NOT FOR PUBLICATION WITHOUT THE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-1399-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ANTHONY AURIEMMA,
Defendant-Appellant.
_______________________________
Submitted May 4, 2017 - Decided June 20, 2017
Before Judges Lihotz and O'Connor.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
15-01-0140.
Joseph E. Krakora, Public Defender, attorney
for appellant (William Welaj, Designated
Counsel, on the brief).
Joseph D. Coronato, Ocean County Prosecutor,
attorney for respondent (Samuel Marzarella,
Chief Appellate Attorney, of counsel; John C.
Tassini, Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Anthony Auriemma appeals from a November 17, 2015
judgment of conviction, entered following a jury trial. The jury
found defendant guilty of fourth-degree knowingly operating a
motor vehicle during a period of license suspension for a second
or subsequent violation of driving while intoxicated, N.J.S.A.
2C:40-26(b), for which the trial judge imposed a 210-day county
jail sentence, subject to 180 days of parole ineligibility. On
appeal, defendant argues:
POINT I
THE DEFENDANT [WAS] DENIED HIS RIGHT TO A FAIR
TRIAL AS A RESULT OF TESTIMONY ELICITED BY THE
STATE INFERENTIALLY CONNECTING THE DEFENDANT
WITH PRIOR CRIMINAL CONDUCT. (PARTIALLY RAISED
BELOW).
POINT II
THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS
OF PROPRIETY. (PARTIALLY RAISED BELOW).
POINT III
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT'S MOTION FOR A NEW TRIAL SINCE THE
JURY'S VERDICT WAS CLEARLY AGAINST THE WEIGHT
OF THE EVIDENCE.
POINT IV
THE TRIAL COURT ERRED IN RULING THE
DEFENDANT'S MOST RECENT CONVICTION, OCCURRING
MORE THAN 10 YEARS PRIOR TO TRIAL, WAS
ADMISSIBLE TO IMPEACH CREDIBILITY IN THE EVENT
HE TESTIFIED.
We affirm.
These facts are taken from the one-day trial record. The
State presented testimony from the arresting officer and
2 A-1399-15T3
introduced photographs and documents. Defendant did not testify;
however, he presented the testimony from three fact witnesses.
On January 15, 2015, at 6:18 a.m., Seaside Heights Police
Patrolman Douglas Roemmele received a call regarding a single-car
accident at the traffic circle where a Route 37 east off-ramp
meets Route 35 north. He immediately reported to the scene,
recalling the sun was just rising, and the presence of "heavy fog
and a light mist" reduced visibility to approximately one quarter-
mile. Arriving at the circle, Officer Roemmele saw a four-door
Volvo, stuck in a ditch, partially covered in sand. Approaching
the vehicle, Officer Roemmele noted a man on the ground digging
out the vehicle's front tires. Officer Roemmele recognized the
man as defendant and asked him what happened. Defendant stated
"while he was negotiating the curve coming into town, he lost
control of his vehicle and went over the curb."
Officer Roemmele confirmed defendant owned the car and
inquired whether he needed medical attention. Defendant stated
he was fine, and was "just trying to get his car out" of the ditch.
Officer Roemmele then asked defendant if he were drinking and he
replied, "no," he was just going home to Toms River.
Officer Roemmele identified photographs of the vehicle, taken
during the police investigation showing the place of the accident,
the position of defendant's vehicle, and its damage. He further
3 A-1399-15T3
explained he looked into the car through the passenger side window,
and observed "documents and a bottle" placed on the front passenger
seat. He testified there were no other individuals in the vehicle
or the area, and defendant never mentioned another person was
driving the car.
On cross-examination, Officer Roemmele was questioned about
his official report, written a couple days after the accident. He
confirmed his recorded observations of defendant's condition that
morning. Specifically, he observed defendant "swaying from side
to side," noted "he smelled of alcohol," and "seemed totally
baffled when . . . told . . . he was in Seaside Heights." Officer
Roemmele suspected defendant was intoxicated and administered
field sobriety tests. As defendant attempted to perform the field
sobriety test, Officer Roemmele noticed "he had watery eyes" that
were "bloodshot" and "droopy eyelids." Defendant failed the
roadside sobriety tests and was arrested. At the Seaside Heights
police station, Officer Roemmele administered two additional
psycho-motor tests: the walk and turn, and one-legged stand tests,
both of which defendant was unable to perform because he could not
maintain his balance and continued to sway. Defendant registered
a .17 blood alcohol concentration.
