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State of New Jersey v. Santino J. Micelli

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 14, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
SANTINO J. MICELLI, A/K/A SANTINO J. MICELI, A/K/A SANTINO MICELI, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 09-01-0132.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted December 20, 2011

Before Judges Fisher, Baxter and Nugent.

Defendant Santino Micelli appeals from his May 21, 2010 conviction on a charge of third-degree eluding police, N.J.S.A. 2C:29-2b, as a lesser included offense of second-degree eluding.

The judge imposed a five-year term of probation, subject to 364 days in the Bergen County jail. On appeal, defendant raises the following claims:

I. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ADMISSION OF UNDULY SUGGESTIVE IDENTIFICATION EVIDENCE.

II. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE IMPROPER ADMISSION OF PRIOR MOTOR VEHICLE VIOLATIONS IN AN ELUDING PROSECUTION. (Not Raised Below).

A. The evidence was improperly admitted.

B. The trial court failed to provide the jury with a proper limiting instruction as required by the law.

III. THE DEFENDANT'S RIGHT TO CONFRONTATION AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 10 OF THE NEW JERSEY CONSTITUTION AND RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WERE VIOLATED BY [THE] TRIAL COURT'S REFUSAL TO ALLOW CONFRONTATION ON THE CRITICAL ISSUE IN THE CASE: IDENTIFICATION.

IV. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED WHEN THE STATE'S LAY WITNESS RENDERED HIGHLY PREJUDICIAL OPINIONS THAT SHOULD HAVE BEEN EXCLUDED. (Not Raised Below).

V. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE INCOMPLETE, ERRONEOUS AND PREJUDICIAL INSTRUCTION ON THE LAW OF ELUDING. (Not Raised Below).

A. The instruction on the law of eluding, which included attempted eluding, was incomplete, erroneous and prejudicial.

B. The trial court failed to instruct jurors that the law of attempt requires purposeful conduct and that they cannot find that the defendant knowingly attempted to elude the police.

VI. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY PROSECUTORIAL MISCONDUCT. (Partially Raised Below).

VII. THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART 1, ¶ 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE ACCUMULATION OF TRIAL ERRORS. (Partially Raised Below).

We affirm.

I.

On the night of August 23, 2008, members of the Elmwood Park Police Department established a driving while intoxicated (DWI) checkpoint at the intersection of Route 46 and Boulevard.*fn1

The DWI checkpoint consisted of flares and cones to "funnel" drivers into a single lane where they were met by police officers described as "greeters." Detective Thomas Kochis was one of fifteen officers participating in the DWI checkpoint that night, beginning at 11:00 p.m. and ending at 3:30 a.m. on August 24.

At approximately 2:30 a.m. on August 24, a blue Suzuki caught the attention of Detective Kochis because the vehicle slowed down, and nearly stopped, 300 yards back from the point where drivers were approached by the "greeter." According to Detective Kochis, such behavior was suspicious because it signified that the driver was "doing something . . . illegal inside the car, maybe changing positions." Because of the driver's suspicious behavior, Detective Kochis signaled to Sergeant Michael Kassai "to keep an eye on th[e] vehicle." As the Suzuki drew closer to the staging area, its speed increased. When it became clear that the vehicle was accelerating, and that the driver of the Suzuki did not intend to stop at the checkpoint, Detective Kochis "began to shine [his] flashlight directly at the driver and began to order him to stop." Kochis was only "a few feet from the vehicle" and was able to get a good look at the driver, whom Detective Kochis described as a white male, in his late thirties or early forties, thin, with long brown hair. Detective Kochis testified that he was only two to three feet away from the vehicle at the time he used his flashlight to illuminate the driver's face. He also testified that the DWI checkpoint was well-lit.

In a loud voice, Kochis ordered the driver to stop. Several of the other officers were yelling the same thing, but the Suzuki sped away. In fact, the driver "blew through both of the stop signs" at the DWI checkpoint.

