STATE OF NEW JERSEY v. TROY C. CHANCE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0536-08T40536-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY C. CHANCE,

Defendant-Appellant.

__________________________________

 

Submitted March 2, 2010 - Decided

Before Judges Parrillo and Lihotz.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 07-11-0769.

Yvonne Smith Segars, Public Defender, attorney for appellant (Gregory P. Jordan, Designated Counsel, of counsel and on the brief).

Wayne J. Forrest, Somerset County Prosecutor, attorney for respondent (Daryl A. Williams, Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Troy C. Chance was charged under Somerset County Indictment No. 07-11-0769 with second-degree attempted escape, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:29-5. After a three-day jury trial, he was convicted and sentenced to a five-year period of incarceration on the indictable offense. In a related charge reviewed by the court, defendant was found guilty of the disorderly persons offense of obstructing the administration of law, N.J.S.A. 2C:29-1A, for which a concurrent six-month sentence was imposed.

On appeal, defendant challenges his conviction, arguing:

POINT I

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT.

POINT II

THE TRIAL COURT ERRED IN PERMITTING STATEMENTS INTO EVIDENCE MADE BY THE DEFENDANT AT THE HOSPITAL AS THEY WERE PREJUDICIAL IN NATURE AND NOT AT ALL PROBATIVE.

POINT III

IT WAS REVERSIBLE ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL PURSUANT TO RULE 3:18 AS THERE WAS INSUFFICIENT EVIDENCE TO WARRANT A CONVICTION.

POINT IV

IT WAS ERROR ON THE PART OF THE COURT TO PERMIT TESTIMONY RELATING TO THE FACT THAT THE POLICE WERE LOOKING FOR THE DEFENDANT PRIOR TO THE EVENTS WHICH WERE THE SUBJECT OF THE TRIAL.

POINT V

THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (PARTIALLY RAISED BELOW).

POINT VI

THE TRIAL COURT ERRED IN PERMITTING THE VIDEO RECORDING INTO EVIDENCE WHICH WAS CONTRARY TO N.J.R.E. 901 (NOT RAISED BELOW).

POINT VII

THE TRIAL COURT ERRED BY CONTINUING TO ALLOW WITNESS MARSWILLO TO ARGUE WITH DEFENSE COUNSEL CONTRARY TO DEFENDANT'S SIXTH AMENDMENT RIGHTS RESULTING IN PREJUDICE (PARTIALLY RAISED BELOW).

POINT VIII

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE; THE COURT ERRED IN DENYING DEFENDANT'S APPLICATION TO BE SENTENCED TO A DEGREE LOWER; THE SENTENCE SHOULD BE REDUCED.

Following our review, in light of the record and applicable law, we affirm.

I.

The facts supporting defendant's conviction are largely undisputed. On October 10, 2007, Officer Michael Opaleski of the Franklin Township Police Department, was patrolling the southern portion of the township. At approximately 10:24 p.m., Opaleski received a call regarding a domestic disturbance involving defendant. En route to the scene, Opaleski ran a warrant check on defendant, which revealed four outstanding warrants. While conducting an interview of the complainant, Opaleski saw defendant drive by in a green minivan and gave chase in his patrol car.

After a brief pursuit, defendant left his car and fled on foot. He was discovered hiding beneath a row of bushes. Initially, defendant ignored the exhortations of Opaleski and another officer to come out; eventually, he exited the bushes and was placed under arrest.

Opaleski explained that as he escorted defendant to the patrol car, he was "resist[ing], pull[ing] away from me, pushing me." Specifically, defendant was "pull[ing] over to the right [ ] then push[ing] back into" Opaleski on the left. When the officers reached the vehicle, defendant sat in the backseat but refused "several" requests to place his legs inside the car. Opaleski began discussing the situation with a sergeant who had arrived on scene. Defendant then began "yelling, cursing, yelling profanities at [the backup officer], kick[ing] the rear patrol car window [and] spit[ting] at the divider." At headquarters, defendant was "processed, booked, searched [and] placed in a holding cell." While in the cell, defendant calmed down "on and off" but engaged in "confrontational" behavior, including "shaking the cell doors, yelling numerous profanities [and] kicking the cell doors."