At trial, the State admitted defendant's driver's abstract,
which reflected prior municipal convictions for driving under the
4 A-1399-15T3
influence of alcohol or drugs, N.J.S.A. 39:4-50, on November 10,
2004; driving while intoxicated in a school zone, N.J.S.A. 39:4-
50(g), on August 18, 2006; and driving under the influence of
alcohol or drugs, on March 24, 2011. This last conviction resulted
in a ten-year suspension of defendant's driving privileges.
In his case, defendant called Christopher Foglio, whom he met
two years earlier at a Seaside Heights bar. Christopher testified
that on the night of the accident, he met defendant at his
residence in Toms River and drove defendant's car into Seaside
Heights. Christopher stated defendant was "pretty trashed" at the
time of the accident. Further, Christopher admitted he was "high"
after using heroin, but considered he was more "functional" than
defendant. Christopher insisted he left the scene around 4:00
a.m., two hours prior to Officer Roemmele's arrival and walked
over the bridge to a Wawa on Route 37, then called his brother to
pick him up. Although he promised defendant he would return with
help, Christopher stated he never actually intended to return
because an outstanding warrant and the suspension of his driver's
privileges could subject him to arrest.1
1
Despite his license suspension, Christopher could not be
charged under N.J.S.A. 2C:40-26(b), as was defendant, because he
had no prior DUI convictions.
5 A-1399-15T3
Two weeks after the accident, Christopher appeared at Seaside
Heights Municipal court and "tried to tell the person downstairs
that it was me," that was driving, but "they said there's nothing
they could do." Christopher also "wrote a letter and got it
notarized" attesting to his role in the accident.
Anthony Foglio, Christopher's brother, also testified.
Anthony was home when Christopher left for defendant's house.
Christopher returned with defendant and asked Anthony if he wanted
to go to out. Anthony declined, and the pair left with Christopher
behind the wheel. Anthony also related the telephone call he
received from Christopher, who asked to be picked up at the Wawa
on Route 37.
John Pascoe, a twenty-year friend of defendant, also
testified. Pascoe was in defendant's home the morning of January
20, 2014, when Christopher came over at "pre-dawn," noting it was
dark. Pascoe gave defendant forty dollars for cigarettes,
"thinking they were coming back." Pascoe testified Christopher
was driving and defendant sat in the passenger seat, when the pair
left but did not return.
The jury's verdict was unanimous. Prior to sentencing in
this matter, defendant pled guilty to the motor vehicle offense
of driving while intoxicated. This appeal ensued.
6 A-1399-15T3
On appeal, defendant first cites N.J.R.E. 404(b), and argues
he was denied a fair trial because the judge overruled his
objection to Officer Roemmele's testimony stating he recognized
defendant, arguing this testimony suggested to the jury defendant
was engaged in prior criminal conduct. At side-bar, after
objection, the trial judge ordered the recognition testimony
limited to a simple "yes or no." The prosecutor proceeded and
asked: "Did you recognize this individual?" the answer was
affirmative.
We have reviewed the arguments in light of the record and
applicable law. We are not persuaded.
When we review a trial court's evidentiary rulings, we
determine whether the judge abused his or her discretion. See,
e.g., State v. Harris, 209 N.J. 431, 439 (2012); State v.
Gillispie, 208 N.J. 59, 84 (2011); State v. Marrero, 148 N.J. 469,
483-84 (1997). Here, defendant maintains the judge erroneously
admitted other crimes evidence, which is guided by N.J.R.E.
404(b).2 The rule is one of exclusion rather than one of inclusion.
2
N.J.R.E. 404(b) states:
Except as otherwise provided by Rule 608(b),
evidence of other crimes, wrongs, or acts is
not admissible to prove the disposition of a
person in order to show that such person acted
in conformity therewith. Such evidence may
7 A-1399-15T3
Gillispie, supra, 208 N.J. at 85. By its very nature, other crimes
evidence is inflammatory and capable of prejudicing the jury
against a defendant. Id. at 85. Evidence suggesting a defendant
has been involved in past criminal activity is "fraught with danger
and [can] create[] an unfair risk that defendant might be
convicted, not by the evidence in the case for which he is on
trial, but by the virtue of his prior criminal conduct." State
v. Mays, 321 N.J. Super. 619, 632 (App. Div.), certif. denied, 162
N.J. 132 (1999). Therefore, a prosecutor may not pursue a line
of questioning which places before the jury innuendo evidence
which the State cannot properly present through direct testimony.
