STATE OF NEW JERSEY v. MICHAEL S. HATTER

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2253-04T42253-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL S. HATTER,

Defendant-Appellant.

________________________________________________

 

Submitted January 11, 2006 - Decided

Before Judges Stern and Parker.

On appeal from the Superior Court of New

Jersey, Law Division, Bergen County,

Indictment No. 03-06-1281.

Yvonne Smith Segars, Public Defender, attorney

for appellant (Steven M. Gilson, Designated

Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor,

attorney for respondent (Annmarie Cozzi,

Assistant Prosecutor, of counsel and on the

brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried to a jury, defendant was convicted of second-degree eluding, N.J.S.A. 2C:29-2b, and third-degree resisting arrest, N.J.S.A. 2C:29-2a(3)(a). He was sentenced to concurrent presumptive terms, aggregating seven years in the custody of the Commissioner of Corrections, and was ordered to pay mandatory assessments.

The evidence against defendant includes the following. On March 4, 2003, while patrolling "a couple of the industrial areas" of the Borough of Waldwick in his "patrol car," at about 12:20 a.m., Officer Douglas Moore pulled into the Hamilton Square parking lot and noticed an SUV parked behind a manufacturing plant in an adjacent parking lot. As the manufacturing plant was "normally closed and vacated" at that time and "two of the doors [of the SUV] were open," Moore suspected an ongoing burglary. He called for a backup unit, pulled into the adjacent parking lot, and parked his vehicle "out of sight" from the SUV. He exited the police car and walked to a location from which he could observe what was happening. He was "in full uniform" and wearing a badge. There were lights on in the building and "there were street lights spread throughout the . . . parking lot."

Moore "radioed to Headquarters and requested a look-up" of the SUV's license plate, and was advised that the SUV, which he could tell was a Ford Explorer, was registered "to a female party residing in Mahwah."

In the interim, Officer John Marion arrived on the scene "in a marked black and white patrol vehicle." He was also in uniform and wearing a badge. The officers observed that the doors had been closed and there was a "continual flame" inside the vehicle, which had "no lights on." Then the flame went out and the vehicle began to "roll[] backwards." Moore walked towards the vehicle to investigate. Then the ignition started and the vehicle "turned towards" Moore, who shined his flashlight on himself so the driver "could see that [he] was a -- police officer" and yelled "[s]top the vehicle. Stop the vehicle." The driver side window was open, and "the driver yelled something back," but kept on going toward Officer Marion, who was also carrying a flashlight. Marion yelled and signaled for the SUV to stop. He heard the driver shouting out the open window, "I was just smoking something" as the Explorer accelerated and approached him. The driver "grabbed" Marion's left hand through the open window and "carried" Marion alongside the car. Marion "eventually" broke free, and the Explorer exited the parking lot and "made a left-hand turn north onto Franklin Turnpike."

The officers pursued defendant in their cars with sirens and lights activated. Defendant drove into a dead-end cul-de-sac and then back at the pursuing officers, who had to maneuver to avoid a collision, as defendant "drove his vehicle right at [Marion's] patrol car" and then "off a snow bank, through a yard . . . [and] back on the road," where he continued north on Franklin Turnpike.

The SUV traveled "north into Allendale" at speeds of "at least 60 miles an hour," and "made a very abrupt right turn" onto Homewood Avenue, a "dead end" street. Defendant drove over the curb "onto a grassy area into a wooded area," and "came to rest right next to a culvert . . . in the woods." Thereupon, defendant "jumped out of the car and . . . began to run." The officers chased defendant while "yelling" for him to stop. Defendant "jumped over a fence," but the officers finally caught up with him. At that point, defendant "turned around" with "something in his hand." Defendant "approached" and "struck" Officer Marion before being "wrestle[d] . . . to the ground," after a struggle during which a sergeant "arrived on the scene"

and helped to handcuff the defendant.