After being informed of his bail, defendant announced he was unable to pay. At this time, two other officers, Michael Casey and Rocco Marswillo, were called to transport defendant to the Somerset County Jail.

Defendant complied with Marswillo's request to step out of the cell; however, when he was asked to turn around and place his hands on the wall to be handcuffed, defendant took off, bolted through a door to his left, and traveled four or five yards down a hallway until he encountered a locked security door.

Defendant made no physical contact with the officers when he initially fled. In fact, the attempted escape was captured on closed-circuit videotape and time-lapse still photographs of the events were entered into evidence. However, the physical altercation between defendant and the police officers after he encountered the locked door was not shown on the video. The accounts of the events expressed by defendant and the police diverge.

Marswillo testified:

I was right behind [defendant]. At that time I grabbed him and we ended up on the ground . . . . [Defendant] was flailing trying to get through the door and away from me, and at some point we both ended up on the ground.

. . . .

When we ended up at the ground [and] Officer Casey and Officer Opaleski came to assist me, [defendant's] head is facing towards the door into the hallway[.] His feet are facing back towards the cell block to the unsecure[d] door from the direction in which he came. I have him [ ] with an arm at one point. Officer[s] Casey and [ ] Opaleski come in. I'm not sure. I know they come in and say stop resisting, place your hands behind your back, but I don't have a visual on what they're doing with his feet. I know someone said something to the effect of stop kicking and stop resisting was repeated over and over. As I'm trying to gain control of [defendant's] hand, he rolls over onto both of his arms so we cannot grab his arms.

. . . .

I [then] have [defendant] about the shoulder and I'm trying to get him to roll back. So I can reach underneath him, grab one of his arms and gain control of him again.

Casey largely confirmed this account, stating that after defendant and Marswillo fell to the floor

you could see [defendant] was flailing his arms, his legs were kicking and Officer Marswillo at the same time . . . was trying to gain control of his arms and attempt to put cuffs on him.

. . . .

I tried to [ ] get in there and get a hold of his wrists so that we could handcuff his hands behind his back . . . . At that point we weren't [successful]. We were still basically having trouble getting the cuffs on him. [L]ike I said, he was flailing his arms, kicking his legs. At one point I received a foot [ ] near my groin area, my right leg[.]

Defendant testified in his own behalf, stating:

I stopped my attempt and put my hands on my head and . . . started to kneel down. But I never got to kneel down voluntarily because the officers was [sic] right behind me and as I was kneeling down one of the officers slammed me into the corner.

. . . .

As I was on the floor as in the officers' statements, they said one officer was in front of me and one was on the side . . . and [Marswillo], he had his knee into my neck so I couldn't breathe, and as they was yelling stop resisting, since I couldn't breathe, I was trying to I had my hands like this trying to move knees off of my neck to yell I'm not resisting. But since I couldn't breathe I was kicking my feet like [ ] if you can't swim [and] you get thrown in the pool you fight [ ] to try and get out so you can breathe. So that's basically what I was doing.

After a "prolonged struggle" involving five police officers, defendant was subdued and leg shackles were applied. The officers placed defendant in a patrol car for transport to the county jail.

Once in the car, defendant complained of shoulder pain and stated he had passed out briefly during the altercation and felt "tingly" upon awaking. Departmental policy dictated defendant be taken to the Robert Wood Johnson hospital where he was examined by doctors in the pediatric unit. At the hospital, defendant was "using profanities, cursing, yelling and basically disrupting operations, thereby drawing attention to himself." While waiting for an x-ray, defendant voluntarily made several statements to the officers regarding the events at police headquarters. Some of these statements were admitted at trial; others were excluded after a pre-trial hearing. Defendant admitted he "was already contemplating how he was going to get away from [police] as the cell block door was opening" and "was actually contemplating whether he should take a punch at [police to get] a better jump." Also, he stated he "would rather have not been wearing his [shoelace-less] sneakers so he would have been able to run a little quicker" and that he "would have gotten away if it wasn't for the locked door."

A contusion in defendant's left shoulder was treated and he was discharged. Defendant was returned to the county jail, charged with the disorderly persons offense and later indicted for the second-degree offense.

