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December 23, 2014


Submitted September 23, 2014 Decided

Before Judges Messano and Sumners.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Indictment No. 12-04-0395.

Joseph E. Krakora, Public Defender, attorney for appellant (Michele A. Adubato, Designated Counsel, on the brief).

Sean F. Dalton, Gloucester County Prosecutor, attorney for respondent (Joseph H. Enos, Jr., Assistant Prosecutor, on the brief).


After the trial court denied his motions to suppress seizure of a handgun and a statement given to law enforcement, defendant Anthony T. Young was tried and convicted of possession of a firearm without a permit, N.J.S.A. 2C:39-5b, and fourth degree prevention or attempting to prevent a law enforcement officer from effecting an arrest, N.J.S.A. 2C:29-2a. The jury found defendant not guilty of possession of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-10a(1). Defendant appeals his conviction, raising the following points on appeal





In light of the record and applicable legal standards, we affirm defendant's conviction.


Initially, we consider defendant's contention that the trial judge erred in denying his motion to suppress the seizure of the handgun by summarizing the relevant evidence adduced at the N.J.R.E. 104 hearing1 held after the jury was selected but prior to opening statements. The State presented two witnesses, Patrolman Alexander Phillips and Sergeant George Stebich of the City of Woodbury Police Department. Defendant testified in support of his motion.

On December 2, 2011, Phillips, driving a marked police cruiser, approached the intersection of Barber Ave. and South Broad St. when he noticed two men walking across the street side-by-side against a red traffic control light causing the motor vehicle traffic to come to an abrupt halt. Phillips activated the emergency lights on his vehicle and made a u-turn to approach the men because he felt they made an improper pedestrian crossing in violation of N.J.S.A. 39:4-32. After stopping his vehicle, Phillips got out, identified himself as a police officer and told the men to come to him to talk. According to Phillips, one of the men stopped, and commented, "[m]an, he's going to get us for [j]aywalking." The other man, later identified as defendant, disregarded Phillips' command and continued to walk away. Phillips again told defendant he was a police officer and instructed defendant to stop. At this point, Phillips radioed police officer Paul,2 who had arrived in his patrol vehicle, to cut off defendant's path. Seeing Paul's vehicle, defendant ran. Phillips again told defendant to stop, this time adding that he was under arrest for obstructing his investigation. Phillips gave chase and testified that he tackled defendant to the ground. With Paul's assistance, defendant was handcuffed while on the ground, and when he was brought to his feet, fourteen small baggies of suspected cocaine were found on the ground where defendant had laid after being tackled. Phillips read defendant his Miranda3 rights and conducted a search incident to the arrest, finding a loaded handgun in defendant's right front pocket. In addition to being charged with flight to prevent the effectuation of an arrest, and unlawful possession of a handgun and cocaine, defendant was issued a municipal court summons for improper pedestrian crossing of the roadway.

On some crucial facts, defendant's testimony was consistent with the State's witnesses. He acknowledged that he crossed the street in the face of a red traffic light which caused cars to honk at him to get out of the way. However, he testified that he was not with the other man who was crossing the street at the same time as him, and he did not hear the other man make the "jaywalking" comment or Phillips' initial commands to stop. It was only until Paul's vehicle arrived that he decided to run because he feared being arrested because there were outstanding warrants for his arrest. Defendant claims he was not tackled by Phillips, but rather, his boot strap came loose causing him to trip and fall. He denied possession of the cocaine, but admitted the gun was found in his pocket.

The judge denied the motion to suppress the seizure of the gun, ruling the search did not violate defendant's constitutional rights. The judge found Phillips' testimony credible that the arrest and search incident thereto came only after defendant fled when Phillips stopped defendant based on a reasonable suspicion that defendant violated N.J.S.A. 39:4-32. We discern no reason to disturb the decision to deny defendant's motion to suppress.

It is well recognized that "[a]ppellate courts reviewing a grant or denial of a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." State v. Gamble, 218 N.J. 412, 424 (2014) (citing State v. Elders, 192 N.J. 224, 243 (2007)). We must give deference to the motion judge's findings that are substantially influenced by his opportunity to hear and see the witnesses and to have the sense of the case that we necessarily lack. Elders, supra, 192 N.J. at 244; State v. Johnson, 42 N.J. 146, 161 (1964). It is only the judge's legal conclusions that we review de novo. State v. Harris, 181 N.J. 391, 415 (2004), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005); Manalapan Realty v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). Deference is given to credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). The findings below should not be disturbed merely because our court may have reached a different conclusion. Elders, supra, 192 N.J. at 244.