See State v. Williams, 226 N.J. Super. 94, 103 (App. Div. 1988).
Additionally, trial judges must be careful to limit such evidence,
admitting only what is necessary to prove a disputed fact. See
State v. Stevens, 115 N.J. 289, 303 (1989). The rule's design is
to protect a defendant's guarantee to a trial by an impartial
jury, U.S. Const. amends. VI, XIV; N.J. Const. art. 1, ¶ 10, which
"goes to the very essence of a fair trial." State v. Bey, 112
be admitted for other purposes, such as proof
of motive, opportunity, intent, preparation,
plan, knowledge, identity or absence of
mistake or accident when such matters are
relevant to a material issue in dispute.
8 A-1399-15T3
N.J. 45, 75 (1998) (quoting State v. Williams, 93 N.J. 39, 60
(1983)).
Examining the challenged testimony elicited by Officer
Roemmele, we cannot agree N.J.R.E. 404(b) was implicated. The
State asserted it was necessary to explain why Officer Roemmele
did not ask the man he encountered digging out the damaged Volvo
for identification. The brief testimony was as follows:
[Prosecutor] Officer, you approached. There
was an individual lying on the ground. He
stood up. Did you recognize this individual?
[Officer Roemmele] Yes.
Q And you were able to identify this
person. Is that correct?
A Correct.
Q And you actually, if you saw this person
again today you would recognize him. Correct?
A Yes.
Q What was the name of the person that you
saw?
A Anthony.
Q And do you know his last name?
A Auriemma.
An officer's recognition of a defendant does not immediately
invoke N.J.R.E. 404(b). See State v. Love, 245 N.J. Super. 195,
197-98 (App. Div.) (concluding evidence rule 55, the predecessor
9 A-1399-15T3
to N.J.R.E. 404(b), was inapplicable when an investigator
testified on cross-examination he previously interviewed the
defendant in a homicide investigation), certif. denied, 126 N.J.
321 (1991); State v. Ramos, 217 N.J. Super. 530, 537-38 (App.
Div.) (finding an officer's testimony that he was familiar with
the defendant did not "prejudice the defendant by implying that
he had committed previous criminal acts or was otherwise disposed
toward criminal behavior"), certif. denied, 108 N.J. 677 (1987).
The limited exchange recited contains no suggestion implying
defendant was a criminal or had a criminal past. In fact, earlier,
in response to a different question, Officer Roemmele stated how
small the island was. In light of the brief comments and after
examining their content in the context of the testimony, we find
defendant's argument is unfounded. We reject any suggestion the
officer's statement of recognition supported an inference by
jurors defendant had been involved in prior criminal activity or
denied defendant a fair trial.3
Defendant next maintains the prosecutor's summation breached
the acceptable bounds of propriety requiring a new trial. Because
3
Defendant relies on State v. Tilghman, 345 N.J. Super. 571
(App. Div. 2001), which involved police testimony regarding the
insertion of a defendant's photograph in a photo array based on
the victim's description of the perpetrator, which was found to
be prejudicial. Id. at 578. Tilghman's holding is distinguishable
from the facts, and defendant's reliance is misplaced.
10 A-1399-15T3
defense counsel did not object to the State's closing, we must
consider his argument that the prosecutor engaged in misconduct
under the plain error rule. See R. 1:7-2; R. 2:10-2; see also
State v. Macon, 57 N.J. 325, 336-37 (1971). "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. Bunch, 180 N.J. 534, 541 (2004)
(alteration in original) (quoting State v. Afanador, 151 N.J. 41,
54 (1997)). In addition, it is "fair to infer from the failure
to object" that "in the context of the trial the error was actually
of no moment." State v. Ingram, 196 N.J. 23, 42 (2008) (quoting
State v. Nelson, 173 N.J. 417, 471 (2002)).
When reviewing a prosecutor's comments to a jury, a well-
settled principle is the primary duty of the prosecutor is "not
to obtain convictions but to see that justice is done." State v.
Ramseur, 106 N.J. 123, 320 (1987). Prosecutors' conduct must
always comport with principles of fundamental fairness.
Prosecutors are expected to make a
vigorous and forceful closing argument to the
jury, and are afforded considerable leeway in
that endeavor. Nevertheless, there is a fine
line that separates forceful from
impermissible closing argument. Thus, a
prosecutor must refrain from improper methods
that result in wrongful conviction, and is
obligated to use legitimate means to bring
about a just conviction.