II.

A.

Beginning early in the proceedings, defendant challenged the gradation of the charged offense. In his first point on appeal, he argues his motion to dismiss the indictment, bottomed on the State's failure to present evidence suggesting force was used to "effect the escape," as required by N.J.S.A. 2C:29-5(e),

was erroneously denied. We easily dispose of this contention. In reviewing a defendant's motion to dismiss an indictment, a trial court must give the State the benefit of all reasonable inferences. State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984). An indictment need only "allege facts supporting every element of [the] crime [charged]." Pressler, Current N.J. Court Rules, comment 4.3.1 on R. 3:10-2 (2010); State v. Vasky, 218 N.J. Super. 487, 491 (App. Div. 1987). It should be dismissed only on the "clearest and plainest ground" and stand unless "palpably defective." New Jersey Trade Waste Ass'n, supra, 96 N.J. at 18-19 (internal quotations omitted).

Opaleski's grand jury testimony included that defendant "kicked him several times [and] wrestled [with] and resisted the officers" who were trying to subdue him as he tried "to get out of the door." At this stage in the proceedings, defendant's attack on the officers' credibility is of no consequence. Opaleski's statements provide a sufficient factual basis to overcome defendant's challenge. Vasky, supra, 218 N.J. Super. at 491.

B.

Several points raised by defendant challenge various evidential rulings made during trial. A trial judge's decision to admit or exclude certain evidence is reviewed under an "abuse of discretion" standard. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999) (citing State v. Erazo, 126 N.J. 112, 131 (1991)), certif. denied, 163 N.J. 79 (2000). We give "substantial deference to a trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001).

First, defendant challenges the admission into evidence, following an N.J.R.E. 104(c) hearing, of his statements made while in police custody at the hospital prior to being Mirandized. He argues the probative value of these alleged admissions was outweighed by their prejudicial effect, N.J.R.E. 403, particularly in light of his concession to the underlying offense and since they do not support the element of force.

The trial judge allowed the introduction of defendant's statements relating to the escape but excluded, as prejudicial, several threats he made to Casey and Marswillo. She determined that "it d[id] not appear that the comments were provoked or that [defendant] was responding to anything initiated by the officers." See State v. Burris, 145 N.J. 509, 534-35 (1996). Moreover defendant's statements were found to "go directly to the act that he's alleged to have just committed." Ibid. We agree.

Defendant's statements support the statutory element of intent, which requires the State to prove defendant acted "knowingly." See Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:29-5 (2009) (requiring that "knowingly" be applied, pursuant to N.J.S.A. 2C:2-2(c)(3), as the statute does not specify a mental state). A person acts "knowingly" with respect to the nature of his conduct "if he is aware that his conduct is of that nature." N.J.S.A. 2C:2-2(b)(2).

We determine the probative value of the evidence outweighs any undue prejudice to defendant. Consequently, we discern no error in Judge Marino's exercised discretion to admit defendant's voluntary spontaneous statements.

Next, defendant argues the court erred in permitting Opaleski to testify "the police were looking for defendant prior to the events which were the subject of the trial."

On direct examination, Opaleski was asked whether the domestic disturbance call received on the night in question involved a particular individual. He responded affirmatively and named defendant. After an in-court identification of defendant, Opaleski was asked whether he was familiar with defendant, to which an objection ensued. The court properly overruled the objection, determining Opaleski's knowledge supported his recognition of defendant that evening. Additional questions were posed regarding the night's events. Opaleski then was asked whether he had "done any type of warrant check on [defendant]." No objection was lodged and Opaleski responded affirmatively, stating he learned defendant had "four outstanding warrants issued for his arrest." Defendant now asserts Opaleski's response did not go to identity and the information was unduly prejudicial.

The State argues the testimony regarding related events was necessary factual information leading up to and explaining why defendant was in custody at the time he attempted to escape.

Following our review of the record as a whole, we conclude any error was harmless. We agree the fact that warrants were outstanding explained why defendant was in custody; however, Opaleski's statement was not relevant to any issue in dispute and, therefore, was better left unsaid.

