Category Archives: Cases

Errors pile up to reverse conviction

This is a great case that I was kind of involved in as I represented one of the witnesses.  In addition, I watched part of the trial.  This really shows the importance of asking for a mistrial in New Jersey and making sure the record is clear.

 

 

 SUPERIOR COURT OF NEW JERSEY

provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2. We reverse and remand for a new trial.

I

We discern the following facts and procedural history from

the record.

A

On October 29, 2004, at approximately 7:30 p.m., Dale Foat

was shot twice; once in the head and once in the chest. As a

result of the shooting, a portion of his left lung was removed.

On October 30, 2004, Foat identified Davis as the shooter

and Albert Snell as being involved in the shooting. After Foat

was arrested on unrelated drug charges in November 2004 and

released on bail, he recanted his identification, denying that

Davis had any involvement in the shooting. He subsequently

identified Snell as the shooter.

Davis was indicted on December 14, 2005, and charged with:

first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A.

2C:11-3(a)(1),(2) (count one); third-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(b) (count two); second-degree

possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a) (count three); and third-degree witness tampering, N.J.S.A.

2C:28-5(a) (count four). The fourth count related to

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allegations that Davis had caused Foat to recant his original

identification of Davis as the shooter.

B

The trial commenced on July 18, 2006. There was no

forensic evidence tying Davis to the shooting and, as noted,

Foat had recanted his statement that Davis shot him. The State

presented testimony, including Foat’s recorded statement under

oath, that Davis shot Foat and that, when Foat was subsequently

arrested on unrelated drug charges, Davis arranged for his bail

to be posted in exchange for Foat recanting his story and

implicating Snell in the shooting. The State called Foat and

his bail bondsmen, Robert Ellison, as witnesses at trial, but

neither witness implicated Davis in the shooting or supported

the State’s theory of his involvement in the posting of Foat’s

bail.

Foat had initially refused to appear as a witness at all,

and it was suggested by the State that it would seek to have his

sworn statement introduced pursuant to N.J.R.E. 804(a)(2) and

(b)(1)(A).

1 Ultimately, Foat did appear as a witness, repudiated

 

  

1

not supplied to us, known as a Gross hearing, see State v.

Gross, 121 N.J. 1, 17 (1990), to determine whether the prior

sworn statement was reliable and could be introduced

substantively into evidence if the witness later recanted the

(continued)

4

There had been a prior proceeding, a transcript of which wasA-3799-06T4

 

  

his earlier statement to the effect that he was shot by Davis,

and testified that Snell shot him. The audiotape of the

statement implicating Davis was played for the jury pursuant to

N.J.R.E. 613 and 803(a).

Prior to the indictment against Davis, Ellison had given

the police a sworn statement to the effect that he was

approached by Davis, whom he knew as “Love,” and asked how much

cash would be required to obtain a $50,000 bail bond, but

without mentioning Foat. He told “Love” that it would cost

$2,500. Shortly thereafter, Foat’s relatives came to Ellison’s

office with $2,500 and arranged for the bail bond. Just before

the start of the trial, however, Ellison also recanted his

identification of Davis as the “Love” involved with Foat’s bail,

contending that it had been someone else whom he also knew as

“Love.”

During his direct examination, the prosecutor asked Ellison

if he was providing Davis with favorable testimony because he

feared Davis’s “reprisals.” Ellison responded, “I fear no man.”

The prosecutor then approached a muscular man wearing a tank top

in the audience and asked, “Even a guy with biceps this big?”

Defense counsel objected and requested a mistrial.

(continued)

statement during his testimony. See also State v. Byrd

N.J. ____ (2009).

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Counsel then went to sidebar, where the following

discussion took place:

[Defense Counsel]: Your Honor, this is

the second time that he insinuated that my

guy is behind — first, the first objection

I made was when Dale Foat was on the stand

and he said Dale Foat is getting pressured

by inmates in the jail so that he won’t

testify against Ronnel Davis.

