STATE OF NEW JERSEY v. JOHN AYALA

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Superior Court of New Jersey, Appellate Division.

STATE OF NEW JERSEY, Plaintiff–Respondent, v. JOHN AYALA, Defendant–Appellant.

DOCKET NO. A–6325–11T1

Decided: April 10, 2014

Before Judges Grall and Waugh. Jack Venturi Law, attorneys for appellant (Andrew Tealer, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).

Defendant John Ayala appeals his conviction for second-degree eluding, in violation of N.J.S.A. 2C:29–2(b).  We affirm.

I.

We discern the following facts and procedural history from the record on appeal.

On May 20, 2009, Somerville Police Officer George Obiedzinski was sitting in his parked patrol car on East Cliff Street.   As he was taking notes, he heard an all-terrain vehicle (ATV) coming up behind him.   As the ATV passed his patrol car, Obiedzinski observed that it had no registration affixed to the back, which is required for use on municipal roads.   In addition, the ATV was exceeding the speed limit.   The driver, who was not wearing a helmet, was a white or Hispanic man with longer, dark-colored hair, a mustache and beard, and a medium build.   Obiedzinski subsequently identified Ayala as the driver.

“Almost immediately” after the ATV passed him, Obiedzinski activated the emergency lights, but not the siren, on his patrol car and pulled out behind the ATV. The ATV had no rear-view mirror, but Obiedzinski saw the driver turn his head and look back at him.   Rather than pulling over, the driver accelerated and turned left onto Eastern Avenue without obeying the stop sign at the intersection.

Obiedzinski initially “attempted to catch up” with the ATV, and at one point managed to get “approximately ten to fifteen feet” behind the vehicle.   However, the driver was going very fast, passed a car in front of him, and continued at a high rate of speed.   Obiedzinski observed the driver make a left turn from Eastern Avenue onto Union Avenue, again going through the stop sign.   After briefly losing sight of the ATV, Obiedzinski proceeded to the intersection of Eastern and Union Avenues, stopped, looked to his left, and observed the ATV on Union Avenue.   He continued to follow it up Union Avenue, but had to slow down because of the traffic.   As he approached a school zone, with the ATV still travelling at “a high rate of speed,” Obiedzinski discontinued the chase and provided a description of the vehicle to other officers.

Obiedzinski then “slowed down to a reasonable rate of speed and followed from afar.”   He was able to follow the ATV, losing sight of it occasionally and then picking it up again.   Obiedzinski saw the ATV turn back onto East Cliff Street and make “a left-hand turn into the driveway of an apartment building.”   He followed the ATV down the driveway and around to the rear of the building, where he found Ayala putting the ATV into a garage.

After Obiedzinski arrived at the garage, Ayala yelled:  “I am on private property there's nothing you can do about it.”   When Obiedzinski asked him for his license, registration, and insurance, Ayala took two steps away from him.   Obiedzinski interpreted the move as attempt to flee.   He grabbed Ayala's wrist, told him he had backup on the way, and placed him under arrest.   Shortly after the arrest, two other police officers arrived at the scene, including Sergeant Kenneth DeCicco.

Obiedzinski transported Ayala to police headquarters, where he and DeCicco brought Ayala into an interview room.   According to Obiedzinski, he activated the station's recording system by logging onto the computer system and starting the audio and video recording.

Obiedzinski read Ayala his Miranda rights,1 after which Ayala initialed each question on the Miranda form and then signed it.   Ayala did not tell the officers that he wanted to stop talking to them and did not ask for a lawyer.

According to Obiedzinski, Ayala told the officers during the interview that he saw Obiedzinski following him in the patrol vehicle, knew he was required to stop, and purposely failed to do so.   He also told them that he knew his flight had been a “stupid mistake.”   Following the interview, Obiedzinski stopped the recording device and confirmed that the interview had been properly recorded and saved.

Ayala was indicted in June on a single count of second-degree eluding, in violation of N.J.S.A. 2C:29–2(b).  Ayala moved to suppress any testimony about his statement to the police because the recording was no longer available.   The suppression hearing was held in April 2010.

At the suppression hearing, Obiedzinski and DeCicco testified to the facts outlined above with respect to the taking of the statement and its content.   Both testified that they had not taken notes during the interview.   Ayala denied making the admissions to which the officers had testified.   He acknowledged saying he “made a stupid mistake,” but explained that he was referring to pulling his arm away from Obiedzinski at the time of his arrest.   He also asserted that the police officers used a hand held recorder to document the interview, rather than a computerized system.

