STATE OF NEW JERSEY VS. CHRISTOPHER DESA(15-02-0180, MIDDLESEX COUNTY AND STATEWIDE), A-5226-14T2

On October 16, 2012, defendant Christopher Desa allegedly robbed a deli at gunpoint, fled in a Jeep, and later crashed into multiple vehicles while pursued by police; two victims (Ronald and Carol Cooper) were injured.
Police tied the Jeep to a friend (Gemma Bumback) and identified Desa from a photo; officers tracked him to a motel and ordered him to stop.
Desa crashed into a police car, Detective Ritter fired into the vehicle, Desa drove off, struck and injured officers and other motorists, threw a gun from the car, and was later found with gunshot wounds.
At trial the jury convicted Desa of multiple counts including first-degree robbery, second-degree eluding, two counts of second-degree aggravated assault (causing injury while eluding), resisting arrest, criminal mischief, theft, and unlawful possession of an imitation firearm; other charges were dismissed.
Sentencing produced an aggregate 38-year term with multiple NERA (85% parole ineligibility) and periods of parole supervision. Desa appealed, raising prosecutorial-opening misconduct and a merger challenge to the eluding conviction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prosecutor's opening statement was prejudicial misconduct	Prosecutor confined remarks to facts and permissible inferences; no reversible error	Opening turned into summation and portrayed defendant unfairly without record support	No plain error; opening was within bounds and not so egregious as to deprive a fair trial
Whether eluding (count 6) must merge with aggravated-assault-while-eluding (counts 12 & 13) for sentencing	State implicitly argued separate punishments were proper because statutes differ and aggravated-assault is distinct when injury occurs	Eluding was part of same conduct/episode and was a necessary ingredient to the aggravated-assault convictions; thus merger required	Court ordered merger: count 6 vacated and merged into counts 12 and 13; convictions affirmed otherwise

State v. Wakefield, 190 N.J. 397 (2007) (prosecutor's opening should be limited to facts the State intends to prove)
State v. Smith, 167 N.J. 158 (2001) (reversal requires prosecutorial misconduct so egregious it deprived defendant of a fair trial)
State v. Frost, 158 N.J. 76 (1999) (failure to object limits appellate review and deprives court of curative options)
State v. Roach, 146 N.J. 208 (1996) (prosecutorial misconduct must substantially prejudice defendant's rights)
State v. Miller, 108 N.J. 112 (1987) (first step in merger analysis: compare statutory elements)
State v. Davis, 68 N.J. 69 (1975) (flexible merger test examining time/place, necessary proof, single episode, intent, consequences)
State v. Diaz, 144 N.J. 628 (1996) (N.J.S.A. 2C:1-8 sets legislative parameters for merger)
State v. Truglia, 97 N.J. 513 (1984) (mechanical merger test contrasted with Davis approach)
State v. Hill, 182 N.J. 532 (2005) (legislative intent can permit fractionalizing a criminal episode if constitutional principles are preserved)
State v. Mirault, 92 N.J. 492 (1983) (legislature may separate offenses when intended and constitutional)