In this case, defendant challenges the right of a police officer to stop him for violation of a provision of our Motor Vehicle Code when he was a pedestrian. The Fourth Amendment to the United States Constitution and Article I, paragraph 7 of the New Jersey Constitution protect citizens against "unreasonable searches and seizures." U.S. Const.amend IV; N.J. Const. art. I, 7. An investigatory stop is a "type of encounter . . . sometimes referred to as a Terry4 stop." State v. Privott, 203 N.J. 16, 25 (2010). An investigatory stop or detention is constitutional only "if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity." Elders, supra, 192 N.J. at 247 (internal quotation marks and citations omitted). The State need not prove the defendant actually committed the offense involved. State v. Williamson, 138 N.J.302, 304 (1994). Thus, an investigatory stop of a motor vehicle is lawful if the authorities have a reasonable and articulable suspicion that violations of motor vehicle or other laws have been or are being committed. State v. Carty, 170 N.J. 632, 639-40, modified on other grounds, 174 N.J.351 (2002).

We have found no New Jersey precedent specifically determining whether a pedestrian who violates a provision of our Motor Vehicle Code, such as here, crossing the roadway on a red light, can be stopped by a police officer. Although our state through the enactment of N.J.S.A. 39:5-255 authorizes both issuance of a summons and arrest for a motor vehicle violation, such a violation does not authorize a vehicular search incident to all traffic stops absent probable cause of some other criminal conduct or the occupants posed a safety threat. State v. Pierce, 136 N.J. 184, 190-93 (1994). Here, there was no arrest or search of defendant merely because of a minor traffic offense. The police officer witnessed defendant crossing the roadway in the face of a red traffic signal. Simply put, he was justified in stopping the defendant to discuss the violation, and if he chose, to issue him a summons.

In light of the right to conduct an investigatory stop, the next inquiry is whether police had the right to search defendant. Defendant admittedly fled the police out of fear of being arrested due to outstanding warrants. Although the police were unaware of the warrants, defendant's flight constituted obstruction of the administration of justice pursuant to N.J.S.A. 2C:29-1,6 which gave the police the right to pursue defendant. Our Supreme Court has held that even where there is no right to stop a defendant, a police officer's command to stop must be followed. State v. Crawley, 187 N.J. 440, 460-61, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). In Crawley, the Court stated

[A] defendant has no right to commit the crime of resisting arrest, eluding, or escape in response to an unconstitutional stop or detention. For compelling public safety reasons, the resisting arrest, eluding, and escape statutes and interpretive case law require that a defendant submit to an illegal detention and that he take his challenge to court.

[Id. at 455.]

It is equally clear a defendant must submit to a lawful detention and be subjected to questioning.

Once defendant fled, Phillips and Paul had the right to apprehend and arrest him. After defendant was apprehended and arrested, Phillips testified he saw suspected cocaine in baggies lying on the ground where defendant fell and thought the drugs were possessed by defendant. Although defendant denied he possessed any cocaine, and was subsequently found not guilty, this was an additional reason to arrest him. While performing a search incident to the arrest, Phillips found a handgun in defendant's front right pocket. See State v. Dangerfield 171 N.J. 446, 455-56 (2001)(a search incident to lawful arrest is an exception to the requirement of a search warrant where there is probable cause to arrest).

The judge weighed the witnesses' testimony, and credited the police officers' version. We discern no basis in the record to disagree with the judge's credibility and legal determinations. In sum, we conclude that defendant's attempt to flee a police officer's lawful command constituted obstruction of justice resulting in a lawful arrest and the seizure of a handgun which did not violate defendant's constitutional rights.


Defendant contends that the judge erred in denying his two motions for mistrial. The first motion stemmed from the prosecutor's opening remarks, in which he told the jury that Phillips heard the other man crossing the street with defendant state they were being stopped for jaywalking. Defense counsel made no contemporaneous objection, but after the prosecutor finished, and out of the jury's presence, defense counsel objected to the comment as inadmissible hearsay. The judge did not find the prosecutor's comment prejudicial and refused to strike it from the record, but he did indicate that his ruling did not apply to the admissibility of the statement should a witness provide such testimony at trial. The judge furthered indicated that if the State wanted to elicit the testimony, a sidebar conference would be held to discuss it's admissibility before it was proffered to the jury.

Following a break, and without a prior sidebar, Phillips testified, that the man made the jaywalking comment. The examination was as follows

[Phillips]: I was forced to abruptly come to a stop, as there were two unidentified pedestrians improperly crossing against the signal.

[Prosecutor]: So what did you do?

[Phillips]: I slammed on my brakes and came to an abrupt halt. After the individuals passed, I activated my emergency lights so I could safely make a U-turn and make contact with the males. I pulled my vehicle to the now west side of the street and exited my vehicle.

[Prosecutor]: For what purpose?

[Phillips]: To enforce the Title 39 violation that happened right in front of me.

[Prosecutor]: So what did you do?

[Phillips]: I exited my patrol vehicle with my emergency lights still activated and made contact with the two males.