11 A-1399-15T3
[Ingram, supra, 195 N.J. at 43 (citation
omitted).]
Bluntly, while a prosecutor may "strike hard blows, he [or
she] is not at liberty to strike foul ones." State v. Wakefield,
190 N.J. 397, 436 (2007) (quoting Berger v. United States, 292
U.S. 78, 88, 55 S. Ct. 529, 633, 79 L. Ed. 2d 1314, 1321 (1935)).
Claimed errors are not considered in isolation, but viewed in the
context of the entire trial. State v. Negron, 355 N.J. Super.
556, 576 (App. Div. 2002). Reversal is justified when the comments
are "clearly and unmistakably improper" and "substantially
prejudiced defendant's fundamental right to have a jury fairly
evaluate the merits of his defense." State v. Papasavvas, 163
N.J. 565, 625 (2000) (citing State v. Timmendeques, 161 N.J. 515,
575-76 (1999)).
Comments identified by defendant as improper include the
prosecutor's reiteration of Officer Roemelle's recognition of
defendant, stating "You also heard him say I knew him. I knew it
was Anthony, saw him, he was trying to dig out his car." Also,
defendant argues the prosecutor mischaracterized Officer
Roemelle's testimony regarding the condition of defendant's car,
as a way to refute his claim he was the passenger.
We have considered and rejected defendant's claim of
prejudice resulting from the recognition testimony. R. 2:11-
12 A-1399-15T3
3(e)(2). Regarding the second comment, we conclude it was
harmless.
When discussing Officer Roemmele observations as he looked
into the interior of defendant's vehicle, to refute defendant's
claim he was not driving, the prosecutor stated:
Now, remember what Officer Roemmele said.
What I tell you isn't evidence. Your
recollection controls, but Officer Roemmele
said I could see into the car. There was a
whole bunch of stuff on the passenger seat.
There was a whole b[]unch of stuff on the
passenger seat. I think he said documents, I
think he said it looked like it was trash all
over the passenger seat. There was no one in
that seat. How could there have been? There
was trash all over the passenger seat. There
was one person in that car[:] Anthony
Auriemma.
[(Emphasis added).]
Cases requiring reversal include misstatements of material
facts. State v. McGuire, 419 N.J. Super. 88, 148 (App. Div. 2011)
(concluding it was improper speculation by the prosecutor to
advance an unsupported theory that body parts had been
refrigerated).
In State v. Wilson, 128 N.J. 233, 242 (1992), the Supreme
Court found the prosecutor's unsupported suggestion a witness was
"part of" a murder "improper," but, "in light of defendant's
failure to object, and given [the] testimony, the impropriety does
not rise to the level of reversible error." Wilson, supra, 128
13 A-1399-15T3
N.J. at 242. We reach the same conclusion here. Although we
agree Officer Roemmele did not state there was "trash all over"
defendant's passenger's seat, we nevertheless reject the notion
this characterization "substantially prejudiced defendant's
fundamental right to have a jury fairly evaluate the merits of his
defense." Papasavvas, supra, 163 N.J. at 625 (citing Timmendeques,
supra, 161 N.J. at 575-76).
Defendant raises another evidential challenge regarding the
use of prior convictions in cross-examination, if defendant chose
to testify. During pre-trial motions, the judge permitted use of
an April 2005 third-degree eluding conviction, in a sanitized
form, for impeachment purposes. Reciting his reasoning, the judge
identified the third-degree eluding charge was the result of a
plea bargain, the conviction fell "barely outside the 10-year
guideline[], which does not impose an absolute prohibition, and
"the nature of the crime itself indicates to the [c]ourt that that
should be allowed to be used by the State if the [d]efendant were
to take the stand." Defendant believes the ruling, which rests
in the discretion of the trial judge, see State v. Sands, 76 N.J.
127, 144 (1979), was erroneous.
Directly related to the remoteness of convictions, N.J.R.E.
609(b)(1) states: "[i]f, on the date the trial begins, more than
ten years have passed since the witness's conviction for a crime
14 A-1399-15T3
. . . evidence of the conviction is admissible only if the court
determines that its probative value outweighs its prejudicial
effect . . . ." Therefore, a judge must consider the date of the
prior conviction and the date of the current trial.
