NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5226-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
CHRISTOPHER DESA a/k/a
CHRISTOPHER L. DESA,
Defendant-Appellant.
________________________________
Submitted May 30, 2017 – Decided June 8, 2017
Before Judges Haas and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment No.
15-02-0180.
Joseph E. Krakora, Public Defender, attorney
for appellant (Susan Brody, Deputy Public
Defender, of counsel and on the brief).
Andrew C. Carey, Middlesex County Prosecutor,
attorney for respondent (Joie Piderit,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
On February 11, 2015, a Middlesex County grand jury returned
an eighteen-count indictment against defendant Christopher Desa,
charging him with multiple offenses that began with an alleged
armed robbery on October 16, 2012. Following a multi-day trial,
the jury found defendant guilty of first-degree robbery, N.J.S.A.
2C:15-1 (count one); fourth-degree theft by unlawful taking,
N.J.S.A. 2C:20-3(a) (count three); second-degree eluding a law
enforcement officer, N.J.S.A. 2C:29-2(b) (count six); third-degree
resisting arrest, N.J.S.A. 2C:29-2(a)(3) (count seven); two counts
of second-degree aggravated assault by causing injury to another
while fleeing or attempting to elude a law enforcement officer,
N.J.S.A. 2C:12-1(b)(6) (counts twelve and thirteen); third-degree
criminal mischief, N.J.S.A. 2C:17-3(a)(1) (count sixteen); and
fourth-degree unlawful possession of an imitation firearm,
N.J.S.A. 2C:39-4(e) (count eighteen).1
On June 8, 2015, the trial judge sentenced defendant 2 to
fifteen years in prison on count one, subject to the 85% parole
ineligibility provisions of the No Early Release Act ("NERA"),
N.J.S.A. 2C:43-7.2, with a five-year period of parole supervision
following his release; an eighteen-month concurrent term on count
three; a nine-year consecutive term on count six, subject to NERA,
1
The jury found defendant not guilty of the remaining charges in
the indictment.
2
Prior to imposing the sentence, the trial judge denied the
State's motion to sentence defendant to a discretionary extended
term as a persistent offender.
2 A-5226-14T2
with a three-year period of parole supervision upon release; a
concurrent six-month term on count seven, subject to NERA; a
consecutive seven-year term on count twelve, subject to NERA, with
a three-year period of parole supervision upon release; a
consecutive seven-year on count thirteen, subject to NERA, with a
three-year period of parole supervision upon release; a concurrent
three-year term on count sixteen; and a concurrent one-year term
on count eighteen. Thus, the judge imposed an aggregate thirty-
eight-year term. This appeal followed.
On appeal, defendant raises the following contentions:
POINT I
BY ESSENTIALLY TURNING HIS OPENING STATEMENT
INTO A SUMMATION, AND BY THEREIN PORTRAYING
DEFENDANT AS A CALLOUS MONSTER WITHOUT HAVING
ANY SUPPORT IN THE RECORD FOR HIS CLAIMS, THE
PROSECUTOR DEPRIVED DEFENDANT OF HIS
CONSTITUTIONAL RIGHT TO A FAIR TRIAL. (Not
Raised Below).
POINT II
THE COURT ERRED IN FAILING TO MERGE FOR
SENTENCING PURPOSES DEFENDANT'S ELUDING
CONVICTION [COUNT SIX] INTO HIS CONVICTIONS
FOR CAUSING INJURY WHILE ELUDING [COUNTS
TWELVE AND THIRTEEN]. (Not Raised Below).
We have considered these arguments in light of the record and
applicable legal standards. We affirm defendant's convictions.
However, we remand the matter to the trial court to vacate the
sentence imposed on count six, and merge the conviction on that
3 A-5226-14T2
count into the convictions on counts twelve and thirteen. In all
other respects, we affirm the sentence imposed.
I.
We derive the following facts from the evidence produced by
the parties at trial. At approximately 9:30 a.m. on October 16,
2012, Yazmine Jimenez and her husband Christian were working in a
deli that was owned by Yazmine's3 parents. A man entered the store
wearing a black hoodie and dark blue jeans. The man's face was
not covered. Yazmine, who was working behind the counter, later
identified the man as defendant.
Defendant pretended he was going to make a purchase, but then
took out a black gun and demanded money. Yazmine opened the cash
drawer where lottery proceeds were kept, and defendant grabbed
between $300 and $350. Defendant then ran out of the store. As
soon as defendant left, Yazmine told Christian that she had been
robbed, and Christian ran out of the store looking for defendant.
