On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-11-1171.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Fasciale.
Defendant appeals from his conviction for second-degree eluding, N.J.S.A. 2C:29-2b. Defendant argues the judge improperly limited defense counsel's remarks during summation and that he received an excessive sentence. We affirm.
New Jersey State Troopers Erin Miccula and Jamie Ablett observed defendant speeding, engaged their overhead lights, and pulled defendant over to the side of the Garden State Parkway. As both troopers approached defendant's car from the passenger side, Trooper Ablett noticed several items on the front passenger seat and asked defendant about them. Defendant then grabbed a sandwich bag containing several wax packages and ingested it. Trooper Ablett walked to the driver side of the car and struggled with defendant to have him exit. Defendant then suddenly drove away, almost seriously injuring Trooper Ablett. The troopers pursued defendant until he eventually stopped the car. Defendant was upset and apologized for speeding and driving away. He was arrested and read his Miranda*fn1
When defendant was brought to the police station he was read his Miranda rights again and admitted to eluding the troopers. Defendant offered several explanations for the contents of the sandwich bag. Initially, he stated that the bag contained candy, and then identified it as sugar. Thereafter, he explained that he did not know the contents of the bag and that he found the bag at a tollbooth. He also stated that the contents were missing because the wind tore them out of his car.
Defendant was tried before Judge James J. Morley and a jury on September 10, 15, 17, and 18, 2009. During summation, defense counsel argued defendant's admission at the police station to eluding was not credible because he was upset and emotionally distraught when he was arrested. He stated:
I suggest to you[,] ladies and gentlemen, that it's very credible to believe that someone in those circumstances might be willing to just about apologize for anything or be very agreeable under those circumstances.
The State objected to defense counsel's characterization of defendant. Judge Morley sustained the objection because there was nothing in the record to support the inferences suggested by defense counsel. The judge's curative instruction to the jury stated:
Ladies and gentlemen, during [defense counsel's] summation, there were statements made concerning his - asking you to draw certain conclusions about [what] the defendant's demeanor may have been when he returned to . . . the state police station. You have before you evidence of the defendant's conduct out on the parkway after the stop. You have no evidence before you of what his demeanor or his presentation was when he was back at the station. So you have to rely on what you know of what was occurring at the scene and you may not assume what his conduct or his demeanor was back at the [police station] because you just have no information about what was going on at the [police station] when he returned.
The jury found defendant guilty of second-degree eluding, N.J.S.A. 2C:29-2b; not guilty of second-degree aggravated assault, N.J.S.A. 2C:12-1b(6); and not guilty of fourth-degree tampering with or fabricating physical evidence, N.J.S.A. 2C:28-6(1). Because defendant had six prior indictable convictions, Judge Morley sentenced defendant to an extended term as a persistent offender, pursuant to ...