October 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
GARDY DORSAINVAL a/k/a GARDY J. DORSAINVAL, GARDY G. DORSAINVAL, GARDI S. DORSANVAL, JAMALE ROSAIRE, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 foot. Wanat ran after defendant and, when he finally caught up with him, defendant hit the officer with an elbow and punched him.
During Wanat's cross-examination, defense counsel mentioned the robbery in the course of establishing the background for the attempted stop. She asked him: "And you believed that you saw someone who matched the description of a robbery suspect, correct?" He responded, "Correct."
Officer Bartell gave testimony corroborating Wanat's version of events in all respects. Defense counsel's cross-examination of Bartell was consistent with her opening statement, in which she asserted that the female passenger was the driver. She questioned why Bartell did not detain defendant's female companion at the scene. Bartell explained that his partner was chasing someone who was suspected of armed robbery and he thought it was more important to assist his partner. Defense counsel stated, "Your focus was on the black male who fit the description of your armed robbery suspect." She repeated that characterization, emphasizing that the police overlooked the woman because they were so focused on finding a male robbery suspect.
Defendant testified that at the time of the incident, he and his wife had attended a fashion show in Newark, then dropped their son off at his mother's house, and were heading toward his place of work on Route 22. He testified that his wife was driving the car. He testified that his wife noticed a police vehicle following them and tried to get out of its way, but the police vehicle struck the rear of their car. He stated that he and his wife exited their car on the passenger side. He then "ran across the highway" because he was afraid his car was "going to blow up." According to defendant, a police officer followed him and tackled him. Defendant denied resisting arrest. Although the police had described him as wearing a "black doo rag" at the time of the incident, defendant denied wearing any head covering. He testified that his wife was wearing a black head wrap or scarf or handkerchief.
In her summation, defense counsel argued that, when the two police officers first observed the driver of the Acura, they mistook the wife's head wrap for a doo rag and assumed that she was a male. She argued that the officers were so focused on apprehending a black male robbery suspect that they presumed the driver was a man. But, she argued: "They made a mistake just like they made a mistake in thinking they had some armed robber. They had Gardy coming from a fashion show with his wife." Later in her summation, she argued that "[t]hey were looking for a robbery suspect. They needed it to be a male and the only person that they arrested and caught was Gardy. So he must have been driving that car." And she argued that the police intentionally hit the Acura from behind "so that [they] could get that robbery suspect."
In his summation, the prosecutor pointed out that defendant "wasn't charged with robbery." He also pointed out the myriad inconsistencies in defendant's testimony, including the fact that he claimed he only ran across the road to be safe, in case the car exploded, but he was arrested in the back yard of a house several blocks from the accident site. At the end of his lengthy closing argument, the prosecutor stated: "And if you find that all four charges have been proven you must find him guilty because, ladies and gentlemen, he might not have been guilty of a robbery, but he is guilty for everything that happened after it." Defense counsel did not object.
Based on the record as recited above, we find that the defendant's trial attorney made the suspected robbery into the centerpiece of the defense. Given the evidence she had to work with, it was a clever litigation strategy even if it did not succeed. However, having made his status as a robbery suspect a key point in his defense at trial, defendant is barred by the doctrine of invited error from claiming on appeal that the trial court should have excluded the testimony about that issue. See State v. A.R., 213 N.J. 542, 561-63 (2013).
But even if we consider his appellate arguments, they are without merit. Because the defense relied so heavily on the "robbery suspect" issue, the prosecutor necessarily had to mention the robbery in responding to defense counsel's remarks. While the last sentence of the prosecutor's summation was phrased inappropriately, in the context of this case, it must have been clear to the jury that defendant was not accused of robbery and the prosecutor was not implying that defendant committed a robbery. Hence, there was no defense objection. We find no error, much less plain error, in the various references to the fact that defendant was initially a robbery suspect. Further, given the overwhelming evidence of defendant's guilt, any error would have been harmless. See R. 2:10-2; State v. Macon, 57 N.J. 325, 337-38 (1971). Defendant's arguments warrant no further discussion. See R. 2:11-3(e)(2).
We affirm the conviction. We remand to correct the JOC.