He just, just so the record reflects,

he just walked over to a gentleman that’s in

the courtroom, has somewhat of a tank top

type of shirt or a shirt with the sleeves

cut off and just so happens to have big

arms. He walked, the prosecutor just walked

over to this individual, stood by this

individual while the witness Robert Ellison

is testifying and insinuated, [] we cannot

sugar coat this, that my client has this

individual in the courtroom, in the

courtroom as a sign of force or some threat

to this particular witness.

The, the prosecutor has asked the

witness on the stand does he know any

individuals in the courtroom. Then he walks

over to an individual and says not even

this, not even an individual with arms this

big.

I’m moving for a mistrial at this

particular point. I think the State has

clearly violated the rules of evidence, has

prejudiced my client, that none of it has

anything to do with the charges, what he’s

charged with in the indictment.

And, your Honor, furthermore, the State

is adding things that’s not even in evidence

into this case. And what I mean by not in

evidence, I mean he’s bringing in stuff that

there is no reports on, an individual

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sitting in the courtroom. The courtroom is

open to everyone. It’s a public courtroom.

THE COURT: Let me ask, [prosecutor],

do you know who this person is?

[Prosecutor]: Judge, all I know is

your sheriff’s officer has gone to another

person who is currently in this courtroom to

tell him not to be staring at witnesses, and

we can lay a foundation if you want and put

that on the record. I know Officer Eckel

told you that happened earlier.

There are a lot of people in this

courtroom in the back staring at all the

witnesses as they come in, and this one

particular individual [has been] here since

the morning. He [stated he] was here under

oath for Ronnel Davis. Nobody understood

what he meant by that, but that’s what he

said. And he’s a big man. He seems to be a

weight lifter type because his arms are

large and he appears to have a negative

influence on all the witnesses here because

in my view from what I’m seeing, and I’m not

staring at these people because, of course,

they’re behind me and I’m focusing on the

witnesses, but it appears they’re trying to

intimidate the witnesses.

I’m not saying Mr. Davis is behind

that. It might very well be that Mr.

Ellison is afraid to be labeled a rat and

there are people on the street who are

coming in here to make sure he doesn’t

testify against one of their own so-tospeak.

[Defense Counsel]: Your Honor —

[Prosecutor]: And, also, one other

thing that I want to put on this record. I

didn’t ask the court to do this, but the

court sealed this courtroom this morning

when Mr. Foat was on the stand and the

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windows were covered with paper so that no

one could look inside the courtroom and the

doors were locked.

Now, I discovered that well into Mr.

Foat’s testimony, and I assume the court did

that because of security problems that are

attending to this trial. And I’ll remind

your Honor what — the court what your Honor

said at the very beginning. There is

something very unusual and suspicious of how

people are changing their story and not

complying with subpoenas and making all

these la[st] minute provisions to —

revision to their previous statements prior

to trial. Your Honor did say something to

that effect.

[Defense Counsel]: Your Honor, that

was at a hearing . . . that your Honor

conducted, and that is not a part of this

case. And there’s a serious miscarriage of

justice that’s being carried out through

this trial, your Honor.

Oh, my God, I mean I can’t believe it.

I mean the State has said that this witness

has been looking — we just opened the

courtroom back up just now. . . . This is

the only witness, and for him to say that

these people are looking at witnesses is

crazy, as if to give a sense of threat.

This man is entitled to a fair trial.

His family can, if he wants to put each one

of the family members on the stand, this is

his family, and they’re entitled to attend a

trial.

[Prosecutor]: Are you suggesting,

counsel, the person with the biceps is a

family member?

[Defense Counsel]: No, I’m not.

[Prosecutor]: Okay, so that’s clear.

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[Defense Counsel]: No. And just so

you understand —

THE COURT: Look, let me get to the

heart of this. First of all, I don’t

remember whether it was that individual

because I just don’t remember the face, but

at nine o’clock this morning or shortly

thereafter, an individual came into the

courtroom whose name was mentioned by

Officer Eckel as Davila.