Nevertheless, in reviewing the record, we note the comment was fleeting in the course of the three-day trial, and the State never again commented on defendant's warrant status or the nature of the offenses for which he was subject to arrest. When considering the overall record, the statement was inconsequential in determining defendant's guilt. See State v. Childs, 204 N.J. Super. 639, 652 (App. Div. 1985), certif. denied, 104 N.J. 430 (1986). Further, the court provided a very strong jury instruction limiting the use of the evidence. The trial judge stated the evidence was offered

for the narrow purpose of establishing that defendant was subject to official detention. You must not speculate as to the reasons why. You may not infer from this evidence that a defendant has a tendency to commit crimes or that he's a bad person. You may not decide that just because a defendant is in official detention he must be guilty of the offenses charged in this indictment. The State's evidence is offered only to show that the defendant was in official detention and may be used for no other purpose.

The court's instructions were unambiguous on the use of the evidence resulting in defendant's custodial status. We trust that the jury followed these instructions. State v. Short, 131 N.J. 47, 65 (1993) (O'Hern, J., concurring in part, dissenting in part).

Guided by the plain error standard, we conclude the complained-of error was not "clearly capable of producing an unjust result." R. 2:10-2. Reversal is unwarranted.

For the first time on appeal, defendant challenges the State's introduction of a compact disc containing still images from the closed circuit video system at Franklin Township police headquarters depicting his initial flight. Defendant argues the disc was not properly authenticated, N.J.R.E. 901, and the series of photographs did not properly depict what actually occurred because the State failed to clearly explain the time intervals between each still photograph.

We conclude defendant's contention lacks sufficient merit to warrant inclusion in a written opinion. R. 2:11-3(e)(2).

Finally, defendant maintains the court disregarded its obligation to protect defendant's Sixth Amendment right of confrontation by allowing the prosecutor to interrupt the cross-examination and then permitting Marswillo to interject unnecessary commentary, rather than providing an answer. For context, we provide the exchange.

[DEFENSE COUNSEL]: Okay. So he didn't start flailing his arms until you guys reached the door?

[Marswillo]: He's trying to pull away and as we get down to the floor, yeah, he would be flailing his arms at that point.

Q: And when you say he was pulling away, was he pulling away and reaching for the door?

A: He was pulling away. He wasn't once he stopped going for the door when I grabbed on to him he was no longer going for the door.

Q: Okay. That is fine.

A: Then he was trying to pull away.

Q: That is fine.

A: Okay.

[PROSECUTOR]: Your Honor, the witness is trying to finish answering. This is like the third or fourth time.

THE COURT: Okay. Let him finish his answer.

[DEFENSE COUNSEL]: Judge

[PROSECUTOR]: The witness should be entitled to answer the question[,] not be cut off.

. . . .

[DEFENSE COUNSEL]: Judge, that is fine. My only issue was that sometimes when I ask the question [the answers] go far beyond what the question is calling for. So if the witness could just limit his answer to the question.

THE COURT: All right. But what was [c]ould you read back what his answer was, please?

[THE ANSWER IS READ BACK].

Was there more to your answer, sir?

[Marswillo]: Yes, your Honor. Well, I'm now I'm kind I kind of got lost track because as she had asking the questions [sic]. If I'm not giving a complete answer I am not giving a complete testimony. If you're only getting the part of the story it is not fair to [defendant] or myself because you are not getting the full story.

THE COURT: All right. But you don't recall what the [ ] rest of your answer was in that particular instance?

A: No.

THE COURT: Okay. Go on.

We find nothing improper about the court's handling of the State's objection. Defendant identifies no authority to support the principle posited, that the State improperly objected during Marswillo's cross-examination and should have saved its comments for redirect. Moreover, following the colloquy, counsel completed Marswillo's cross-examination without interruption. We perceive no impingement of defendant's constitutional rights.

C.

At the close of the State's case, defendant moved for acquittal pursuant to Rule 3:18-1, reasserting that the State failed to prove beyond a reasonable doubt he used physical force to effectuate his escape. Based on defendant's theory, he attempted to escape, then surrendered upon encountering the locked door by placing his hands above his head and beginning to kneel down. The subsequent struggle with the officers resulted because they interposed unnecessary force. Characterizing his struggle as "resisting," defendant sought to delineate these as two separate events.