When he got outside, Christian saw a man running away and
chased him. As Christian closed in, the man looked over his
shoulder and said, "I'm going to shoot you bitch. Stop following
me." Christian stopped pursuing the man for a few moments, and
3
Because Yazmine and Christian share the same surname, we refer
to them by their first names to avoid confusion. In doing so, we
intend no disrespect.
4 A-5226-14T2
then turned down a driveway to look for him. Christian heard
tires screeching and saw a man wearing a black hoodie drive a Jeep
out of a driveway near a doctor's office. Christian wrote down
the car's license number on his arm and ran back to the deli.
By that time, Yazmine was on the telephone with the police
and she and Christian described the man and reported the car's
license number to the dispatch officer, who broadcasted the
information to available police units. One of the officers who
heard the dispatch, Detective Dan Kapsch, recognized the license
plate number of the suspect's Jeep as belonging to Gemma Bumback,
his father's former girlfriend. The detective knew that Bumback
and defendant were friends and that Bumback allowed defendant to
drive her Jeep. Based on this information, the officers located
a photograph of defendant, which Yazmine identified as the man who
robbed her.
After defendant was identified, the police were able to
monitor his cellphone pings, which showed that defendant was at a
motel. Several officers responded to that location. Suddenly,
an officer saw the Jeep pull out of a parking spot, and alerted
the other officers, who began yelling at defendant to stop, show
his hands, and get out of the car. Defendant then crashed the
Jeep into a police car, and momentarily stopped. Detective Todd
Ritter ran to the car and began hitting the window with his gun
5 A-5226-14T2
in an attempt to break it. As he did so, the detective saw that
defendant had a black handgun on his lap. Detective Ritter shot
several rounds into the car while yelling at defendant to get out
of the car. The officer believed that some of the shots hit
defendant. However, defendant drove away, striking Officer Ritter
with the car and running over his foot.
Defendant immediately hit the concrete median on the highway
and some street signs, but he kept going. A New Jersey Transit
police officer saw defendant's car driving erratically and
activated his overhead lights, signaling defendant to pull over.
Defendant failed to do so, and the officer pursued him through a
number of red lights at speeds up to ninety miles an hour. Other
officers joined in the pursuit. Defendant still would not stop
and he hit approximately twelve other vehicles as he drove. After
about two miles, defendant crashed into another car, causing
injuries to the occupants, Ronald and Carol Cooper.
Finally, defendant drove his car head-on into a pole. The
officers ran to the car and saw that defendant had sustained
several gunshot wounds. The officers removed defendant from the
Jeep, handcuffed him, and called for medical assistance. Defendant
told the police that he had thrown the gun out of the car window
during the chase. A number of private citizens soon reported that
there was a gun in the right-hand lane of the highway. An officer
6 A-5226-14T2
retrieved the gun, which Detective Ritter later identified as the
same one he saw on defendant's lap in the motel parking lot.
At trial, a witness who worked at the doctor's office near
the deli testified that she saw a man wearing a hooded jacket and
dark pants park a Jeep in the nearby parking lot. A few minutes
later, she observed the same man running back to the Jeep from the
direction of the deli. The man appeared to be upset and he drove
away at a high rate of speed.
Before they located defendant at the motel, the police
contacted defendant's girlfriend, Cynthia Guzman, to determine if
she knew where he was. Guzman called defendant and told him the
police were searching for him. Defendant told Guzman that he was
not where the police thought he was and that he did not have
Bumback's car.
Bumback testified that she and defendant stayed together at
a motel on October 15, the night before the robbery. Bumback
stated that she was intoxicated and fell asleep as soon as she and
defendant checked into the motel. The next morning, defendant
woke Bumback up around check-out time. Bumback testified that
defendant was in a "panic" because he said he had a fight with his
girlfriend. Defendant told Bumback that they had to leave the
motel right away because he was afraid his girlfriend would call
the police on him.
7 A-5226-14T2
Defendant and Bumback then checked out, got something to eat,
bought some liquor and beer, and checked into a different motel,
which was the one where the police chase began. Bumback stated
that defendant kept looking out of the window of the motel room.
Defendant told Bumback that he was going to get something from the
car, and he went outside. Bumback then heard screeching tires and
gun shots.
Defendant testified on his own behalf. According to
defendant, he used Bumback's car on October 16, 2015 without her
permission to drive to the parking lot near the deli so he could
purchase some marijuana from a dealer he knew was in the area. He
stated he took a starter pistol with him because he had been robbed
in the past while buying drugs.
After defendant completed the transaction, he heard someone
screaming. Fearful that he would be caught with the marijuana,
defendant got into the Jeep and "peeled out" of the parking lot.
