                        NOT FOR PUBLICATION WITHOUT THE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-0516-14T1


STATE OF NEW JERSEY,

        Plaintiff-Respondent,

v.

JASON ASKEW,

     Defendant-Appellant.
________________________________________________

              Submitted December 20, 2016 – Decided            March 23, 2017

              Before Judges Yannotti and Kennedy.

              On appeal from Superior Court of New Jersey,
              Law Division, Passaic County, Indictment No.
              13-02-0102.

              Fusco & Macaluso Partners, LLC, attorneys for
              appellant (Amie E. DiCola, on the brief).

              Camelia M. Valdes, Passaic County Prosecutor,
              attorney for respondent (Marc A. Festa, Senior
              Assistant Prosecutor, of counsel and on the
              brief).

PER CURIAM

        Defendant Jason Askew was tried before a jury and found guilty

on two counts of second-degree leaving the scene of a motor vehicle

accident      under    circumstances     resulting     in   the   death    of      two
individuals, and other offenses. Defendant was sentenced to an

aggregate term of nineteen years of incarceration. He appeals from

the judgment of conviction dated September 2, 2014. We affirm.

                                         I.

       A Passaic County grand jury charged defendant with second-

degree   leaving     the   scene    of   a    motor   vehicle     accident      under

circumstances that resulted in death to Jose Fernandez-Minaya,

contrary to N.J.S.A. 2C:11-5.1 (count one); second-degree leaving

the scene of a motor vehicle accident under circumstances that

resulted in death of Jhasleidy Benjumea-Bastidas, N.J.S.A. 2C:11-

5.1    (count   two);   third-degree         injuring    a    person   (Fernandez-

Minaya), and leaving the scene of the injury knowing the person

is    physically    helpless,      N.J.S.A.     2C:12-1.2(a)      (count     three);

third-degree injuring a person (Benjumea-Bastidas), and leaving

the scene of the injury knowing the person is physically helpless,

N.J.S.A.    2C:12-1.2(a)        (count       four);     third-degree      hindering

apprehension, N.J.S.A. 2C:29-3(b)(1) (count five); and fourth-

degree tampering with evidence, N.J.S.A. 2C:28-6(1) (count six).

       Defendant was tried before a jury. The following evidence was

presented at trial. On the evening of March 16, 2012, Benjumea-

Bastidas   and     Fernandez-Minaya      celebrated       a   birthday     with    two

friends, A.F. and E.V. They went to a club and left in a car being


                                         2                               A-0516-14T1
driven by Benjumea-Bastidas. After dropping off another person,

they became lost. Benjumea-Bastidas got into an argument with E.V.

and they exited the vehicle. A.F. and Fernandez-Minaya also exited

the car. They followed Benjumea-Bastidas and tried to get her to

return to the car. A.F. and E.V. then walked back to the car, but

Benjumea-Bastidas and Fernandez-Minaya remained at the corner of

Seventh Avenue and Route 46 East.

     While A.F. was speaking to E.V. near the car, they heard a

loud noise coming from where Benjumea-Bastidas and Fernandez-

Minaya had been speaking. A.F. testified that the noise sounded

like a "crash had occurred." She turned around and did not see

Benjumea-Bastidas and Fernandez-Minaya standing on the corner.

A.F. and E.V. went to look for them and found them stretched out

on the ground. A.F. did not see any stopped car in the road, nor

did she see the car that apparently struck Benjumea-Bastidas and

Fernandez-Minaya.

     At 3:57 a.m., on March 17, 2012, Officer Alex Zamora of the

Clifton Police Department (CPD) received a radio dispatch from

another officer, who indicated that two people had been found

lying on the highway. Zamora went to the scene. He observed a male

lying on the left lane and a female lying on the right lane of the




                                3                      A-0516-14T1
highway. The bodies were about fifty feet apart. The other officer

was attending to the female.

     Zamora went to assist the male. According to Zamora, the male

was unresponsive and he did not detect a pulse. When he arrived,

Zamora did not see any other vehicles on the roadway. No vehicles

returned to the scene, and Zamora did not observe a damaged vehicle

in the area.

     Officer   William   Bais   of     the       CPD,   whose   responsibilities

included the investigation of fatal motor vehicle accidents, was

informed of the accident at around 4:00 a.m. on March 17, 2012.

