STATE OF NEW JERSEY,

 

Plaintiff -Respondent,

 

V.

 

JESUS ATURO COLON,

 

Defendant-Appellant.

 

____________________________

 

 

Submitted January 27, 2009 – Decided

 

Before Judges Parker and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-01099-I.

 

Robert J. De Groot, attorney for appellant.

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Tried to a jury on April 10, 2007, defendant was convicted of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); and second-degree aggravated assault, causing serious bodily injury while fleeing, N.J.S.A. 2C:12-1(b)(6). On July 13, 2007, defendant was sentenced to two concurrent ten-year terms with an eighty-five percent parole ineligibility period on the second count.

On appeal, defendant raises the following issues for our consideration:

1. Defendant’s Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1 Par. 1 of the New Jersey Constitution was violated by the Prosecutor’s Misconduct. [Not Raised Below]

 

a. The Prosecutor’s summation expressing his belief that [Officer] Fidalgo testified credibly substantially prejudiced Defendant’s fundamental right to have the jury fairly evaluate the merits of his defense.

 

b. The Prosecutor’s summation implicitly expressing his belief that Defendant’s Witness was not credible substantially prejudiced [D]efendant’s fundamental right to have the jury fairly evaluate the merits of his defense.

 

2. Because The Jury Was Permitted To Infer That Defendant’s Conduct Created A “Risk Of Death Or Injury” If It Determined That His Conduct Violated Any of The Motor Vehicle Offenses Set Forth In Chapter 4 of Title 39, And Such Risk Is An Element Of The Second Degree Crime of Eluding, The Trial Court Committed Reversible Error When It Failed To Define And Delimit The Underlying Motor Vehicle Offenses. [Not Raised Below]

 

Having considered defendant’s contentions in light of the record and the applicable law, we affirm.

The trial evidence may be summarized as follows. Officer Paulo Fidalgo, of the Elizabeth Police Department, testified that on September 1, 2006, just after midnight, he and his partner, Officer Jean-Marie, were patrolling downtown Elizabeth in a marked police vehicle. While stopped at an intersection, Fidalgo “observed a vehicle cross [their] intersection at a high rate of speed.” Fidalgo was able to see the driver whom he described as a “[p]ossible Hispanic male with facial hair.”

Fidalgo and his partner pursued the vehicle and activated their lights after the vehicle “gained speed.” The vehicle “proceeded to pick up speed,” and “ran a red light on Elizabeth Avenue . . . .” Fidalgo estimated the vehicle’s speed to be “[r]oughly[] 50 miles [per] hour,” in a thirty-five mile speed zone.

After running the red light at Elizabeth Avenue, the vehicle “veered left . . . and appeared to have lost control and . . . then went into a ditch next to a utility pole right after the drawbridge on South First Street.”

Fidalgo and his partner exited their police car and “noticed that there was [a] smoke or fire condition coming from underneath the [disabled] vehicle.” There were three occupants in the vehicle, including the driver, and the officers “drew all the passengers to safety away from the vehicle.”

The individual in the driver’s seat was identified as defendant Jesus Colon. Fidalgo testified that defendant was the only occupant of the vehicle who had facial hair. When the officers first saw him, defendant was “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.”

Defendant’s vehicle sustained “[h]eavy front end damage and had fire damage done to it.” The fire department had to be called “to gain[] entry into the front door.”

Luis Benitez, who had been a passenger in defendant’s vehicle on the night in question, testified on behalf of defendant. Benitez has known defendant “since [they] were kids[,]” and described their relationship as being “like family . . . .”

On that night, Benitez was “walking down the block . . . a little intoxicated, because it was [his] birthday,” when he saw defendant “on the street and flagged him down.” Benitez asked defendant for a ride to a club. Benitez testified that defendant was not driving the vehicle; rather, a juvenile whose name he did not know was driving. Benitez stated that defendant “came out [of] the passenger’s side . . . .” Benitez entered the rear seat behind the driver and defendant re-entered the car on the passenger’s side.

As they drove on, Benitez stated that “the juvenile ate the light and the cops jumped on us.” The police chased the vehicle for “less than 15 minutes,” and then the car “crashed into a bridge and a light pole . . . .” Benitez testified that he injured his leg as a result of the crash.

During its deliberations, the jury asked for a readback of Officer Fidalgo’s testimony “with regard to the positioning of the three people.” The jury further requested a re-instruction on the definition of aggravated assault. Shortly after receiving that re-instruction, the jury rendered its verdict.

In his first argument on appeal, defendant contends that the prosecutor improperly vouched for the credibility of the State’s witness and implied to the jury that defendant’s witness, Benitez, had lied. Defendant refers us to the following statement in the prosecutor’s summation:

Think about this. Officer Fidalgo just doing his job. That is what he gets paid to do. No vested interest in this, not a family member, none of his family members were injured, none of his family members were charged with this.

