                                NOT FOR PUBLICATION WITHOUT THE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-0900-17T2

STATE OF NEW JERSEY,

          Plaintiff-Respondent,

v.

BRAULIO A. LOPEZ,

     Defendant-Appellant.
_____________________________

                    Submitted October 10, 2019 – Decided October 18, 2019

                    Before Judges Fuentes and Haas.

                    On appeal from the Superior Court of New Jersey,
                    Essex County, Law Division, Indictment No. 16-02-
                    0436.

                    Joseph E. Krakora, Public Defender, attorney for
                    appellant (Stephen P. Hunter, Assistant Deputy Public
                    Defender, of counsel and on the brief).

                    Theodore N. Stephens II, Acting Essex County
                    Prosecutor, attorney for respondent (Caroline C. Galda,
                    Special Deputy Attorney General/Acting Assistant
                    Prosecutor, of counsel and on the brief).

PER CURIAM
      On February 8, 2016, an Essex County grand jury returned a one-count

indictment charging defendant Braulio Lopez with second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5(b). The trial judge thereafter granted

defendant's motion to suppress certain statements he made to the police at the

time of his arrest, but denied defendant's motion to suppress the handgun.

Following a trial, a jury convicted defendant of the offense charged, and the

judge sentenced him to five years in prison with a forty-two-month period of

parole ineligibility. This appeal followed.

      On appeal, defendant presents the following contention:

             THE JUDGE IMPROPERLY COMMENTED ON THE
             EVIDENCE WHEN HE TOLD THE JURY THAT
             THERE WAS NO EVIDENCE OF ANY KIND OF
             ILLEGAL POLICE CONDUCT. THIS IMPROPER
             INSTRUCTION DENIED DEFENDANT HIS RIGHT
             TO PRESENT A DEFENSE BECAUSE THE
             INSTRUCTION EFFECTIVELY TOLD THE JURY
             TO DISREGARD DEFENDANT'S TESTIMONY.
             U.S. Const. Amend. VI, XIV; N.J. Const. Art. I, ¶¶ 1,
             10.

      After reviewing the record in light of the argument advanced on appeal,

we affirm.

                                       I.

      On May 2, 2015, three members of the Newark Police Department's

Firearm Interdiction Team (FIT) were on duty in Newark. Officers assigned to

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                                       2
the FIT are responsible for attempting to find illegal firearms. The two vehicles

used by the officers that night were not equipped with video cameras and,

therefore, they could not record any traffic stops they conducted.

        At approximately 10:00 p.m., the officers noticed a car pulling out of a

fast-food restaurant without its lights on. The car made several turns without

activating its lights. Based on this clear traffic violation, the officers stopped

the car.

        Defendant was sitting in the front passenger seat. One of the officers

approached the car and began speaking to defendant.          The officer noticed

defendant looking around nervously as he moved his hands near his waistband,

which drew the officer's attention to that area. The officer saw a bulge under

defendant's shirt, and suspected it was a weapon.        The officer then asked

defendant to get out of the car and as defendant was spreading his legs to be

frisked, a handgun fell out through his pant leg and struck the ground.

        The officers arrested defendant and charged him with second-degree

unlawful possession of the handgun.         The officers searched the two other

occupants of the car and, when no additional weapons were found, released

them.




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                                        3
       At trial, defendant testified that the officers approached the car with their

guns drawn and immediately ordered him to get out of the car. Defendant

claimed that the officers then searched the car, found the handgun, and blamed

him for it. Defendant asserted the gun did not belong to him and he did not

know who owned it.

       Prior to the trial, the judge found that the traffic stop was lawful, and

denied defendant's motion to suppress the handgun.            However, the judge

suppressed statements made by defendant at the scene claiming ownership of

the gun because he provided this information to the officers before they advised

him of his Miranda1 rights.

       During his closing statement to the jury, defendant's attorney asserted that

the FIT's vehicles were not equipped with video cameras so that the officers

could take illegal actions without being detected. Defense counsel stated, "this

special unit in charge of taking weapons from people, they were not equipped

with this recording device. Why not? Do they want to be able to make illegal

stops, make up something so that they can search a car?"

       Defendant's attorney quickly made a second statement in this same vein,

stating that the mission of the FIT was to


1
    Miranda v. Arizona, 384 U.S. 436 (1966).
                                                                            A-0900-17T2
                                         4
             try[] to pull guns off the street. But they can't just do
             it. They, they, they have to make up a story in order to
             get into that car. And that's why they're not, they're not
             using recordings. Because they, they don't want to
             document what's happening. They could, but they don't
             want to. They want to have a little leeway, a little
             elbow room, to go through that car.

Defense counsel soon raised this assertion again, and told the jury that "in order

to make the [FIT] story work, they have to give certain facts that give them the

greenlight to take these people out of their car to do this little search of theirs."

      At this point, the prosecutor objected and the judge conducted a sidebar

conference to address the matter. The State argued that defense counsel was

wrongfully asserting that the officers committed illegal acts by not having video

cameras on their cars to record the stops they made. Defense counsel stated that

he did not mean to state that the officers acted illegally and did not recall using

that term.

      The judge sustained the State's objection, finding that defense counsel

could not make "references to illegality" in the absence of any evidence in the

record to support that claim. Instead, the judge instructed the attorney to limit

his remarks to the testimony presented by the witnesses.

