant's guilt was presented at trial. On January 24, 2007, defendant drove his Honda onto U.S. Route 1 and 9 in front of a tractor trailer, causing its driver to brake. Investigators Raymond Conrad and his partner Mark Kahana were traveling in a marked police vehicle and observed the incident. They pulled behind defendant, but he accelerated and turned off the highway. The investigators turned on their overhead lights and pursued the Honda. Getting no response to the lights, the investigators sounded the air horn and then "full sirens," both to no avail. They continued to pursue defendant for about two and one-half miles through a residential neighborhood and back onto the highway. Defendant reached the speed of seventy-five miles per hour and, at points, he drove on the wrong side of the road, through stop signs and red lights and made numerous lane changes. Other drivers were "braking" and "weaving" to get out of the way. At an intersection in an area of the highway that is three lanes in the direction defendant was traveling, another officer alerted to the pursuit had stopped traffic for the safety of the motoring public. Defendant moved from the far right lane to the far left in an apparent effort to get around the cars or jump the median, but he failed. Investigator Conrad watching defendant's path had placed his car in a position that would prevent defendant from hopping the low median and escaping. Defendant came close to hitting the police car but stopped just before he did. Upon stopping, defendant got out of his Honda and ran for about fifty feet before the uniformed officers pursuing on foot apprehended him in a parking lot adjacent to the highway.
Defendant did not testify.
Defendant raises two issues on appeal:
I. PROSECUTOR'S MISCONDUCT IN SUMMATION MISREPRESENTED FACTS NOT IN THE RECORD, ROUSED THE JURY TO VENGEANCE, AND OTHERWISE PREJUDICED DEFENDANT, DENYING HIM HIS CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL.
II. DEFENDANT'S SENTENCE WAS EXCESSIVE.
"To justify reversal, the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense." State v. Harris, 181 N.J. 391, 495 (2004) (citation, internal quotations and alterations omitted). Where, as here, there was no objection to the summation at trial, defendant must establish plain error - prosecutorial excess sufficient to raise "a reasonable doubt as to whether the error led the jury to a result that it otherwise might not have reached." State v. Feal, 194 N.J. 293, 312 (2008) (citation and internal quotations omitted). Defendant has not made the showing essential for relief.
Read in context, the prosecutor did not, as defendant contends, assert facts that were not established at trial or urge the jurors to view its verdict as sending a message to other would-be violators. Rather, the prosecutor referenced the State's obligation to prove that defendant knew police were signaling him to stop and pointed to evidence from which the jurors could infer that this element was established. That is not improper. State v. Frisby, 174 N.J. 583, 593-94 (2002).
The prosecutor's rhetorical questions urging the jurors to consider whether defendant thought he was driving in the "Indy 500" or being pursued by "Batman" were colorful, but the prosecutor was not obligated to use bland language. State v. Pratt, 220 N.J. Super. 307, 323 (App. Div. 1988) (holding that the prosecutor is ordinarily accorded the prerogative to "sum up the State's case graphically and forcefully").
Defendant argues that the prosecutor impermissibly called the jurors to arms when she said, "Don't give him a free ride. Find him guilty." We disagree; the prosecutor summarized the evidence and urged the jurors "to hold defendant accountable for his choice to flee and his choice to endanger other people." If there is any impropriety in the prosecution's allusion to a free ride, we are confident that it did not have the capacity to interfere with defendant's right to have the jurors fairly evaluate the evidence.
The arguments defendant presents to persuade us that his sentence is excessive are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). It suffices to note that in granting the State's application for an extended term and fixing the duration of the extended ...