Several police officers testified about the department's computer system and equipment for recording interviews, as well as the procedures they followed in activating the system.   The computer is located outside the interview room in the dispatch area of the station and activated from that room.   A police officer enters data identifying a case by number and name and then enters a “record” command, which causes a message to appear on the screen and turns on a light in the interview room to indicate that an audio and video recording of events is in progress.   Following the interview, the data is saved and stored on the computer's server or hard drive.

At the time of Ayala's interview, the department did not transfer digital recordings of interviews to a DVD or make any other type of backup copy until the prosecutor requested one.   When a request was received, one of the department's detectives would create a copy.

Detective Edward Purcell, who was not involved in the investigation of Ayala's case, received the assistant prosecutor's request for a copy of Ayala's interview on June 9, 2009.   He attempted but was unable to make a copy of the interview.   According to Purcell, the computer was “not functioning.”   He testified that he then advised the assistant prosecutor that the department was working on it.

Officer Mark Butler, who identified himself as the person in the department who knows the most about the recording system, testified that he first learned that the system was not functioning properly in August 2009.   Upon returning to the station after an absence of a few days, Butler heard that there had been problems with electrical power surges.   He then checked the servers and computers and discovered that the system was not functioning.   The State produced a purchase order for a new system, dated September 22, 2009.

Butler was asked to make a copy of Ayala's interview shortly before the suppression hearing.   He testified that he was not sure why it could not be recovered, but concluded that the server failed either because “the mother board failed” or “possibly the hard drives were corrupted.”   He further testified that any interview recorded prior to the system going down in August 2009 might have been lost.   The day before he testified, Butler was asked to find out if there was a way to retrieve the data.   Because he thought there was a possibility that the lost interview could be recovered through a forensic examination of the hard drive, he removed and preserved the hard drives.   The judge reserved decision and directed the State to have a forensic examination done.   The State complied, but the expert subsequently reported that the data could not be accessed.

The judge rendered an oral decision denying the suppression motion on September 21, 2010.   After summarizing the testimony and other evidence, he found that Ayala had made a knowing and voluntary waiver of his Miranda rights.   With respect to the content of his statement, the judge credited the officers' testimony and rejected defendant's version.   He determined that there was “no question” Ayala made the statements the officers attributed to him.

The judge made the following findings with respect to the unavailability of the recording:  the officers did not intentionally destroy the recording;  the recording “was destroyed by an act independent of the people who made the recording”;  the evidence was lost due to “an electronic snafu or the power surge that is otherwise unexplainable”;  the “error in the recording was a mechanical error and not intentional”;  the officers acted in good faith and made a good faith effort to recover the recording;  the “officers kept their notes”; 2  Ayala's testimony that the officers used a tape recorder was not credible;  and the recording was not “essential.”

Ayala appealed and we affirmed.  State v. Ayala, No. A–1559–10 (App.Div. Aug. 10, 2011).   In doing so, we made the following observations:

Given the significance of the words a defendant utters during a custodial interrogation and the demeanor of the participants, we have no question that the exculpatory value of recordings like the one at issue here is “obvious” from the moment the recording is made.   It is difficult to perceive of any evidence that would be more [relevant] to the question of guilt or innocence at trial than the video-audio recording of a defendant's statements about the crime.

Our conclusion is based on the second prong of the Trombetta standard.   [See California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 2534, 81 L. Ed.2d 413, 422 (1984).]   Defendant may have lost the opportunity to conclusively prove that he made no admission during the hearing and, on the principle of “false in one, false in all,” raise a doubt about the credibility of the patrol officer.   But even if the video-audio recording disclosed that he did not make any admissions during the interrogation, his silence on the point would not in itself raise a doubt about his guilt.   In short, by testifying at trial and denying that he said what the officers claim he said, defendant can raise the same question of credibility.   Thus, the evidence is available to him.

In Olszewski [v. Spencer, 466 F.3d 47, 58 (1st Cir.2006) ], the court concluded that an exculpatory statement prepared and destroyed by a witness through the neglect of officers who left the statement with the witness after he denounced its veracity could be recreated through the testimony of the officer who was aware of its contents.  [ ] On that ground, the court concluded that the second prong of the Trombetta standard was not met because defendant had a reasonable means of presenting the same evidence.