The State viewed the events on a continuum: the attempt to escape ended when defendant was handcuffed. Although defendant was trapped as he encountered the locked door, he was not re-secured, a circumstance delayed by his kicking and struggling.

In denying the motion, Judge Marino considered whether the evidence supported the charged second-degree offense and found:

The jury charge defines force which is any degree of physical power, strength used against another person even though it entails no pain or bodily harm and leaves no mark. So it is a very, very, broad description of what force is.

Here[,] the testimony has been that certainly defendant didn't punch anybody, he didn't hit anybody, he didn't in the sense of hitting them in the head or doing anything else to them. . . . All three of the officers who were there at that scene testified similarly that he was flailing his arms and his legs and there was some struggle, if you will. So I certainly think that's enough to make it a jury question[.]

A motion to acquit pursuant to Rule 3:18-1 is reviewed by this court using the same standard applied by the trial judge. State v. Moffa, 42 N.J. 258, 263 (1964). That is, whether "viewing the State's evidence in its entirety, be that evidence direct or circumstantial," and giving the State the benefit of all rational inferences, "a reasonable jury could find guilt . . . beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).

The trial judge properly recognized that the question of whether defendant's conduct was continuous or two separate events was a factual one for the jury's determination. Giving the State all favorable inferences, the motion for acquittal was properly denied.

D.

Defendant also asserts the effect of improper remarks by the prosecutor during summation warrants a new trial. Our review is guided by the following standards.

Summations, like jury instructions, must be read as a whole. See Morton, supra, 155 N.J. at 416; State v. Wilbely, 63 N.J. 420, 422 (1973). A summation cannot be evaluated in isolation because the State is permitted to respond to allegations made by defense counsel. State v. Darrian, 255 N.J. Super. 435, 454-55 (App. Div.), certif. denied, 130 N.J. 13 (1992); State v. Engel, 249 N.J. Super. 336, 379-80 (App. Div.), certif. denied, 130 N.J. 393 (1991).

Prosecutors are given "considerable leeway" in summarizing their case to the jury. State v. Smith, 167 N.J. 158, 177 (2001). "Indeed, prosecutors . . . are expected to make vigorous and forceful closing arguments to juries." State v. Frost, 158 N.J. 76, 82 (1999). However, "[t]he primary duty of a prosecutor is not to obtain convictions, but to see that justice is done." State v. Ramseur, 106 N.J. 123, 320 (1987). To that end, prosecutors may not "make inaccurate legal or factual assertions" and must "confine their comments to evidence revealed during the trial and reasonable inferences" that can be drawn from the evidence. Smith, supra, 167 N.J. at 178.

In pursuing this inquiry, we "must take into account the tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993). While the prosecutor may make remarks that constitute legitimate inferences from record facts, State v. Perry, 65 N.J. 45, 47-48 (1974), he or she may not go beyond the evidence presented to the jury, State v. Farrell, 61 N.J. 99, 103 (1972), nor launch an unfair attack on defense counsel. State v. Sherman, 230 N.J. Super. 10, 15-19 (App. Div. 1988).

We will reverse a conviction and order a new trial if we find the prosecutor's failure to confine his or her summation to appropriate comments was "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83. The Court in Smith, supra, explained to rise to the level of plain or reversible error and to

warrant a new trial[,] the prosecutor's conduct must have been "'clearly and unmistakably improper,' and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense." State v. Timmendequas, 161 N.J. 515, 575 (1999). In determining whether a prosecutor's actions were sufficiently egregious to warrant the reversal of a conviction, a reviewing court should take into account: (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them.

[167 N.J. at 181-82.]

"Generally, if counsel did not object [to the remarks], the remarks will not be deemed prejudicial." State v. Josephs, 174 N.J. 44, 124 (2002). An exception exists if the remarks create plain error such that the conduct was "so egregious that it deprived the defendant of a fair trial." Frost, supra, 158 N.J. at 83; State v. Loftin, 146 N.J. 295, 386 (1996); Ramseur, supra, 106 N.J. at 322; R. 2:10-2.

Measured by these standards, we find instances where the State's remarks were better left unsaid. However, when considering the closings as a whole, we do not find the challenged remarks, either singly or collectively, warrant a new trial.

