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Conviction of founder of Epi-Genesis Pharmaceuticals upheld
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JONATHAN NYCE,
Defendant-Appellant.
________________________________
May 7, 2009
Submitted: September 24, 2008 – Decided:
Before Judges Fisher, C.L. Miniman and Baxter.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 04-04-0234.
Jonathan W. Nyce, appellant pro se.
Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Dorothy Hersh, Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Jonathan Nyce appeals from the September 22, 2005, Judgment of Conviction and Order for Commitment after a jury found him guilty of the second-degree passion-provocation manslaughter of his wife, contrary to N.J.S.A. 2C:11-4b(2), and fourth-degree tampering with physical evidence, contrary to N.J.S.A. 2C:28-6(1).1 Defendant was sentenced to seven years in prison for manslaughter and to a consecutive one-year term for evidence tampering. We affirm.
I.
Defendant, a scientist with a doctorate, was the founder and chief executive officer of Epi-Genesis Pharmaceuticals. He had been married to his wife Michelle for twelve years prior to her murder. They had three children, ages twelve, ten, and five, and lived in a large home in Hopewell Township. In 2001 and 2002, the Nyces hired a landscaping firm to do some work at their home and in 2002 one of its employees, Miguel de Jesus, knocked on the door to inquire about the bill and met Michelle. They exchanged cell phone numbers, communicated frequently thereafter, and then began a sexual relationship.
Defendant learned of the affair in July 2003, and called de Jesus, leaving a message to stay away from his wife or he was “a dead man.” That month, defendant contacted the FBI claiming that de Jesus was trying to extort money from him. The FBI referred the matter to defendant’s local police department, which interviewed defendant. He claimed that he received two phone calls on July 10, 2003, seeking to extort $500,000 in exchange for a tape recording of Michelle having sex with someone. The police could not trace the calls back to de Jesus and, after having several conversations with defendant and Michelle, the investigating officer, Daniel McKeown, concluded the charges were unfounded and refused to take any action. Defendant then signed a harassment complaint against de Jesus. It was conditionally dismissed if de Jesus refrained from contacting defendant and Michelle for two years. De Jesus and Michelle resumed their sexual relationship a few weeks later.
On Thursday, January 15, 2004, Michelle arranged to meet de Jesus at 9:15 p.m. after she finished work at Macy’s. After meeting, they drove to Hamilton Plaza and left Michelle’s Toyota Land Cruiser and de Jesus drove her to the Mount Motel in Lawrenceville. After engaging in sexual relations, they took a shower and Michelle got dressed and put on some perfume. De Jesus drove her back to get her car and she left. He drove to a bar and had a few drinks before he went home to make his live-in girlfriend believe that he had been out drinking.
At 6:58 a.m. the next morning, Hopewell Police Officer Lincoln Karnoff was dispatched to defendant’s home on a report from an alarm company that the basement burglar alarm had been activated. The day was very windy and there were snowdrifts on the driveway because it had snowed the day before. Karnoff noticed tire tracks on the lawn. He walked around to the basement French doors, which were at ground level, but determined that there were no signs of attempted entry.
Around the same time, Public Service Electric & Gas Company employee Richard Archer saw a Land Cruiser, with its engine running, resting against an embankment on Jacob’s Creek Road. He did not immediately investigate, but after breakfast, he told the driver of the PSE&G vehicle, Chuck Black, to pull over. Archer walked down the embankment and saw a woman inside the car slumped over on a pillow with her eyes open. He noticed footprints going away from the car and across the ice on the creek and up the other side. He also noted minimal damage to the vehicle and frozen blood on the running board. Black alerted authorities.
Various Hopewell police officers responded to the scene. In addition to the observations made by Archer, they saw blood on the exterior of the rear driver’s side door. Photographs and a cast impression were taken of the footprint next to the passenger side of the vehicle. A Division of Motor Vehicles search revealed that the vehicle was registered at defendant’s home, which was located nine-tenths of a mile from the scene.
Sergeant Michael Cseremsak and Officer Michael Sherman went to defendant’s house at 9:13 a.m., walked through a single, open, garage door, and knocked on the door from the garage to the house. Two children answered and said neither of their parents was home, but that their dad, who had taken their brother to school, would be home soon. The officers waited in their police car until defendant, appearing disheveled, drove up. Cseremsak told him that they needed to talk and asked if they could come in. Defendant agreed and drove up the driveway and parked in front of the house, simultaneously closing the open garage door. They all entered through the front door.
Cseremsak advised defendant that the Land Cruiser had been in an accident. Defendant said that his wife used that vehicle and he asked how she was and what hospital she was in. Instead of responding, the officers asked defendant when he last saw her. Defendant responded that she was supposed to work from 6:00 p.m. until 10:00 p.m. and then go out with a friend. She had told him she would be home by 1:00 a.m., but he knew from experience that she would not get home until later and sometimes did not come home until the morning.
Cseremsak excused himself and called his supervisor, Lieutenant Frank Fecher, and told him about defendant closing the garage door when he arrived at the house. By this time, Michelle had been definitely identified at the scene by McKeown, so Fecher told Cseremsak that he believed the dead woman was defendant’s wife, to tell defendant the news, to Mirandize2 him, and to take a statement. Defendant was not a suspect at this time. After Cseremsak advised defendant of his rights, defendant said that he understood them and stated he was not under the influence of drugs or alcohol. Defendant did not appear upset when Cseremsak said Michelle was dead. Cseremsak asked him if she had been seeing anyone, and defendant said she had. He again claimed her boyfriend had tried to extort money from him.
After checking the basement for signs of an intrusion, which defendant permitted, Cseremsak and Sherman left the house and waited outside in a police car until McKeown and Mercer County Prosecutor’s Detective Sergeant Karen Ortman arrived at the house at approximately 10:45 a.m. McKeown and Ortman went to the front door and told defendant’s daughter that they would like to speak to defendant, but they had to wait fifteen minutes before he responded. When defendant opened the door, his hair was a mess, his clothes were wrinkled, and he was wearing no shoes or socks. McKeown asked defendant to come to the station to give a statement and defendant agreed, accepting McKeown’s offer to drive him to the police station. On the way, defendant stated that de Jesus’s “wife” had to be involved in Michelle’s death.
For two-and-a-half hours at police headquarters, McKeown asked defendant questions while Ortman typed his improbable answers. Defendant recounted the previous summer’s extortion attempt and added that Michelle told him that de Jesus had made threats against him. He alleged that de Jesus called him once screaming he was “going to kill the bitch.” He also claimed that Michelle told him that de Jesus’s girlfriend had sent her “nasty” text messages. He asserted Michelle told him that she needed a new car because “people” were following her from work and that she suspected it was de Jesus or one of his friends.
At one point, defendant said that he wore a size twelve shoe.3 McKeown noticed some small cuts on defendant’s hands, which he agreed to have photographed. Defendant permitted buccal swabs for DNA comparison. After the interview, McKeown drove defendant to his son’s school to pick him up. On the way, defendant said that he really had thought things were going to work out, but admitted that he and his wife fought about her moving out of the house. McKeown asked when they last had that conversation, and defendant replied, “Last night.”
Meanwhile, State Trooper Geoffrey Noble made a number of compelling observations that led him to conclude that Michelle’s death was not consistent with an automobile accident. When Mercer County Medical Examiner Raafat Ahmad arrived at the scene at about 6:16 p.m. on the day of the murder, she too concluded, based on the injuries to the victim’s forehead, that the “accident” had been staged. The body was then removed from the Land Cruiser and taken to the Medical Examiner’s office, where, at 7:25 p.m., Ahmad viewed the victim’s body, which reinforced her opinion that the injuries were not the result of a car accident.
Based on these observations and defendant’s statements, police believed it was likely that Michelle had been killed at her home. At about 8:30 p.m., a team of state and municipal officers went to defendant’s home and asked him to vacate it pending the issuance of a search warrant. Defendant asked to call a lawyer and did so, leaving a message when he was unable to reach the lawyer directly. The police did not question him at this time. Defendant took a few personal items and left the home; he was not permitted to take his cell phone. Defendant gathered his children from the home of a friend and told her that he was taking the children to his parents’ home in Collegeville, Pennsylvania. The next morning, the friend read the local newspaper, which suggested Michelle’s death was a homicide, and called defendant to read the article to him.
On Saturday, January 17, 2004, Ahmad performed an autopsy on Michelle, who had three deep, gaping lacerations to her forehead, an extensive skull fracture, and massive intracranial hemorrhages caused by excessive force. She had multiple other internal and external injuries, including defensive wounds. From the froth that had developed in Michelle’s lungs, Ahmad determined that she had lived for ten minutes after the trauma had been inflicted. The cause of her death was massive blunt-force trauma to the head, fractures of the skull, contusions of the brain, and intracranial bleeding.
Police obtained a warrant at 10:30 a.m. Saturday morning for a search of defendant’s home.4 However, they did not have enough staff to execute the search warrant until 6:00 p.m. that evening. The house had seventeen rooms plus a full basement, attic, and three-car garage. New Jersey State Police Detective John Ryan processed the garage. He found Michelle’s blood on the rail and doorjamb of the door from the garage to the house and her blood was spattered on a snow blower, wet vacuum, and a recycling bucket in the garage that contained a bloody sock. There were bloodstains on the garage floor that someone had attempted to clean. There was also a partial, bloody footprint in the garage. Soaking wet, large pajama pants were found behind a couch in an upstairs office and reddish-brown water was found in the washing machine.
On Sunday morning, January 18, 2004, defendant voluntarily returned to the Hopewell police station. In the presence of McKeown, State Police Detective Sergeant William Scull again advised defendant of his Miranda rights; he signed a Miranda waiver form and denied being under the influence of medication or alcohol. Scull said they did not believe that Michelle’s death was an accident, and that the evidence implicated him. Defendant said that “maybe it would be best for [him] to get an attorney if he was a suspect.” Scull said that defendant was a suspect and he should decide whether he wanted an attorney. Defendant then said he did not want an attorney.
Defendant told Scull that he should be looking at de Jesus and his “wife” based on Michelle’s affair and the alleged extortion attempt. He claimed that Michelle was so afraid of de Jesus’s wife that she had disabled the light bulbs in the garage so she could not be seen in it. Scull replied that this story did not make sense. Defendant then asked whether he should obtain the opinion of an attorney regarding his theory of the murder. Scull told him that he could not give him any advice and asked him what he wanted to do. Defendant asked if he could go home and think about it, but Scull told him that there was probable cause to arrest him and that he was not free to leave. Defendant again said that he did not want an attorney. Defendant offered to make an incriminating statement in exchange for a short jail term so he could take care of his children. Scull refused to bring such a suggestion to the prosecutor and for the third time asked whether defendant wished to exercise his constitutional rights. Defendant said, “No.”
Defendant’s demeanor became deflated and he grew quiet. Defendant repeatedly said, “I did not kill my wife.” Scull asked him to define “kill,” to which defendant replied, “Shoot, stab, or choke.” Scull replied defendant could not convince him that he was not involved in Michelle’s death and asked, if defendant were in Scull’s place, whether he would believe his denial. Defendant replied, “Probably not.”
At 10:24 a.m., Captain George Meyer interrupted the interview and called Scull out of the room. Defendant’s brother, Michael Nyce, who was at the police station, had received a phone call from Lee Engleman, the attorney whom defendant had called Friday evening. Engleman had told Michael that he wanted defendant to call him and asked Michael to tell him to stop talking to the police. Michael wrote Engleman’s number on a piece of paper and related Engleman’s instructions for defendant to the police. Meyer conveyed the information to Scull and handed the piece of paper to him. Scull returned to the interview room and told defendant that Engleman had called and wanted him to return the call. He put the piece of paper with the phone number on the table in front of defendant and told him that Engleman would probably tell him not to talk to the police. Scull told defendant for the fourth time that he needed to make a decision, and defendant pushed the paper away and said he wanted to be helpful and did not want to call Engleman.
