NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2013
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 09-12-1187.
Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Estrella Lopez, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Before Judges Reisner and Alvarez.
Defendant Gardy Dorsainval appeals from his conviction for second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2b; third-degree aggravated assault, N.J.S.A. 2C:12-1b(5); third-degree resisting arrest, N.J.S.A. 2C:29-2a; and fourth-degree resisting arrest, N.J.S.A. 2C:29-2a. He was sentenced to an aggregate term of five years in prison. He raises the following two points of argument for our consideration:
POINT I: IT WAS ERROR NOT TO EXCLUDE REPEATED REFERENCES THAT DEFENDANT MATCHED THE DESCRIPTION OF AN ARMED ROBBERY SUSPECT FROM EVIDENCE (Not Raised Below).
POINT II: CERTAIN COMMENTS MADE BY THE PROSECUTOR IN HIS SUMMATION WERE GROSSLY PREJUDICIAL AND DENIED DEFENDANT A FAIR TRIAL (Not Raised Below).
After reviewing the trial transcripts, we find no merit in either of these arguments, and we affirm the conviction. We remand for the limited purpose of amending the judgment of conviction (JOC) to correct a typographical error.
At 3:18 a.m. on August 22, 2009, Hillside Police Officers Daniel Wanat and Ron Bartell were on street patrol in their marked vehicle. Wanat testified that they were driving on North Broad Street "looking for a suspect in a robbery that had just occurred" on nearby Hollywood Avenue. There was no objection to that testimony. He then recounted that the officers observed a silver Acura emerge from Hollywood Avenue "at a high rate of speed" and turn left. He testified that the car caught the officers' attention because of its speed and because there were few other vehicles on the road at that time of night. As the car turned, Wanat had a clear view of the driver, whom he later identified in court as defendant. He also saw a female passenger.
Wanat explained that the officers then ran a computer check on the car's license plate because it was speeding and the driver "fit the description of the robbery suspect." Again, there was no objection to that testimony, and the prosecutor immediately followed up with a clarifying question. He asked Wanat: "Now just for clarification and for the record, officer, this defendant was not charged or questioned with regard to a robbery, correct?" Wanat answered, "No, no [n]ever." The prosecutor later noted again, "this defendant was not linked in that robbery" and the officer responded, "Right."
The officers activated their lights and siren and attempted to conduct a traffic stop based on the "motor vehicle infraction" they had observed. Instead of stopping, defendant led the police on a high-speed chase down Route 22 West. According to Wanat, defendant drove erratically and caused a collision with another car, then crashed the driver's side of his vehicle into a wall, put the vehicle into reverse, and hit a police car. Wanat testified that defendant crawled out the driver's side window of his vehicle and fled on ...