When he arrived at the scene, the victims' bodies had already been

removed.   The police recovered forty-nine pieces of evidence from

the scene, including a piece of a clear mirror, a small piece of

gray silver plastic, and a piece of a plastic mirror.

     Bais later determined that the parts were from a 2002 to 2005

black   Cadillac   Escalade.    From       the    New    Jersey   Department        of

Transportation, Bais obtained a list of 2002 to 2005 Cadillac

Escalades that were registered in New Jersey. With the help of

another officer, he began to check the residences associated with

the vehicles. They determined that defendant may be the owner of

the vehicle involved in the accident.




                                       4                              A-0516-14T1
     Bais went to a residence in Paterson and spoke with the owner,

who said that defendant was his tenant and defendant's vehicle had

been involved in an accident several weeks earlier. Bais located

defendant at his place of employment and brought defendant to

police headquarters. Defendant was wearing a blue New York Yankees

jacket, with white leather sleeves.

     Defendant admitted he was an owner of a Cadillac Escalade,

and the vehicle had been involved in an accident on March 17,

2012. Defendant claimed his vehicle struck a deer on Route 19

South. He said the vehicle was at an auto body shop in Newark.

Defendant also stated that on the night of the accident, he had

been at the Holiday Inn in Totowa and Six Brothers Diner. The

police obtained surveillance videos from both locations.

     In the Holiday Inn video recorded on March 17, 2012, defendant

was seen in the lobby by the bar and outside the hotel. Defendant

was wearing the same jacket he was wearing when he met the police

for his interview. Defendant's vehicle also was seen in the video.

It was not damaged. The Totowa Holiday Inn is located on Route 46.

     The video from Six Brothers Diner shows defendant entering

the diner at 2:59 a.m. on March 17, 2012. He is also seen leaving

the diner between 3:46 a.m. and 3:50 a.m. on that date. The diner

is located about 2.3 miles from the accident site. Testimony


                                5                       A-0516-14T1
established that the crash site is about a three-minute drive from

the diner. As noted previously, Zamora was dispatched to the

accident scene at 3:57 a.m. on March 17, 2012.

      Bais went to the auto body shop to inspect defendant's

vehicle, which was still in a damaged condition. Bais found

documents in the car, which indicated that it was a 2003 Cadillac

Escalade and defendant was its registered owner.

      Bais also collected evidence from the vehicle, which included

hair on the damaged hood, hair on the headlight plug, and a broken

headlight casing with hair. Bais also recovered hair from the

vehicle's undercarriage. The hairs were sent to a laboratory for

analysis.

      Bais testified that he matched the piece of the vehicle's

grill found at the scene of the accident with a piece of the grill

recovered from the auto body shop. He also matched a piece of the

lens of the light housing found at the scene with the light housing

recovered at the body shop.

      Detective Timothy McConnell of the vehicular homicide unit

in   the    Passaic   County   Prosecutor's     Office      was   assigned        to

investigate the accident. He inspected the area and noted numerous

pieces     of   vehicle   debris   and   personal   items    that   apparently

belonged to the victims.


                                         6                          A-0516-14T1
     McConnell said there were no defects or significant damage

that would affect the ability to drive on the road. He noted that

the speed limit in the area was thirty-five miles per hour, and

the area was primarily residential and commercial. He did not

observe any tire or skid marks. The debris covered four lanes of

travel, and was spread over 221 feet.

     About sixteen days after the collision, Sergeant Michael

Bienkowski of the CPD searched the entire length of Route 19 in

the area of the accident to determine if there was any evidence

that a vehicle had struck a deer. Bienkowski found no deer remains

or pieces of a vehicle that may have been recently deposited in

the area. He also searched several streets in Clifton, and checked

to see if there were any reports of an animal on Route 19 at the

time of the accident. He found none.

     A State Police DNA forensic scientist analyzed some of the

evidence collected in the investigation. A partial DNA profile was

extracted     from   hair    recovered     from   the   undercarriage          of

defendant's    vehicle.     It   matched   Benjumea-Bastidas's    DNA.     The

forensic scientist said that this hair could not have come from

an animal.

