SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4034-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KAMAL EDGE, a/k/a

RICO EDGE,

Defendant-Appellant.

Submitted November 15, 2018 – Decided

Before Judges Alvarez and Reisner.

On appeal from Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 14-05-0443.

Joseph E. Krakora, Public Defender, attorney for 

appellant (James K. Smith, Jr., Assistant Deputy Public 

Defender, of counsel and on the briefs).

Camelia M. Valdes, Passaic County Prosecutor, 

attorney for respondent (Marc A. Festa, Senior 

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

December 31, 2018
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Tried by a jury, defendant Kamal Edge was convicted of third-degree 

possession of a controlled dangerous substance (CDS), N.J.S.A. 

2C:35-10(a)(1);1second-degree unlawful possession of a weapon, N.J.S.A. 

2C:39-5(b); and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a)(2). 

He was acquitted of second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a). The following day, the same jury convicted 

defendant of second-degree certain persons not to have weapons, N.J.S.A. 

2C:39-7(a). On March 31, 2017, the judge merged the weapons offenses, and 

imposed a sentence of five years subject to a five-year parole bar, concurrent to 

concurrent terms of three years on the drug possession and eighteen months on 

the resisting arrest. He now appeals, and we affirm.

The incident that led to the indictment requires only a brief description. 

Defendant, who was outside his home, spotted police approaching, intending to 

serve an arrest warrant upon him. He began to run while holding onto his 

waistband. Despite being ordered to stop, defendant continued running, vaulting 

over a six-foot fence. Shortly thereafter, other officers cut him off and he was 

 

1

 Prior to trial, the State dismissed the following charges: possession of CDS 

with intent to distribute, N.J.S.A. 2C:35-5(a)(1); possession of CDS on school 

property, N.J.S.A. 2C:35-7; receiving stolen property, N.J.S.A. 2C:20-7; and 

attempt to cause injury to another with a weapon, N.J.S.A. 2C:12-1(b)(2).
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apprehended. When searched incident to the arrest, officers found eleven 

glassines of heroin as well as a loaded handgun.

The trial, however, the source of the alleged errors raised on appeal, 

requires more discussion. In closing, defense counsel suggested that the 

officers' lack of detailed recollection of the arrest should cause the jurors to 

question the reliability of their testimony and acquit defendant.

In response, during his summation, the prosecutor stated that the officers

remembered the important "details that you would expect to -- a credible witness 

to recall." He went on to challenge the suggestion that the officers were 

"outright l[ying] or fabricat[ing]" as they did not fill in the blanks to make the 

case seem stronger. The prosecutor continued:

We . . . need our police officers to perform certain 

functions, perform certain services for us. Above all, 

we need them to protect us, to serve the public. We also 

need them to uphold and enforce the law, investigate 

crimes and to arrest the people that they do. To do this 

difficult job, we give them great authority and 

impressive power. We entrust with them that authority 

and power so that they can do their job well. We give 

them uniforms to show their authority, badges, we give 

them marked police cars with lights and sirens so that 

we know that the person inside is a law enforcement 

officer. We know that if those lights go on, they can 

pull us over. We give them weapons. We give them 

service weapons so that they can protect themselves and 

protect others. These are awesome powers. Again, this 

is a relationship between us and them built on trust and 
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it's why on certain select instances when we see that 

trust abused, when we see that power overused, when 

we see that discretion we vest in them used recklessly, 

it's so frustrating and it's so infuriating. It's also why 

when we see that power used properly, it's so 

rewarding, so inspiring. It's the way DetectiveSeargent Esposito and Officer Mineo use and wielded 

their authority. It's the way we expect them to act.

Defense counsel objected. Outside the presence of the jury, he explained 

his concerns and asked for a mistrial based on the fact that the prosecutor had 

improperly vouched for the credibility of the officers. The prosecutor responded 

that his comments were proper comment because they "highlight[ed] facts and 

evidence that the jury should consider in finding those witnesses credible. I'm 

allowed to advocate. I'm allowed to say that witnesses are credible." After 

hearing the playback and listening to some additional on-the-record discussion, 

the court charged the jury as follows:

If an attorney on either side is to give his opinion about 

the testimony of a witness, whether it should be 

believable, not believable, credible, not credible, okay, 

does not count. What you believe is credible or not 

credible is what counts.

You'll hear me describe in a little bit, probably 

after lunch, the ways you judge the credibility and 

believability of a witness and it's just any different from 

how you judge people's credibility in your everyday 

lives. In any event, it's your opinion, it's your 

determination, it's what you thought was credible or not 

credible that counts here. Okay? So if a lawyer 
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expresses an opinion and maybe comment on the 

evidence, that is not evidence, and it's only your 

opinion that counts.

Presumably because the court did not clearly indicate whether it sustained 

the objection, or for some other reason, the prosecutor continued his summation:

The defendant's moving rapidly, he's moving towards 

him, he can't see his hands, but he doesn't escalate the 

situation. This is how we expect our officers to wield 

the authority we vest in them.

Think about what Officer Mineo did. He arrested 

an armed fleeing suspect safely without him or the 

defendant being injured. These are the actions of a 

trustworthy officer. Another word for trustworthy is 

credible.