[Prosecutor]: Same person, your Honor.

THE COURT: [] That individual was

making hand signals and said in open court

that he was here for Ronnell Davis. Officer

Eckel asked him to leave the courtroom and

directed him, at which point the man was

staring through the window. Officer Eckel

went out into the hall, asked the man to

step away from the window and stay away from

the back entrance to the courtroom. Officer

Eckel then placed white paper over the

windows.

I don’t know who that person is in the

back, but that individual that was in the

courtroom came back and sat on the other

side of the courtroom. Again, but I don’t

think that it’s reasonable to draw any

inferences regarding this particular

witness. I don’t know if he knows this

person. So I’m going to strike that

question, and I will direct the State not to

ask questions if that witness or any other

witness threatened him in open court in

front of the jury, and the motion for a

mistrial is denied.

[Defense Counsel]: Your Honor, just so

the damage is done, I just want the record

to reflect that, your Honor, my client and I

asked the court sheriff’s officers to keep

that individual out of the courtroom because

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we thought that was quite bizarre this

morning the way that he walked in here. And

for the State to go and use him, your Honor,

I’m going to ask for a recess at this

particular point because I am baffled at the

approach that the prosecutor — the damage

is done, your Honor. I don’t think that

there [is a] curative instruction for what

the State has done in this case, and I’m

asking the court for a recess and that we

convene in a few minutes.

[Prosecutor]: Let me just be very

clear about this. There can be no basis for

a mistrial. All [I] asked [was] if the

witness is intimidated by a man with big

biceps sitting in the back. I never said

there was a connection to the defendant.

Counsel thought the spectator’s behavior was

bizarre this morning.

We heard from Detective Smith that

people are reluctant to testify in the city

of New Brunswick because of fear of

reprisal.

THE COURT: [Prosecutor], I don’t want

to bring up the fact that a person is in the

back of the room and clearly refer to him as

being a source of intimidation to a witness.

A lot of people could draw a lot of

conclusions which are not appropriate.

The trial judge denied the application for a mistrial and

instructed the jury to disregard the prosecutor’s question. He

further instructed them that:

There is no reason to believe that anyone in

this courtroom has done anything with regard

to this witness. This witness said he

doesn’t know who is the person in the

courtroom and, therefore, it is totally

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outside the scope of this trial and it

should be disregarded by the jury.

During summation, despite the judge’s admonition during the

side-bar conference quoted above, the prosecutor again

referenced the muscular man in the audience in connection with

the possible intimidation of Ellison. Defense counsel objected

and again moved for a mistrial.

Here in this courtroom when I asked

Robert Ellison are you afraid of reprisal,

he said I’m not afraid of anyone. And then

that’s when I stood back here next to a guy

who came into this courtroom —

[Defense Counsel]: Objection, your

Honor.

[Prosecutor]: –in a muscle tee shirt.

THE COURT: Excuse me, [Prosecutor],

I’ve excluded that.

[Prosecutor]: Judge, it’s part of the

evidence.

[Defense Counsel]: No, and that was

stricken testimony, your Honor.

THE COURT: Side bar.

(The following is heard at side bar:)

[Defense Counsel]: Your Honor, I am

moving for a mistrial. Clearly we objected

to that when the State did it at the time.

The court instructed the jury to disregard

it. It wasn’t placed into evidence. The

State again has done that, your Honor, and

he’s making references to something that

your Honor specifically instructed the jury

on.

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I think that is highly prejudicial to

my client, your Honor, and I don’t think he

can get a fair trial at this time because,

you know, the State, what the State just

did, he has simply disregarded a ruling of

the court and he has made reference to —

strike that. But he has done this, your

Honor, and that, I have to submit to the

court, that is clearly prejudicial to my

client, and there’s no way my client can get

a fair trial.

THE COURT: I did exclude that.

[Prosecutor]: Judge, I didn’t recall

you excluded that.

THE COURT: And I instructed the jury

not to take that into account. I do know

that particular person was making signs when

the witness [Foat] was on the stand, and I

excused the jury and excluded him from the

courtroom. So perhaps there was a mix-up.

