STATE OF NEW JERSEY VS. DION L. CROMWELL(13-06-0546, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2941-14T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DION L. CROMWELL, a/k/a MALIK
CROMWELL, DEON CROMWELL, DION
FLEMING, and DEON FLEMING, and
MALIK CRONWELL,

Defendant-Appellant.
______________________________

Submitted May 15, 2017 – Decided June 30, 2017

Before Judges Haas and Currier.

On appeal from the Superior Court of New
Jersey, Law Division, Union County, Indictment
No. 13-06-0546.

Joseph E. Krakora, Public Defender, attorney
for appellant (Joshua D. Sanders, Assistant
Deputy Public Defender, of counsel and on the
brief).

Grace H. Park, Acting Union County Prosecutor,
attorney for respondent (N. Christine Mansour,
Special Deputy Attorney General/Acting
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM
 Defendant Dion L. Cromwell appeals from his conviction and

sentence following a jury trial. After a review of his contentions

in light of the record and applicable legal principles, we affirm.

Two police officers were conducting a motor vehicle stop in

a marked patrol car when a black Dodge Charger drove past them at

a "high rate of speed." The officers terminated the motor vehicle

stop and attempted to catch up with the Charger. When the car

stopped at a traffic light, the officers activated their lights

and sirens. The officers followed the Charger as it "accelerated

at a high rate of speed," and cut off several vehicles. The

Charger then began to skid, struck the curb and a metal guardrail,

and came to a stop blocking both lanes of travel.

The officers exited their vehicle with their weapons drawn

and approached the Charger, instructing defendant to turn off the

car. Officer Sean Campbell testified that he observed "[t]he

driver . . . raise[] his left hand as if he had a weapon, and then

simultaneously . . . accelerate[] toward [him]." Fearing that

defendant had a weapon, Officer Campbell fired three times at the

Charger, striking the driver's side rear door and quarter panel.

Defendant reversed the vehicle and proceeded again onto the

highway.

The officers continued their pursuit of defendant and

eventually caught up to the car after it drove over a concrete

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median, causing the driver to lose control and spin out, disabling

the Charger. When the officers reached the car, the driver's side

door was open and the car was unoccupied. Defendant was

apprehended shortly thereafter in a nearby warehouse.

Defendant was charged in an indictment with second-degree

eluding, N.J.S.A. 2C:29-2(b); third-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(2); fourth-degree aggravated assault, N.J.S.A.

2C:12-1(b)(5); third-degree resisting arrest, N.J.S.A. 2C:29-2(a);

and third-degree possession of a weapon for unlawful purpose,

N.J.S.A. 2C:39-4(d).

The case was tried before a jury in October 2014. Defendant

was convicted of second-degree eluding and third-degree resisting

arrest, and he was sentenced to an aggregate term of eighteen

years imprisonment with a six-year period of parole ineligibility.

On appeal, defendant presents the following issues:

POINT I: THE PROSECUTOR MISSTATED THE LAW AND
DILUTED THE STATE'S BURDEN OF PROOF BY ARGUING
IN SUMMATION THAT THE PRESUMPTION OF INNOCENCE
WAS EXTINGUISHED BEFORE JURY INSTRUCTIONS OR
DELIBERATIONS, VIOLATING MR. CROMWELL'S RIGHT
TO A FAIR TRIAL. U.S. CONST., AMEND. XIV; N.J.
CONST. (1947), ART. 1, PAR. 10.

POINT II: THE CONVICTION SHOULD BE VACATED
BECAUSE THE JURORS WERE NOT INSTRUCTED THAT
THEY MUST UNANIMOUSLY AGREE AS TO WHICH
INCIDENT ESTABLISHED SECOND-DEGREE ELUDING.

POINT III: THE TRIAL WAS SO INFECTED WITH
ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES

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 NOT REQUIRE REVERSAL, THE AGGREGATE OF THE
ERRORS DENIED MR. CROMWELL A FAIR TRIAL.

POINT IV: MR. CROMWELL'S SENTENCE IS
MANIFESTLY EXCESSIVE AND UNDULY PUNITIVE AND
VIOLATES THE LAWS OF NEW JERSEY WITH RESPECT
TO THE IMPOSITION OF THE DISCRETIONARY
EXTENDED TERM.

A. The Trial Court Erred By Finding
Aggravating Factors One And Two In
This Case.

B. Mr. Cromwell's Sentence Is
Otherwise Excessive, Unduly
Punitive, And Requires Reduction.

C. A Period Of Parole Ineligibility
Is Not Warranted In This Matter.

During summation, the assistant prosecutor stated:

Over a week ago, Mr. Cromwell sat in that seat
with the presumption of innocence. He had a
veil over him. He was presumed innocent
because the State had presented no evidence
against him for the crimes with which he was
charged.

Today, that presumption is gone. He no
longer sits there presumed innocent because
the State has proven beyond a reasonable doubt
through the evidence presented, through
several days of testimony, maps, photographs,
exhibits, that on January 20th, 2013,
[defendant] made certain choices, and making
those choices, he committed certain crimes.

