                        NOT FOR PUBLICATION WITHOUT THE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