The position of the defendant in this case is somewhat different than that of the defendant in Olszewski.   If the State introduces testimony about his admissions, defendant cannot raise the issue without testifying.   In this circumstance, the means available to defendant is “reasonable” only if defendant is permitted, if he so elects, to testify for that limited purpose without subjecting himself to cross-examination on matters outside the scope of his testimony.

There is another matter relevant to whether the means available to defendant can be deemed “reasonable.”   In its brief on this appeal, the State acknowledges that evidence relevant to the production and loss of the recording would be admissible.   We agree.

In addressing whether a state's loss of evidence that did not meet the Trombetta standard amounted to a denial of due process, the Supreme Court relied, in part, on the fact that the jury was instructed that it could draw an adverse inference if it determined that the state acted in bad faith.   See [Arizona v. Youngblood, 488 U.S. 51, 54, 109 S.Ct. 333, 335, 102 L. Ed.2d 281, 287 (1988);  cf.  State v. Marshall, 123 N.J. 85, 109 (1991) ] (quoting Youngblood on this point and finding no due process violation where the State diminished the prejudice by opting not to introduce the test results it obtained through testing of a tire that limited defendant's ability to conduct tests that may have produced exculpatory evidence).   If the evidence presented at trial permits an inference of bad faith such an instruction should be given.

[Id. (slip op. at 13–15).]

We also “stressed” that our

acceptance of the judge's finding that the officers' loss of the recording was not intentional or the result of bad faith is a product of our standard of review.   On the evidence presented at the suppression hearing, a reasonable person crediting defendant's testimony and discrediting the officers' testimony could come to a different conclusion.   We refer to the inconsistencies in the officers' testimony about activation of the recording device;  the fact that Purcell claims he was unable to retrieve the recording in June but Butler testified that the power surge that affected the computer occurred in August;  defendant's testimony that a tape recorder was used;  and the fact that the State had no information as to recordings that were stored on the computer's server or hard drive.

For all of the foregoing reasons, we conclude that the judge did not err in denying defendant's motion to suppress for failure to preserve the recording.   Our holding assumes that the trial judge will admit the State's evidence subject to conditions that give defendant a reasonable means of presenting the exculpatory evidence through his own testimony and the inference available therefrom, including an instruction on any negative inference based on bad faith that is available from the evidence adduced at trial.

[Id. (slip op. at 15–17).]

The jury trial took place on April 3 and 4, 2012.   The only witnesses were Obiedzinski and DeCicco, who testified for the State.   Obiedzinski testified about his observation of Ayala on the ATV, Ayala's backward glance after he turned on his flashing lights, the pursuit, the arrest, and the statements made by Ayala at the time of his arrest and at the police station.   DeCicco testified about his observations at the scene of the arrest and at the police station.   Neither the State nor Ayala called Purcell or Butler to testify.

During his testimony, Obiedzinski was questioned about the video recording made by the camera affixed to his patrol car.   The video recording played at the trial did not show Ayala looking back at him.   Obiedzinski explained that there is a three to five second delay between activation of the flashing lights and the commencement of the video recording.   The video shown at trial started with Obiedzinski pursuing Ayala on Eastern Avenue, although the chase itself started on East Cliff Street, which is where Obiedzinski testified the lights were activated and Ayala looked backwards.

After the close of the State's evidence, the trial judge raised the issue of whether Ayala would testify.   He initially determined that, if Ayala chose to testify solely on the issue of his statement to the police, he would not be subject to cross-examination concerning his prior convictions.   However, if Ayala chose to testify generally about the conduct that led to his arrest, he would be subject to such cross-examination.

The judge also explained to Ayala his options with respect to testifying, including his right not to testify, his right to have the jury instructed that it cannot draw an inference of guilt if he does not testify, and that the State's ability to cross-examine him on his prior convictions would depend on the scope of his testimony.

Defense counsel articulated a concern about the jury's reaction should Ayala testify about his statement without addressing the merits of the charge against him.   The judge then changed his ruling on impeachment, determining that the convictions were too remote and could not be used even if Ayala decided to testify on the merits of the eluding charge.   The following morning, Ayala was questioned by the judge concerning his right to testify.   He informed the judge that he had elected not to testify.