Sometimes the simplest explanation is the best. 

We are here today because when police went to arrest 

the defendant, he ran. The defendant is guilty of 

resisting arrest. We're here today because when the 

defendant was arrested, he had on his person these 

drugs, this heroin. The defendant is guilty of 

possession of heroin. We're here because when he was 

arrested he had in his right front pocket this unlicensed, 

loaded, fully operational handgun with a round in the 

chamber and the hammer cocked back. Kamal Edge is 

guilty.

The judge repeated in his closing general charge the relevant language 

regarding the fact that attorney arguments are not evidence. The judge also

included the instruction providing that the jury can consider flight as evidence 
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of consciousness of guilt. See Model Jury Charge (Criminal), "Flight" (rev. May 

20, 2010).

Towards the end of the model jury charge on the substantive crime of 

resisting arrest by flight, the judge added:

Not the -- not the flight that I -- the other flight that I 

spoke about earlier has to do with a consideration of the 

evidence that was presented. In this particular case, 

you have to find beyond a reasonable doubt that there 

was flight.

He then continued:

The -- the defendant denies flight. Mere . . . 

departure from a place where a crime has been 

committed does not constitute flight. The State must 

prove beyond a reasonable doubt that the defendant, 

fearing that he would be arrested, fled for the purpose 

of evading that arrest. The State must prove beyond a 

reasonable doubt that the defendant, fearing that he 

would be arrested, fled for the purpose of evading that 

arrest.

If you find that the State has proven beyond a 

reasonable doubt all five elements of the offense, then 

you must find the defendant guilty of resisting arrest by 

flight. If the State has failed to prove the fifth element 

beyond a reasonable doubt, you must find the defendant 

guilty only of the basic offense of resisting arrest.

[See Model Jury Charges (Criminal), Resisting ArrestFlight Alleged (N.J.S.A. 2C:29-2(a)) (rev. May 7, 

2007).]

Neither attorney objected to the judge's instructions.
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On appeal, defendant raises the following points:

POINT I

IN THIS CASE, WHICH CENTERED ON THE 

CREDIBILITY OF THE POLICE OFFICERS, THE 

DEFENDANT WAS DENIED A FAIR TRIAL BY 

THE PROSECUTOR'S COMMENTS IN 

SUMMATION VOUCHING FOR THE OFFICERS AS 

"TRUSTWORTHY" AND "CREDIBLE"; 

REFERRING TO THE "RELATIONSHIP BETWEEN 

THEM AND US BUILT ON TRUST"; AND 

EXPRESSING HIS PERSONAL [OPINION] THAT 

THEIR ACTIONS IN THIS CASE WERE 

"REWARDING" AND "INSPIRING." THE 

PREJUDICE TO DEFENDANT WAS NOT 

MITIGATED DUE TO THE TRIAL COURT'S 

FAILURE TO GIVE A MEANINGFUL LIMITING 

INSTRUCTION.

POINT II

IN A CASE WHERE DEFENDANT WAS CHARGED 

WITH RESISTING ARREST BY FLIGHT, THE 

JUDGE'S DECISION TO CHARGE FLIGHT AS 

CONSCIOUSNESS OF GUILT, WITHOUT 

SPECIFICALLY INFORMING THE JURY THAT 

THAT CHARGE DID NOT APPLY TO THE 

RESISTING ARREST COUNT, LIKELY HAD THE 

EFFECT OF CONFUSING THE JURY AND 

REQUIRES THAT DEFENDANT'S CONVICTION 

FOR RESISTING ARREST BE VACATED.

I.

When reviewing a prosecutor's summation, the court must examine 

questionable comments "in the context of the entire trial." State v. Morton, 155 

N.J. 383, 419 (1998). This necessarily includes statements made by the defense 
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counsel, such as their "opening salvo" or prosecutorial comments attempting to 

"right the scale" in response. State v. Engel, 249 N.J. Super. 336, 379 (App. 

Div. 1991) (citing United States v. Young, 470 U.S. 1, 12 (1985)). In order to 

justify reversal, the prosecutor's summation must have been "clearly and 

unmistakably improper," and must have "substantially prejudiced defendant's 

fundamental right to have a jury fairly evaluate the merits of his defense." State 

v. Wakefield, 190 N.J. 397, 438 (2007).

Moreover, with regard to summations addressing testimony of State 

witnesses, the prosecution may never vouch for their credibility, nor imply 

mandatory acceptance by virtue of their profession. State v. Bradshaw, 195 N.J. 

493, 510 (2008); State v. Staples, 263 N.J. Super. 602, 606 (App. Div. 1993). 

For summations addressing comments by police officers in particular, the State 

must be careful in its comments because police "occupy a position of authority 

in our communities," and it is possible that ordinary citizens will be more likely 

to believe them than others. State v. Hawk, 327 N.J. Super. 276, 285 (App. Div. 

2000). If however, the trial court directly addressed the issue with "a timely and 

effective limiting instruction," the potential prejudice may be cured. State v. 