Scull asked defendant what was stopping him from giving his version. Defendant became quiet for a while and then said he wanted to know whether Michelle had been with de Jesus the night she died. Scull said she had been. Defendant became somewhat emotional and asked how he could be sure that Scull was telling the truth. Scull said it was up to him to determine whether he was being honest, but he added he knew defendant had called Michelle on her cell phone, she had turned it off, and she had doused herself in perfume before she came home. Upon hearing this, defendant stated, “I didn’t mean to kill her.”
In an unrecorded statement, defendant explained that the children tried to call their mother before they went to sleep, but the call went to voice mail. He then took lorazepam and went to sleep. He woke up at midnight and called Michelle’s cell phone, but it again went to voice mail, and he went back to sleep. He was awakened at 2:00 a.m. by the sound of car tires crunching on the snow outside. He went to the garage to talk to Michelle because he suspected that she had been with de Jesus. He claimed he got to the garage before she got out of the Land Cruiser. When she opened the car door, he stood in the space created by the open door and asked where she had been. She refused to answer and defendant claimed she tried to attack him with a stiletto shoe. He grabbed her hand, put his other hand on her back, and pushed her onto the garage floor. He heard a “thunk” and she started to bleed profusely from her head. He claimed he went inside to get some compresses and, when he returned, she was on her stomach on the floor with the shoe still in her hand. He knelt on her back and she started to “flail” in an attempt to assault him with the shoe. He pushed her head down, again hitting her forehead on the floor; then she went motionless. After finding no pulse, defendant realized his wife was dead. Thereafter, he explained how he faked the car accident and what he did to clean up and hide the evidence.
After explaining these events, defendant agreed to give a taped statement. He asked for a pen and paper to write down some thoughts, and Scull gave them to him. Scull then left the room to relay what he had learned that was pertinent to the search, which was to resume that day. At 12:03 p.m., defendant began his taped statement, and it lasted until 1:48 p.m. Additional hidden evidence was later retrieved from defendant’s home based on the information he provided.
II.
On December 7, 8, and 9, 2004, the judge assigned to the case heard testimony bearing upon defendant’s motion to suppress certain evidence. He denied that motion in a written opinion filed January 10, 2005. In March 2005, the court conducted a Miranda hearing in response to defendant’s motion to suppress the various statements he made to police. The judge also denied this motion in a written opinion filed May 9, 2005.
The judge made findings of fact and reached conclusions of law in accordance with the requirement of Rule 1:7-4(a). The judge determined that the statements made by defendant as he traveled to and from the police station on Friday, January 16, 2004, were unsolicited and not the product of any interrogation. Defendant was not in custody at the time as he was free to refuse to go to the police station and was free to use his own car to go there if he wished. The judge concluded that any statements made during this time were admissible at trial because there was no custodial interrogation. The judge also found that the formal, written statement defendant gave to the police that day was also not the product of any custodial questioning. As a result, he concluded there was no obligation to advise defendant of his Miranda rights.5
Next, the judge addressed defendant’s interaction with his attorney, Engleman. The judge rejected defendant’s claim that his attempt to reach Engleman on Friday constituted an assertion of his Miranda rights, thereby precluding any further questioning by the police thereafter. He also rejected defendant’s claim that his efforts to call Engleman before he returned to New Jersey constituted such an assertion of his right to remain silent and to secure the advice of counsel. In any event, the judge observed that defendant was again advised of his Miranda rights after he voluntarily returned to the police station on Sunday morning.
The judge then turned his attention to the claims made by defendant respecting the events that Sunday, beginning with his arrival at the police station. He found that defendant was immediately advised fully of his Miranda rights, acknowledged that he understood them, read and signed the waiver form, and represented that he was not under the influence of drugs or alcohol. Only then did the interrogation begin. The judge found that defendant was in custody at that juncture, concluded that defendant had been appropriately warned of his rights, and the subsequent questioning did not violate any of those rights.
Turning to defendant’s first statement that “it may be best for [defendant] to obtain counsel if the police thought he was a suspect,” the judge concluded that this was an equivocal request for counsel, triggering a duty on the police to stop questioning and make the further inquiry required by State v. Harvey, 151 N.J. 117, 221 (1997), cert. denied, 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000). Scull did so, telling defendant that he could not give him advice and that the decision was his to make. The judge concluded that defendant, without any coercion at that time, gave a knowing, intelligent, and voluntary waiver of his rights. He employed the same analysis and reached the same conclusion with respect to defendant’s subsequent queries about obtaining the opinion of an attorney regarding his theory of the murder, requesting to leave the police station, and to work out a deal. In any event, the judge concluded that none of these inquiries constituted an invocation of the right to remain silent and determined that all statements made through this point in time were admissible.
The judge’s penultimate findings related to the efforts of Engleman to contact defendant and the response of the police to those efforts. He found that the police were required to inform defendant that Engleman was available to represent him and had asked defendant to call him. He further found that the police delivered Engleman’s message minus the exact instruction not to speak to the police, although Scull did tell defendant that it was likely that Engleman would tell him “not to talk to them.” The judge concluded that the essence of the message had been delivered, that defendant had all the information required to decide whether he wanted his attorney present, and knowingly, voluntarily, and intelligently decided to proceed without counsel when he pushed away the note with Engleman’s telephone number and said he “did not want to call an attorney just yet.”
Last, the judge found defendant was again advised of his Miranda rights before giving his tape-recorded statement and he knowingly, voluntarily, and intelligently waived them. He concluded the statement was admissible and “the Sixth Amendment did not attach at any point in time [defendant] was questioned at the Hopewell Township Police Station by Det. Scull.” After the subject motion was denied, the matter was tried by a jury.
On November 22, 2005, defendant filed an untimely notice of appeal following his conviction, but on December 20, 2005, we granted leave to appeal out of time. After a remand hearing, the judge determined that defendant voluntarily, knowingly, and intelligently waived his right to appellate counsel and permitted him to litigate his appeal pro se.
III.
Defendant raises the following issues on appeal:
POINT I – DENIAL BY TRIAL JUDGE OF RIGHT TO EFFECTIVELY CROSS EXAMINE AND IMPEACH STATE WITNESSES, AND TO PRESENT WITNESSES FOR THE DEFENSE, PERMITTED ONLY PROSECUTOR’S VERSION TO BE PRESENTED TO JURY.
POINT II – TRIAL COURT IMPROPERLY BOLSTERED STATE WITNESS AS EXPERT: SUCH BOLSTERING LED TO THE ADMISSION OF CLEARLY FALSE EVIDENCE.
POINT III – DUE TO STATE’S UNCONSTITUTIONAL SEIZURE AND SEARCH, APPELLANT’S MOTION TO SUPRRESS EVIDENCE SHOULD HAVE BEEN GRANTED.
POINT IV – DUE TO VIOLATIONS OF APPELLANT’S FIFTH AND SIXTH AMENDMENT RIGHTS, APPELLANT’S MOTION TO SUPPRESS STATEMENTS SHOULD HAVE BEEN GRANTED.
POINT V – TRIAL COURT MADE ERRORS IN JURY CHARGE.
POINT VI – TRIAL COURT’S DEMEANING OF DEFENSE COUNSEL TAINTED JURY.
The scope of our review of a judge’s findings of fact on a motion to suppress is limited. “We do not weigh the evidence, assess the credibility of witnesses, or make conclusions about the evidence.” State v. Barone, 147 N.J. 599, 615 (1997). We only determine “whether the findings made could reasonably have been reached on sufficient credible evidence present in the record.” State v. Johnson, 42 N.J. 146, 162 (1964). We are not in a good position to judge credibility and should not make new credibility findings. State v. Locurto, 157 N.J. 463, 474 (1999). It is only where we are “thoroughly satisfied that the finding is clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction . . . [that we] appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.” Johnson, supra, 42 N.J. at 162 (citations omitted).
After carefully reviewing the record in light of the written arguments advanced by the parties, we conclude that most of defendant’s arguments “are without sufficient merit to warrant discussion in a written opinion.” R. 2:11-3(e)(2). Those arguments are contained in defendant’s Points I, II, III, V, and VI, although we make the following brief comments:
With respect to the judge’s evidence rulings as to which defendant charges error in Point I, such determinations are committed to the sound discretion of the trial judge. E.g., Verdicchio v. Ricca, 179 N.J. 1, 34 (2004); State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985), certif. denied, 103 N.J. 465-466 (1986). We have carefully reviewed the many evidential issues raised in this appeal, some of which significantly mischaracterize the record, and find no abuse of discretion in the judge’s various decisions either admitting or rejecting evidence. Furthermore, the alleged errors were all harmless in light of the overwhelming evidence of guilt.
In Point II defendant claims that the footprint analysis did not require the testimony of an expert and the judge’s qualification of the expert improperly bolstered his testimony. It is clear from the expert’s testimony that footprint analysis is a distinct area of forensic science beyond the ken of the ordinary juror. This determination, too, was committed to the broad discretion of the trial judge, State v. Johnson, 120 N.J. 263, 294 (1990), and we find no abuse of that discretion.
Defendant’s complaint in Point III about the seizure of his home pending issuance of the warrant is also without merit. “Different interests are implicated by a seizure than by a search.” Segura v. United States, 468 U.S. 796, 806, 104 S. Ct. 3380, 3386, 82 L. Ed. 2d 599, 609 (1984) (citations omitted). “A seizure affects only the person’s possessory interests; a search affects a person’s privacy interests.” Ibid. (citations omitted). As a result, “warrantless seizures of property, on the basis of probable cause, for the time necessary to secure a warrant” have been approved. Ibid. (citations omitted). That is all that occurred here. Defendant’s constitutional rights were not violated by this seizure in any of the myriad respects that he asserts on appeal, all of which lack merit.
As to defendant’s contention in Point III that there was no probable cause to issue a warrant to search his home, there was an abundance of such evidence. The police had a reasonable basis to believe that Michelle was murdered and that her body was transported to the scene of the staged accident. The footprints leading away from the passenger side of Michelle’s vehicle eventually led to the vicinity of defendant’s home where there were tire tracks in the snow on the lawn. Michelle had been having an affair and threats had been made. Defendant had fresh scratches on his hands and admitted to an argument with Michelle the evening before the murder. His action in closing the garage door on Friday was also suspicious. “Probable cause exists if at the time of the police action there is ‘a “well grounded” suspicion that a crime has been or is being committed.'” State v. Sullivan, 169 N.J. 204, 211 (2001) (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). Probable cause certainly existed here for the search conducted pursuant to a properly issued warrant.
With respect to defendant’s claim in Point V that it was error to charge the jury on self-defense, “[t]he trial judge must charge the jury on self-defense ‘if there exists evidence in either the State’s or the defendant’s case sufficient to provide a “rational basis” for [its] applicability.'” State v. Blanks, 313 N.J. Super. 55, 69-70 (App. Div. 1998) (quoting State v. Bryant, 288 N.J. Super. 27, 35 (App. Div.), certif. denied, 144 N.J. 589 (1996)). At trial, defendant contended that Michelle accidentally fell from the Land Cruiser and was killed while she was trying to attack him. However, in his statement to police, which went into evidence, defendant claimed that Michelle attacked him and, to protect himself, he threw her down too hard and, when she tried to get up, he pushed her back down and she died as a result. Thus, the judge was required to give a self-defense charge in light of the evidence, even though he did not claim self-defense at trial. Id. at 70.
Finally, with respect to Point VI, we have carefully reviewed each of the half-dozen exchanges between the court and defense counsel and note that most of them were at sidebar. It was a hotly contested case in which defendant’s counsel put in a vigorous defense, occasionally ignoring judicial rulings and refusing to move on when objections were sustained. The occasional repartee over this twenty-one-day trial was often in jest and did not prejudice defendant. It does not remotely approach the level for requiring a new trial.
IV.
In defendant’s Point IV, he argues, based on various alleged violations of his Fifth and Sixth Amendment rights, his several statements to police should have been suppressed. The Fifth Amendment privilege against self-incrimination is binding on the states under the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 6, 84 S. Ct. 1489, 1492, 12 L. Ed. 2d 653, 658 (1964). The New Jersey Constitution has no direct counterpart, but the privilege “is firmly established as part of the common law of New Jersey and has been incorporated into our Rules of Evidence,” In re Martin, 90 N.J. 295, 331 (1982) (citations omitted).
