                        NOT FOR PUBLICATION WITHOUT THE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