     Dr. Di Wang, an assistant medical examiner, performed an

autopsy on Benjumea-Bastidas. He observed multiple contusions and


                                      7                          A-0516-14T1
abrasions on her face and similar injuries on almost all parts of

her body. He found multiple internal injuries, including seven

fractured ribs and a completely severed spinal cord. He said the

rib fractures and spinal-cord injury he found are typically the

result      of   a    very    strong      force,    and   were   consistent      with      a

pedestrian being struck by a vehicle traveling at a high rate of

speed.

       Dr.    Wang     also    noted      a   number   of    injuries   to    Benjumea-

Bastidas's internal organs, including injuries to the spleen,

liver, heart, and lungs. He opined that the cause of her death was

multiple force injuries to the head, torso and extremities. He

said   that,         even    with    prompt    medical      intervention,     Benjumea-

Bastidas would not have survived more than a minute after impact.

       An    autopsy        also    was   performed    upon    Fernandez-Minaya.           It

revealed that he suffered blunt force trauma to the head and neck,

which would have been fatal. He also sustained blunt force trauma

to the chest, resulting in multiple rib fractures, pulmonary

contusions, and other injuries. These injuries also would have

been   fatal.        Fernandez-Minaya         had   other    internal   injuries       and

multiple fractures of his arms and legs. The autopsy found that

Fernandez-Minaya's death was due to multiple injuries, consistent




                                               8                             A-0516-14T1
with a pedestrian being struck by a vehicle traveling at a high

rate of speed.

     Defendant presented one witness, a former pizzeria customer,

who claimed that she was shocked when she heard about the accident.

     The jury found defendant guilty on all counts. Thereafter,

the judge sentenced defendant to five years on both counts one and

two, and three-years each on counts three, four, and five. Count

six was merged into count five. The judge ordered that all of the

sentences be served consecutively.

     Defendant appeals and argues:

          POINT I: THE COURT SHOULD REVERSE MR. ASKEW'S
          CRIMINAL JUDGMENT OF CONVICTION BECAUSE THE
          JURY'S VERIDCT IS AGAINST THE WEIGHT OF THE
          EVIDENCE AND THE STATE HAS FAILED TO MEET ITS
          BURDEN OF PROOF, NAMELY THAT MR. ASKEW IS
          GUILTY OF THE ALLEGED CHARGES BEYOND A
          REASONABLE DOUBT.

          A. The State has failed to prove beyond a
          reasonable doubt that Mr. Askew is guilty of
          two counts of Leaving the Scene of a Motor
          Vehicle Accident Resulting in Death, contrary
          to N.J.S.A. 2C:11-5.1, and two counts of
          Leaving the Scene of a Motor Vehicle Accident
          Resulting in Endangering and Injuring a
          Victim, contrary to N.J.S.A. 2C:12-1.2(a).

          B. The State has failed to prove beyond a
          reasonable doubt that Mr. Askew is guilty
          beyond a reasonable doubt of Hindering
          Apprehension, contrary to N.J.S.A. 2C:29-
          3(b)(1) and Tampering with Evidence, contrary
          to N.J.S.A. 2C:28-6(1).



                                9                         A-0516-14T1
                                   II.

     As noted, defendant argues that the State failed to meet its

burden of proving each element of the charges under both N.J.S.A.

2C:11-5.1 and N.J.S.A. 2C:12-1.2(a). Defendant argues that because

the jury's verdict is against the weight of the evidence, it should

be   deemed    the   result   of   mistake,   passion,   prejudice,        or

partiality.1

     A trial court may not set aside a jury's verdict and order a

new trial "unless it clearly and convincingly appears that there

was a manifest denial of justice under the law." State v. Sims,

65 N.J. 359, 373-74 (1974). A new trial is warranted only if the

jury's verdict represents a "miscarriage of justice." Dolson v.

Anastasia, 55 N.J. 2, 7 (1969).

     In ruling on a motion for a new trial, the trial court must

determine:

          [w]hether, viewing the State's evidence in its
          entirety,   be   that   evidence   direct   or
          circumstantial, and giving the State the
          benefit of all its favorable testimony as well
          as   of   the   favorable   inferences   which
          reasonably could be drawn therefrom, a

1
  We note that defendant failed to move for a new trial on the
ground that the jury verdict is against the weight of the evidence.
Strictly speaking, defendant is precluded from raising this
argument for the first time on appeal. R. 2:10-1; State v. Perry,
128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45
(1974). We have elected, however, to address defendant's
arguments.

                                   10                        A-0516-14T1
          reasonable jury could find guilt of the charge
          beyond a reasonable doubt.