After stopping briefly at the red light at the corner of Boulevard, the car "revved" its engine, and made a right turn at the red light, which was prohibited at that particular intersection. A police vehicle pursued the Suzuki, but by the time the officers found the vehicle a little while later a half-mile away, it was in a parking lot next to a bank. The vehicle had sustained "heavy front end damage," and one of the axles was broken. The key was still in the ignition. Numerous documents were strewn about in the passenger compartment, including personal letters and bills bearing the name of defendant, Santino Micelli. Several open containers of beer, and some unopened bottles as well, were found in the passenger compartment.

By calling the Elmwood Park police dispatcher, Detective Kochis learned that the owner of the vehicle was Claire Lune Daniels, who lived in Rochelle Park. Daniels told the police dispatcher that defendant Santino Micelli was her son, and that he had been driving her car that night.

During cross-examination of Detective Kochis, defense counsel attempted to question the detective concerning the Attorney General Guidelines (Guidelines) for photo identifications.*fn2 The judge barred the defense from doing so because Detective Kochis was not the person responsible for setting up the photo identification on the computer. The judge directed defense counsel to reserve her cross-examination on the subject of the Guidelines until Lieutenant DePasquale took the stand.

Detective Kochis testified that he issued a total of "eight or nine summonses" to defendant that night, including failure to observe a traffic control device, making an improper turn on a red signal, failure to obey traffic officers directing traffic, careless driving, reckless driving, driving while suspended, and possession of an open container of alcohol in a motor vehicle. He also explained that defendant "had some outstanding tickets as well."

During cross-examination, defense counsel asked Detective Kochis whether he or anyone else who was working on the case had dusted the Suzuki for fingerprints. The detective answered, "no, we did not. It was not necessary." Defendant did not object to that answer.

Detective Kochis also testified that at approximately 4:00 a.m. on August 24, he returned to police headquarters because Lieutenant DePasquale wanted to show him a photograph on DePasquale's computer monitor. Detective Kochis identified the person in the photograph as "[t]he driver of the vehicle that night." He was "100 percent" sure.

Sergeant Kassai testified that he was in charge of the DWI checkpoint on the night in question. He told the jury that Detective Kochis drew his attention to "an older model Suzuki" by stating "Sarge, look at this car coming up." At the time, Detective Kochis was only ten feet away from Sergeant Kassai. Sergeant Kassai's testimony describing the vehicle's progress through the DWI checkpoint mirrored the description provided by Detective Kochis. Sergeant Kassai explained that because of the unusually slow pace of the Suzuki, he became suspicious that the driver "was trying to conceal something[.]" For that reason, he kept his attention focused on the vehicle, and when the driver sped through the checkpoint without stopping, he was able to get a good look at the driver's face. When he returned to police headquarters at approximately 4:00 a.m., he viewed the same computer photograph that Detective Kochis had viewed a little earlier. Kassai identified the person depicted in the photograph as the driver of the Suzuki that had sped through the checkpoint a few hours earlier.

The State called defendant's mother, Claire Lune Daniels, to the stand. She testified she was not aware that her car was missing on the night in question until police officers came to her home and told her that her car had been found crashed against a curb in Elmwood Park. She insisted that she told the officers who came to her home that she had not given her son permission to use her car that night, and that he would never take her car without her permission. When asked whether she had told the Elmwood Park police dispatcher that her son had been using her car on the night of August 23, 2008, she responded "I don't know if I told him that or if I thought he did, I'm not sure what I said, but I know something is on the tape, you know, whatever I said." Shortly thereafter, the prosecutor played for the jury the audiotape of Daniels's conversation with the dispatcher, in which she was heard telling the dispatcher that her son had been using her car that night.

After the State rested, defendant presented the testimony of Jennifer Contrano, his fiancé. She testified that at 7:30 p.m. on August 23, 2008, she drove to defendant's mother's home, where she picked up defendant, and drove him to the apartment they shared in Lyndhurst. The two went to sleep early because they were planning to leave the apartment early the next morning for a camping trip. Contrano explained that when she arrived at defendant's mother's home on the night in question, defendant's mother "wasn't even home. She had the car." When Contrano was asked whether she was sure that defendant was with her on the night of August 23, Contrano answered, "I'm positive."