During the charge conference, the judge raised the issue of an adverse inference charge.

The Appellate Division did say if there is fault in the loss of the statement an adverse inference charge may be considered by the Court[,] but there is none in this case.   There is no evidence here that it was anything ․ other than an inadvertent loss of the statement.

Both attorneys agreed to a charge, suggested by the judge, to the effect that there was no evidence that the loss of the recording of Ayala's interview was “deliberate or the fault of the police.”

Defense counsel told the judge that, during his summation, he intended to refer to the Attorney General's requirement that suspect statements be recorded and that the police officers were aware of that requirement.   The judge responded that “it would be improper ․ for [him] to comment on the loss of the statement and essentially suggest to the jury that they take an adverse inference from the loss of the statement.”   However, the judge told defense counsel that he could refer to the absence of the recording and the police officers' uncertainty about exactly what was said.

After resting without presenting any evidence, Ayala moved for a judgment of acquittal.   The judge denied the motion.

In charging the jury, the judge included the following language concerning Ayala's statement:

Now, there is for your consideration in this case an oral statement allegedly made by the defendant.   The State contends that the defendant made the statement and that the information in it is credible.   The defendant maintains that he didn't make such [a] statement.   It is your function to determine whether the statements attributable to [Ayala] were actually made by him and whether the statements he made or any portions of them are credible.   To make that ․ decision you should take ․ into consideration the circumstances and the facts as to how the statement was made.

Now, in this case there were actually two statements.   One, statements made by [Ayala] to the police officer at the back of the apartment building and then another oral statement given to the police back at the Somerville police headquarters.

Among the factors you may consider in deciding whether or not the defendant actually gave the alleged statement and if so whether any or all of it is credible, in regard to the statement back at police headquarters, you may consider the absence of an electronic recording of the interrogation conducted by the police and [Ayala]'s alleged statement itself.   Now, here there was an electronic recording made but ․ it is not available now.   In other words, the electronic recording of the statement originally made is not available now, and therefore you have not been provided with as complete a picture of all the facts surrounding [Ayala]'s alleged statement and the precise details of that statement that a recording would provide.

By way of example, you [cannot] hear the tone or inflection of [Ayala]'s or interrogator's voices or hear first hand the interrogation.   Both the questions and responses in their entirety.   Instead, you have been presented with a summary of [Ayala]'s statement upon the recollections of the police officers.   Therefore, you should weigh the evidence of [Ayala]'s alleged statement with caution and care as you determine whether or not the statement was, in fact, made and if so whether what was said was accurately reported by the police officers and then what weight, if any, should it be given in your deliberations.

Now, I want to stress to you that or say to you that there is no evidence in this case that the unavailability of that statement is deliberate or in any way the fault of the police.   You heard the testimony that it was recorded and somehow when the equipment was changed, I think that is my recollection of the testimony, the statement was obliterated or somehow lost.   There's no evidence in this case that it was a lie.

The jury found Ayala guilty.   Following the verdict, the trial judge denied Ayala's motion for a new trial.

On June 8, the trial judge sentenced Ayala to a seven-year prison term and assessed appropriate fines and penalties.   On September 21, however, the judge re-sentenced Ayala to a five-year prison term, having determined that there was an error concerning the nature of one of his prior convictions.   This appeal followed.

II.

Ayala raises the following issues on appeal:

POINT I:  THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE BECAUSE THE STATE FAILED TO ESTABLISH THAT THE DRIVER OF THE ALL TERRAIN VEHICLE KNEW THAT THEY WERE BEING SIGNALED TO STOP. (Raised Below)

POINT II:  THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY THAT THEY MAY INFER THE POLICE ACTED IN BAD FAITH IN FAILING TO RECORD THE ALLEGED AUDIO STATEMENT BY MR. AYALA.  (Not Raised Below)

POINT III:  THE TRIAL COURT ERRED IN PREVENTING DEFENSE COUNSEL FROM ARGUING IN HIS CLOSING ARGUMENT THAT THE POLICE WERE AWARE OF THE ATTORNEY GENERAL['S] REQUIREMENT THAT ALL INTERROGATIONS WERE TO BE RECORDED.  (Raised Below)

A.