A conviction falling outside the defined ten-year period may,
nevertheless, be admitted to attack a defendant's credibility, if
the probative value outweighs any prejudicial effect. N.J.R.E.
609(b)(1). A judge is guided by several considerations discussed
in Sands:
The key to exclusion is remoteness.
Remoteness cannot ordinarily be determined by
the passage of time alone. The nature of the
convictions will probably be a significant
factor. Serious crimes, including those
involving lack of veracity, dishonesty or
fraud, should be considered as having a
weightier effect than, for example, a
conviction of death by reckless driving. In
other words, a lapse of the same time period
might justify exclusion of evidence of one
conviction, and not another. The trial court
must balance the lapse of time and the nature
of the crime to determine whether the
relevance with respect to credibility
outweighs the prejudicial effect to the
defendant. Moreover, it is appropriate for
the trial court in exercising its discretion
to consider intervening convictions between
the past conviction and the crime for which
the defendant is being tried. When a
defendant has an extensive prior criminal
record, indicating that he has contempt for
the bounds of behavior placed on all citizens,
his burden should be a heavy one in attempting
to exclude all such evidence. A jury has the
right to weigh whether one who repeatedly
15 A-1399-15T3
refuses to comply with society's rules is more
likely to ignore the oath requiring veracity
on the witness stand than a law abiding
citizen. If a person has been convicted of a
series of crimes through the years, then
conviction of the earliest crime, although
committed many years before, as well as
intervening convictions, should be
admissible.
[Sands, supra, 76 N.J. at 144-45.]
The Court later adopted these factors in the 1993 revision
of our evidence rules. State v. Harris, 209 N.J. 431, 442 (2012).
In evaluating the admissibility of prior convictions that are more
than ten years old, the court must apply N.J.R.E. 609(b)(2), which
states:
In determining whether the evidence of a
conviction is admissible under Section (b)(1)
of this rule, the court may consider:
(i) whether there are intervening convictions
for crimes or offenses, and if so, the number,
nature, and seriousness of those crimes or
offenses,
(ii) whether the conviction involved a crime
of dishonestly, lack of veracity, or fraud,
(iii) how remote the conviction is in time,
(iv) the seriousness of the crime.
Here, although elaboration of the specific findings made
under N.J.R.E. 609(b)(1) and (2) would have aided our review, we
are able to affirm the determination as the record contains
16 A-1399-15T3
sufficient reasons to support the use of defendant's 2005
conviction.
In weighing the totality of all circumstances, the trial
judge considered the plea was mere months beyond the ten-year
limits in N.J.R.E. 609(b)(1), the offense was a significant one
for which defendant was given a four-year prison sentence, and the
offense reflects evasion to defeat arrest. We do not agree the
judge abused his discretion in permitting use of this prior
conviction.
Defendant also argued the judge improperly denied his motion
for a new trial, when the verdict was against the weight of the
State's circumstantial evidence. Having reviewed the record, it
is clear the verdict turned on the jury's assessment of the
witnesses' credibility. Because reasonable minds might accept the
State's evidence presented by Officer Roemmele, which supported
the elements of the offense charged, we rejects defendant's
argument.
A trial judge's ruling denying a motion for a new trial will
be reversed only if it "clearly appears that there was a
miscarriage of justice under the law." R. 2:10-1. The Supreme
Court emphasizes the trial court's role as fact-finder and the
high burden a defendant must meet:
17 A-1399-15T3
The aim of the review at the outset is rather
to determine whether the findings made could
reasonably have been reached on sufficient
credible evidence present in the record. This
involves consideration of the proofs as a
whole; the appraisal is not confined simply
to those offered by the plaintiff, for the
question is not simply whether there was
enough evidence to withstand a defense motion
at the end of the plaintiff's case or of the
entire case. When the reviewing court is
satisfied that the findings and result meet
this criterion, its task is complete and it
should not disturb the result, even though it
has the feeling it might have reached a
different conclusion were it the trial
tribunal. That the case may be a close one
or that the trial court decided all evidence
or inference conflicts in favor of one side
has no special effect.
[State v. Johnson, 42 N.J. 146, 162 (1964).]
It is clear, the jury did not find the testimony of
defendant's witnesses credible, but chose to accept the reasonable
conclusions drawn from the State's circumstantial evidence. "That
the case may be a close one or that the trial court decided all
evidence or inference conflicts in favor of one side has no special
effect." Ibid.
Affirmed.
18 A-1399-15T3