The jury acquitted defendant of second-degree eluding police, but returned a guilty verdict on the lesser included offense of third-degree eluding.

II.

In Point I, defendant asserts that the judge's pretrial order permitting the admission of evidence of Kochis's and Kassai's photo identification denied him a fair trial. In particular, he asserts that because both officers were shown only a single photograph by Lieutenant DePasquale, and because DePasquale essentially told each officer that the person depicted on the computer screen was the driver who had sped through the checkpoint, the photo identification was so impermissibly suggestive that the judge erred when he refused to order its exclusion. In contrast, the State argues that even if the circumstances surrounding the photo identifications made by Kochis and Kassai were impermissibly suggestive, the photo identifications made by each officer were overwhelmingly reliable, and therefore satisfied the then-existing standards governing photo identifications.

The procedures governing out-of-court photo identifications were significantly altered by the Court's recent opinion in State v. Henderson, 208 N.J. 208 (2011), but because the Court's opinion in Henderson applies only prospectively, id. at 220, we will not apply Henderson, but will instead apply the standards existing at the time of defendant's trial.

At the time of defendant's trial, the governing standard consisted of a two-prong test to determine whether an out-of-court identification was admissible at trial. The first prong required an analysis of whether the out-of-court identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503-04 (2006). The second prong focused on whether the impermissibly suggestive procedure was nonetheless reliable, taking into account the totality of the circumstances. Ibid. The Herrera procedures were based upon the decision of the United States Supreme Court in Manson v. Brathwaite, 432 U.S. 98, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

In Herrera, our Supreme Court identified the factors to be considered in determining the reliability of an identification:

[T]he opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself. [Herrera, supra, 187 N.J. at 503 (citing Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154).]

"Reliability is the linchpin in determining the admissibility of identification testimony." State v. Adams, 194 N.J. 186, 204 (2008) (quoting State v. Madison, 109 N.J. 223, 232 (1988)) (internal quotation marks omitted).

Short of a showing of "a very substantial likelihood of irreparable misidentification," determining the reliability of an out-of-court identification was a decision for the jury, not the court. Manson, supra, 432 U.S. at 116, 97 S. Ct. at 2254, 53 L. Ed. 2d at 155 (citation omitted).

"The strength or credibility of the identification [was] not the issue on admissibility; that [was] a matter of weight, for the factfinder, under appropriate instructions from the trial judge." State v. Farrow, 61 N.J. 434, 451 (1972), cert. denied, 410 U.S. 937, 93 S. Ct. 1396, 35 L. Ed. 2d 602 (1973). "[T]he showing of a single photograph ordinarily goes only to weight, and not admissibility, of an identification." Id. at 453 (citation omitted).

Under the two-prong Herrera test, defendant must first demonstrate that the manner in which DePasquale showed the mug shot to Kassai and Kochis was impermissibly suggestive. In Herrera, the police asked a carjacking victim to come with them to take a look at the person who had been found in possession of the victim's car. Herrera, supra, 187 N.J. at 506. The police told the victim, "we found your car, we located your car with somebody in it, we want you to come with us to identify the person." Ibid. The Herrera Court found this out-of-court procedure to be impermissibly suggestive because the officers' explanatory statements "may have influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Ibid.

The procedure used by Lieutenant DePasquale in presenting the photo of defendant to both Kassai and Kochis was every bit as suggestive as the procedure used by the officers in Herrera. Just as the officer in Herrera told the carjacking victim that he wanted him to "identify the person" found in the victim's car, ibid., here, DePasquale presented defendant's photograph to Detective Kochis and said, "I've got a picture of the person that was possibly driving the car." The comment Lieutenant DePasquale made to Sergeant Kassai while showing Sergeant Kassai the photograph of defendant was even more suggestive: "this is the guy that [Kochis] was looking for . . . [t]his is the guy that was involved with Detective [Kochis]."