The privilege is not self-executing under either federal or state law and must be invoked to claim its protection. State v. P.Z., 152 N.J. 86, 101 (1997). “Generally, when the privilege is not asserted and the person questioned chooses to answer, the choice to respond is considered voluntary.” Ibid. However, an exception to this rule was created for custodial interrogation because it is inherently coercive and automatically triggers the Fifth Amendment privilege against self-incrimination. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. A person in custody must be advised of the right to remain silent and warned that any statement may be used against that person. Ibid. Such a person must also be advised of the right to an attorney and, if he or she cannot afford an attorney, advised one will be provided. Ibid.
Absent Miranda warnings, statements made by a defendant while in custody, whether exculpatory or inculpatory, may not be used in the prosecutor’s case-in-chief. State v. Hartley, 103 N.J. 252, 275 (1986). “Custodial interrogation” means “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706. “The rights set forth in Miranda are not implicated ‘when the detention and questioning is part of an investigatory procedure rather than a custodial interrogation[.]'” State v. Smith, 307 N.J. Super. 1, 9 (App. Div. 1997) (quoting State v. Pierson, 223 N.J. Super. 62, 66 (App. Div. 1988)), certif. denied, 153 N.J. 216 (1998).
Defendant contends that he was in police custody from the moment he was advised of his Miranda rights on Friday morning until he exercised his right to call Engleman that evening. He asserts that he was not free to leave the police station “unless he was willing to walk miles in freezing temperatures back to his home.” He urges that none of the statements he made while he was transported to and from the police station and while he was there were admissible in evidence. However, the judge made a finding of fact that defendant was never in custody during this time, there is substantial evidence in the record to support this fact finding, and we are thus bound by it. Johnson, supra, 42 N.J. at 162. Because he was never in custody on Friday, his Miranda rights could not have been violated. See Smith, supra, 307 N.J. Super. at 9; see also Oregon v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714, 50 L. Ed. 2d 714, 719 (1977); State v. Lacaillade, 266 N.J. Super. 522, 527-28 (App. Div. 1993).
This is also true of any statements defendant made later when the police arrived at his home and told him to leave. Not only was defendant not in custody, but police allowed him to travel to his parents’ home in another state. His attempt to reach Engleman at that point did not preclude any questioning by the police that evening because an “anticipatory invocation of [the] right to counsel is ineffective outside of the custodial interrogation setting.” State v. Boretsky, 186 N.J. 271, 284 (2006) (citing McNeil v. Wisconsin, 501 U.S. 171, 182 n. 3, 111 S. Ct. 2204, 2211 n.3, 115 L. Ed. 2d 158, 171 n.3 (1991)).
Defendant also argues that the police impermissibly interfered with his Sixth Amendment right to counsel when they evicted him from his home and took his cell phone, which prevented counsel from getting in touch with him. “The Sixth Amendment right to counsel attaches only at the initiation of adversary criminal proceedings, and before proceedings are initiated a suspect in a criminal investigation has no constitutional right to the assistance of counsel.” Davis v. United States, 512 U.S. 452, 456-57, 114 S. Ct. 2350, 2354, 129 L. Ed. 2d 392, 369-70 (1994). In any event, defendant was free to leave a telephone number where Engleman could reach him, and in fact he did so the next day, instructing Engleman to call him at his parents’ home. The police never prevented the attorney from reaching defendant, who, again, was not in custody until Sunday morning and had no right to counsel until then. Ibid.
Defendant’s major contentions revolve around the events on Sunday when he was in custody and Engleman tried to contact him. It is undisputed that he was advised of his Miranda rights, signed the Miranda waiver form, and repeatedly waived his rights thereafter. However, defendant claims that his will was overborne and he was “rendered insensible” by the combination of the following factors: (1) withdrawal from Wellbutrin and use of Ativan that blocked his memory;6 (2) refusal of police to acknowledge his claims of innocence; (3) refusal of police to acknowledge his repeated requests for counsel and his right to remain silent; (4) presentation of false evidence to him, such as the footprint size leading to his house; (5) “presentation of a way to avoid being taken from his children forever: convincing the[ police] that Mrs. Nyce’s death was accidental.” Thus, he urges, contrary to the judge’s fact findings, that any waiver of rights was not knowing, intelligent, and voluntary.
After being advised of Miranda rights, a person can waive them if the waiver is made voluntarily, knowingly, and intelligently. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 86 L. Ed. 2d at 707; State v. Bey, 112 N.J. 123, 134 (1988). The State bears the burden of proof in this regard beyond a reasonable doubt. Bey, supra, 112 N.J. at 134. The court must look into the totality of the circumstances to ascertain whether the accused in fact knowingly and voluntarily decided to forego his or her rights. Oregon v. Bradshaw, 462 U.S. 1039, 1045, 103 S. Ct. 2830, 2834, 77 L. Ed. 2d 405, 412 (1983); State v. Miller, 76 N.J. 392, 402 (1978). Courts consider the characteristics of the accused, as well as the details of the interrogation. Bey, supra, 112 N.J. at 134-35; Miller, supra, 76 N.J. at 402. Relevant factors include the defendant’s age, education, intelligence, previous encounters with the law, advice concerning his or her constitutional rights, length of detention, whether the questioning was repeated or prolonged, and whether physical punishment or mental exhaustion was involved. Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S. Ct. 2041, 2047, 36 L. Ed. 2d 854, 862 (1973) (citations omitted); Bey, supra, 112 N.J. at 135; Miller, supra, 76 N.J. at 402. A “waiver of the right against self-incrimination which, by all subjective indicia, appears knowing, intelligent, and voluntary, may still be deemed invalid when elicited in an atmosphere of coercion.” State v. Reed, 133 N.J. 237, 256 (1993). “At the root of the inquiry is whether a suspect’s will has been overborne by police conduct.” State v. Presha, 163 N.J. 304, 313 (2000).
The “use of psychologically oriented interrogation techniques is not inherently coercive.” State v. Cook, 179 N.J. 533, 562-63 (2004). However, “[c]onfessions are not voluntary if derived from ‘very substantial’ psychological pressures that overbear that suspect’s will.” Id. at 563 (quoting State v. Galloway, 133 N.J. 631, 656 (1993)). “In determining whether a defendant’s will was overborne, the totality of the circumstances must be examined, ‘including both the characteristics of the defendant and the nature of the interrogation.'” Cook, supra, 179 N.J. at 563 (quoting Galloway, supra, 133 N.J. at 654); see also Schneckloth, supra, 412 U.S. at 226, 93 S. Ct. at 2047, 36 L. Ed. 2d at 862.
The judge’s fact findings are supported by substantial evidence in the record. The interrogation began at 9:00 a.m., included an interruption, and then at 11:40 a.m., Scull asked to tape the interview and defendant agreed. The taped portion began at 12:00 p.m. and continued until 1:48 p.m. Thus, the entire interrogation took less than five hours. No coercive techniques were used during the taped interview. Defendant was well-educated and had developed and run his own business. He was not afraid to deal with the police, as evidenced by his contact with them a year earlier. He also was not afraid to challenge them, as indicated when he questioned whether he had no choice other than to leave his home Friday night. The interview was scheduled for 9:00 a.m. after defendant had an opportunity to rest from Friday night until Sunday morning and was not physically or mentally exhausted. Defendant was in custody for only a few minutes before he waived his rights, at which time he denied being under the influence of any drugs. Refusing to accept a claim of innocence hardly constitutes “very substantial” psychological pressure. He did not assert his right to remain silent or to counsel. There is no evidence that supports defendant’s claim that the police presented any false evidence to him. Finally, defendant’s effort to convince the police that he accidentally killed his wife does not qualify as psychological coercion by the police. As a consequence, the judge’s conclusion that defendant’s waiver of rights was knowing, voluntary, and intelligent has substantial support in the record and may not be set aside by us. Johnson, supra, 42 N.J. at 162.
Defendant next contends that the police did not honor his request for counsel. He correctly states that on Saturday, Engleman called the police station and told Meyer that he was looking for defendant who had left a message for him. Defendant argues that the police had an obligation to inform him of this call prior to asking him to waive his Miranda rights on Sunday. This communication is quite different from the communication in Reed, supra, where the suspect was being held at the prosecutor’s office and his girlfriend called an attorney, who arrived at the prosecutor’s office shortly thereafter. 133 N.J. at 241. In the meantime, without informing the girlfriend, police moved defendant to another building, taking him down a back staircase to avoid seeing her. Ibid. When the attorney made his presence known to the prosecutor, he was told that the defendant was being questioned as a witness and not a suspect, he could not walk into the investigation, and that police would call him if and when the suspect requested an attorney. Id. at 242-43. Meanwhile, the defendant waived his Miranda rights and confessed. Id. at 244.
Here, defendant was not in custody when Engleman called on Saturday. Defendant points to no authority that says the police had an obligation to inform defendant that an attorney called looking for him the day before. Unlike the defendant in Reed, defendant had the opportunity all day Saturday to continue calling Engleman or to call another attorney. He could also have refused to speak to police until he was able to get in touch with Engleman. There simply is no legal authority for defendant’s position that Engleman’s call to the station on Saturday affected police obligations on Sunday.
Defendant next contends that the judge erred in concluding that his statement, “maybe it would be best for him to retain counsel,” was ambiguous. If a suspect “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda, supra, 384 U.S. at 473-74, 86 S. Ct. at 1627, 16 L. Ed. 2d at 723. This is also true when a suspect invokes his right to counsel. State v. Perez, 334 N.J. Super. 296, 302 (App. Div. 2000), certif. denied, 167 N.J. 629 (2001). But, “unless and until a suspect asserts his right to have counsel present following adequate Miranda warnings and waiver, the custodial interrogation may continue.” Id. at 302-03. If police are unsure whether a defendant is asserting his right to silence, they must either stop the interrogation completely or “ask only questions narrowly directed to determining whether defendant was willing to continue.” Johnson, supra, 120 N.J. at 284; see also State v. Chew, 150 N.J. 30, 63 (1997) (citing Bey, supra, 112 N.J. at 126; State v. Wright, 97 N.J. 113, 120 (1984)).
In Chew, the Court interpreted the defendant’s request that his mother contact his attorney as “an equivocal invocation of the right to counsel that had to be clarified before questioning could take place.” Id. at 63. By comparison, in State v. Mallon, 288 N.J. Super. 139, 150 (App. Div.), certif. denied, 146 N.J. 497 (1996), we held that a suspect’s request that the police “go out and hire an attorney” was not ambiguous and required a cessation of questioning, unless the defendant reinitiated communication. Here, defendant’s comment that if he were a suspect, “maybe it would be best to retain counsel” was ambiguous, as the judge found. See Davis, supra, 512 U.S. at 461-62, 114 S. Ct. at 2356-57, 129 L. Ed. 2d at 371-72. Scull recognized the ambiguity and sought to clarify it. Defendant began telling Scull why he should be looking at de Jesus, but Scull stopped him and told him he needed to know if he wanted counsel before he continued talking, and defendant said he did not wish to invoke this right. Scull did all that was required to clarify defendant’s ambiguous request. When defendant declined to invoke his rights, the interview appropriately continued. See Perez, supra, 334 N.J. Super. at 302-03. Defendant made a similar ambiguous comment shortly thereafter, Scull responded as before, and defendant said he did not wish to invoke his rights. We find no error in the judge’s conclusions in this regard.
With respect to Engleman’s efforts to reach defendant on Sunday, defendant first maintains that Meyer should have taken Michael Nyce’s cell phone, with Engleman on the line, into the interrogation room “so that he could complete the call with his attorney.” There is no evidence that Michael tried to hand Meyer the phone and he refused.
Defendant also appears to be arguing that the police should have told him that Engleman wanted him to stop talking to them, citing Thompson v. Wainwright, 601 F.2d 768 (5th Cir. 1979). There, after being advised of his Miranda rights, Thompson signed a waiver and said he would make a statement, “but added that he first wanted to tell his story to an attorney.” Id. at 769. The officer told the suspect that an attorney could not relate his story to police and that an attorney would probably advise him to say nothing. Ibid. The suspect then proceeded with his statement, which was used at his trial. Id. at 769-70. The Fifth Circuit held that the statement was inadmissible because the police were not permitted to argue with a defendant over an “equivocal request for legal counsel.” Id. at 772.