Jackson, 211 N.J. 394, 413 (2012).
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In Bradshaw, the Court made clear that although a prosecutor is afforded 

considerable leeway in closing, he is limited to comments based solely on the 

evidence and solely upon reasonable inferences drawn from that evidence. 195 

N.J. at 510. In this case, like in Bradshaw, the State had no basis in the record 

whatsoever for any broad brush discussion of the purported reasonableness of 

the police officers' response to defendant's conduct. A discussion about the 

power vested in police, society's reliance on police officers, and the trust we 

repose in them when we arm them, went far beyond anything in the record. By 

engaging in generalities regarding the officers' professionalism in this case, and 

expressing his own opinion about it in order to bolster the officers' credibility, 

the prosecutor did exactly what is forbidden. His approving language regarding 

their performance had little to do with whether they were credible witnesses. 

See State v. Blakney, 189 N.J. 88, 95-96 (2006).

It is a prosecutor's duty, as Blakney stated, not to obtain convictions "but 

to see that justice is done." Id. at 96 (quoting State v. Ramseur, 106 N.J. 123, 

320 (1987)). In this case, where the facts were so clear, and the officers' 

testimony was undisputed except by defense counsel's weak argument that the 

failure to recall minutia meant they were incredible, the State's inflammatory 

closing was entirely unnecessary. It seems particularly egregious that after the 
10 A-4034-16T1

court's instruction, the prosecutor continued in the same flag-waving vein as if 

defense counsel's objection had been overruled, without acknowledging in any 

manner that his statements went beyond the limit.

The judge's instruction, although it may have ameliorated the harm

somewhat, did not directly address the problem. He should have sustained the 

objection and stricken the comments from the record.

Because this is such a straightforward case in which the State's proofs 

were so strong, we cannot conclude that the prosecutor's improper comments 

prevented the jury from rendering a just verdict based solely on the evidence. 

See State v. Marshall, 123 N.J. 1, 161 (1991). We hold this error, which is not 

insignificant, harmless in the context of the entire trial. State v. Morton, 155 

N.J. 383, 419 (1998).

II.

Defendant's next argues that the trial court confused the jury, because it 

failed to properly distinguish flight as consciousness of guilt from flight in 

resisting arrest. We do not agree.

It is well-settled that "appropriate and proper jury charges are essential to 

a fair trial." State v. Savage, 172 N.J. 374, 387 (2002). The standard for 

assessing the soundness of a challenged jury instruction is "how and in what 
11 A-4034-16T1

sense, under the evidence before them, and the circumstances of the trial, would 

ordinary . . . jurors understand the instructions as a whole." Ibid. Even though 

a defendant generally waives the right to appeal an unchallenged instruction, an 

appellate court may still reverse pursuant to the plain error standard. State v. 

Adams, 194 N.J. 186, 206-07 (2008); R. 2:10-2. Under the plain error standard, 

an appellate court will only reverse if a mistake is "clearly capable of producing 

an unjust result," and a reasonable doubt exists "as to whether the error led the 

jury to a result it otherwise might not have reached." State v. Funderburg, 225 

N.J. 66, 79 (2016).

With regard to specific flight instructions, "evidence of flight or escape 

from custody by an accused generally is admissible as demonstrating 

consciousness of guilt, and is therefore regarded as probative of guilt." State v. 

Mann, 132 N.J. 410, 418 (1993). Additionally, if the trial court deems evidence 

of flight admissible, "it must instruct the jury carefully regarding the inferences 

the jury may draw from that evidence." Id. at 420. In doing so, the court must 

"carefully consider whether it is appropriate to charge flight, and, if so, must 

tailor the charge to the facts of the case to prevent juror confusion." State v. 

Randolph, 441 N.J. Super. 533, 563-64 (App. Div. 2015).
12 A-4034-16T1

The flight as consciousness of guilt charge applied only to the possessory 

offenses, while the resisting arrest by flight charge explained an actual offense 

requiring proof beyond a reasonable doubt. Defendant now argues that the 

instruction confused the jury because it did not unambiguously clarify the 

distinction. Defendant's argument is based in part on two unpublished cases that 

have no precedential value. R. 1:36-3. Defense counsel did not raise an 

objection at the time, thus we examine the issue under the plain error standard. 

See Adams, 194 N.J. at 206-07; R. 2:10-2.

Faced with two flight charges, the trial court separated them to avoid 

confusion. He instructed the jury as to flight as consciousness of guilt as part 

of his general closing charge. Only much later, at the end of all the substantive 

instructions, did he define the crime of resisting arrest by flight. The judge 

inserted his own words into the model charge, stating that, "the other flight that 

I spoke about earlier has to do with a consideration of the evidence that was 

presented. In this particular case, you have to find beyond a reasonable doubt 

that there was flight."

Although the judge could have explained the distinction more explicitly, 

he informed the jury that the instruction about the substantive crime differed

from that which was a circumstance indicating consciousness of guilt. Telling 
13 A-4034-16T1

the jury that the flight instruction he gave earlier "has to do with a consideration 

of the evidence that was presented[]" sufficed in context and because the model 

charge on resisting arrest came at the end of all the substantive charges. 

Therefore, we find no merit to this claim of error either.

Affirmed.