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N.J.S.A. 2C:29-2(b) (count one) and fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count four). Defendant was sentenced to a term of four years in prison on count one and a concurrent term of one year in prison on count three."> Original Wordprocessor Version (NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version

This case can also be found at *CITE_PENDING*. (NOTE: The status of this decision is unpublished.)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0262-04T40262-04T4 STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEROME SMITH, Defendant-Appellant. __________________________________________________________

Submitted December 13, 2005 - Decided Before Judges R. B. Coleman and Seltzer. On appeal from the Superior Court of New Jersey, Law Division, Union County, 03-0200182-I. Yvonne Smith Segars, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief). Theodore Romankow, Union County Prosecutor, attorney for respondent (Steven J. Kaflowitz, Assistant Prosecutor, on the brief). PER CURIAM Defendant Jerome Smith appeals from convictions for third-degree eluding, 182 N.J. 80, 95 (2004). Under that standard, we disregard an error unless it is "clearly capable of producing an unjust result." Ibid. "[T]he error 'must be sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'" Daniels, supra, 182 N.J. at 95 (quoting State v. Macon, 57 N.J. 325, 336 (1971)).

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Defendant argues that the prosecutor's comments were (a) not accurate and (b) without a factual basis since the State never produced the jacket. At issue is the following statement made by the prosecutor: I submit to you when somebody - I leave you with this: This is a young person in his car and he just crashed. This is a young person that flees the car after the crash, flight. I submit to you flight here - you heard testimony about losing the jacket. A young person leaving his car, what does a young person really appreciate in life? Very few possessions, perhaps the car he owns. Yet he leaves his car, keys in the ignition, car running and flees. The State submits to you that's consciousness of guilt here because he knew what he had done. He knew that the police wanted to stop him. He knew he had almost run that police officer over. (emphasis added). "[P]rosecutorial misconduct can be a ground for reversal where the prosecutor's misconduct was so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In the appellate court's assessment, it should look at such factors as: "whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to disregard them." State v. Ramseur, 106 N.J. 123, 323 (1987). However, failure to object during the prosecutor's statements, shows that "in the atmosphere of the trial the defense did not believe that the prosecutor's remarks were prejudicial." State v. Bauman, 298 N.J. Super. 176, 207 (App. Div. 1997), certif. denied, 150 N.J. 25 (1997) (citing State v. Wilson, 57 N.J. 39, 51 (1970)). A prosecutor "should not make inaccurate legal or factual assertions." Frost, supra, 158 N.J. at 85. A prosecutor, however, does have the ability to comment on the evidence and extract any "reasonable inferences" the evidence supports. Ibid. Here, the prosecutor's comment appears to have been an attempt to explain why the State failed to produce the jacket at trial. The police had lost it. The comment itself was very brief and not totally clear. Defense counsel did not object to it, presumably because it was not perceived to be improper or prejudicial at the time. Moreover, the comment had no discernible impact on the outcome of the case. After all, defendant admitted that it was his car involved in the chase and that he was the driver. It is, therefore, difficult to fathom how the prosecutor's reference to "testimony about losing the jacket" could have led the jury to a result it otherwise might not have reached. For the same reason, defendant's second argument on appeal must fail since the court's failure to provide a "lost evidence" instruction to the jury, even if erroneous, was of no consequence to the jury's verdict. The jacket was simply not necessary to support the verdict. Moreover, defense counsel did not request a charge or a curative instruction. The trial court was not obliged to give such an instruction and the failure to do so sua sponte does not
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satisfy the plain error requirement under R. 2:10-2. Next, defendant asserts he was denied a fair trial because the trial court failed to give an explicit instruction to the jurors that they could disregard the stipulation of the parties regarding the issuance of a motor vehicle violation for reckless driving to defendant. Defendant contends our decision in State v. Wesner, 372 N.J. Super. 489 (App. Div. 2004), requires a trial court to direct the jury by instruction that they are not "bound" to the stipulation. The judge communicated the stipulation as follows: Now, occasionally the parties can agree a fact is true. In this case, they have done so. They will both agree that Officer Tempalsky issued the gentleman a summons for a motor vehicle violation. That summons being for reckless driving. So we won't have to have Officer Tempalsky come in and tell us that. Defendant misinterprets Wesner. In Wesner, we observed that the trial judge "used a poor choice of words" by instructing the jury that they "were 'bound' by the stipulated facts." Wesner, supra, 372 N.J. Super. at 494. We stated that jurors are free to reject any evidence, even that which is stipulated to by both parties. Ibid. We, however, did not reverse the conviction in Wesner since the instruction did not "constitute directing a verdict" against defendant. Ibid. Here, the trial judge did not issue a mandate. He informed the jury that a summons had been issued but he did not direct the jury to find that defendant had committed a motor vehicle violation. On the contrary, the judge instructed the jury: Whether the defendant is guilty or not guilty of those particular offenses of reckless driving or speeding would be determined by an appropriate court. In other words, it is not your job to determine his guilt or innocence of the motor vehicle charges themselves; however, you may consider that evidence that he committed a motor vehicle offense. In this case, perhaps reckless driving or speeding in determining whether he created a risk of causing death or injury to people. At the same time, remember you are never required or compelled to draw this inference. I have already explained to you it is your province to determine whether the facts and circumstances shown by the evidence support any inference at all. You are free to accept or reject the inference if you wish. (emphasis added). The instruction did not direct a verdict against defendant nor did it dilute the State's burden of proof. Defendant's argument does not establish an error, much less meet the plain error requirement under R. 2:10-2. Finally, defendant asserts that the sentence imposing the presumptive term of four years was excessive and an abuse of the trial court's discretion. Pursuant to N.J.S.A. 2C:44-7, we have the authority "to review findings of fact by the sentencing court in support of its findings of aggravating and mitigating circumstances and to modify the defendant's sentence upon his application where such findings are not fairly supported on the record before the
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trial court." "An appellate court may modify a sentence only if the sentencing court was 'clearly mistaken.'" State v. Kromphold, 162 N.J. 345, 355 (2000) (citations omitted). Our Supreme Court in State v. Roach, 146 N.J. 208 (1996) observed that: An appellate court should disturb the sentence imposed by the trial court only in situations where the sentencing guidelines were not followed, the aggravating and mitigating factors applied by the trial court are not supported by the evidence, or applying the guidelines renders a particular sentence clearly unreasonable. State v. Roth, 95 N.J. 334, 364-65, (1984). Only when the facts and law show "such a clear error of judgment that it shocks the judicial conscience" should a sentence be modified on appeal. Id. at 363-64. Here, 184 N.J. 458, 487 (2005), which eliminated presumptive sentences from the statutory sentencing process. Affirmed. (continued) (continued) 12 A-0262-04T4 0x01 graphic

January 9, 2006

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