The Thompson case is factually distinct from this case. Here, Scull did not try to talk defendant out of consulting an attorney, nor did he tell him that he would not be able to tell his story if he contacted an attorney because an attorney would tell him not to talk. As the judge found, this case is governed by Reed, supra, 133 N.J. at 262: “When, to the knowledge of the police, such an attorney is present or available, and the attorney has communicated a desire to confer with the suspect, the police must make that information known to the suspect before the custodial interrogation can proceed or continue.” That is what the police did here. There is no further requirement to tell defendant that the attorney advised him to cease speaking. The police provided defendant with Engleman’s home telephone number and told him that a phone would be provided if he wanted to call. Defendant said he wanted to be helpful, and did not wish to call the attorney, making it clear he was not exercising his right to counsel. Under these circumstances, the judge had substantial support in the record for his finding that defendant’s waiver of his right to counsel was voluntary, knowing, and intelligent.
We also find no merit to defendant’s contention that the police did not scrupulously honor his right to remain silent and cease questioning when he asserted that right based on his queries about contacting a lawyer, his request to go home and think about what he could tell them that would be helpful, and his offer to give a statement implicating himself if he could have an agreement that he would spend only a short time in jail. As the judge found, defendant’s queries and his conditional offer to give an incriminating statement are “not viewed under New Jersey law as a request for counsel or an invocation of his right to silence.” Harvey, supra, 151 N.J. at 222; see also Bey, supra, 112 N.J. at 138-39. The police properly made further inquiry respecting these equivocal assertions, Johnson, supra, 120 N.J. at 283, following which defendant made another unequivocal waiver.
Defendant also contends that he invoked his right to remain silent when he twice refused to speak, as Scull acknowledged. The Johnson Court acknowledged that “[s]ilence itself has been interpreted as an invocation of the right to remain silent.” Id. at 281 (citing Watson v. Texas, 762 S.W.2d 591, 597-98 (Tex. Crim. App. 1988)). In Watson, the court held that when a suspect remained silent during a thirty- to forty-five-minute interrogation, the silence itself constituted an invocation of his right to remain silent. Watson, supra, 762 S.W.2d at 597-98. Here, however, the record does not reflect how long defendant remained silent and it appears that this silence occurred while defendant was contemplating his decision about whether to call Engleman. We are satisfied that this was not an invocation of defendant’s right to silence. Rather, it was merely contemplation of his decision about whether to continue with his statement without the advice of counsel.
Other arguments made by defendant respecting alleged violations of his Fifth and Sixth Amendment rights on January 18, 2004, are either unsupported by the record at the suppression hearing or lack sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).
Affirmed.
1 The two-count indictment returned on April 4, 2004, had charged defendant with first-degree murder contrary to N.J.S.A. 2C:11-3a(2), but he was convicted of the lesser-included offense of passion-provocation manslaughter.
2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
3 This shoe size matched the footprint in the snow, which was linked to defendant through expert testimony.
4 Police located de Jesus on Saturday. He denied any involvement in Michelle’s death and related the events surrounding his last contact with her. He gave them the clothes and size nine-and-a-half work boots he was wearing Thursday night. He also consented to a buccal swab for DNA purposes.
5 We note, in any event, that the police had advised defendant of his Miranda rights before he was transported to police headquarters and gave his voluntary statement of the events the prior evening and that morning.
6 The evidence on which defendant relies either does not support this proposition or it was not adduced at the suppression hearing, in which case, we do not consider it on appeal. State v. Gibson, 318 N.J. Super. 1, 9 (App. Div. 1999).
At the very start of his trial, is Robert Higbee in trouble already?
Anyone else catch the beginning of the Robert Higbee trial on TruTV (Court TV) this week? A friend of mine was a guest on Thursday so I DVRed it and watched it this weekend. Since the trial is in New Jersey, I’ll have to keep an eye on it.
After just a few minutes, I wound up screaming at my TV like some crazy sports fan. I live, sleep, eat and breathe criminal defense. So, when I see a total miscarriage of justice, I get emotional.
Robert Higbee is a New Jersey State Trooper that is on trial for vehicular homicide for killing two teenage girls after he hit their minivan at about 65 mph. The focal point of the case is the fact that the Troop car’s “black box” shows that he blew though a stop sign even though he had indicated that he thought that he stopped and looked both ways.
From the very beginning, this looks like a weird trial. The prosecutor’s opening statement included a power point presentation that had some type of graph that was compiled from the data off the black box. The prosecutor explained what everything meant and thus, what the black box showed. In other words, the prosecutor presented evidence to the jury that only an expert can present way before the expert even testified. So what do we need the expert for?
Opening statements are just a preview for what each side expects to show, not the whole case in Cliff Notes style. I just don’t see how any of that was admissible and I hope I just missed the objection from Higbee’s attorney.
The first witness was Caesar Caiafa, the grandfather of the two girls. He had nothing to say about the accident because he didn’t see it happen. So why did he testify? Because the prosecutor knows that this trooper is a good guy. He said as much in opening. Thus, he has to play the sympathy card hard and early. I don’t really take issue with his tactics as they will play any card they can. I have a real issue with his attorney and I really hate to Monday morning quarterback another attorney.
However, this grandfather had nothing to say. I mean nothing. First off, I would have asked for a proffer. After reviewing the discovery, it should have been clear that he had nothing to add. The proffer would confirm this so a motion in limine (to exclude his testimony) would have been made. Now maybe that was done and it was denied. However, I still say you have to renew the objection.
This grandfather was permitted to cry several times, talk about the lives of the two girls, how he found out about the accident and the fact that he restores old cars. Ok great, does any of that prove or disprove any facts of this case? No.
I heard the commentators and hosts on TruTv say that you don’t want to object and have the jury hate you. While there are occasions when that may be the case, this was not one of them. This guy’s life is on the line! You have to stand up for him! Besides, there is a very simple solution. “Objection, Judge, can I have a side bar please”. You then go up there and say that you not only object to the testimony but you ask for a mistrial and if the mistrial is denied, you ask to strike his testimony and a proffer for what else he will say”.
My advice to new attorneys is as follows:
The judge’s decision with all of that is less important than the application itself. If you are denied across the board, you have at least set up a great issue for an appeal. Then, when the witness is done, you advise the court that you have an issue to address before the next witness comes up so a short break would be great.
When the jury leaves, tell the judge that you want to renew your objection and application for a mistrial and you want to put it on the record. This should be more than just a few sentences. Explain what you are objecting to and why and ask for a mistrial, not just a motion to strike. The NJ Appellate Division treats applications for mistrial different than objections, but don’t overuse it. Highlight the testimony that was objectionable, or in the case like this where it all is, group it together and don’t pull punches.
In this case, you have to tell the judge that the testimony about the lives of the girls, the crying, the events of that night that the witness saw and the fact that he restores care is nothing more than sympathy evidence that is not only irrelevant, but is specifically designed to compensate for the lack of evidence and prejudice the defendant. This evidence will distract from the facts of the case and get the jury so upset that they will convict the defendant on sympathy alone without considering the evidence.
I’m sure all of this sounds really cold, but as a defense attorney, you have to fight for your client regardless of what anyone may think about you. The wife of the main witness in one trial I had asked me how I live with myself after I called her husband a crook who should be the one on trial in front of the jury and a packed court room. I explained that I am a hired gun and my clients expect my best at all times. She did tell me that I did a very good job though. By the way, the verdict in that case was not guilty with only a 90 minute deliberation.
Story on the first day of trial is here.
State has 120 days to move case against Michael Coppola
Michael Coppola, a reputed New Jersey mafia boss (now 63) is accused of killing John “Johnny Cokes” Lardiere in the parking lot of the Red Bull Inn on April 10, 1977. Coppola was not a suspect until 1996, when an informant told authorities that Coppola had bragged about the killing during a party a few years prior. His attorney, Thomas Cammarata filed a motion to dismiss the complaint because nothing has happened since 2007.
The judge dismissed the motion but held that the State has 120 days to present the case to a grand jury or the court will dismiss the complaint. I’ve let cases go on like this for a few years when my client was not locked up as time is always on your side as a defendant.
However, when my client is locked up or when you want to move quick, you can file a motion for a probable cause hearing. The hearings are never held because the State presents the case to the grand jury prior to the date for the hearing.
I assume Coppola’s attorney had a good reason for handling the case the way he has. I am sure he has used his time wisely but there reaches a point where you run out of stuff to do without any evidence. Story is here.
New Jersey Attorney Paul Bergrin pleads guilty to conspiracy to promote prostitution
New Jersey Attorney Paul Bergrin has entered a plea of guilty to conspiracy charges in New York with regard to a former escort company called NY Confidential. Lucky for Bergrin, he was able to avoid felony criminal charges. There is no indication yet as to what will happen with his ability to practice law. I don’t think he’ll have that much of a problem because the charges are not that serious compared to what he was facing.
I don’t know Mr. Bergrin or the facts of the case, but this is not a case where he decided to start an escort business. Instead, he took it over for a client that was in prison. This is important because it is easy to cross the line between helping out a client and breaking the law. I’m sure all of that was taken into account in working out this case.
The bottom line is, his attorney, Gerald Shargel did a great job and I wish Mr. Bergin the best of luck in the future.
Court upholds conviction of former Andover, NJ Mayor
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAVID MOSNER,
Defendant-Appellant.
_____________________________
May 4, 2009
Argued February 9, 2009 – Decided
Before Judges R. B. Coleman, Sabatino and Simonelli.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 05-05-00190.
Donald J. Rinaldi argued the cause for appellant (DiBiasi & Rinaldi, attorneys for appellant; Mr. Rinaldi, on the brief).
Gregory R. Mueller argued the cause for respondent (David J. Weaver, Sussex County Prosecutor, attorneys; Mr. Mueller, of counsel and on the brief).
The opinion of the court was delivered by
SIMONELLI, J.A.D.
The State charged defendant with two criminal offenses stemming from a hit-and-run snowmobile accident that left a teenage boy seriously injured: fourth-degree assault by motor vehicle (snowmobile), N.J.S.A. 2C:12-1c(1) (count one); and fourth-degree leaving the scene of a motor vehicle accident, N.J.S.A. 2C:12-1.1 (count two). Defendant was also charged with five motor vehicle offenses: operating a snowmobile on a public street or highway, N.J.S.A. 39:3C-17b; operating an unregistered snowmobile, N.J.S.A. 39:3C-3 and N.J.S.A. 39:3C-5; failure to report an accident resulting in injury to or death of any person, or damage to property, N.J.S.A. 39:4-130 and N.J.S.A. 39:3C-21; leaving the scene of an accident resulting in injury or death to any person, N.J.S.A. 39:4-129(a) and N.J.S.A. 39:3C-21; and reckless driving, N.J.S.A. 39:4-96.
Defendant applied for admission to the Sussex County Pre-Trial Intervention Program (PTI). The Sussex County prosecutor consented to defendant’s admission conditioned on, among other things, his guilty plea to the five motor vehicle charges. Defendant agreed to plead guilty to all motor vehicle offenses except leaving the scene of an accident resulting in injuries of any person, which carried a mandatory 180-day term of imprisonment. Defendant appealed the prosecutor’s decision to a Law Division judge, who denied the appeal.
A jury subsequently convicted defendant on the criminal counts. The trial judge convicted defendant on all five motor vehicle charges. The judge sentenced defendant to a 270-day term of imprisonment in the Keough-Dwyer Correctional Facility on count two; to a consecutive two-year term of probation with a 60-day term of imprisonment on count one to be satisfied by his participation in the Sheriff’s Labor Assistance Program; to a concurrent 60-day term of imprisonment on the reckless driving charge; and to a concurrent 180-day term of imprisonment and a concurrent two-year driver’s license suspension on the leaving the scene of an accident charge. The judge also imposed the appropriate assessments, fines and penalties, ordered restitution to the victim, and suspended defendant’s driver’s license for thirty months.
