STATE OF NEW JERSEY v. DAVID GERGES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5367-04T45367-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DAVID GERGES,

Defendant-Appellant.

 
_________________________________

Submitted September 20, 2006 - Decided October 11, 2006

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

03-10-01972-A.

Yvonne Smith Segars, Public Defender, attorney for

appellant (Ruth Harrigan, Designated Counsel,

of counsel, and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor,

attorney for respondent (Jack J. Lipari, Assistant

County Prosecutor, of counsel, and on the brief).

PER CURIAM

Following a trial by jury, defendant, David Gerges, was convicted of third-degree resisting arrest, N.J.S.A. 2C:29-2a(1) (count one); fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1b(5) (count two); and third-degree terroristic threats, N.J.S.A. 2C:12-3a (count three). He was sentenced to an aggregate nine-month term to be served in the county jail. Appropriate fees and penalties were also imposed. Defendant appeals, and we affirm.

In challenging the judgment of conviction, defendant raises the following issues:

I. THE PROSECUTOR'S COMMENTS DURING SUMMATION CLEARLY EXCEEDED THE BOUNDS OF PROPRIETY AND REQUIRE A REVERSAL OF DEFENDANT'S CONVICTION.

II. THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL.

We have considered both of these issues in light of the record, the applicable law, and the arguments of counsel, and we are satisfied that neither of them is of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add, however, the following comments.

This criminal episode arose out of defendant's violation of a domestic violence restraining order issued in favor of his ex-wife, Henrietta Gerges, but which allowed defendant to pick up his children on Friday and Henrietta return them on Sunday. According to the State's proofs, on Monday, June 23, 2003, defendant arrived at Henrietta's residence unexpectedly and an argument ensued, during which their daughter Alexandra called the police because she was scared. When Egg Harbor Township police arrived, they observed the couple arguing on the front porch and immediately separated them in accordance with standard procedure.

When K-9 Officer DeFazio asked for identification, defendant became hostile and shouted "Fuck you; you can't fucking treat me like that." Upon the officer's repeated request, defendant stepped closer to DeFazio and, one foot away in a face-to-face encounter said: "Fuck you, the fucking restraining order doesn't mean anything; I'm not doing anything that you say."

Defendant was then told he was under arrest and to put his hands on top of his head. He refused to comply and repeated: "Fuck you, I'm not doing anything you say." At this point, as DeFazio and his partner, Officer Warren, each grabbed onto one of defendant's arms, defendant pulled away from both, pushing DeFazio with two hands in the chest. DeFazio then attempted to take defendant to the ground in a "compliance hold," but defendant kept resisting and fighting, despite orders to stop. In the course of the struggle, DeFazio's feet became tangled with defendant's and both fell to the ground, where the struggle continued. Officer Warren came to assist, as did another officer who had been inside the house obtaining the victim's account. Although defendant continued to flail his arms and curse at the police, the three officers were eventually able to handcuff defendant while he was on the ground. Even then, defendant kept yelling that he was going to have the officers' jobs and that he was going to "kick [their] ass[es]" when he got out of jail.

Officer DeFazio injured his rib in his fall to the ground, was treated at a local hospital, and missed five days of work due to his injury. Defendant, who fell to the ground beneath the officer, suffered a broken collarbone. After his arrest, defendant called Henrietta on several occasions and talked about the criminal charges. He told her that she should say that she did not see anything and that she should not talk to the Prosecutor's Office.

Defendant offered a far different account. He denied resisting arrest and insisted he was compliant while the officers, who supposedly called him "a fucking piece of shit", handcuffed him. When he returned the insult, defendant was pushed to the ground and thereafter had difficulty breathing. When defendant asked DeFazio why he had to do this, the officer allegedly said, "because you disrespected me", at which point defendant told him he was going to get fired. Obviously crediting the State's version, the jury found defendant guilty on all counts.

It is against this factual backdrop that defendant's contentions on appeal must be considered. We are satisfied that there was ample evidence from which a reasonable jury could, and in fact did, conclude beyond a reasonable doubt that defendant, by pushing the officer and continuing physically to resist police efforts to effectuate a lawful arrest, at the very least, acted recklessly to cause bodily injury to Officer DeFazio. See N.J.S.A. 2C:2-2b(3).

We are also satisfied that the challenged remarks of the prosecutor on summation did not constitute an impermissible voucher for the credibility of the State's police witnesses, but rather a measured response to a forceful defense attack on their truthfulness, and therefore, was fair comment on witness credibility. See State v. Crisantos, 102 N.J. 265, 282 (1986). Here, there was no suggestion that police testimony is inherently more trustworthy than civilian testimony, State v. Taylor, 38 N.J. Super. 6, 24-25 (App. Div. 1955), nor any reference to off-the-record consequences that might befall police for lying. State v. West, 145 N.J. Super. 226, 234 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977). Viewed in context, the challenged remarks of the prosecutor as to why the officers' testimony in this matter was credible contained none of the offensive excesses criticized in other cases, see generally, State v. Frost, 158 N.J. 76, 85-86 (1999), but instead were firmly rooted in the evidence.

Affirmed.

 

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A-5367-04T4

 

October 11, 2006