1.

Defendant first challenges the prosecutor's comment on his testimony, which defendant suggests implicates he was a liar. Upon defendant's objection a side-bar followed. This is the identified colloquy:

[PROSECUTOR]: [T]hat's what you had here, ladies and gentlemen, when the defendant testified. He gave you a series of falsehoods and when you find that a defendant has intentionally testified with an intent to deceive you as -

[DEFENSE COUNSEL]: Judge, I would object. Side-bar.

THE COURT: Yes.

[PROSECUTOR]: Am I saying it wrong?

(A discussion is held at side-bar as follows.)

[DEFENSE COUNSEL]: I think this is a slight mischaracterization of the evidence. I don't believe that there was anything proven that he [ ] lied.

[PROSECUTOR]: I will prove that. That's for the jury to determine that.

THE COURT: It is a jury determination but I'll tell you what [ ] I noted. You said when you find a defendant. I mean it goes for any witness.

[PROSECUTOR]: I'll read it right from the proposed charge . . . . That way I don't make any mistakes.

THE COURT: Okay.

Thereafter, the prosecutor changed direction and discussed the anticipated jury charge regarding inferences from false testimony and the "material falsehoods" he proposed defendant had uttered.

Although no corrective instruction was given, none was requested as it appears defense counsel was satisfied by the prosecutor's correction of the prior errant statements. The versions of the facts differed between the police and defendant and credibility was undoubtedly a key consideration for the jury in reaching its verdict. We conclude the error was harmless under the circumstances presented.

2.

This comment, made at the beginning of the prosecutor's summation, is also challenged:

If ever a contradictory statement has ever been uttered during the course of a summation in a court of law it was uttered during [defense counsel's] summation over and over again. And it went as follows. He had given up. But he was just resisting. He had given up. He was just resisting. Ladies and gentlemen, if you are resisting you have not given up.

In defendant's view, this comment not only misstated the law but also characterized defense counsel in a negative light. See Sherman, supra, 230 N.J. Super. at 17-18. We will not condone disparaging remarks by adversaries. State v. Lockett, 249 N.J. Super. 428, 434 (App. Div.), certif. denied, 127 N.J. 553 (1991). However, in reading both closings, the prosecutor's statement immediately follows, and was in direct response to, comments repeating defendant's theory that he ended his escape and then resisted. We direct the State should have articulated its point without directly mentioning opposing counsel; nevertheless, the "criticism" denigrating the nature of the defense amounts to nothing more that a strong retort to defendant's theory of the case. See, e.g., State v. Wakefield, 190 N.J. 397, 468-69 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008); State v. Mahoney, 188 N.J. 359, 374, cert. denied, 549 U.S. 995, 127 S. Ct. 507, 166 L. Ed. 2d 368 (2006). The prosecutor's comments had been "invited" as a response to the summation offered by defense counsel and it did not unfairly prejudice defendant. Engel, supra, 249 N.J. Super. at 379.

3.

Next, defendant argues that when the prosecutor implied the events between flight and recapture were part of the escape, he misstated the law and mislead the jury. In attacking defendant's theory that he had surrendered then resisted, the prosecutor answered back, stating: "Escape is a continuing crime. It's not something that happens in an instant." The prosecutor continued, "the State never said and the officers never testified that when [defendant] . . . immediately began to run he was utilizing force in the commission of his escape . . . . But that's never been the State's contention."

Defendant now argues this comment falls outside the Model Jury Charge defining the offense of attempted escape. No objection was lodged at trial, and the comment, when read in context, is not "'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004) (quoting R. 2:10-2); State v. Macon, 57 N.J. 325, 333 (1971).

The trial testimony, crystallized in summations, made clear that the issue for the jury's deliberation was whether defendant ceased his attempt to escape when he encountered the locked door or whether his efforts continued until the police successfully handcuffed him. In addition to the testimony of three of the officers, the State introduced the video of still events taken from the security cameras.

4.