Ayala first argues that the verdict was against the weight of the evidence.   His argument on this point is focused on the requirement that the State prove that a defendant charged with eluding was “knowingly flee[ing] or attempt[ing] to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle ․ to a full stop.”  N.J.S.A. 2C:29–2(b).  Ayala argues that the jury was clearly mistaken in its acceptance of Obiedzinski's testimony that Ayala was aware that he was being pursued, because the video recording made by the camera in Obiedzinski's police car did not include the purported backward look.

On a motion for a new trial, premised on the verdict having been against the weight of the evidence, the trial judge considers whether “it clearly and convincingly appears that there was a manifest denial of justice under the law.”   R. 3:20–1.

A trial [judge] may only set aside a jury verdict as against the weight of the evidence if, considering the jury's opportunity to assess the witnesses' credibilities, a manifest denial of justice clearly and convincingly appears.   See R. 3:20–1.   The jury is free to believe or disbelieve a witness's testimony.   See State v. Reyes, 50 N.J. 454, 464 (1967).   On a motion for a new trial, the objective is not to second-guess the jury but to correct the injustice that would result from an obvious jury error.

[State v. Saunders, 302 N.J.Super. 509, 524 (App.Div.), certif. denied, 151 N.J. 470 (1997).]

“Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced.”  State v. Smith, 262 N.J.Super. 487, 512 (App.Div.), certif. denied, 134 N.J. 476 (1993).   We review the trial judge's decision for abuse of discretion.   See State v. Artis, 36 N.J. 538, 541 (1962).

Ayala is correct that, for a conviction under N.J.S.A. 2C:29–2(b), the State was required to prove, among other elements of the offense, that he knew he was being pursued, that Obiedzinski wanted him to stop, and that he refused to do so.   He is also correct that the video evidence did not show him turning back to look at Obiedzinski after the flashing lights on Obiedzinski's patrol car had been activated.

However, Obiedzinski testified that Ayala looked back at him after he turned on the flashing lights, that he refused to stop, and that he continued to drive away at a high rate of speed.   Obiedzinski acknowledged that Ayala's backwards glance was not recorded on the video from his patrol car, but explained that there was a delay between activation of the lights and the time the video camera starts recording.   In addition, Obiedzinski testified that Ayala told him, during the questioning following his arrest, that he knew he was being pursued and should stop, but did not do so.   Finally, the video showed the ATV driving at a high rate of speed, failing to stop at several stop signs, and driving to the back of the apartment building where Obiedzinski arrested Ayala.   The dialogue recorded at that time, although far from clear, can fairly be interpreted to support the State's assertion that Ayala was driving the ATV, which defense counsel argued had not been proven.

If the jury credited the testimony of the police officers, which it clearly did, we are convinced that there was more than sufficient evidence to support a finding of guilt.   The jury could have reached a different verdict had it chosen not to credit the testimony of the police officers based on the failure of the videotape to show the look back and the other discrepancies to which Ayala alludes in his brief.   Nevertheless, we find no basis in the record to conclude that the jury's credibility determination was the result of mistake or prejudice.   It was fairly supported by the evidence.

B.

Ayala next argues that the judge erred in failing to charge the jury that it could draw an adverse inference from the fact that there was no recording of the statement he made at the police station.   He points to differences between Obiedzinski's explanation for the loss of the recording, the computer “crash,” and DeCicco's explanation that it was a change in software vendors, as well as their different explanations of how the recording system was started.   He argues that those differences were a sufficient basis for an adverse inference charge.   We disagree.

Ayala acknowledges that his attorney did not request an adverse inference charge at trial.   The trial judge raised the issue himself.   Defense counsel did not challenge the judge's assertion that there was no evidence in the record to support such a charge.   In fact, defense counsel agreed with the judge and accepted his proposal that he instruct the jury that there was no evidence that the loss of the interview's recording was “deliberate or the fault of the police.”   Consequently, we apply the plain error rule.  State v. Adams, 194 N.J. 186, 206 (2008).

Normally, “a defendant waives the right to contest an instruction on appeal if he does not object to the instructions[, but] ․ an appellate court may reverse on the basis of unchallenged error if the court finds that the error was ‘clearly capable of producing an unjust result.’ ”  Id. at 206–07 (quoting R. 2:10–2).   Our Supreme Court has

explained that plain error in the context of a jury charge is “[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.”