As we have noted, the first Herrera prong requires an evaluation of whether the identification made by the witness represents his or her own independent recollection or whether it instead resulted from the suggestive words or conduct of a law enforcement officer. Id. at 503. In applying the first prong, we start by recognizing that showing a witness a single suspect or a single photograph is by itself suggestive. Id. at 504. That fact, when combined with the very pointed remarks made by Lieutenant DePasquale, renders the procedure "impermissibly suggestive," thereby satisfying the first of the two Herrera prongs. Id. at 503.

Turning to the second prong, Herrera instructs that even if the procedure utilized was "impermissibly suggestive," the identification need not be suppressed if it was "nevertheless reliable." Id. at 504. In State v. Adams, 194 N.J. 186, 205-06 (2008), the Court found an identification reliable despite its suggestive nature because 1) all "witnesses had an opportunity [while paying attention] to view the defendants they identified" from a short distance with adequate -- though not ideal --lighting; 2) the witnesses' descriptions of their assailants were similar in most respects; and 3) "all of the identifications were made within two days of the incident."

In comparison, the identifications made by Kochis and Kassai are even more reliable: both officers were paying careful attention to the car as it sped through the checkpoint; both had an opportunity to view the driver's face under ample lighting; they gave nearly identical descriptions of the driver; and they viewed the photographs only two hours after the incident. Moreover, the lighting was excellent, as the DWI checkpoint was illuminated by bright overhead lighting at the intersection of Route 46 and Boulevard. The police installed several light stanchions at the DWI checkpoint that provided additional illumination, which enabled both Kochis and Kassai to get a good view of defendant from only a few feet away as he sped by. "Weighing the above factors in favor of reliability against the corrupting effects of the impermissibly suggestive procedure, we are satisfied that the identification procedure was reliable and did not result in a substantial likelihood of misidentification." Herrera, supra, 187 N.J. at 509.

Our dissenting colleague is of the view that by holding that the identifications made by Kochis and Kassai were reliable, we have exercised original jurisdiction in a circumstance where we should have refrained from doing so. In particular, he concludes that because the judge never reached the second Herrera prong, and therefore made no findings on the reliability of the officers' identifications, we should have remanded to the trial court to enable the judge to make findings on that subject, rather than make our own determination. While we have no quarrel with Judge Fisher's observation that appellate courts should generally refrain from the exercise of original jurisdiction, there are instances where doing so is proper. Ladenheim v. Klein, 330 N.J. Super. 219, 224 (App. Div. 2000) (holding that where the evidence is so one-sided that it will admit of only one interpretation, an exercise of original jurisdiction is appropriate). This is such a case.

III.

In Point II, defendant argues that the trial court's failure to sua sponte exclude the evidence of defendant's previous motor vehicle violations caused the jurors to infer that defendant had "a propensity for violating motor vehicle laws," thereby denying him a fair trial. In particular, defendant argues that the trial court committed plain error, first by allowing the State to proffer evidence that defendant committed motor vehicle violations while eluding police, and second by permitting the prosecutor to elicit testimony that defendant had "some outstanding tickets" and was driving while his driver's license was suspended. Different principles govern our review of these two claims.

As for the motor vehicle offenses committed while defendant was in the process of eluding police, such motor vehicle offenses are properly brought before the jury as part of the jury's evaluation of whether the defendant is guilty of the indictable crime. State v. Muniz, 118 N.J. 319, 331-34 (1990). In Muniz, the Court held that the State should be permitted to present evidence of the motor vehicle violations to assist the jury in determining the elements of the indictable charge that involve operation of the vehicle in a manner likely to cause injury or death, so long as the jury is instructed that the motor vehicle offenses will be decided by the judge, and not by the jury. Id. at 332. That is exactly what happened here. As required by Model Jury Charge (Criminal), "Eluding an Officer" (2004), the judge instructed the jury that if it found that the State proved all of the elements of eluding police beyond a reasonable doubt, the jury should continue its deliberations to consider a seventh element, whether the flight or attempt to elude "created a risk of death or injury to any person[.]" In connection with that instruction, the judge advised the jury that it was entitled to "infer [a] risk of death or injury to any person if defendant's conduct in fleeing or in attempting to elude the officer involved a violation of the motor vehicle laws of the State."