 

Then you look at the witness, Mr. Benitez. He’s not really a disinterested third party. Oh, yeah, he’s close, extremely close to the defendant. I wonder.

 

At any rate, as I said earlier, I believe that Officer Fidalgo testified credibly and that each and every element of the two crimes charged, that you will hear from Judge Wertheimer, w[as] satisfied, and I ask that you, after hearing the charge, that you go back into the jury room and you find Jesus Colon guilty of the two charges.

 

At the outset, we note that this issue is raised as plain error as defense counsel raised no objection to the prosecutor’s summation. Therefore, we must determine whether these comments were “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Based upon our review of the prosecutor’s entire summation, we discern neither of the improprieties claimed by defendant.

In the first two paragraphs quoted above, the prosecutor drew a distinction between Officer Fidalgo as a disinterested witness, as contrasted with Luis Benitez, who described his relationship with defendant as “like family.” In the third paragraph, the prosecutor briefly alluded to his belief “that Officer Fidalgo testified credibly[,]” and immediately proceeded to advise the jury that, in his view, “each and every element of the two crimes charged . . . w[as] satisfied . . . .”

Under these circumstance, we find defendant’s argument to be without merit. R. 2:11-3(e)(2).

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.

 

[State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted).]

 

We acknowledge the “long-standing rule” that it is improper for the prosecutor to inform the jury of his personal opinion of a witness’s credibility. State v. Wakefield, 190 N.J. 397, 440 (2007). In evaluating “‘the severity of the misconduct and its prejudicial effect on the defendant’s right to a fair trial[,]'” we will not deem such prosecutorial misconduct to be grounds for reversal of a criminal conviction “‘unless the conduct was so egregious as to deprive the defendant of a fair trial.'” Id. at 437 (citations omitted).

The trial judge charged the jury immediately following the prosecutor’s summation. Very early in that charge, the judge instructed the jury:

You, and you alone, are the exclusive judges of the evidence, of the weight of the evidence and . . . what the facts are in this case. Regardless of what [c]ounsel said . . . recalling the facts, it’s your recollection of the facts that must guide you in the final analysis as . . . the judges of the facts.

 

Under the circumstance, we conclude that the prosecutor’s brief statements that he “believed[d] Officer Fidalgo testified credibly[,]” and that he “wonder[ed]” about Benitez being “extremely close to the defendant[,]” did not rise to the level of “egregious” conduct sufficient to warrant reversal.

We next consider defendant’s contention that the trial court erred in its charge to the jury on second-degree eluding. Because defendant did not object to this jury instruction at trial, we once again consider his claim under the plain error standard. R. 2:10-2. Under that standard, “[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).

Pursuant to N.J.S.A. 2C:29-2(b):

Any person, while operating a motor vehicle on any street or highway in this State . . ., who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury of any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 . . . .

 

The trial judge essentially followed the model jury charge for second-degree eluding. Model Jury Charge (Criminal), “Eluding an Officer” (2004). In his initial jury instruction, the judge charged the jury in accordance with the statutory language elevating the offense to second degree if “the flight or attempt to elude created a risk of death or injury to a person.” The judge made no mention of motor vehicle violations at this point.

Following a side bar discussion at the conclusion of the jury charge, the judge delivered the following additional instruction:

I, apparently, omitted a part of the charge on eluding. I want to read it to you now.

 

You may infer a risk of death or injury to any person if a defendant’s conduct in fleeing or attempting to elude the officer involved a violation of motor vehicle laws of the State, and it’s alleged this defendant’s conduct involved speeding, running a red light, etc., etc.

 

Defense counsel accepted this supplemental instruction as “[f]ine.”

We concur with defendant that the trial judge’s failure to charge the elements of the applicable motor vehicle statutes was in error. Under the circumstances of this case, however, we deem such error to be harmless. The evidence clearly established that defendant “created a risk of death or injury” by crashing his vehicle into a utility pole with such force that it sustained “[h]eavy front end damage and . . . fire damage . . . .” The fire department had to be called to open the front door. Officer Fidalgo observed defendant “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.” In addition, Benitez testified that he suffered a leg injury as a result of the crash.

On this record, we consider defendant’s reliance upon State v. Dorko, 298 N.J. Super. 54 (App. Div.), certif. denied, 150 N.J. 28 (1997), to be misplaced. In that case, the defendant’s act of eluding consisted solely of motor vehicle violations such as speeding and running through stop signs and a red light; in addition to eluding, the defendant was charged with reckless driving. Id. at 56.

By contrast here, defendant engaged not only in speeding and running a red light, but in much more serious conduct that caused his vehicle to crash, with resultant injuries to at least one passenger. It is significant that these same facts gave rise to a related charge of second-degree aggravated assault in count two of the indictment, as contrasted with the related reckless driving charge in Dorko.

Applying, as we must, the plain error standard to this argument, we conclude that defendant has failed to demonstrate that the claimed error was “sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).

Affirmed.

 

 

April 14, 2009