          [State v. Reyes, 50    N.J.    454,   459   (1967)
          (citation omitted).]

We apply the same standard when reviewing a trial court's decision

on a motion for a new trial. Dolson, supra, 55 N.J. at 7.

     With regard to his convictions on counts one and two, charging

violations of N.J.S.A. 2C:11-5.1, defendant argues that the State

failed to present sufficient evidence to establish that he drove

the vehicle that struck Benjumea-Bastidas and Fernandez-Minaya,

and that he then left the scene. We disagree.

     N.J.S.A. 2C:11-5.1 states, in relevant part:

          A motor vehicle operator who knows he [or she]
          is involved in an accident and knowingly
          leaves the scene of that accident under
          circumstances that violate the provisions of
          [N.J.S.A. 39:4-129] shall be guilty of a crime
          of the second degree if the accident results
          in the death of another person.

     N.J.S.A. 39:4-129(a) states that:

          The driver of any vehicle, knowingly involved
          in an accident resulting in . . . death to any
          person shall immediately stop the vehicle at
          the scene of the accident or as close thereto
          as possible but shall then forthwith return
          to and in every event shall remain at the scene
          until he has fulfilled the requirements of
          subsection (c) of this section.

     Subsection (c) of N.J.S.A. 39:4-129 states in pertinent part:



                               11                              A-0516-14T1
           The driver of any vehicle knowingly involved
           in an accident resulting in injury or death
           to any person or damage to any vehicle or
           property shall give his name and address and
           exhibit    his    operator's    license    and
           registration certificate of his vehicle to the
           person injured or whose vehicle or property
           was damaged and to any police officer or
           witness of the accident, and to the driver or
           occupants of the vehicle collided with and
           render to a person injured in the accident
           reasonable assistance, including the carrying
           of that person to a hospital or a physician
           for medical or surgical treatment, if it is
           apparent that the treatment is necessary or
           is requested by the injured person.

     Here, the State presented sufficient evidence to allow a jury

to find beyond a reasonable doubt that defendant was guilty of the

offenses   charged   under   N.J.S.A.   2C:11-5.1.   As   we     stated

previously, the State presented testimony regarding the extensive

physical evidence recovered from the scene, which allowed the jury

to find that defendant's 2003 Cadillac Escalade was the vehicle

that struck the two victims.

     The State presented evidence that the DNA in the hair obtained

from Benjumea-Bastidas matched the DNA in the hair recovered from

the undercarriage of defendant's car. The evidence also showed

that this hair was from a human being, not from a deer.

     Furthermore, the State presented surveillance videos from the

night of the accident. One video showed defendant at the Holiday

Inn in Totowa and his vehicle was not damaged. The other video

                                12                          A-0516-14T1
showed defendant leaving the Six Brothers Diner at approximately

3:49 a.m. The diner is a three-minute drive to the crash site. As

noted, the officer was dispatched to the scene at 3:57 a.m.

     The State also presented testimony from A.F. and the police

officers who said that they did not see any car, including a

damaged car, stop after the accident or return to the scene.

Finally, there was no evidence supporting defendant's claim that

he hit a deer on Route 19.

     Viewing the State's evidence in its entirety, and giving the

State the benefit of all favorable inferences that reasonably

could be drawn from the evidence, we conclude that the State

presented    sufficient   evidence    to   support   the   jury's    verdict

finding defendant guilty beyond a reasonable doubt of the offenses

charged under N.J.S.A. 2C:11-5.1. We reject defendant's contention

that the verdict should be deemed the result of mistake, passion,

prejudice, or partiality.

                                   III.

     Next,    defendant   argues   that    the   State   did   not   present

sufficient evidence to allow the jury to find beyond a reasonable

doubt that he was guilty of the charges under N.J.S.A. 2C:12-

1.2(a). The statute provides that:

            A person is guilty of endangering an injured
            victim if he causes bodily injury to any

                                     13                         A-0516-14T1
          person or solicits, aids, encourages, or
          attempts or agrees to aid another, who causes
          bodily injury to any person, and leaves the
          scene of the injury knowing or reasonably
          believing   that   the  injured   person   is
          physically helpless, mentally incapacitated
          or otherwise unable to care for himself.

          [Ibid.]