On appeal, defendant raises the following contentions:
POINT ONE
DEFENDANT SHOULD BE ADMITTED INTO THE PTI PROGRAM BECAUSE THE PROSECUTOR ABUSED HIS DISCRETION AND VIOLATED GUIDELINE 4 OF RULE 3:28 BY CONDITIONING DEFENDANT’S ENTRY INTO PTI ON A GUILTY PLEA TO THE UNDERLYING MOTOR VEHICLE OFFENSES.
POINT TWO
THE TRIAL JUDGE ERRED IN DENYING THE DEFENDANT’S REQUEST TO ADMIT THE PHOTOGRAPHS TAKEN BY THE STATE INTO EVIDENCE.
POINT THREE
THE TRIAL JUDGE ERRED BY NOT GRANTING THE DEFENDANT’S RENEWAL OF THE MOTION TO SUPPRESS AT TRIAL BECAUSE THE AFFIDAVIT IN SUPPORT OF THE SEARCH WARRANT WAS BASED ON AN ILLEGAL SEARCH.
POINT FOUR
THE TRIAL JUDGE ERRED BY NOT GRANTING THE DEFENDANT’S RENEWAL OF THE MOTION TO SUPPRESS AT TRIAL BECAUSE THERE WAS NO PROBABLE CAUSE TO ISSUE THE SEARCH WARRANT.
POINT FIVE
THE TRIAL COURT ERRED BY ADMITTING THE PANTS ALLEGEDLY WORN BY DAVID MCINNIS INTO EVIDENCE.
We reject these contentions and affirm.
The following facts are summarized from the record. On March 6, 2003, at approximately 7:00 p.m., David McInnis left his home on Goodale Road in Andover Township to walk his dog. Having snowed that day, there was approximately six inches of snow on the road that had not yet been plowed. McInnis wore a pair of waterproof snow pants over a pair of jeans, a t-shirt and sweatshirt and snow boots, and carried a flashlight. He and his dog exited his driveway and walked onto Goodale Road near its intersection with Iliff Road, facing oncoming traffic approaching from the south.
After proceeding approximately 400 feet on Goodale Road, McInnis saw the light of a snowmobile and heard its engine. The vehicle was traveling toward him at approximately forty or fifty miles per hour. McInnis stopped walking and began waving his flashlight at the snowmobile; however, the driver of the snowmobile did not slow down or change direction. The snowmobile struck McInnis and continued north on Goodale Road toward the intersection of Lake Iliff Road. The collision knocked the teenager to the ground, injuring his right leg. In severe pain and bleeding, and unable to stand or walk, McInnis dragged himself, yelling for help.
McInnis was eventually spotted by a snowplow truck driver, who called the police. The snowplow driver also observed a left front rudder snowmobile track in the center of the road in the vicinity where McInnis lay, and snowmobile tracks on Goodale Road that continued to a soccer field off that road.
An ambulance subsequently brought McInnis to the hospital where x-rays revealed a serious compound fracture of his right tibia and fibula requiring surgery and the insertion of two titanium pins. A doctor indicated that the injury “usually would be associated with a high impact, high force injury.”
At approximately 7:25 p.m., Lieutenant Alan Monaco of the Andover Township Police Department arrived at the scene and spoke to McInnis and the snowplow driver. The officer saw two twenty to twenty-five foot snowmobile tracks in the roadway, facing north. While investigating the incident, Monaco received a radio transmission that a resident of Goodale Road had reported seeing someone erratically operating a snowmobile in the soccer field area directly across from her house. Monaco responded to that location and observed “[c]risp[,] [c]lean pristine [snowmobile] tracks, which were just made[,]” in the soccer field area and an adjacent parking lot, which appeared to be from one snowmobile. The tracks proceeded through the soccer field and parking lot areas and continued over a snow embankment and then onto Goodale Road, heading south.
Monaco followed the tracks south on Goodale Road, turned left onto Route 206 south, and then turned left onto Limecrest Road, heading north. The officer then turned left onto Lake Iliff Road, heading west back toward Goodale Road. While traveling on Lake Iliff Road toward Goodale Road, the officer saw snowmobile tracks to his right in the area of Lake Iliff. The tracks crossed the road and entered the lower parking lot of Hillside Park, where snowmobiles were not permitted. The officer entered the parking lot and followed the tracks to the upper area of the park. There he saw snowmobile tracks “in pristine condition[,] . . . [v]ery sharp, crisp track marks[,]” which appeared to be from one snowmobile.
Defendant’s home, located at 140 Lake Iliff Road, borders Hillside Park and is about one-half mile from the scene of the accident. Defendant is well-known in Andover Township, once serving as the mayor. His brother was a member of the Andover Township Police Department and at the time of the accident, defendant was an Andover Township Committee member with oversight of the police department, including “budget . . . salary negotiations . . . promotions [and] discipline.” Defendant was also known to have illegally operated his snowmobile in Hillside Park in the past which, according to Monaco, was “something that was . . . overlooked [by the police].”
Shortly after 8:00 p.m., Monaco went to defendant’s home. As he drove up defendant’s driveway, he saw two sets of snowmobile tracks going into Hillside Park. The tracks appeared to be the same as those he saw on Goodale Road and in the park’s parking lot.
The officer also saw an “Artic Cat” snowmobile parked outside a barn on defendant’s property with damage to the right side of the windshield and with no snow on it. He also saw a “[f]resh[,] [c]risp; pristine [track]” leading to the snowmobile, which was one of the contiguous tracks he had observed leading from defendant’s driveway into Hillside Park. He saw no other snowmobile tracks. The officer then proceeded to defendant’s home and spoke to defendant’s wife, who said that defendant was not home, and that he had been riding his snowmobile at around 6:00 p.m.
Monaco then proceeded to Newton Memorial Hospital to see McInnis. While at the hospital, Monaco took McInnis’s snow pants, which had a black mark on one of the legs. The officer placed the pants in a bag, brought the bag to the police station, and marked it as evidence. The officer then went back on patrol and continued searching the area until 3:00 a.m. for more or other snowmobile tracks. He found none.
On the evening of March 7, 2003, the Sussex County Prosecutor’s Office seized defendant’s snowmobile pursuant to a search warrant. Sergeant Timothy Cooney of the prosecutor’s office photographed the vehicle and the snowmobile tracks on defendant’s property. On the morning of March 8, 2003, the officer photographed the snowmobile tracks in Hillside Park and in the soccer field area off Goodale Road.
On March 10, 2003, Detective-Sergeant Thomas McCormick, supervisor of the New Jersey State Police Crime Scene Investigation North Unit, took additional photographs of defendant’s snowmobile. The next day, he photographed the scene of the accident and the snowmobile tracks from defendant’s property. He also took aerial photographs of the area. The officer followed the snowmobile tracks through Hillside Park and determined that they originated from behind the tennis courts, continued onto the soccer field, crossed over and went through the field behind the Andover Police Department, continued through the field and into the woods, and then continued through the woods to the soccer field on Goodale Road. McCormick concluded that the tracks were from one snowmobile.
On March 13, 2003, McCormick took additional photographs of the snowmobile. He also collected and delivered to the Prosecutor’s Office the front portion of the snowmobile’s metal bumper, the right and left rubber handles, and a piece of fiberglass from the front of the snowmobile. On March 14, 2003, Cooney brought the evidence McCormick had collected and the bag containing McInnis’s snow pants to the State Police Laboratory for analysis.
George W. Chin of the New Jersey State Police Office of Forensic Science, an expert in forensic science, including forensic chemistry and trace evidence analysis, examined the evidence to determine if any transfer occurred from the snowmobile items to the pants. He made three significant findings: (1) a black impression on the left snow pant leg compared in physical dimensions with pinstripes on the snowmobile’s metal bumper; (2) the black material removed from the impression compared to the black pinstripes on the bumper; and (3) a fabric impression on the black pinstripe of the bumper compared in physical dimensions to the weave pattern in the pants. Chin opined that the first two findings showed a transfer from one object to another and that the third finding indicated that there was “a high velocity impact or transfer of fabric impression or pattern onto the [bumper].” He concluded that these findings confirmed the probability of contact between the snowmobile and the pants.
On May 16, 2003, Detective Joseph Costello of the Sussex County Prosecutor’s Office went to Elite Auto in Byram Township and photographed an abandoned “Artic Cat” snowmobile with a missing front left ski that had been reported to the Andover Township police. After examining the vehicle, Costello concluded that nothing indicated this snowmobile’s involvement in the accident.
Defendant testified at trial. He admitted operating his snowmobile at the time of the accident, but denied doing so on Goodale Road. He also denied hitting McInnis. The jury found otherwise.
I.
We first address defendant’s challenge to the prosecutor’s decision about his PTI admission. The victim and his family opposed defendant’s PTI admission. Nevertheless, the Criminal Case Manager found defendant an acceptable PTI candidate and recommended his admission for eighteen months subject to, among other things, his guilty plea to the motor vehicle charges of operating a snowmobile on a public street and operating an unregistered snowmobile. The Criminal Case Manager later amended his recommendation to include a guilty plea to all five motor vehicle charges. Defendant was willing to plead guilty to all motor vehicle charges except leaving the scene of an accident resulting in injuries of any person.
The prosecutor acknowledged that defendant had very good background credentials, including his charitable and public service work as an elected member of the Andover Township governing body. However, after evaluating the criteria in N.J.S.A. 2C:43-12e(1) to (17) and the Rule 3:28 Guidelines, the prosecutor found defendant to be a “marginally acceptable” PTI candidate. The prosecutor would only consent to defendant’s PTI admission on the condition that defendant would, among other things, plead guilty to the motor vehicle charge of leaving the scene of an accident resulting in injury to any person.
The prosecutor reasoned that defendant was an unapologetic public official who illegally operated his snowmobile in the area of the Police Department he oversaw. The prosecutor also found that, despite overwhelming evidence of defendant’s guilt, he refused to accept any responsibility for striking and seriously injuring McInnis, and for knowingly leaving the scene of the accident. The prosecutor concluded that the guilty plea was necessary for the victim, his family, the community and the public’s confidence in the criminal justice system.
Defendant concedes the inapplicability of PTI to Title 39 offenses. See also State v. Negran, 178 N.J. 73, 83 (2003). However, he argues that because the motor vehicle charge of leaving the scene of an accident resulting in injury or death to any person arises out of the same conduct and incident as the fourth-degree criminal charge of leaving the scene of a motor vehicle accident, pleading guilty to the motor vehicle charge is tantamount to pleading guilty to the criminal charge. He concludes that requiring a guilty plea to the motor vehicle charge violates Rule 3:28, Guideline 4.
Defendant also argues that pleading guilty to the motor vehicle charge would require him to serve a mandatory 180-day term of imprisonment, which “flies in the face of reason and contradicts the entire purpose, intent and spirit of the PTI Program.” He concludes that requiring a guilty plea to the motor vehicle charge violates Rule 3:28, Guideline 1(a), (b) and (d).
Finding that defendant’s failure to meet Guideline 4’s concern for acceptance of responsibility for behavior as part of the PTI rehabilitation process, the trial judge concluded that defendant failed to clearly and convincingly show that the prosecutor’s decision was a patent and gross abuse of discretion.
We first emphasize that PTI does not apply to motor vehicle offenses. Negran, supra, 178 N.J. at 83. Accordingly, the prosecutor abused no discretion in requiring a guilty plea to the motor vehicle charges, notwithstanding the penal consequences. Even if PTI did apply to motor vehicle offenses, we discern no abuse of discretion here.
PTI is a diversionary program designed to ‘augment the options of prosecutors in disposing of criminal matters . . . [and] provide applicants with opportunities to avoid ordinary prosecution by receiving early rehabilitative services or supervision, when such services or supervision can reasonably be expected to deter future criminal behavior by an applicant.’
[State v. Motley, 369 N.J. Super. 314, 320 (App. Div. 2004) (quoting State v. Brooks, 175 N.J. 215, 223 (2002)).]
To gain admission, a defendant must obtain a positive recommendation from the PTI director and the consent of the prosecutor. Ibid.