There was no objection by defense counsel. Defendant contends

that this statement is prosecutorial misconduct requiring a

reversal of the verdict. We disagree.

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 Where defense counsel does not object to statements made in

summation, the plain error standard applies. R. 2:10-2. We

reverse only if the error was "clearly capable of producing an

unjust result." State v. Miller, 205 N.J. 109, 126 (2011) (quoting

R. 2:10-2). "Generally, if no objection was made to the improper

remarks, the remarks will not be deemed prejudicial." State v.

Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S.

858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001) (citing State v.

Ramseur, 106 N.J. 123, 323 (1987)). "Failure to make a timely

objection indicates that defense counsel did not believe the

remarks were prejudicial at the time they were made." Ibid.

(citing State v. Irving, 114 N.J. 427, 444 (1989)).

Defendant argues that the prosecutor's remarks were a

misstatement of the law and prejudiced his right to be presumed

innocent by the jury until proven guilty beyond a reasonable doubt.

Our Supreme Court has stated that "a court must take care to

ensure that the jury enter its deliberations without preconceived

views as to the existence of any essential element of the offense

or the guilt of the defendant." State v. Ingenito, 87 N.J. 204,

214 (1981). Here the prosecutor inartfully argued to the jury

that the State had met its burden of proof, and therefore,

defendant was to be adjudged guilty on the charges and was no

longer presumed innocent. In making this argument, the prosecutor

5 A-2941-14T3
improperly advised that the presumption of innocence had been

extinguished. It is a basic tenet of our criminal law that the

presumption continues "throughout the trial and even during

deliberations unless and until the jury has reached its verdict."

See State v. Moore, 122 N.J. 420, 456 (1991).

Not every deviation by a prosecutor, however, requires the

reversal of a conviction. State v. Darrian, 255 N.J. Super. 435,

453 (App. Div.), certif. denied, 130 N.J. 13 (1992) (citing State

v. Bucanis, 26 N.J. 45, 56, cert. denied, 357 U.S. 910, 78 S. Ct.

1157, 2 L. Ed. 2d 1160 (1958)). "The prosecution is afforded

considerable leeway, within limits, in making opening statements

and summations." State v. Loftin, 146 N.J. 295, 386-87 (1996)

(citations omitted). In assessing whether an improper remark in

summation requires reversal, we must determine whether the conduct

was "so egregious that it deprive[s] the defendant of a fair

trial." State v. Frost, 158 N.J. 76, 83 (1999) (citing Ramseur,

supra, 106 N.J. at 332; State v. Siciliano, 21 N.J. 249, 262

(1956)).

Here, the improper comment was brief and consisted of two

sentences in the prosecutor's summation. It was not repeated or

emphasized. Furthermore, the trial judge gave instructions to the

jury explaining and clarifying the State's burden of proof and

defendant's presumption of innocence seven times during the course

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of the trial and jury instructions. We note also that the jury

acquitted defendant of several of the charges, reflecting its

understanding that the State must prove every element of each

offense beyond a reasonable doubt. We are satisfied that the

prosecutor's statement was not so egregious as to warrant a

reversal of defendant's conviction.

Defendant criticizes the jury instructions in an argument not

raised to the trial court, asserting that the events were actually

four separate incidents and, therefore, the judge should have

instructed the jury that they must unanimously agree as to which

act constituted the offense of second-degree eluding. Defendant

characterizes the four incidents as (1) the attempt by the police

to catch up to defendant's vehicle after it sped past the traffic

stop; (2) the officers' pursuit of defendant, and the Charger's

stop and blocking of lanes; (3) the police exiting their vehicle

and approaching defendant followed by defendant reversing his car

and taking off again; and (4) defendant's flight on foot after his

car became disabled.

We, again, consider defendant's argument under the plain

error standard, and will reverse only if we find the error was

clearly capable of producing an unjust result. R. 2:10-2.

There is no merit to defendant's argument that these events

were four separate and distinct acts of eluding. The indictment

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did not charge multiple counts of eluding; defense counsel did not

request that instructions be given to the jury for separate acts

of eluding. A review of the charge reflects that the trial judge

gave appropriate instructions as to the elements of the eluding

charge including its culpability requirement. The jury was

repeatedly advised that its verdict must be unanimous on each

charge. There has been nothing presented that the jury was

confused.

We have considered the arguments defendant has offered to

establish that an extended term should not have been imposed and

that his sentence was excessive, and determined they lack merit.

Counsel did not object to the imposition of an extended term. The

judge's findings and balancing of the aggravating and mitigating

factors are supported by adequate evidence in the record, and the

sentence is neither inconsistent with sentencing provisions of the

Code of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, nor shocking

to the judicial conscience. See State v. Bieniek, 200 N.J. 601,

608 (2010); State v. Cassady, 198 N.J. 165, 180-81 (2009).

Affirmed.

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