     As applied here, N.J.S.A. 2C:12-1.2(a) required the State to

establish that 1) defendant knowingly caused bodily injury to a

person; 2) the injured person was physically helpless, mentally

incapacitated, or otherwise unable to care for himself or herself;

and 3) defendant left the scene of the injury knowing or reasonably

believing that the injured person was in that condition. State v.

Munafo, 222 N.J. 480, 488-89 (2015). "Physically helpless" is

defined as "the condition in which a person is unconscious, unable

to flee, or physically unable to summon assistance." N.J.S.A.

2C:12-1.2(b).

     Defendant argues that the State failed to establish that

after the accident, Benjumea-Bastidas and Fernandez-Minaya were

"physically   helpless."   In   support   of   his   argument,    defendant

relies upon State v. Moon, 396 N.J. Super. 109 (App. Div. 2007),

certif. denied, 193 N.J. 586 (2008).

     In Moon, the defendant put a gun to the victim's head, pulled

the trigger, and kicked the victim's body to check if he was alive.


                                  14                             A-0516-14T1
Id. at 112. We noted that the State did not present any evidence

showing that the victim "exhibited any sign of life after he was

shot or that defendant or anyone else present knew or reasonably

believed that he was alive and incapacitated, helpless or unable

[to summon assistance] after he collapsed." Id. at 115.

     We therefore held that N.J.S.A. 2C:12-1.2(a) did not apply

in that case. Id. at 117. We determined that the State's evidence

was inadequate to permit the jury to find that the victim was

physically helpless or "that the defendant left [the victim] on

the street knowing or reasonably believing that he was anything

other than dead." Ibid.

     Defendant's reliance upon Moon is misplaced. Here, the State

presented evidence that allowed the jury to find that after the

accident,    the   victims   survived   briefly   and   were   physically

helpless. The State also presented evidence that allowed the jury

to find that defendant left the accident while the victims were

in that condition. The evidence also allowed the jury to find that

defendant did not stop to check on the victims, but instead left

the scene.

     Viewing the evidence in its entirety, and giving the State

the benefit of all favorable inferences that reasonably could be

drawn from the evidence, we conclude the State presented sufficient


                                   15                          A-0516-14T1
evidence to support the jury's verdict on the charges under

N.J.S.A. 2C:12-1.2(a).

                                   IV.

    Defendant further argues that the State did not present

sufficient evidence to support the jury's verdict finding him

guilty of hindering apprehension, contrary to N.J.S.A. 2C:29-

3(b)(1), and of tampering with evidence, contrary to N.J.S.A.

2C:28-6(1). N.J.S.A. 2C:29-3 provides in pertinent part that:

         (b) A person commits an offense if, with
         purpose   to   hinder  his   own   detention,
         apprehension,   investigation,   prosecution,
         conviction or punishment for an offense or
         violation of Title 39 of the Revised Statutes
         or a violation of chapter 33A of Title 17 of
         the Revised Statutes, he:

         (1) Suppresses, by way of concealment or
         destruction, any evidence of the crime or
         tampers with a document or other source of
         information, regardless of its admissibility
         in evidence, which might aid in his discovery
         or apprehension or in the lodging of a charge
         against him[.]

    In addition, N.J.S.A. 2C:28-6(1) states that a person commits

the crime of tampering with evidence:

         if, believing that an official proceeding or
         investigation is pending or about to be
         instituted, he: (1) alters, destroys, conceals
         or removes any article, object, record,
         document or other thing of physical substance
         with purpose to impair its verity or
         availability    in    such    proceeding    or
         investigation[.]

                              16                          A-0516-14T1
      Defendant contends that he did not impede or hinder his

apprehension or tamper with evidence because he took his vehicle

to a "reputable and licensed auto repair facility" after filing a

report with his insurance company, and that he was unaware of the

accident. He contends the vehicle was never hidden or destroyed.

These arguments are without sufficient merit to warrant discussion

in a written opinion. R. 2:11-3(e)(2).

     We   note,   however,   that    the   evidence   established    that

defendant sought to have his damaged car repaired shortly after

the accident, claiming that the car had been damaged by a collision

with a deer. The jury could reasonably find that, by doing so,

defendant was acting to hinder his own apprehension and impair the

availability of evidence relevant to the deaths of Benjumea-

Bastidas and Fernandez-Minaya.

     Affirmed.




                                    17                       A-0516-14T1