In making a PTI determination, the prosecutor must evaluate the criteria set forth in N.J.S.A. 2C:43-12e and the Rule 3:28 Guidelines. Negran, supra, 178 N.J. at 80-81 (2003) (citations omitted). As part of that determination, the prosecutor must “assess a defendant’s ‘amenability to correction’ and potential ‘responsiveness to rehabilitation.’ State v. Watkins, 193 N.J. 507, 520 (2008) (citing N.J.S.A. 2C:43-12b).
A “[d]efendant generally has a heavy burden when seeking to overcome a prosecutorial denial of his admission into PTI.” Ibid. (citing State v. Nwobu, 139 N.J. 236, 246-47 (1995)). In order to overturn a prosecutor’s rejection, a defendant must “‘clearly and convincingly establish that the prosecutor’s decision constitutes a patent and gross abuse of discretion.'” State v. Hoffman, 399 N.J. Super. 207, 213 (App. Div. 2008) (quoting State v. Watkins, 390 N.J. Super. 302, 305 (App. Div. 2007), aff’d, 193 N.J. 507 (2008)). See also Negran, supra, 178 N.J. at 82; Brooks, supra, 175 N.J. at 225; Nwobu, supra, 139 N.J. at 246; Motley, supra, 369 N.J. Super. at 321. “A patent and gross abuse of discretion is defined as a decision that ‘has gone so wide of the mark sought to be accomplished by PTI that fundamental fairness and justice require judicial intervention.'” Watkins, supra, 193 N.J. at 520 (quoting State v. Wallace, 146 N.J. 576, 582-83 (1996)). “Ordinarily, an abuse of discretion will be manifest if defendant can show that a prosecutorial veto (a) was not premised upon a consideration of all relevant factors, (b) was based upon a consideration of irrelevant or inappropriate factors, or (c) amounted to a clear error in judgment.” State v. Bender, 80 N.J. 84, 93 (1979).
Prosecutors are granted “wide latitude in deciding whom to divert into the PTI program and whom to prosecute through a traditional trial.” Negran, supra, 178 N.J. at 82. We afford the prosecutor’s decision great deference. Wallace, supra, 146 N.J. at 589; State v. Leonardis, 73 N.J. 360, 381 (1977); State v. Kraft, 265 N.J. Super. 106, 111 (App. Div. 1993). For that reason, “[t]he scope of judicial review of a decision to reject a PTI application is ‘severely limited.'” Hoffman, supra, 399 N.J. Super. at 213 (App. Div. 2008). See also Leonardis, supra, 73 N.J. at 381. A trial court can only overturn a prosecutor’s decision to deny PTI upon finding a patent and gross abuse of discretion. Kraft, supra, 265 N.J. Super. at 112-13.
The fundamental question before us is whether, under the circumstances of this case, the prosecutor could condition defendant’s PTI admission on a guilty plea to a motor vehicle charge carrying a mandatory term of imprisonment. “Enrollment in PTI programs should be conditioned upon neither informal admission nor entry of a plea of guilty. Enrollment of defendants who maintain their innocence should be permitted unless the defendant’s attitude would render pretrial intervention ineffective.” R. 3:28, Guideline 4. See also N.J.S.A. 2C:43-12g. Rejection of PTI admission should only occur where “it is unlikely that behavioral change can occur as a result of short-term rehabilitative work.” Pressler, Current N.J. Court Rules, comment on R. 3:28, Guideline 4.
Here, the prosecutor found defendant to be an acceptable candidate for PTI, albeit “marginally acceptable.” Given the victim’s and his family’s opposition and the impact on society as a whole, the prosecutor required an admission of guilt to the motor vehicle charge. These considerations would have justified an outright denial of PTI admission, thus satisfying the prosecutor’s desire to achieve deterrence and be responsive to concerns of the victim and the community. However, by the prosecutor’s consent, defendant became an eligible PTI candidate. Accordingly, the prosecutor’s review should have focused on whether defendant’s attitude was such that PTI without a guilty plea would be rendered ineffective.
Based upon our careful review of the record, we are satisfied that the prosecutor had adequate grounds to deny defendant unconditional PTI admission. Despite compelling evidence of defendant’s guilt, he refused to take any responsibility whatsoever for his actions, and he has expressed no remorse.1 Accordingly, there is sufficient indicia that PTI was unlikely to result in any behavioral change, and that defendant’s attitude is such that unconditional PTI would not achieve the purposes of the statute.
II.
Defendant next challenges the judge’s denial of his request to admit photographs of the abandoned snowmobile. Defendant claimed that a snowmobile operated by someone else struck McInnis. He argued that the photographs were relevant to his defense, and that given the lack of evidence directly proving his involvement in the accident, they could have raised a reasonable doubt about his involvement.
The trial judge barred the photographs, finding that defendant presented no nexus between the abandoned snowmobile and the accident. The judge rejected defendant’s argument that since the prosecutor gave him the photographs through discovery there must be a nexus. Defendant declined the judge’s offer to “open up the case” to provide the nexus.
“Except as otherwise provided in these rules or by law, all relevant evidence is admissible.” N.J.R.E. 402. A defendant has the right to present a defense that someone else committed the crime. State v. Fortin, 178 N.J. 540, 590 (2004). This is known as third-party guilt, and this right “does not address whether specific evidence is admissible in support of such a defense.” Id. at 591. “Third-party guilt evidence ‘need only be capable of raising a reasonable doubt of defendant’s guilt’ to warrant its admissibility.” Ibid. (quoting State v. Koedatich, 112 N.J. 225, 299 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). “Stated more concretely, there must be ‘some link . . . between the third party and the victim or crime,’ ‘capable of inducing reasonable’ people to regard the evidence ‘as bearing upon the State’s case[.]'” Ibid. (quoting Koedatich II, supra, 112 N.J. at 300; State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960)). The connection between the third party and the crime must be more than just conjecture. Ibid.
We agree that defendant failed to establish the necessary connection between the abandoned snowmobile and the crime committed. There is no evidence connecting the abandoned snowmobile to the accident. Rather, the overwhelming evidence indicates that defendant was the sole cause of the accident.
III.
Defendant next contends that the trial judge erred in denying his second motion, brought at the close of all evidence, to suppress the seizure of his snowmobile. He argues an entitlement to renewal of that motion because Monaco’s trial testimony indicated that the officer illegally obtained the evidence supporting the search warrant.
Defendant also argues that Monaco testified to seeing tracks near the bottom of defendant’s driveway during the application for the warrant, but at trial testified to driving up defendant’s driveway without making such an observation. Defendant claims that Monaco could not have observed the tracks until he was well into defendant’s driveway, and that the officer targeted him and drove onto his driveway in an effort to find evidence, without properly securing a warrant. Defendant also claims that no probable cause existed for the search warrant because the facts presented to the warrant judge did not provide a logical nexus between the place to be searched and the crime investigated.
Denying defendant’s motion, the trial judge stated that he did not “see anything new here that would indicate to the [c]ourt that this is an issue that demands a reconsideration of the question of the motion to suppress.” The judge found that Monaco’s personal knowledge of defendant’s snowmobile use did not require him to obtain a warrant before proceeding to defendant’s house to speak with him.
Our review of a trial judge’s findings is “exceedingly narrow.” State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge’s factual findings and will not “engage in an independent assessment of the evidence as if [we] were the court of first instance.” Id. at 471. We also give deference to the trial judge’s credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In reviewing a motion to suppress, we “must uphold the factual findings underlying the trial court’s decision so long as those findings are ‘supported by sufficient credible evidence in the record.'” State v. Elders, 192 N.J. 224, 243 (2007) (quoting Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We will reverse only if we are convinced that the trial judge’s factual findings are “so clearly mistaken ‘that the interests of justice demand intervention and correction.'” Elders, supra, 192 N.J. at 244 (quoting Johnson, supra, 42 N.J. at 162.) “In those circumstances solely [we] ‘appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'” Ibid. (quoting Johnson, supra, 42 N.J. at 162). With these standards in mind, we continue our inquiry.
A motion to suppress evidence is properly made pursuant to Rule 3:10-2 before the trial. See also R. 3:5-7. A motion to suppress can be made a second time where “new evidence comes to light, which was unavailable at the time of the original hearing on the motion through no fault of the movant,” that would affect the legality of the search. State v. Roccasecca, 130 N.J. Super. 585, 591 (Law Div. 1974).
Based upon our careful review, we discern no reason to disturb the judge’s ruling. Monaco’s testimony before the warrant judge is almost identical to his trial testimony. Defendant’s claims about the officer’s testimony to the warrant judge are, at best, a misinterpretation. There was nothing new in Monaco’s trial testimony to justify a second motion to suppress.
Even if such new evidence existed, the motion would fail. The Fourth Amendment and Art. I, par. 7 of the New Jersey Constitution protect individuals from unreasonable searches and seizures. State v. Davis, 104 N.J. 490, 498-99 (1986) (citing United States v. Sharpe, 470 U.S. 675, 682, 105 S. Ct. 1568, 1573, 84 L. Ed. 2d 605, 613 (1985); State v. Bruzzese, 94 N.J. 210, 217 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)). “The protections of the Fourth Amendment are limited to a person’s house and the ‘curtilage’ of the house.” State v. Nikola, 359 N.J. Super. 573, 581 (App. Div.), certif. denied, 178 N.J. 30 (2003) (citing United States v. Dunn, 480 U.S. 294, 300, 107 S. Ct. 1134, 1139, 94 L. Ed. 2d 326, 334 (1987)). “‘[W]hen the police [come] on to private property to conduct an investigation . . . and restrict their movements to places visitors could be expected to go (e.g., walkways, driveways, porches), observations made from such vantage points are not covered by the Fourth Amendment.'” Id. at 581-82 (quoting State v. Johnson, 171 N.J. 192, 209 (2002)).
We are satisfied that no illegal search occurred here and, thus, the search warrant was valid. In order to get to defendant’s home from Lake Iliff Road, one must drive up a long driveway resembling a private road, continue on this driveway past defendant’s house, then past another house (which defendant rents to a tenant), then around a bend, and then end at the front of defendant’s home in his parking area. Monaco saw snowmobile tracks while going around the bend toward defendant’s parking area. All the while, the officer was on defendant’s property to conduct an investigation. He restricted himself to an area that visitors could be expected to go. There is nowhere to park on defendant’s property other than the parking area. Defendant cannot argue that this search was illegal simply because his driveway causes a visitor to travel deeper onto his property than other driveways.
Further, “[b]efore issuing any warrant, a judge must be satisfied that there is probable cause to believe that a crime has been or is being committed at a specific location or that evidence of a crime is at the place to be searched.” State v. Evers, 175 N.J. 355, 381 (2003). Probable cause “is ‘a well grounded’ suspicion that a crime has been or is being committed’ at a particular place.” Ibid. (quoting State v. Waltz, 61 N.J. 83, 87 (1972)). “A search warrant is presumed to be valid, and defendant bears the burden of demonstrating that the warrant was issued without probable cause[.]” Ibid. (citing State v. Valencia, 93 N.J. 126, 133 (1983)). Therefore, a reviewing court must give substantial deference to a judge’s determination that probable cause existed to issue a search warrant. Ibid. When reviewing the validity of a search warrant the court must look to the totality of the circumstances to see if there was probable cause. State v. Novembrio, 105 N.J. 95, 122-23 (1987).
Here, the warrant only applied to the seizure and examination of defendant’s snowmobile. Monaco’s testimony to the warrant judge established probable cause to issue the search warrant.
IV.
Defendant next contends that the trial judge erred by admitting McInnis’s snow pants into evidence. He argues that the State failed to prove the chain of custody and that the pants were not those worn by McInnis at the time of the accident. Defendant points to the lack of identification and the conflicting testimony about the color of the pants and the location of the black marks.
Defendant’s arguments lack merit. Monaco identified the bag containing the pants at trial, the pants remained in the possession of the State police, and there was no evidence that the pants had been changed. Further, Chin’s testimony, to which defendant did not object, provided the critical evidence about the pants and their connection to the accident. The trial judge was satisfied that the State proved chain of custody.