[Id. at 207 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]

“The charge to the jury must be read as a whole in determining whether there was any error.”  Ibid. Additionally, “[i]f the defendant does not object to the charge [or lack of charge] at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case.”  State v. Singleton, 211 N.J. 157, 182 (2012).   Finally, defense counsel agreed with the judge's proposed charge, which implicates the doctrine of invited error.   See State v. Corsaro, 107 N.J. 339, 345 (1987) (internal citations and quotation marks omitted) (“Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]”).

In our opinion affirming the trial judge's denial of Ayala's motion to suppress, we held that “[i]f the evidence presented at trial permits an inference of bad faith [an adverse inference] instruction should be given.”   Ayala, supra, No. A–1559–10 (slip op. at 15).   Although there was a discrepancy between the explanations given by Obiedzinski and DeCicco, Ayala did not testify concerning his assertions that the statement was recorded by a small recording device or his assertion that he did not make the statements attributed to him by the police officers.   This was despite our holding that he could do so without opening the door to a general cross-examination and the trial judge's holding that he would not be subject to cross-examination on his prior convictions if he testified for that limited purpose or more generally.   In addition, Ayala did not present testimony from Butler or Purcell concerning their different explanations of how and, most importantly, when the computer problem occurred.   That was the type of testimony we outlined in our earlier opinion as potentially supporting an adverse inference charge.

Consequently, we find no error in the trial judge's conclusion that there was an insufficient basis in the trial record for giving an adverse inference charge and no error, plain or otherwise, in the judge's failure to give the charge.   There is simply nothing in the record to support the finding of “a clear capacity to bring about an unjust result,” Adams, supra, 194 N.J. at 207 (discussing plain error), or “a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached,” State v. Macon, 57 N.J. 325, 336 (1971) (describing harmless error).

C.

Finally, we turn to Ayala's assertion that the trial judge erred in precluding defense counsel from arguing to the jury that the police officers were aware of the Attorney General's directive requiring the recording of interrogations.

“Defense counsel is entitled to wide latitude in making his or her summation.”  State v. Jones, 308 N.J.Super. 174, 184 (App.Div.), certif. denied, 156 N.J. 380 (1998).   However, “[t]he scope of defendant's summation argument must not exceed the ‘four corners of the evidence.’ ”  State v. Loftin, 146 N.J. 295, 347 (1996) (quoting State v. Reynolds, 41 N.J. 163, 176 (1963), cert. denied, 377 U.S. 1000, 84 S.Ct. 1930, 12 L. Ed.2d 1050 (1964)).   This “include[s] the evidence and all reasonable inferences drawn therefrom.”  Ibid. “Thus, it is proper for a trial court to preclude references in closing arguments to matters that have no basis in the evidence.”  Jones, supra, 308 N.J.Super. at 185.   Both Obiedzinski and DeCicco testified that they were aware of the Attorney General's requirement, so reference to that fact in summation would not have involved a reference to facts outside the record.

However, Obiedzinski and DeCicco testified that a recording was in fact made and subsequently lost, so the issue was not whether a recording was made, but whether the police were responsible for its loss.   We have already held that the trial judge did not err in concluding that no evidence of misconduct was offered at trial.   In fact, after the judge read his proposed charge to the effect that “the loss of the statement was inadvertent and in no way can be attributed to the action of the police,” defense counsel responded:  “There certainly is no evidence or admission from these officers that they had anything to do with the failure to record.”

Defense counsel's proposed reference to the Attorney General's guidelines was not closely related to an issue before the jury.   It was largely irrelevant and also inconsistent with defense counsel's agreement that there was no evidence of misconduct and his approval of the charge to that effect.   Consequently, we see no abuse of the trial judge's “broad discretion in setting the permissible boundaries of summations.”  State v. Muhammad, 359 N.J.Super. 361, 381 (App.Div.), certif. denied, 178 N.J. 36 (2003).   Even if there was an abuse of discretion, we are satisfied that it was harmless.

D.

For all of the reasons set forth above, we conclude that there were no trial errors or combination of errors sufficient to warrant reversal of Ayala's conviction, which was clearly supported by credible evidence in the record.

Affirmed.

FOOTNOTES

1.  FN1. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L. Ed.2d 694 (1966).

2.  FN2. The officers testified, however, that they did not have any contemporaneous notes.   They did supply their reports, which included references to the interview.

PER CURIAM

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