Motion denied.

[Prosecutor]: Judge, I totally do not

recall the court excluding the exchange I

had with the witness, but I accept it and I

will stay away from it.

[Defense Counsel]: Well, your Honor.

[Prosecutor]: The subject with the man

with the biceps.

[Defense Counsel]: I’m going to ask

the court to instruct the jury to totally

disregard the comment by the prosecutor,

that, that at the time that that was done it

was stricken by the court and the jury was

instructed to disregard that.

Just so they understand that they can

in no way, and I know your Honor is going to

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tell them that nothing we say is considered

to be evidence, but just so the record is

clear that they understand that they can in

no way consider that comment by the

prosecutor.

[Prosecutor]: Judge, maybe you’re

going to want to think about that. I don’t

know if counsel wants you to highlight it.

I don’t know if you want the instruction

now.

[Defense Counsel]: Certainly I want it

done right now. It was just done.

THE COURT: I will caution the jury.

The trial judge again instructed the jury to disregard what the

prosecutor had said.

On July 27, 2006, the jury returned a guilty verdict on the

first three counts, but found Davis not guilty as to count four,

the witness tampering charge.

C

On August 1, 2006, the assistant prosecutor who tried the

case wrote to the trial judge and defense counsel, outlining

potential misconduct by Juror #3 during Davis’s trial. During

voir dire, Juror #3 had remained silent when asked if she knew

any law enforcement personnel. The assistant prosecutor had

just learned that Juror #3 was a paralegal who had worked with

another assistant prosecutor when he was in private practice.

According to the August 1 letter, that assistant prosecutor

told the trial prosecutor that his relationship with the juror

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was purely “professional” and they had no contact “outside the

office on either a social or personal basis.” However, during

Davis’s trial, on July 25, 2006, Juror #3 visited the

Prosecutor’s Office and asked to see her former co-worker. When

told he was not in the office at the time, she left him a note

which read: “I came to visit you. I thought you didn’t eat

lunch. I’m on jury duty across the street. Sorry I missed

you.”

The assistant prosecutor attempted to call Juror #3 at work

on July 26, 2006, but was advised that she was still on jury

duty. He called her again at work on July 28, 2006, and was

able to speak with her. She told him that “she had been a juror

on a criminal case, and that the case resulted in a guilty

verdict. [Juror #3] asked [the assistant prosecutor] what the

sentence was for attempted murder, and he replied that he would

have to check and would let her know.”

On July 31, 2006, the assistant prosecutor informed the

trial prosecutor that he knew one of the jurors at Davis’s

trial. The trial prosecutor “realized that [Juror #3] had not

disclosed during voir dire her former working relationship with

[his colleague]. [He] instructed [his colleague] to have no

further contact with [Juror #3].” He asserted in his August 1

letter that Juror #3’s conduct and acquaintance with the other

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assistant prosecutor did not affect “her ability to function as

a fair and impartial juror.”

Davis moved for a new trial based on both juror and

prosecutorial misconduct. It appears from the record that the

juror in question was not questioned by the trial court as to

why she did not identify the assistant prosecutor as someone she

knew or why she tried to visit him during the trial. Oral

arguments were heard on the motion January 17, 2007. The trial

judge denied Davis’s motion and proceeded to sentencing.

The judge granted the State’s motion for an extended term

under N.J.S.A. 2C:44-3(a) and found aggravating factors three,

six, and nine and no mitigating factors. N.J.S.A. 2C:44-1.

Davis was sentenced to a term of twenty-five years of

imprisonment, subject to NERA for count one; a concurrent fouryear

term for count two; and a concurrent seven-year term for

count three, as well as applicable fines.

2

 

  

This appeal followed. Davis moved before this court on

March 12, 2009, to file a pro se supplemental brief. We denied

the motion on March 20, 2009.

 

 

  

2

drawn to our attention that the trial court should have merged

counts two and three into count one. See State v. Diaz, 144

N.J. 628, 636 (1996).