At that point, the judge specified the particular motor vehicle offenses defendant was charged with committing. He listed the following: improper turn at a traffic signal; failure to observe a traffic signal; careless driving; improper right turn; driving while suspended; reckless driving; consumption of alcoholic beverages in a motor vehicle; failure to obey the officer's direction; and operating an uninsured motor vehicle. With the exception of the latter charge, operating an uninsured motor vehicle, which should not have been listed, State v. DiRienzo, 53 N.J. 360, 378 (1969), all of the other offenses were properly listed. Muniz, supra, 118 N.J. at 331-32.

The Court's recent decision in State v. Rose, 206 N.J. 141, 180 (2011), does not compel a contrary result. Although in Rose the Court abolished the admissibility of res gestae evidence, the Court established an exception for situations in which the other crimes evidence directly proves the charged offense, and where the conduct constituting the other crimes evidence is performed contemporaneously with the charged offense and facilitates the crime. Ibid. Such is the case here. For all of these reasons, we reject defendant's contention that the judge erred by failing to sua sponte exclude the evidence of the motor vehicle offenses defendant committed while operating the motor vehicle. We do not view the judge's passing, but erroneous, reference to operating an uninsured vehicle as harmful error.

We turn to the judge's failure to sua sponte exclude the testimony of defendant's outstanding motor vehicle tickets. The State acknowledges that mention of these outstanding tickets implied that defendant had committed prior motor vehicle offenses. Nonetheless, despite the improper mention of these past motor vehicle infractions, we are satisfied that this error does not warrant reversal of defendant's conviction. State v. Bakka, 176 N.J. 533, 551 (2003) (holding that erroneous admission of evidence concerning driving with a suspended license does not create prejudice warranting reversal where the evidence of guilt is substantial). Here, the evidence of defendant's guilt was overwhelming. The vehicle defendant was operating was found moments later containing numerous documents bearing his name, his mother admitted to the police dispatcher that defendant was driving her car on the night in question, and two trained police officers identified defendant as the person who sped through the DWI checkpoint. Under such circumstances, we deem harmless the erroneous admission of testimony that defendant was driving while his license was suspended. We reject the claims defendant advances in Point II.

IV.

In Point III, defendant argues that the judge's refusal to permit him to cross-examine Detective Kochis concerning law enforcement's failure to abide by the Guidelines on photo identification procedures denied him a fair trial and impermissibly eroded his Sixth Amendment right of confrontation. This argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Suffice it to say, the judge properly concluded that because Detective Kochis was not the person who established the single-photo identification process, he was not the correct witness to be cross-examined on the subject of the Guidelines. As is evident from the record, the judge permitted extensive cross-examination of Lieutenant DePasquale on the Guidelines, as it was Lieutenant DePasquale who established the parameters of the photo identification. We reject the claim defendant advances in Point III.

V.

In Point IV, defendant argues that the trial judge erred when he sua sponte failed to exclude Detective Kochis's testimony that it was "not necessary" for the police to dust the Suzuki for fingerprints. Defendant asserts that such testimony impermissibly invaded the province of the jury. Because defendant failed to object to this testimony at the time it was offered, we will not reverse on this ground unless the testimony was clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971).

As is evident from the record, the testimony in question came in response to defense counsel's question on cross-examination asking Detective Kochis whether he or anyone else had dusted the car for fingerprints. Kochis answered, "no, we did not. It was not necessary." The testimony to which defendant now objects was not elicited by the State, but instead came as a fair response to a question posed to Detective Kochis on cross-examination. Notably, trial counsel did not object to the answer, nor did she ask any form of follow-up question. Those omissions strongly suggest that she perceived no unfair prejudice from Detective Kochis's answer.