As defendant was driving back to the motel, Guzman called him and
defendant told her that they needed to break up. In response,
defendant claimed that Guzman stated that the police were looking
for him in connection with a robbery. Defendant testified that
he thought Guzman was trying to trick him into coming to see her,
so he hung up the phone. Defendant then drove to his house and
picked up approximately $200.
8 A-5226-14T2
Defendant returned to the motel room where Bumback was still
sleeping, work her up, and told her they had to leave because
Guzman might come looking for him. After buying food and liquor
along the way, defendant and Bumback checked into the second motel,
where they stayed until defendant decided they needed to get more
vodka. Defendant stated that he got in Bumback's car and turned
on the music, so he never heard any of the police officers yelling
at him. Suddenly, someone smashed the car window. Defendant
testified that he believed he was about to be robbed, so he drove
off. As defendant did so, he was shot several times.
As he drove wildly down the highway, defendant claimed that
he still did not realize that the men in the cars pursuing him
were police officers. He admitted that he threw the starter pistol
away as he drove. Defendant denied robbing the deli or telling
Christian to stop following him or he would shoot him.
II.
In Point I, defendant contends for the first time on appeal
that the prosecutor made comments during his opening statement to
the jury that were not supported by the record and "set a distorted
tone for the trial." Because there were no objections to the
prosecutor's opening remarks at trial, we review this claim using
the plain error standard. See R. 2:10-2 (the error must be of
"such a nature as to have been clearly capable of producing an
9 A-5226-14T2
unjust result"). Applying this standard, we conclude that
defendant's argument lacks sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(2). We add the
following brief comments.
During opening statements, a prosecutor should confine his
or her comments to the facts the State intends to prove at trial
with competent evidence. State v. Wakefield, 190 N.J. 397, 442
(2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed.
2d 817 (2008). "[I]n order to justify reversal, the [prosecutor's]
misconduct must have been 'so egregious that it deprived the
defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181
(2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The
prosecutor's conduct must constitute a clear infraction and
"substantially prejudice the defendant's fundamental right to have
a jury fairly evaluate the merits of his [or her] defense" in
order to warrant reversal. State v. Roach, 146 N.J. 208, 219,
cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424
(1996) (citation omitted).
The prosecutor's "performance must be evaluated in the
context of the entire trial[.]" State v. Negron, 355 N.J. Super.
556, 576 (App. Div. 2002). Also relevant to our review is a
defendant's failure to object to the prosecutor's remarks at the
time they were made because this "deprives the court of an
10 A-5226-14T2
opportunity to take curative action" and suggests that the
defendant did not find the comments prejudicial. Frost, supra,
158 N.J. at 84.
Our review of the complete transcript satisfies us that there
was no prosecutorial misconduct requiring reversal of defendant's
convictions. The prosecutor's opening statement was limited to
the facts the State later presented at trial and his comments drew
legitimate inferences from those factors. Therefore, we reject
defendant's contention on this point.
III.
Defendant next argues that the trial judge erred at sentencing
by failing to merge his conviction for eluding (count six) into
his two convictions for aggravated assault while fleeing or
attempting to elude a law enforcement officer (counts twelve and
thirteen). We agree that the convictions should have merged.
Our Supreme Court has stated:
Merger is based on the principle that "an
accused [who] has committed only one offense
. . . cannot be punished as if for two."
Merger implicates a defendant's substantive
constitutional rights. The analysis is
similar to a double jeopardy analysis.
Slightly different interests are involved,
however. In double jeopardy cases the
defendant seeks to avoid both multiple
prosecution and multiple punishment; in merger
cases, only multiple punishments are at issue.
11 A-5226-14T2
The first step is to compare the statutes
defining the offenses at issue.
[State v. Miller, 108 N.J. 112, 116 (1987)
(alteration in original) (quoting State v.
Davis, 68 N.J. 69, 77 (1975)) (citations
omitted).]
Eluding can be either a second- or third-degree offense
depending upon whether the actor's conduct "creates a risk of
death or injury to any person." N.J.S.A. 2C:29-2(b). On the
other hand, N.J.S.A. 2C:12-1(b)(6) provides that an actor is guilty
of second-degree aggravated assault if he or she:
[c]auses bodily injury to another person while
fleeing or attempting to elude a law
enforcement officer in violation of [N.J.S.A.
2C:29-2(b)] . . . Notwithstanding any other
provision of law to the contrary, a person
shall be strictly liable for a violation of
this subsection upon proof of a violation of
[N.J.S.A. 2C:29-2(b)]. . . .