[Prosecutor]: Now, describe that. Describe that initial contact, if you could.

[Phillips]: I believe I identified myself as the Woodbury Police and stated that I needed to talk to the two males and have them come over to me.

[Prosecutor]: Now, what was their response?

[Phillips]: I believe after I said that, the one male said; "Man, he's going to get us for Jaywalking." He stopped. The [defendant] continued to walk away and disobey my command.

[(emphasis supplied)]

Defendant's counsel did not object at that time, claiming he did not want to highlight the comment to the jury.

After Phillips and another officer testified, defense counsel made a motion for a mistrial on the basis that the statement was inadmissible hearsay and its admission denied defendant a fair trial. The prosecutor stated he did not intend to have Phillips testify what the man said but argued the statement was admissible a present sense impression, N.J.R.E. 803(c)(1). After initially agreeing with the State, the judge ruled the statement was not admissible and he directed the jury to disregard it by stating the jaywalking comment,

[is] an out of court statement and it really doesn't have any relevance to this matter, so although you remember it and I just told you about it again, you're to disregard it.

It's like unringing a bell but please do it. It -- and I know you can do that. Please don't consider it for any other purpose at all with regard to this matter. It's not relevant to this case.

So although it was stated, I think [the prosecutor] may have referenced it in his opening, but disregard it. Put it out of your minds. Don't use it for any reason with regard to this matter.

Everyone understand? All right.

Defendant contends that despite the trial judge's curative instructions, his right to a fair trial was denied by the prosecutor's opening statement and Phillips' testimony regarding the jaywalking comment. Specifically, he asserts that the comment and testimony sought to legitimize police conduct to stop and then search defendant. Additionally, defendant argues the prejudicial error was compounded by the State's elicitation of Phillips' testimony after an objection was made following the State's opening remarks. We are not persuaded by these arguments.

"The decision to grant or deny a mistrial is entrusted to the sound discretion of the trial court, which should grant a mistrial only to prevent an obvious failure of justice." State v. Harvey, 151 N.J.117, 205 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000) (citations omitted). Whether a prejudicial remark can be defused by a curative instruction or warrants a mistrial is left to the trial judge's competence. State v. Yough, 208 N.J. 385, 397 (2011)(quoting State v. Winter, 96 N.J. 640, 646-47 (1953)). We will not disturb a trial judge's "denial of a mistrial motion absent a 'clear showing' that 'the defendant suffered actual harm' or that the court otherwise 'abused its discretion.'" Ibid. (quoting State v. Labrutto, 114 N.J. 187, 207 (1989)). Moreover, "when inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Id. at 397-398 (citing R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002)).

When reviewing claims of prosecutorial misconduct we determine whether the misconduct occurred and, if it did, we evaluate "the severity of the misconduct and its prejudicial effect on the defendant's right to a fair trial." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). In assessing the impact of prosecutorial misconduct, we "consider the tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." Timmendequas, supra, 161 N.J. at 575. When making opening statements, "prosecutors should limit comments . . . to the facts [they] intend[] in good faith to prove by competent evidence[.]" Id. at 360 (alterations in original) (internal quotation marks omitted). Because "[t]he purpose of a prosecutor's opening statement is to present to the jury an outline or summary of what the State expects to prove[,] [p]rosecutors should limit themselves in their openings to what they will prove and not 'anticipate' their 'final argument.'" State v. W.L., 292 N.J. Super 100, 108 (App. Div. 1996) (quoting State v. Ernst, 32 N.J. 567, 577 (1960), cert. denied, 364 U.S. 943, 81 S. Ct. 464, 5 L. Ed. 2d 374 (1961)). Prosecutors are prohibited from suggesting in their opening statements that they know of reasons beyond the evidence why the jury should reach a certain verdict. See State v. Wakefield, 190 N.J. 397, 438-40 (2007).

We agree with the trial judge that the comment should not have been made. Nonetheless, we do not find the prosecutor's comment was inflammatory and so egregious that defendant was denied a fair trial. In previewing the trial testimony, the prosecutor appropriately laid out for the jury what he expected to prove. He merely tried to illustrate that defendant fled the scene knowing Phillips wanted to talk to him about the manner in which he and the other man crossed the street. The judge's decision to direct the jury not to consider the statement because it was not relevant was an appropriate exercise of his discretion. Moreover, the trial court directly informed the jury during the preliminary instructions that the attorney's comments were not evidence, thus serving as a timely and effective limiting instruction. Id. at 440. The jury is presumed to have followed the court's instructions. State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ____ U.S. ___ , 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013). Therefore, the prosecutor's comment did not prejudice defendant in a manner that denied him a fair trial.