Moreover, Detective Kochis's statement did not offer an elaborate opinion as to why he thought fingerprinting was unnecessary, nor did he provide a detailed explanation as to its irrelevance. Instead, he offered a single, off-hand remark so insubstantial as to have no capacity to deny defendant a fair trial. In contrast, Detective Kochis could have commented that because the identity of the driver was known to law enforcement, fingerprinting was unnecessary, but he did not offer any such additional explanation. His isolated remark did not deny defendant a fair trial.

Defendant's reliance on State v. Vandeweaghe, 177 N.J. 229 (2003), is misplaced. There the Court disapproved of a psychiatrist's testimony that the defendant, who testified, had "a longstanding history of lying." Id. at 239. The Court observed that the assessment of credibility is a jury function, and the psychiatrist's testimony impermissibly usurped that function. Ibid. Detective Kochis's isolated and innocuous remark here is a far cry from the highly prejudicial testimony the Court criticized in Vandeweaghe.

Defendant's reliance on State v. Boston, 380 N.J. Super. 487, 494 (App. Div. 2005), certif. denied, 186 N.J. 243 (2006), is similarly misplaced. There, we held that the expert witness had essentially opined that the defendant was selling narcotics and that such testimony was impermissibly used "to fill in the gaps" of the State's case, in which no drugs were found on the defendant or in any area within the defendant's reach. Id. at 493. Here, for the reasons we have already noted, the State's case was extremely strong and, unlike in Boston, Detective Kochis did not essentially opine defendant was guilty. If there was any error in the admission of Detective Kochis's testimony regarding dusting the Suzuki for fingerprints, it had no capacity to create an unjust result. R. 2:10-2. We reject the claim defendant advances in Point IV.

VI.

In Point V, defendant asserts that the judge committed prejudicial error in his charge to the jury when he "failed to explain [to the jurors] the law of attempted eluding and how the defendant could be convicted of attempted eluding." Specifically, defendant claims that the judge did not properly explain the appropriate state of mind applicable to an attempted crime, namely, that defendant acted "purposely." Instead, the judge instructed the jury that the State was required to prove "knowing" conduct.

As the State correctly argues, the "exact argument" defendant advances here was rejected in State v. Mendez, 345 N.J. Super. 498 (App. Div. 2001), aff'd, 175 N.J. 201 (2002).

In Mendez, the defendant, like defendant here, argued that because "eluding may consist of an 'attempt to elude,' the court was required to instruct the jury in accordance with the law of attempt, specifically that the State had to prove that defendant had the purpose to elude the police." Id. at 504. We held that "[t]he phrase 'attempts to elude' makes it clear that the conduct forbidden by N.J.S.A. 2C:29-2b is the act of flight or eluding, and that the elements of the offense do not include a 'result' element of success in avoiding apprehension by a law enforcement officer." Ibid. As a result, we concluded that the trial court did not err in referring only to the "knowingly" state of mind standard -- and not the "purposely" standard -- in instructing the jury on the law of eluding. Id. at 511.

The present appeal cannot be distinguished from Mendez. Indeed, the judge's jury charge repeated verbatim the statutory language: "Any person, while operating a motor vehicle . . . who knowingly flees or attempts to elude any police or law enforcement officer . . . commits [the crime of eluding]." N.J.S.A. 2C:29-2b.

We are satisfied that the judge correctly explained the statutory offense of eluding police. For that reason, we reject the claim defendant advances in Point V.

VII.

In Point VI, defendant argues that his conviction should be vacated because the prosecutor's summation improperly 1) suggested that the jury disregard the Guidelines in making its decision; 2) informed the jurors that defendant's "presumption of innocence has come to an end once the State has presented its case"; 3) noted that defendant's alibi suffered from procedural defects; and 4) told the jury, "I'm sorry, ladies and gentlemen. I'm sorry the defense cannot give the State the same courtesy that the State gave to the [d]efense by not interrupting and that I keep having to go back a little bit and repeat myself."

In evaluating a claim of prosecutorial misconduct, we will not reverse on that ground unless the conduct in question is so egregious as to deprive a defendant of a fair trial. State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). Prosecutors "are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). "Within reasonable limitations," prosecutors are "afforded considerable leeway in making opening statements and summations." State v. DiFrisco, 137 N.J. 434, 474 (1994) (citation and internal quotation marks omitted).