15

Although not raised by defense counsel on appeal, the State hasA-3799-06T4

 

  

II

The following issues were raised in Davis’s original brief

to this court:

POINT I

THE DEFENDANT RONNELL DAVIS WAS DENIED A

FAIR TRIAL BECAUSE JUROR #3 DID NOT DISCLOSE

HER RELATIONSHIP WITH AN ASSISTANCE

PROSECUTOR.

POINT II

THE PROSECUTOR’S COMMENTS WERE SO

PREJUDICIAL THAT THEY REQUIRE A REVERSAL.

A

In Point I, Davis argues that he was denied a fair trial

because Juror #3 failed to disclose her relationship with the

assistant prosecutor and then visited the Prosecutor’s Office

during his trial. We agree that the juror’s conduct raises

serious concerns as to the impartiality of the jury at Davis’s

trial.

Where a juror on voir dire fails to

disclose potentially prejudicial material,

such as that involved in this case, a party

may be regarded as having been denied [a]

fair trial. This is not necessarily because

of any actual or provable prejudice to his

case attributable to such juror, but rather

because of his loss, by reason of that

failure of disclosure, of the opportunity to

have excused the juror by appropriate

challenge, thus assuring with maximum

possible certainty that he be judged fairly

by an impartial jury.

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[State v. Cooper, 151 N.J. 326, 349 (1997),

cert. denied, 528 U.S. 1084, 120 S. Ct. 809,

145 L. Ed. 2d 681 (2000) (quoting In re

Kozlov, 79 N.J. 232, 239 (1979)).]

However, “[a]bsent an affirmative showing that a litigant would

have exercised a peremptory challenge to exclude a juror, the

voir dire omission is harmless.” Id. at 350.

Davis argues that he “would have absolutely exercised one

of his peremptory challenges in removing Juror #3.” At the

motion hearing, the trial judge disagreed with that argument,

observing that Davis failed to exercise his peremptory

challenges with other jurors who had a connection to law

enforcement. The trial judge noted that Davis did not use

peremptory challenges against: (1) Juror #2, whose good friend

was a State Trooper; (2) Juror #6, who knew one police officer;

(3) Juror #9, whose cousin is a State Trooper; (4) Juror #11,

whose mother’s friend is a police officer; and (5) Juror #14,

whose sister-in-law’s brother is a police officer.

The trial judge did note, however, that Davis used a

peremptory challenge against Juror #10, who was the cousin of

the First Assistant Prosecutor. The trial judge dismissed the

importance of this challenge by noting that: “Anyone who’s a

relative of a high ranking Assistant Prosecutor would, I’m sure,

have been challenged by any qualified defense attorney.”

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We recognize that Davis has not made a clear affirmative

showing that he would have used a peremptory challenge against

Juror #3. Nevertheless, while Davis did not use a peremptory

challenge against all potential jurors who had either tenuous or

more significant relationships with law enforcement, Davis did

use a peremptory challenge against the only individual who

identified herself as a relative or friend of an employee of the

Prosecutor’s Office.

In State v. Thompson, 142 N.J. Super. 274 (App. Div. 1976),

we reversed defendant’s conviction and remanded for a new trial

under similar circumstances, largely because there was no voir

dire of the juror so that the trial judge could assess the

situation with a full record. In Thompson, a juror failed to

disclose that he worked as a corrections officer when directly

asked if he was currently, or ever, employed in law enforcement.

Id. at 278-79. “The trial judge, in denying a new trial, based

his determination on a finding that the juror’s failure to

respond to the question in light of his employment and current

participation as a juvenile counselor was probably the result of

misunderstanding or inadvertence.” Id. at 279 (emphasis added).

The trial judge found that the lack of “deliberate deception”

eliminated any possibility of juror bias. Ibid.