“The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter is what its proponent claims.” N.J.R.E. 901. “A party introducing tangible evidence has the burden of laying a proper foundation for its admission.” State v. Brunson, 132 N.J. 377, 393 (1993). This foundation should include a showing of an uninterrupted chain of custody. Ibid. (citing State v. Brown, 99 N.J. Super. 22, 27, (App. Div.), certif. denied, 51 N.J. 468 (1968)). The determination of whether the State sufficiently established the chain of custody is within the discretion of the trial court. Brown, supra, 99 N.J. Super. at 27. Generally, evidence will be admitted if the court finds “in reasonable probability that the evidence has not been changed in important respects or is in substantially the same condition as when the crime was committed.” Id. at 28 (citations omitted). “[A] defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced.” State v. Morton, 155 N.J. 383, 446 (1998).
Our careful review of the record satisfies us that the State properly established a foundation for the admission of the pants into evidence. Defendant does not point to a specific gap in the chain of custody, nor does he show how the trial judge abused his discretion. He merely points to inconsistencies in the testimony. However, any inconsistencies go to the weight of the evidence, not its admissibility.
Affirmed.
1 In defendant’s letter to the court that defense counsel mentioned at sentencing, defendant apparently only expressed remorse for his family and the victim and his family for having to go through the media attention the case brought about. The letter has not been supplied on appeal. Regret over publicity is a far cry from regret for wrongful conduct and the harm it inflicted.
Jayson Williams is arrested and hospitalized after breakdown
Police responded to the Embassy Suites Hotel in New York’s Financial District on reports of a suicidal, emotionally disturbed person that turned out to be former NBA star, Jayson Williams. Not only was he arrested, but he had to be Tasered. He was taken to St. Vincent’s Hospital for a psychiatric evaluation.
Two of his defense lawyers Joseph Hayden Jr. and Christopher Adams rushed to Williams’ bedside. Although they insist he was not arrested, it seems like he was arrested to me. He is awaiting retrial for reckless manslaughter for the shooting death of limousine driver Costas “Gus” Christofi in 2002.
Of course, the talk now is that this was all a ruse to delay the trial. I don’t buy it. Defendants are under a ton of stress at all times and sometimes, they break. I even had a client that died of a heart attack due to all of the stress he was under. He had no other risk factors that would lead you to believe that he could have a heart attack.
Story is here.
Gambling ring linked to mafia busted in New Jersey
The Bergen County Prosecutor’s Office have charged 34 people with allegedly being part of a mafia-linked gambling ring. The State alleges that ring was split into two bookmaking and money laundering operations with one led by alleged Genovese member John “Blue” DeFroscia. Most are charged with promoting gambling and conspiracy.
In this type of case, there are two types of defendants, the big ones and the small ones. Of course, the small ones get the good, early deals so that the State can make a case against the big defendants. Knowing this, the attorneys for the big defendants need to work quickly to assess the case and build a defense early or work out a deal early.
Just because someone flips doesn’t mean the case is lost. In fact, if the rest of the evidence is weak, a good attorney can show that the State is desperate enough to get in bed with someone that had admitting to breaking the law and that this person is willing to say anything to save themselves.
Of course, having one of the main guys flip on everyone in order to get a good deal is an interesting strategy that is not often used, although there are only so many cases with 30+ defendants. From what I read, this case would be tough for the State to bring to trial just in terms of logistics. Thus, the incentive to end it quick and early is high. A defense attorney can and should use this to their advantage. For those that will not take a deal, all of the attorneys should get together and strategize.
Story is here.
List of those charged along with their specific charges and employer:
1)LAWRENCE ACKERMAN Racketeering Atlantic Agency,Fort Lee, NJ
Old Tappan, NJ Promoting gambling
Age: 46 Conspiracy to Promote Gambling
2)DULO BOLIJEVIC Promoting Gambling Villa Pizza,Rockaway, NJ
Dover, NJ Conspiracy to Promote Gambling
Age: 36
3)COSMO BRONGO Promoting Gambling Merrill Lynch Short Hills, NJ
Nutley, NJ Conspiracy to Promote Gambling
Age: 45
4)WILLIAM BUDD Promoting Gambling Federal Express, NY, NY.
Fort Lee, NJ Conspiracy to Promote Gambling Age: 47
5)JOHN CAMIDGE Promoting Gambling Redball Parking, NY, N.Y.
Belmar, NJ Conspiracy to Promote Gambling
Age: 50
6)GERARDO CIANCI Promoting Gambling Unknown
Bloomfield, NJ Conspiracy to Promote Gambling
Age: 46
7)THOMAS CONFORTI Racketeering Premio, Hawthorne, N.J.
Fairfield, NJ Promoting Gambling
Age: 44 Conspiracy to Promote Gambling
8)BIAGGINO CIRCELLI Promoting Gambling Schering Plough, NJ
Summit, NJ Conspiracy to Promote Gambling
Age: 49
9)MICHAEL CIRELLI Racketeering Ideal Plating, Belleville, N.J.
Nutley, NJ Promoting Gambling
Age: 49 Conspiracy to Promote Gambling
10)PATRICK CUOMO Promoting Gambling Unemployed
Congers, NY Conspiracy to Promote Gambling
Age: 55
11)JOHN DEFROSCIA Racketeering Clark Printing, Saddle Brook, NJ
“Blue” Promoting Gambling
Warren, NJ Conspiracy to Promote Gambling
Age: 48
12)JOSEPH DIMAGGIO Promoting Gambling Unknown
Garfield, NJ Conspiracy to Promote Gambling
Age: 37
13)SAMUEL ERIK Promoting Gambling Erik Jewelry, Paramus, NJ
New Milford, NJ Conspiracy to Promote Gambling
Age: 29
14)DAVID GREEN Promoting Gambling Unknown
New York, NY Conspiracy to Promote Gambling Age: 48
15)CHRISTOPHER HANSEN Promoting Gambling Unknown
Glen Oaks, NY Conspiracy to Promote Gambling
Age: 46
16)EUGENE LEE Promoting Gambling RFA, New York, N.Y.
Cliffside Park, NJ Conspiracy to Promote Gambling
Age: 33
17)ANTHONY LOMBARDO Promoting Gambling Unknown
Bronx, NY Conspiracy to Promote Gambling
Age: 50
18)VINCENT MARCHELLO Promoting Gambling Unknown
Belleville, NJ Conspiracy to Promote Gambling
Age: 43
19)MICHAEL McNAMARA Promoting Gambling Unemployed
Brooklyn, NY Conspiracy to Promote Gambling
Age: 64
20)PABLO NAPOLITANO Promoting Gambling Nino’s Repair, Orange, NJ
Caldwell, NJ Conspiracy to Promote Gambling
Age: 29
21)GERALD NAPOLITANO Racketeering La Pasteria, Summit, NJ
“Jay” Promoting Gambling
Belleville, NJ Conspiracy to Promote Gambling
Age: 60
22)FRANK NISTA Promoting Gambling North Shore Racquet Club, NY
“Raven” Conspiracy to Promote Gambling
Bayside, NY
Age: 56
23)LOUIS ORANGEO Promoting Gambling United States Postal Carrier
Newark, NJ Conspiracy to Promote Gambling
Age: 41
24)AGOSTINO PETRILLO,Jr. Promoting Gambling Nino’s Repair, Orange, NJ
“Nino” Conspiracy to Promote Gambling
Livingston, NJ
Age: 39
25)NICHOLAS RESTAINO Promoting Gambling Raccioppi’s Bloomfield, NJ
“Pigeon” Conspiracy to Promote Gambling
Bloomfield, NJ
Age: 56
26)RICHARD ROSENBLUM Promoting Gambling (At Large)
“Frosty” Conspiracy to Promote Gambling
Bronx, NY
Age: 53
27)NURI SAYILIK Promoting Gambling Isabella Jewelry, Wayne, NJ
New Milford, NJ Conspiracy to Promote Gambling
Age: 45
28)CORNELIUS O’SULLIVAN Promoting Gambling Self Employed, C.P.A.
Nyack, NY Conspiracy to Promote Gambling
Age: 40
29)PAUL WEBER Racketeering Aramark, PA
“Shortline” Promoting Gambling
New Rochelle, NY Conspiracy to Promote Gambling
Age: 40
30)ROBERT WALSH Promoting Gambling Atlantic Agency, Ft. Lee, NJ
Fort Lee, NJ Conspiracy to Promote Gambling
Age: 44 Money Laundering, 3rd Degree
31)JOHN VENEZIA Promoting Gambling Cornerstone Contracting,Roselle, NJ
North Caldwell, NJ Conspiracy to Promote Gambling
Age: 46
32) PATRICK NUFIIO Promoting Gambling Unknown
Cedar Grove, NJ Conspiracy to Promote Gambling
Age: 48
33)ROBERT CAPRIO Promoting Gambling Unknown
Belleville, NJ Conspiracy to Promote Gambling
Age: 53
34)ANTHONY BOGOSIAN Promoting Gambling Unemployed
Paramus, NJ Conspiracy to Promote gambling
Age: 44 Money Laundering, 3rd Degree
Charges for threatening cop dismissed
As an attorney, whenever your client is charged with threatening or assaulting a cop, you just know that the case is not going to be easy. The cop may take the case personally and really push to nail your client to the well. While I’ve always has these cases turn out great, I always assume it is going to be really tough.
Today I had a case where my client was alleged to have threatened to punch a cop to the point where my client allegedly put his fist in the cop’s face. Not the best fact pattern. However, I was able to get the case dismissed so my client does not have a criminal record. How did I do it? Simple, my client has nothing to lose by going to trial and I let the State know that I am ready to go to war over a case that to them may be minor, but to my client, is very serious. It was a great result for a great client.
Court holds Defendant needed more time to decide if he should tesitfy
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAYMOND R. MARTIN,
Defendant-Appellant.
__________________________________
April 29, 2009
Argued March 17, 2009 – Decided
Before Judges Wefing and Yannotti.
On appeal from Superior Court of New
Jersey, Law Division, Somerset County,
No. 05-06-00501-I.
Randy P. Davenport argued the cause for
appellant.
Eric Mark, Assistant Somerset County Prosecutor,
argued the cause for respondent (Wayne J. Forrest,
Prosecutor, attorney; Mr. Mark, on the brief).
PER CURIAM
Tried to a jury, defendant was convicted of three counts of distribution of a controlled dangerous substance, cocaine, N.J.S.A. 2C:35-5(b)(3), and one count of resisting arrest, N.J.S.A. 2C:29-2(a), all crimes of the third degree. The trial court sentenced defendant to three years in prison. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we reverse.
Defendant’s trial was brief. Detective Christopher Shearer of the Somerset County Prosecutor’s Office engaged in three undercover narcotics transactions. The last two transactions took place in the parking lot of Rhythms, a bar and restaurant located in Manville. The final sale was monitored by a number of officers, who were stationed in unmarked vehicles at various nearby points. At the conclusion of that sale, Detective Shearer gave a signal to those officers; he drove off and the remaining officers closed in, identifying themselves as police. Defendant tried to run away but was subdued and arrested after a brief struggle. Detective Shearer identified defendant as the individual who sold narcotics to him and several of the officers involved in arresting defendant also testified.
Defendant raises the following issues for our consideration:
POINT ONE
THE TRIAL COURT DENIED DEFENDANT HIS CONSTITUTIONAL RIGHT TO TESTIFY BY FAILING TO SUFFICIENTLY INQUIRE AS TO WHETHER DEFENDANT HAD KNOWINGLY AND VOLUNTARILY WAIVED HIS RIGHT TO TESTIFY.
POINT TWO
THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO TESTIFY BY REFUSING TO ALLOW DEFENDANT AN OPPORTUNITY TO CONSULT WITH HIS FAMILY BEFORE DECIDING WHETHER TO WAIVE HIS RIGHT TO TESTIFY.
POINT THREE
DEFENDANT RECEIVED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL DUE TO TRIAL COUNSEL’S FAILURE TO AGAIN REQUEST THAT DEFENDANT BE ALLOWED TO TESTIFY ON HIS OWN BEHALF AFTER THE TRIAL COURT HAD PREVIOUSLY CONCLUDED THAT DEFENDANT WAIVED HIS RIGHT TO TESTIFY.