Additionally, defendant suggests the prosecutor improperly referred to matters not in evidence. While referencing a photograph of the police station hallway, the prosecutor suggested defendant may have hurt his shoulder when he hit the locked door with force, rather than when he was thrown into the wall by police. The prosecutor said:

[the] hallway isn't that wide. [Defendant's] in full spring. He hits that first door and he hits the next door and as he's running full spring and he hits that handle and he realize[s] it's locked, he is suddenly able to put on these miraculous brakes and stop himself from hitting the door. He can't do it. With all that momentum he's going he's hitting the door. Look, look at his shoulder, how close it would be to the door already. He's hitting the door. He ain't stopping. He's going right into the door. And he is banging his left shoulder. That same left shoulder that he complains of pain of.

No evidence was introduced at trial contradicting defendant's contention that his shoulder was injured while being tackled by police. Suggesting a contrary view in summation constitutes an improper reference to facts not in evidence. State v. Reddish, 181 N.J. 553, 641 (2004); Smith, supra, 167 N.J. at 178; Frost, supra, 158 N.J. at 84-85; Farrell, supra, 61 N.J. at 102; Engel, supra, 249 N.J. Super. at 381.

However, the error was harmless as it related to defendant's theory of the cause of his injury, not the charged offense. The jury was not requested to discern the cause of defendant's shoulder contusion.

5.

Lastly, defendant alleges the prosecutor, on two occasions, made comments designed to bolster the credibility of the testifying officers. We cite the passages to which defendant objects:

You had a chance to watch [Marswillo], size him up. I mean, does he look like the kind of guy that's going to - - going to sit there and take a young kid like this and put a knee to his throat? Does he really? In view of other officers? In view of potentially in view of other cameras? Three supervisors coming to the scene. Who knows [who] else, any other officers or supervisor[s] coming to the scene? Do you really think that that's what he would have done? You know, they're watched. They have supervisors. It[ ] just doesn't make sense. It's just not true the way [defendant] said it took place.

. . . .

Which basically means that if you were to believe [defendant] you would have to find that Officer Casey and Officer Marswillo lied[.] . . . Do they I mean do they look like the type of people that would come in here and swear on the Bible and lie to you? You have to assess them. Really.

And God, for God's sake, do it right. If that's what you're going to do.

No objection was made to these remarks.

"A prosecutor may argue that a witness is credible, so long as the prosecutor does not personally vouch for the witness or refer to matters outside the record as support for the witness's credibility." State v. Walden, 370 N.J. Super. 549, 560 (App. Div.) (citing State v. Scherzer, 301 N.J. Super. 363, 445 (App. Div.), certif. denied, 151 N.J. 466 (1997)), certif. denied, 182 N.J. 148 (2004). When discussing police testimony, a prosecutor may not suggest "that police witnesses are believable because of their status as policemen[.]" State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993). See Engel, supra, 249 N.J. Super. at 379 (ascertaining error in telling the jury the testifying officers were "good men who leave their family [and] work day and night" who would not "jeopardize their careers" over the defendants); State v. West, 145 N.J. Super. 226, 233-34 (App. Div. 1976) (stating it is improper for a prosecutor to state a police officer would not lie because "there is a lot of harm that could come to him"), certif. denied, 73 N.J. 67 (1977); State v. Jones, 104 N.J. Super. 57, 65 (App. Div. 1968) (concluding it is "obviously improper" to suggest police testimony is more credible merely "because the witnesses were policemen"), certif. denied, 53 N.J. 354 (1969).

In Frost, supra, the Supreme Court examined a prosecutor's improper remarks vouching for the veracity of the testifying police officers. Rebuking the defendant's allegations of police fabrication made in summation, the prosecutor asked the jury, "do you know the magnitude of the charges that could be brought against officers for such actions[?]" 158 N.J. at 81. The Court reaffirmed the confines of prosecutorial comment, labeling the State's comment "egregious."

Our courts have consistently held that such statements by a prosecutor about a police officer's credibility are wholly inappropriate. The problem with this kind of exhortation is that it unfairly invites the jury to speculate concerning whether the effect of an acquittal would be to terminate the officer's career.

[Id. at 85-86 (internal citations omitted).]

Such comments "'are improper because they divert the jurors' attention from the facts of the case before them.'" Id. at 86 (quoting Ramseur, supra, 106 N.J. at 322).