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In the present case, Juror #3’s omission was not as blatant

as that of the juror in Thompson, in that she herself had not

worked for law enforcement but was acquainted with someone who

did. However, the trial judge in this case reached factual

conclusions similar to those of the judge in Thompson, without a

voir dire of the juror. In denying the motion for a new trial,

the trial judge stated:

[U]nder the circumstances of this case I

don’t believe that [Juror #3]’s answer was

inaccurate in any way or misinformed the

Court or misled anyone in any way. I don’t

believe that either she considered herself a

friend of [the assistant prosecutor] or even

if she were a friend, that he was

encompassed in law enforcement. That’s

usually considered to be policemen or the

like, State Troopers.

We find it difficult to understand how the juror could have

considered the assistant prosecutor not to be a “friend” when

she made an effort to visit him during the trial. Because the

juror was never questioned, the record sheds no light on that

issue.

In both Thompson and the present case, these conclusions

were reached without questioning any member of the jury.

Manifestly, a finding either way on any

of these fact issues could only be made

after a full inquiry of not only the

affected juror but all the members of the

jury panel. . . . In any event, the judge

proceeded without an evidentiary hearing to

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make the negative findings outlined above .

. . .

[Ibid.]

See also State v. Scherzer, 301 N.J. Super. 363, 488 (App.

Div.), certif. denied, 151 N.J. 466 (1997) (“Although the trial

judge has discretion in the way to investigate allegations of

jury misconduct, an adequate inquiry on the record is necessary

for the purposes of appellate review.”).

Compounding the potential prejudice resulting from the

omission during voir dire is Juror #3’s disregard for the trial

judge’s instructions. During his preliminary instructions to

the jury, the trial judge stated:

[D]uring the trial you’re not to speak or

associate with the attorneys, the witnesses

or the defendant, Mr. Davis, nor are they

permitted to speak or associate with you.

This should not be taken as rudeness but as

a way to ensure fairness to both sides. . .

.

I can’t monitor you about not speaking

to anyone about the case or reading any

reports. I leave it to your fairness, your

judgment and your faith to your oath as

jurors.

Juror #3 disregarded this instruction and visited the

Prosecutor’s Office in an attempt to speak to the assistant

prosecutor who was her former co-worker. While he was not

assigned to Davis’s case and she was initially unsuccessful in

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contacting him, her actions nonetheless create a strong

appearance of impropriety.

We will not overturn the discretionary decision of a trial

court unless a clear abuse of discretion is shown. State v.

Levitt, 36 N.J. 266, 272 (1961) (“Motions for a new trial are

addressed to the sound discretion of the court; and the exercise

of the discretion will not be interfered with on appeal unless

a clear abuse of it is shown.” (internal quotation marks and

citation omitted)). Because the trial judge failed to engage in

any type of fact-finding process as to the reasons, if any,

behind Juror #3’s initial failure to identify the assistant

prosecutor during voir dire, especially in light of her

subsequent decision to make a visit to him during the trial, and

any bias resulting from her connection with the Prosecutor’s

Office, we conclude that those unexplained events cast serious

doubt on whether Davis was afforded his “fundamental right of

trial by a fair and impartial jury.” Thompson, supra, 142 N.J.

at 281 (quoting Wright v. Bernstein, 23 N.J. 284, 294 (1957)).

We need not decide whether the issues related to Juror #3,

“standing alone,” would call for reversal because we consider it

along with Davis’s second argument discussed below. In the

“aggregate,” we conclude that the two together “clearly deprived

the defendant of the type of trial upon which our system of

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criminal justice soundly insists

125, 134 (1954).

B

In Point II, Davis challenges the statements made by the

prosecutor, both during his questioning of Ellison and in his

summation, that someone in the courtroom was seeking to

intimidate Ellison. The State argues that no harm was done

because the jury was instructed to disregard the prosecutor’s

statements and that there was ample evidence, presented to the

trial judge at sidebar, that someone was attempting to

intimidate Ellison. We also note that Davis was, in fact,

acquitted of the tampering count.