Before us, defendant argues:

I. THE PROSECUTOR'S VOUCHING FOR THE CREDIBILITY

OF THE POLICE OFFICERS CONSTITUTES REVERSIBLE

ERROR

II. DEFENDANT'S SENTENCE WAS EXCESSIVE AND MUST

BE VACATED BECAUSE N.J.S.A. 2C:44-1(a)(8),

THAT THE CRIMES WERE COMMITTED AGAINST THE

POLICE, WAS DOUBLE-COUNTED AS AN AGGRAVATING

FACTOR. (Not Raised Below)

In a pro se supplemental brief, defendant also argues:

POINT I PROSECUTOR COMMITTED REVERSIBLE ERROR

BY LEADING SECOND WITNESS (POLICE

OFFICER JOHN MARION) DURING THE TRIAL

PROCEEDINGS.

POINT II FORCING DEFENDANT TO WEAR COUNTY JAIL ID

BRACELET DENIED DEFENDANT HIS CONSTITUTIONAL

RIGHT TO A FAIR TRIAL.

POINT III TRIAL COURT ERRED IN CHARGING JURY THUS

DENYING DEFENDANT 6TH AND 14TH AMENDMENT

RIGHTS TO DUE PROCESS AND A FAIR TRIAL

RESPECTIVELY.

Our careful review of the record reveals that these arguments are clearly without merit and warrant only the following discussion in a written opinion. R. 2:11-3(e)(2). Defendant does not point to anything in the record with respect to the bracelet or any issue with respect thereto.

Defendant claims that at the outset of the prosecutor's summation, she vouched for the officers' credibility by stating:

Officer Moore and Officer Marion are good officers. And, you heard them and you heard them testify, and we're here today because they were doing their job. They're patrol officers and they were investigating a scene. There's no mistake, there's no misunderstanding of what occurred. They told you what happened and they told you very credibly, very honestly, they told you exactly what occurred on March 4th, 2003.

At the conclusion of the summation, defense counsel objected that the prosecutor "vouched for the credibility of the Officers by saying that they were good and they did their job and that seems very improper for her to vouch for the credibility of these officers when she's not really allowed to do that, Judge." Although the judge noted that defendant had not made a timely objection, he sustained the objection and indicated that he would "caution the jury" in his final instruc- tion that they were to "judge the credibility of the . . . Officers" and that counsel's remarks were "not to affect their judgment." At the outset the next morning, in his instructions to the jury, the judge told the jurors that he had "sustained" an objection about an attorney's comments concerning "the credibility of a witness," which was for the jury "to judge

. . . so if you decide that a witness' testimony isn't credible it really doesn't matter what the attorneys say in a summation or in an opening." He continued:

If you remember anything that may have been said i[n] the summation about vouching for the credibility of a witness, it's not something that you need to consider and I want you to ignore it and basically decide on your own . . . where the truth lies in the case.

Both attorneys expressly indicated satisfaction with these instructions. Moreover, the judge gave the model charge explaining that what the attorneys say is not evidence, and that it is for the jury to determine credibility.

We find no reversible error, particularly because the prosecutor was responding to defense counsel's attack on the officers' credibility, which constituted the essence of defense counsel's summation, as defendant presented no evidence in his defense. Defense counsel stated that officers "forget, they make mistakes, they lie, and they exaggerate [a]nd, in this case, regarding this individual, that's what these Officers did." Moreover, the police tapes during the events as they were unfolding were played for the jury. Therefore, the prosecutor's comment could not have affected the result. See State v. Frost, 158 N.J. 76, 83 (1999).

 
Finally, we note that the trial judge should not have considered the fact that the offenses were "committed against law enforcement officers in the performance of their duties" as an aggravating factor in light of the elements of the crimes for which defendant was convicted. See N.J.S.A. 2C:44-1(a)(8). Nevertheless, as there is no dispute that these offenses constituted defendant's "fourth indictable conviction," we find no basis for disturbing the concurrent presumptive terms.

Affirmed.

He was found not guilty of aggravated assault upon the pursuing officers.

(continued)

(continued)

7

A-2253-04T4

January 30, 2006

30,

 


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