Here, the prosecutor's summation did not exceed the bounds of an acceptable concluding argument. First, the prosecutor reminded the jury that the Guidelines apply to line-up identification procedures and to photo arrays, but not to the presentation of a single photograph which the prosecutor described as akin to a show-up identification. The judge had already approved such an approach in overruling defendant's objection to that portion of DePasquale's testimony. For that reason, we cannot fault the prosecutor for advancing such an argument.

Second, the prosecutor did not mislead the jury regarding defendant's presumption of innocence when she said, "You were asked to presume the defendant innocent until right now because now you have had all of the evidence . . . [t]he evidence that's talked about it's the State's burden [sic]." The court did not err in allowing the prosecutor to argue, essentially, that the State had presented sufficient evidence to overcome the presumption because the "presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created." State v. Hill, 199 N.J. 545, 559 (2009) (emphasis added) (citation and internal quotation marks omitted).

Defendant's third challenge to the prosecutor's summation is equally unconvincing. Defendant argues that the prosecutor improperly stated that defendant's girlfriend, Contrano, who provided alibi testimony for him, contacted police "for the first time on November 2nd . . . at the eleventh hour before a trial date." The State laid a proper foundation for discussing this pre-disclosure silence, and therefore, the prosecutor was entitled to comment on Contrano's delay in providing an alibi. See State v. Silva, 131 N.J. 438, 446-49 (1993) (observing that "[w]hen an alibi witness has a close relationship with the accused, a jury can infer that [a proper foundation to question the delayed alibi was laid because] the alibi witness's natural conduct would be to report the alibi to the authorities"). In light of Silva, we reject defendant's challenge to the prosecutor's remark about Contrano's delay in providing an alibi for him.

Fourth, we reject defendant's contention that the prosecutor improperly "disparag[ed] trial counsel." The record shows that defense counsel interrupted the prosecutor's summation on seven separate occasions before the prosecutor told the jury, "I'm sorry the defense cannot give the State the same courtesy that the State gave the [d]efense by not interrupting and that I keep having to go back a little bit and repeat myself." This was an extraneous remark that contained "nothing that would aid the jury in determining the defendant's guilt or innocence," State v. Williams, 113 N.J. 393, 452 (1988), and was consequently not proper. However, the prosecutor's remark simply stated that which was already readily apparent to the jury, namely, that the defense attorney's interruption forced the prosecutor to "go back a little bit and repeat [her]self." While it would have been preferable for the prosecutor to refrain from suggesting that defense counsel was not being courteous, the prosecutor's remark was not so extreme as to deny defendant a fair trial. We reject the claim of prosecutorial misconduct defendant advances in Point VI.

VIII.

Last, defendant argues that "[a]ny single error raised by the defendant should be sufficient to require a new trial . . . [but] [c]learly, all these errors, when considered together, could have affected the outcome of the trial."

We have identified three errors: the improper reference to defendant's outstanding motor vehicle summonses; Detective Kochis's remark that it was "not necessary" to dust the Suzuki for fingerprints; and the prosecutor's remark about defense counsel's repeated interruptions of her summation. In the aggregate, these three errors fall far short of denying defendant a fair trial.

Affirmed.

FISHER, J.A.D., dissenting.

I join in the majority's opinion with the sole exception of Section II, in which my colleagues affirm the trial judge's pretrial determination at the conclusion of a Wade*fn1 hearing, where he found admissible the State's evidence of the out-of-court eyewitness identifications made by two police officers; the officers had witnessed a vehicle's failure to stop at a DWI checkpoint.

As my colleagues correctly observe, the eyewitness identifications in question were governed by the Manson/Madison*fn2

test, which consists of two prongs.*fn3 The first prong requires a determination of whether the identification procedure was impermissibly suggestive. State v. Herrera, 187 N.J. 493, 503-04 (2006). The second prong focuses on the identification's reliability -- because "[r]eliability is the linchpin," Madison, supra, 109 N.J. at 232 -- and specifically requires consideration of "the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation." Manson, supra, 432 U.S. at 114, 97 S. Ct. at 2253, 53 L. Ed. 2d at 154.