According to one noted commentator, "[t]he second degree
crime defined by [N.J.S.A. 2C:12-1(b)(6)] is not really an assault
crime. The provision serves to increase the penalty for operating
a motor vehicle in violation of . . . [N.J.S.A. 2C:29-2(b)]
(eluding a police officer) when an injury occurs." Cannel, New
Jersey Criminal Code Annotated, comment 11 on N.J.S.A. 2C:12-1
(2017). In other words, it would appear that the Legislature has
determined that eluding is a third-degree crime, but, if the
actor's conduct creates a "risk of death or injury" or actually
12 A-5226-14T2
"[c]auses bodily injury," eluding becomes a second-degree offense.
N.J.S.A. 2C:29-2(b); N.J.S.A. 2C:12-1(b)(6).
"N.J.S.A. 2C:1-8(a) establishes the legislative parameters
for merger of offenses." State v. Diaz, 144 N.J. 628, 637 (1996).
It provides: "When the same conduct of a defendant may establish
the commission of more than one offense, the defendant may be
prosecuted for each such offense. . . [but] [h]e [or she] may not
. . . be convicted of more than one offense if . . . [o]ne offense
is included in the other." An offense is included in another if:
(1) It is established by proof of the
same or less than all the facts to establish
the commission of the offense charged; or
. . . .
(3) It differs from the offense charged
only in the respect that a less serious injury
or risk of injury to the same person, property
or public interest or a lesser kind of
culpability suffices to establish its
commission.
[N.J.S.A. 2C:1-8(d)(1) and (3).]
Strictly applying the statutory analysis, it is apparent that
third-degree eluding is a lesser-included offense of both second-
degree eluding and aggravated assault while eluding. However,
neither second-degree eluding nor aggravated assault while eluding
are "included" within each other. Theoretically, one can be guilty
of eluding without creating "a risk of death or injury," yet be
13 A-5226-14T2
"strictly liable" if an injury actually occurs and, therefore,
guilty of aggravated assault. N.J.S.A. 2C:29-2(b); N.J.S.A.
2C:12-1(b)(6). Conversely, one can create the risk of injury but
not cause an actual injury and, thus, be guilty of second-degree
eluding but not guilty of an aggravated assault.
The Supreme Court has stated:
The standard for merger of offenses set
forth at N.J.S.A. 2C:1-8 . . . has been
characterized as "mechanical." State v.
Truglia, 97 N.J. 513, 520 (1984). A preferred
and more flexible standard was articulated in
the pre-code case of State v. Davis, 68 N.J.
69 (1975).
[Diaz, supra, 144 N.J. at 637 (parallel
citation omitted).]
This "more flexible standard"
entail[s] analysis of the evidence in terms
of . . . the time and place of each purported
violation; whether the proof submitted as to
one count of the indictment would be a
necessary ingredient to a conviction under
another count; whether one act was an integral
part of a larger scheme or episode; the intent
of the accused; and the consequences of the
criminal standards transgressed.
[Davis, supra, 68 N.J. at 81.]
"Guidance also arises from the principle that 'the
Legislature may fractionalize a single criminal episode into
separate offenses when the Legislature intends them to be punished
separately and when the fractionalization does not offend
14 A-5226-14T2
constitutional principles.'" State v. Hill, 182 N.J. 532, 543
(2005) (quoting State v. Mirault, 92 N.J. 492, 504 (1983)).
In this case, the evidence clearly demonstrated that
defendant eluded the police and, while in the course of continuing
to elude the officers, defendant's Jeep struck the Cooper vehicle
causing injuries to its two occupants. In our opinion, the eluding
and the assault occurred congruently in "the time and place"; "the
proof submitted" as to the eluding was a "necessary ingredient to
a conviction" for the aggravated assault; the eluding "was an
integral part of a larger scheme or episode[,]" namely, the
aggravated assault; and "the intent" of defendant was the same,
i.e., to flee the officers. Davis, supra, 68 N.J. at 81.
Therefore, the eluding conviction under count six merges into the
two aggravated assault convictions under counts twelve and
thirteen.
In sum, we affirm defendant's convictions. However, we remand
the matter to the trial court for the entry of an amended judgment
of conviction vacating the separate sentence on count six and
reflecting the merger of that count into counts twelve and
thirteen. We otherwise affirm defendant's sentence. We do not
retain jurisdiction.
15 A-5226-14T2
STATE OF NEW JERSEY VS. CHRISTOPHER DESA(15-02-0180, MIDDLESEX COUNTY AND STATEWIDE)
Combined Opinion