      The judge and the parties then discussed what instruction to give to the

jury to address the matter. The parties agreed that the judge should instruct the


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                                          5
jury "that there is no evidence in the case with regards to police conduct[,]" and

"they are to disregard and not consider that. . . . Again, their recollection is what

counts."

      When the sidebar discussion concluded, the judge instructed the jury as

follows:

                    Okay. Ladies and gentlemen, just very briefly.
             There was a legal matter at sidebar, which I just heard.
             I just want to instruct you that if there's any reference
             that you may have heard with regards to any kind of
             illegal police conduct that there's no evidence of that in
             this case. Okay? So, if any reference to that was made,
             that is for you to disregard.

                   However, again, it is your recollection as to the
             evidence. You heard all the testimony here today.
             Whatever counsel says, both the State and the Defense
             say in their summations i[s] their recollection of the
             evidence. But it's your recollection that controls. All
             right? You understand that. That's their commentary.
             And what they're saying is not evidence in the case.
             Okay?

Defense counsel did not object to this instruction and then completed his

summation.

      During his final charge to the jury, the judge provided the jury with these

additional instructions:

                   During the course of the trial, I was required to
             make certain ruling on the admissibility of evidence,
             either in or outside of your presence. These rulings

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                                         6
            involve questions of law. The comments of the
            attorneys on these matters were not evidence. In ruling,
            I decided questions of law, and whatever that ruling
            may have been in a particular instance, you should
            understand that it was not an expression of my, or any
            opinion by me on the merits of the case.

                   Neither should my other rulings on any aspect of
            the trial be taken as favoring one side or the other. Each
            matter was decided on its own merits. Now, I may have
            sustained an objection to some questions asked by
            counsel, which may have contained statements of
            certain facts. The mere fact that an attorney asks a
            question and inserts facts or comments or opinions in
            that question i[n] no way proves the existence of those
            facts. You will only consider such facts which, in your
            judgment, have been proven by the testimony of the
            witnesses or from the exhibits that have been admitted
            into evidence.

The judge also told the jury:

                   Regardless of what counsel said or I may have
            said, recalling the evidence in this case, it is your
            recollection of the evidence that should guide you as
            judges of the facts. Arguments, statements, remarks,
            openings, and summations of counsel are not evidence
            and must not be treated as evidence. Although the
            attorneys may point out what they think is important in
            this case, you must rely solely upon your understanding
            and recollection of the evidence that was admitted
            during the trial.




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                                        7
                                        II.

      On appeal, defendant argues that the judge erred by preventing his

attorney from asserting in his summation that the officers acted "illegally" in not

having video cameras available to record the traffic stop. We disagree.

      It is well established that a trial judge has the discretion to control the

summations of counsel, including the ability to limit their remarks "to fair

comment on the evidence before the jury." State v. Reynolds, 41 N.J. 163, 176

(1963). Accordingly, "[t]he scope of [a] defendant's summation argument must

not exceed the 'four corners of the evidence.'" State v. Loftin, 146 N.J. 295, 347

(1996) (quoting Reynolds, 41 N.J. at 176). "Thus, it is proper for a trial court

to preclude references in closing arguments to matters that have no basis in the

evidence." State v. Jones, 308 N.J. Super. 174, 185 (App. Div. 1998).

      This court's decision in State v. Royal, 386 N.J. Super. 162, (App. Div.

2006) provides an apt example of the application of these settled principles. In

Royal, we found reversible error in the trial court's inclusion of a curative

instruction that effectively neutralized a defense attorney's closing argument,

which had asserted that the State's unexplained failure to present fingerprint

evidence linking the defendant to the murder weapon gave rise to a reasonable

doubt that the defendant had committed a murder. Id. at 167-68. Noting that


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                                        8
the issue was one of first impression in New Jersey, the court chose to adopt a

rule from a case decided in the Maryland Court of Appeals. Id. at 173 (citing

Eley v. State, 419 A.2d 384, 386 (Md. 1980) ("[W]here there is unexplained

silence concerning a routine and reliable method of identification especially in

a case where the identification testimony is at least subject to some question, it

is within the scope of permissible argument to comment on this gap in the proof

offered.")).

      However, the court also recognized that "[t]he right to comment on

fingerprint evidence is, of course, not without limits." Id. at 173. In particular,

the court noted that comments in summation must be based on evidence deduced

at trial, stating "without evidence to support the contention, [the] defendant

cannot argue that the failure to obtain fingerprints did not comply with good

police practice, or that if fingerprints had been obtained, they would have

exculpated [the] defendant." Ibid.

      Applying these principles here, we conclude that the judge properly

exercised his discretion by directing defense counsel to refrain from asserting

that the FIT officers acted "illegally" because they did not have video cameras

on their cars to record the traffic stop, and instructing the jury to disregard those

comments. Defendant did not present any evidence that the Newark Police


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                                         9
Department was required by law to equip all police vehicles with cameras, or

that it was illegal not to record a traffic stop.    Because defense counsel's

assertions clearly exceeded the "four corners of the evidence," the judge

correctly granted the State's objection.

      At the same time, the judge carefully instructed the jury that the arguments

of counsel did not constitute evidence in the case, and that it was their

recollection of the testimony that should control their deliberations. The judge

provided the jury with further detailed instructions on these issues at the

conclusion of the trial.

      Under these circumstances, we are satisfied that the judge's ruling was

proper and did not amount to an abuse of discretion.

      Affirmed.




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