An inappropriate prosecutorial statement can only serve as a basis for reversal when the comment was so egregious that it deprived defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S. Ct. 949, 133 L. Ed. 2d 873 (1996); Ramseur, supra, 106 N.J. at 322. Thus the mere "finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" Smith, supra, 167 N.J. at 181 (quoting Frost, supra, 158 N.J. at 83). Accordingly, the prosecutor's statements must constitute a clear infraction that substantially prejudiced the defendant's fundamental right to have the jury fairly evaluate the merits of his or her defense. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996); State v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d 1160 (1958).

Here, the prosecutor's comments were not as blatant as the remarks examined in Frost. The prosecutor's comments responded to defendant's "separate resistance" theory, which implicitly attacked the police witnesses' credibility by suggesting their efforts to subdue defendant were unnecessary and excessive. The summation statements did not directly tie the officer's employment to their believability or state their job was on the line,` but the inference of such a possibility was presented. Stating the officers "were being watched" and that "they have supervisors" inappropriately interjects the weight of the witness's position in an effort to bolster credibility.

Weighing defendant's failure to object to the remarks at the time they were made against the offending conduct and the strength of the State's evidence, we cannot conclude the prosecutor's tactics "interfer[ed] with the jury's right to make the credibility determination," Frost, supra, 158 N.J. at 88, or deprived defendant of a verdict that "fairly reflected the evidence." State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420-21 (2007). Accordingly, we find insufficient basis for reversal.

III.

Defendant also argues the sentence imposed of five years incarceration, recommended to be served in a juvenile facility, with a concurrent six-month sentence for the disorderly persons offense, was excessive. We disagree.

Our review of sentencing challenges requires that we confirm the trial judge's compliance with the sentencing guidelines contained in the criminal code. This process requires: (1) "that an exercise of discretion be based on findings of fact that are grounded in competent, reasonably credible evidence"; (2) "that the factfinder apply correct legal principles in exercising its discretion"; and (3) the modification of a sentence only where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." State v. Roth, 95 N.J. 334, 363-64 (1984).

In imposing sentence, the trial judge found aggravating factor three (the risk that the defendant will commit another offense), N.J.S.A. 2C:44-1(a)(3); factor six (defendant's prior juvenile record), N.J.S.A. 2C:44-1(a)(6); and factor nine (the need to deter defendant and others from violating the law), N.J.S.A. 2C:44-1(a)(9). The judge also found, mitigating factor two (defendant did not contemplate that his conduct would cause or threaten serious harm), N.J.S.A. 2C:44-1(b)(2); and eight, (defendant is likely to respond to probationary treatment), N.J.S.A. 2C:44-1(b)(10).

Concluding these factors were in balance, the court imposed the minimum sentence for a second-degree offense. In doing so, the court denied defendant's motion to be sentenced one degree lower than the charged offense. State v. Megragel, 143 N.J. 484, 504-05 (1996). Defendant argued a lesser sentence was proper after applying an additional mitigating factor -- factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds excused or justified defendant's conduct) -- based upon the suggestion his resistance resulted from his inability to breathe. Thus, the mitigating factors would preponderate over the aggravating factors.

We discern no abuse of discretion in the trial judge's sentencing determinations, and the judge's findings are supported by the evidence. We also have no basis to interfere with the court's rejection of the asserted additional mitigating factor yielding a sentence in the third-degree range. The judge properly followed and applied the sentencing guidelines and criteria, and the sentence does not shock our judicial conscience. State v. Ghertler, 114 N.J. 383, 387-89 (1989); Roth, supra, 95 N.J. at 362-64.

 
Affirmed.

Hospital policy requires that all patients under the age of twenty be admitted to the pediatric unit.

Marswillo understood this last statement to be a question; that is, defendant asked whether he would have gotten out of the building had the security door not been locked.

N.J.S.A. 2C:29-5(a) provides that a person commits the offense of escape "if he without lawful authority removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period." The crime is a second-degree offense if the actor "employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape." N.J.S.A. 2C:29-5(e).

See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

The four statements admitted by the court are recited on page 8.

Model Jury Charge (Criminal), "Escape" (2006).

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A-0536-08T4

June 23, 2010