Likewise, Phillips' testimony did not deny defendant a fair trial. The jury was directed to disregard the statement because it was not relevant to its decision. We presume the directive was followed. Ibid. Given the trial court's firsthand observation of the direct examination and hearing the tenor of the prosecutor's explanation that he did not expect Phillips to repeat the man's jaywalking comment, we accept the judge's view that the elicited testimony was an innocent mistake, not a ploy by the State to infect the trial with inadmissible evidence to bring about a guilty verdict in an unfair manner. We therefore conclude the decision to deny defendant's mistrial motion should not be disturbed.

The second request for a mistrial is based upon the prosecutor's summation comment regarding defendant's post-arrest silence. We briefly summarize the sequence of events leading up to the motion and the relevant evidence adduced at trial.

The prosecutor's comment relates to the trial testimony of Stebich, who assisted in defendant's arrest and transported him to the police station. Stebich testified that after defendant was arrested and was given his Miranda rights, defendant continued to talk while en route to the police station, and despite Stebich's admonishment to him to stop talking, he stated, "I'll take the gun charge but the drugs aren't mine. I ain't no dealer." Defendant did not testify at trial.

In his closing remarks, after summarizing the stop, arrest, and search of defendant, and pointing out the State proved that defendant did not have a gun permit, the prosecutor commented that "nowhere in [defendant's] statement to Sergeant Stebich did the [d]efendant say, oh, I have authorization to carry this gun. I have a permit to carry this gun."

Immediately after the prosecutor's summation was complete, defense counsel requested a sidebar conference. He made a motion for a mistrial or, in the alternative, to have the prosecutor's comment stricken from the record on the basis that it violated defendant's right to remain silent. The judge agreed that the comment was improper but felt it did not warrant a mistrial. Instead, the judge told the jury to disregard the comment, when he stated

Okay. Ladies and gentlemen, one thing was mentioned in the closing, [the Prosecutor's] closing, about his commenting on what the [d]efendant allegedly said to Sergeant Stebich.

And he said he did not make any mention that he had a permit. You're to disregard that statement. I'll instruct you as to the burden of proof and what this -- what the elements of the crime are, and the State always has the burden of proof. The [d]efendant doesn't have to do anything.

So I'll ask you to disregard that comment. I've told you before and I'll instruct you again about un-ringing of a bell. Just forget it. Don't use it for any purpose, in any manner.

Defendant contends he is entitled to a new trial because his federal constitutional and state law rights to remain silent were violated when the prosecutor told the jury that he did not say he had a gun permit. He further argues that the violation was not remedied by the court's curative instruction. We disagree.

A defendant has the right to remain silent and not incriminate himself. U.S. Const. amend. V; N.J.S.A. 2A:84A-19; N.J.R.E. 503; see 212 N.J. 37 (2012); State v. Muhammad, 182 N.J. 551, 567 (2005). A prosecutor may not comment on a defendant's silence at or near the time of arrest, to impugn the defendant's credibility or to create an inference that the defendant is guilty of the substantive offenses charged. State v. Stas, 212 N.J. 37, 53-54; Muhammad, supra, 182 N.J. 551, 567-69. To do so would penalize a defendant for invoking a constitutional right. Ibid. However, where a prosecutor's comment is a brief harmless transgression and did not affect the outcome of the case, a new trial is not warranted. State v. Elkwisni, 190 N.J. 169, 181 (2006).

In this case, the prosecutor's comment was fleeting and surgically limited to undisputed proofs - defendant possessed a gun and did not have a permit to do so. While in police custody, and after being advised of his right to remain silent, defendant gave an unsolicited confession that the gun was his. The prosecutor's comment did not suggest that the jury should infer defendant's guilt because he exercised his right to remain silent. Simply put, the comment was harmless.

Moreover, the judge's curative instruction to the jury to disregard the comment was sufficiently prophylactic to insure defendant had a fair trial. Given these facts and circumstances, we discern no abuse of discretion in the trial court's decision to deny defendant's mistrial motion or that defendant suffered any actual harm from the complained of comment.


1 The hearing also included testimony relevant to defendant's motion to suppress his statement admitting to possessing the gun but not the drugs. Since there is no appeal of the denial of that motion, we will not review that testimony.

2 The record does not mention his first name.

3 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L.Ed 2d

694 (1966).

4 Terry v Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968).

5 A law enforcement officer is authorized by statute to arrest, without a warrant, a person "violating in his presence . . . any provision of chapter 3" or "chapter 4" of Title 39. N.J.S.A. 39:5-25.

6 N.J.S.A. 2C:29-1(a), Obstructing Administration of Law or Other Governmental Function, provides in pertinent part, "[a] person commits an offense if he purposely obstructs, impairs or perverts the administration of law or other governmental function or prevents or attempts to prevent a public servant from lawfully performing an official function by means of flight, intimidation, force, violence, or physical interference or obstacle, or by means of any independently unlawful act."