POINT FOUR
THE ASSISTANT PROSECUTOR COMMITTED PROSECUTORIAL MISCONDUCT REQUIRING REVERSAL OF DEFENDANT’S CONVICTION DUE TO AN EGREGIOUS COMMENT IN THE STATE’S SUMMATION WHEN THE ASSISTANT PROSECUTOR COMMENTED ABOUT THE DEVASTATION THAT CRACK COCAINE HEAPS ON CRACK USERS, THEIR FAMILIES AND THE COMMUNITY. (Not Raised Below)
POINT FIVE
THE JUDGE’S CHARGE ON FLIGHT WAS ERRONEOUS BECAUSE IT DID NOT INFORM THE JURY OF THE DEFENDANT’S EXPLANATION FOR HIS FLIGHT. (Not Raised Below)
POINT SIX
THE TRIAL COURT IMPROPERLY DENIED DEFENDANT’S MOTION FOR A NEW TRIAL AND ERRONEOUSLY CONCLUDED THAT THE STATE HAD PROVEN EACH OF THE CHARGES BEYOND A REASONABLE DOUBT.
POINT SEVEN
THE THREE-YEAR PRISON TERM IMPOSED ON DEFENDANT’S FIRST INDICTABLE OFFENSES SHOCKS THE JUDICIAL CONSCIENCE. DEFENDANT MUST BE RESENTENCED TO A TERM OF PROBATION.
The first three points all revolve around the same incident. It is necessary to set forth in detail the context in which it occurred. The first day of trial was Thursday, October 25, 2007. The jury, which had been selected the previous day, was sworn in, the attorneys gave their opening statements, and the prosecution presented three witnesses. At the end of the day, the trial court advised the jury that it would be handling other matters on Friday and Monday, and thus testimony resumed on Tuesday, October 30. The prosecution presented four witnesses on Tuesday, two of whom were officers involved in arresting defendant. Another of the witnesses was the manager of Rhythms, who testified that defendant had come into the establishment to see about booking a party. After speaking briefly, he left. The manager heard a disturbance outside and saw defendant being arrested.
At approximately 11:00 a.m., after presenting three witnesses, the assistant prosecutor informed the court that he had one additional witness, a police officer, whom he had instructed to come in at 1:30 p.m. He said he had been unable to reach the officer to have him come earlier when the trial moved more quickly than he had anticipated. The trial court agreed to the brief recess and in that period conferred with counsel on the anticipated charge.
The trial resumed at approximately 1:30 p.m. and the final witness for the State, Patrolman William Federico, who had also participated in the arrest, testified. At the conclusion of his testimony, the State rested. Defendant then made a motion to dismiss; after argument, the trial court denied the motion under State v. Reyes, 50 N.J. 454 (1967). Defendant then called Detective Mark Matthews, also of the Somerset County Prosecutor’s Office. At the end of that testimony, defense counsel asked for a brief recess to consult with his client on whether defendant was going to testify. The trial court agreed and recessed for fifteen minutes. When the matter resumed (outside the presence of the jury) it was, according to the transcript, almost 4:00 p.m. Defense counsel said his client wanted to consider overnight whether to testify; the trial court refused that request. Defense counsel inquired whether, if his client elected to testify, he could do so in the morning in light of the time. Again, the trial court refused this request.
The colloquy between the trial court and defense counsel occupies several pages of transcript, with the trial court becoming more exasperated with what it perceived to be defense counsel’s refusal to give a direct answer to the question whether defendant intended to testify. The court reminded defense counsel that it had repeatedly during the trial informed defendant that he would have to come to a decision on whether to testify. The trial court insisted that the decision be made at that juncture and further that defendant testify at that point. When defense counsel persisted that his client could not make an informed decision then but needed to consider it overnight, the trial court concluded that defendant was not testifying. Defense counsel did agree that the court should instruct the jury that it could draw no inference from defendant’s failure to testify. The trial court then called in the jury and dismissed them for the day.
The trial resumed the following day with summations and charge. Defense counsel argued in his summation that defendant was arrested by mistake, stressing the testimony of the Rhythms’ manager that defendant had been there talking about booking a party. After several hours of deliberation, the jury found defendant guilty on all counts.
We recognize that the scheduling and control of trial proceedings rests in the sound discretion of the trial court. We further recognize the deference that an appellate court will generally accord to the discretionary determinations of a trial court. Cosme v. Borough of E. Newark Twp. Comm., 304 N.J. Super. 191 (App. Div. 1997), certif. denied, 156 N.J. 381 (1998). We also recognize and are sympathetic to the heavy pressures under which trial courts labor.
We are satisfied, nonetheless, that the trial court mistakenly exercised its discretion when it insisted at 4:00 p.m. that defendant could not ponder overnight whether to take the stand. We acknowledge that the trial court did, as it stressed during this colloquy, repeatedly advise defendant during the trial that he would have to make that decision. The shifting dynamics of a trial, however, are one of the important factors a defendant must weigh in reaching his decision on this crucial issue. What may have seemed to be the reasonable decision during the first day of trial may not be in light of testimony given during the second day. We note, in addition, that defendant had no prior indictable convictions and thus did not have to fear that the jury would consider him less credible because of a prior criminal record.
Judicial discretion is not unbounded. State v. Madan, 366 N.J. Super. 98, 109 (App. Div. 2004). Judicial discretion must take into account not only applicable legal principles but the particular circumstances of the case. State v. Moretti, 50 N.J. Super. 223, 236 (App. Div. 1958) (citing Hager v. Weber, 7 N.J. 201, 212 (1951)). Further, it must be exercised to achieve a sound objective.
We are unable to perceive what objective the trial court was seeking by persisting in this course, and the trial court did not state its objective, other than its desire to have defendant make his election then. The prosecution did not request that defendant make his decision at that point and voiced no objection to the request for further time. The trial court had already determined earlier in the day that summations and charge would take place the following day. Permitting defendant to return in the morning to announce his decision would thus not delay the trial beyond what had already been anticipated. His testimony, moreover, would have been brief and thus did not pose an unjustifiable risk of delay.
From reading a cold transcript, it would appear that the prosecution had a very strong case. The jury, however, did not come to an immediate decision but deliberated for some period of time. Defense counsel argued in his summation that defendant was only on the scene because he had gone to Rhythms to book a party and that the officers mistook him for someone else. We have reluctantly concluded that the stance taken by the trial court was unreasonable in light of all the circumstances of this case and that it mistakenly exercised its discretion.
Our conclusion in this regard makes moot the remainder of defendant’s arguments. We are compelled to note, however, that remarks about the social devastation of drug trafficking do not belong in a prosecutor’s summation.
Reversed and remanded for further proceedings.
Court holds that shoplifting jury charge did not have to be molded to fit the facts
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
IRVING ALICEA,
Defendant-Appellant.
________________________________
Before Judges Waugh and Ashrafi.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 05-03-0522.
Yvonne Smith Segars, Public Defender, attorney for appellant (Abby P. Schwartz, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Irving Alicea appeals his conviction for one count of third-degree shoplifting, N.J.S.A. 2C:20-11(b)(2). Shoplifting is a third-degree offense when the value of the property involved exceeds $500 but is less than $75,000. N.J.S.A. 2C:20-11(c)(2). He was sentenced to a five-year term of incarceration, in addition to the required fines and penalties. On appeal, Alicea challenges the jury charge with respect to the valuation of the goods he was accused of stealing, arguing that the judge should have molded the facts to the law in the charge. We disagree and affirm.
We glean the following facts from the record. Hernan Castano was a store detective at the Macy’s department store in the Paramus Park Mall on December 23, 2004. At about 9:20 p.m., Castano was walking in the young men’s department. He received a radio transmission from a security manager, who told him that a person, later identified as Alicea, tried to go into the fitting room but refused to have his items counted. The customer then left the fitting room, but continued to shop. Castano found the behavior suspicious because customers do not ordinarily refuse to have their items counted.
The manager told Castano what the man was wearing and also that he was carrying a Gap shopping bag. As Castano began to walk towards the area, he met up with Luis Jimenez, another detective, and they found Alicea. Castano observed that Alicea had a few items over his left arm and was carrying the Gap bag in his right hand. Castano was able to see a bit of aluminum foil sticking out of the Gap bag. At that point, the bag appeared to be flat and light.
Castano testified that such a bag is known as a “booster bag,”
which is a method shoplifters employ when they put merchandise in a bag. They line it with aluminum foil. When they walk by the door the alarm won’t go off. The signal will be interrupted by the aluminum foil. They could walk out of the store and we would never — the alarm would never go off.
Castano watched Alicea select items for about five minutes. He went into a fitting room and cleaned it out for Alicea’s use. When Alicea went into a fitting room with approximately fifteen items, Castano was able to see and hear him breaking off the sensor tags. He also saw Alicea drop the pliers he was using.
The bag was open on the floor and Castano was able to see that it was totally lined with aluminum foil. Castano saw Alicea fold the items and put them into the bag. Some of the items still had sensor tags. Alicea then picked up some of the debris and put it in the pocket of a pair of pants. When Alicea came out of the fitting room, he went to the register and put two or three items down and told the worker that he “didn’t want these items.”
After Alicea left the fitting room, Jimenez followed him while Castano went into defendant’s stall and checked all the tags and other debris he had left behind. Jimenez informed Castano that Alicea was walking towards the cosmetics department. Alicea passed seven to eight cash registers, but did not attempt to pay for the bag of merchandise he was carrying.
Castano followed Alicea to the exit, where he left the store and entered the main part of the mall. Castano and Jimenez stopped Alicea and handcuffed him. They brought him back into the store to the security office.
The prices of the items taken by Alicea were determined by running each item through a computer in the security office. A number (called the SKU number) was fed into the computer and the price of the item registered. Altogether there were eight items in the bag and their total price was $636.
At trial defense counsel pointed out that the surveillance video shown to the jury reflected that numerous items were on sale, arguing that the SKU number may not have been the accurate price for that day. Castano testified that the SKU numbers were updated daily, so they would indicate any sale price if one was applicable that day.
On appeal, Alicea raises the following issue:
POINT I
INADEQUATE JURY INSTRUCTIONS, WHICH FAILED TO EXPLAIN THE LAW WITH REFERENCE TO THE FACTS OF THE CASE AND FAILED TO DISCUSS WHATSOEVER THE DEFENSE POSITION OF COST OF THE GOODS AT THE TIME OF THE SHOPLIFTING, DEPRIVED DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9, 10. (Not Raised Below).
In applying the plain error standard of Rule 2:10-2 to our review, we must assure ourselves that defects in the charge did not include any consequential defects. We review the jury charge as a whole in order to determine its overall effect. State v. Vasquez, 374 N.J. Super. 252, 263 (App. Div. 2005). In so doing, we have found nothing “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.” Ibid. Indeed, we discern no problem whatever with the charge.
The judge charged the jury according to the Model Jury Charges and he did so without objection. He clearly instructed the jury that, if they determined that Alicea was guilty of shoplifting, they would then have to determine the value of the goods taken. He explained that there were four categories for them to choose among: (1) $75,000 or more; (2) more than $500 but less than $75,000; (3) at least $200 but not more than $500; and (4) less than $200. He also explained that the amounts at issue were to be calculated using the “full retail value,” which he defined as “the merchant’s stated or advertised price of the merchandise.” The instruction was clear and easy to understand.
Citing numerous cases in which the molding of the facts of the case to the law in the charge was deemed necessary, Alicea argues that the trial judge should have molded the facts to the law in this case. We disagree. In a case, such as the one before us, in which both the factual issue to be determined and the law to be applied are relatively simple, such molding is simply not required. State v. Robinson, 165 N.J. 32, 42-43 (2000) (“That requirement has been imposed in various contexts in which the statement of relevant law, when divorced from the facts, was potentially confusing or misleading to the jury.”); State v. Rambo, 401 N.J. Super. 506, 525 (App. Div.), certif. denied, 197 N.J. 258 (2008). The factual issue, i.e., whether the SKU number accurately reflected that day’s sale prices, was more than adequately framed by counsel during their summation. There was no need for the trial court to outline it in the charge.
F or the reasons stated above, we affirm Alicea’s conviction for shoplifting as a third-degree crime. N.J.S.A. 2C:20-11(c)(2).
Affirmed.
Tonacchio Law LC 