In considering the first prong, my colleagues have determined -- and I agree -- that the procedure utilized here was impermissibly suggestive. The record reveals that defendant was unknown to the two police officers who watched as a vehicle failed to stop at their DWI checkpoint. Further investigation suggested defendant was the driver of the vehicle,*fn4 and, approximately two hours later, one of the witnesses, Detective Kochis, was shown a computer screen containing a single image (a mugshot) of defendant; while showing him the image, the investigating officer told Detective Kochis it was "a picture of the person that was possibly driving the car." Detective Kochis positively identified the driver of the eluding vehicle as the person depicted in the computer image. The other witness, Sergeant Kassai, was similarly told that "[t]his is the guy [Detective Kochis] was looking for." As the majority has observed, these types of comments are closely akin to those found in Herrera, supra, 187 N.J. at 506,*fn5 as having "influenced the victim to develop a firmer resolve to identify someone he might otherwise have been uncertain was the culprit." Whether or not viewed as a violation of the 2001 Attorney General Guidelines that were then and remain applicable to photographic identifications*fn6 -- and I think there is no doubt that the Guidelines applied to the procedure in question, although the trial judge ruled otherwise, nor any doubt that the Guidelines were violated -- the exhibition of a single photograph of a suspect, coupled with highly suggestive comments, overwhelmingly demonstrates that the procedure was impermissibly suggestive, as my colleagues and I agree.

The majority proceeded to conclude that the evidence supported a finding that the identifications were reliable. Our disagreement springs from the fact that the majority's view of the evidence relevant to the second prong bears little resemblance to the trial judge's and fails to account for the trial judge's erroneous determination on the first prong. Unlike the majority, the trial judge found the procedure was not impermissibly suggestive, apparently because, in his view, police officers are impervious to suggestiveness. And, although some of the statements made by my colleagues regarding the reliability factors could represent a principled approach to the evidence adduced at the Wade hearing, the fact persists that the trial judge did not make those findings.

It is important to emphasize that under the Manson/Madison test, the two prongs are not mutually exclusive. If a consideration of the first prong militates in favor of a finding of impermissible suggestiveness -- as we have found -- then the Wade judge must "weigh[]" the reliability factors "against the corrupting effects of the impermissibly suggestive procedure." Herrera, supra, 187 N.J. at 509. There is no doubt that the trial judge failed to do that. How could he? Because he did not find the procedure to be impermissibly suggestive, the judge could not possibly have weighed its corrupting effect on the other reliability factors.*fn7

Unlike my colleagues, who appear to have exercised original jurisdiction on the Wade issues,*fn8 I am unwilling to express a view of the weight of the evidence since I was not present when the witnesses testified. Rather than hazard a view of the evidence from a cold record, I would remand for a re-examination of the second prong, including -- for the first time -- the trial court's weighing of the corrupting effect of the police procedure in light of our unanimous conclusion that the procedure was impermissibly suggestive.

I lastly note that I would not require further findings from the same trial judge but would remand for a new Wade hearing to be conducted by a judge who has not already opined on the facts. Accord State v. Henderson, 397 N.J. Super. 398, 416-17 (App. Div. 2008), aff'd as modified, 208 N.J. 208 (2011); State v. Gomez, 341 N.J. Super. 560, 579 (App. Div.), certif. denied, 170 N.J. 86 (2001). Such a remand would not necessarily require a new trial. If the new Wade determination resulted in a finding that evidence of the out-of-court identifications remains admissible, then there would be no reason to upset the judgment of conviction;*fn9 but, if it were determined that evidence of the out-of-court identifications was inadmissible, then defendant would be entitled to a new trial. Henderson, supra, 397 N.J. Super. at 417; State v. Herrera, 385 N.J. Super. 486, 500 (App. Div. 2006).


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