During his direct examination of Ellison, the prosecutor

walked into the public seating area of the courtroom and clearly

implied that a muscular man wearing a tank top who was seated

there was intimidating Ellison. Upon Davis’s request for a

mistrial, the trial judge instructed the jury to disregard the

prosecutor’s statements. He also directed the prosecutor “not

to ask questions if that witness or any other witness threatened

him in open court in front of the jury.” During summation,

however, the prosecutor, who claimed not to have remembered that

the issue had been excluded, again suggested that Ellison was

being intimidated by the muscular man in the gallery. Davis

22

.” State v. Orecchio, 16 N.J.A-3799-06T4

 

  

again moved for a mistrial, which was denied. The trial judge

again instructed the jury to disregard the prosecutor’s

statements.

We find that the statements of the prosecutor were the

equivalent of testimony that the muscular man was, in fact,

intimidating Ellison. See State v. Farrell, 61 N.J. 99, 102-03

(1972) (“These comments were the equivalent of testimony by the

prosecutor that the defendant had procured the presence of these

men for the purpose of intimidating a State witness and

therefore was a party in an attempt to obstruct justice.”).

3

 

  

“[A] prosecutor’s closing argument must be limited to the

facts in evidence and inferences reasonably to be drawn

therefrom.” State v. Bey, 129 N.J. 557, 620 (1992). There was

nothing presented in the record to suggest that the muscular man

in the audience was in any way connected to Davis or

intimidating Ellison. At sidebar, it was revealed that, when

the man came into the courtroom earlier in the day, he stated to

 

 

  

3

procedure when individuals in the audience are suspected of

being in court for inappropriate reasons “would be to bring the

matter to the court’s attention.” 61 N.J. at 102 n.1. This

procedure was apparently followed when Foat was testifying

during the morning session on July 19, 2006, and the individual

was removed from the courtroom. However, he returned for the

afternoon session during which Ellison testified, but was not

removed at that time. He was never questioned under oath as to

the nature of his actions.

23

The Supreme Court recognized in Farrell, supra, that the properA-3799-06T4

 

  

a sheriff’s officer that he was there “under oath for Ronnell

Davis.” However, Ellison testified that he did not recognize

anyone in the courtroom and that he “fear[ed] no man.”

To determine whether prosecutorial misconduct in summation

warrants reversal, we must assess whether the misconduct “was so

egregious that it deprived the defendant of a fair trial.”

State v. Frost, 158 N.J. 76, 83 (1999) (citations omitted). In

making this assessment, we must consider “the tenor of the trial

and the responsiveness of counsel and the court to the

improprieties when they occurred.” State v. Timmendequas, 161

N.J. 515, 575 (1999) (citations omitted), cert. denied, 534 U.S.

858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). The prosecution’s

duty to achieve justice does not forbid a prosecutor from

presenting the State’s case in a “vigorous and forceful” manner.

State v. Ramseur, 106 N.J. 123, 320 (1987) (citation omitted).

Indeed, the Supreme Court has recognized that “criminal trials

create a ‘charged atmosphere . . . [that] frequently makes it

arduous for the prosecuting attorney to stay within the orbit of

strict propriety.'” Ibid. (quoting State v. Bucanis, 26 N.J.

45, 56, cert. denied, 357 U.S. 910, 78 S. Ct. 1157, 2 L. Ed. 2d

1160 (1958)).

In the present case, the prosecutor not only provided

inappropriate testimony during Ellison’s direct examination, but

24

A-3799-06T4

 

  

again made similar statements during summation despite an

admonition from the trial judge following his initial

impropriety. While the trial judge did provide a curative

instruction following both missteps by the prosecutor,

considering the record as a whole, including the issues raised

with respect to Juror #3, this simply was not sufficient to

remedy the error.

There was no forensic evidence presented to incriminate

Davis. The State’s entire case rested on the prior statements

of Foat and Ellison, and the theory that neither of them would

testify truthfully because they feared reprisal by Davis or

someone else. Because the case depended almost entirely on

whether the jury believed the State’s intimidation theory, we

“conclude that the inappropriate comments made by the prosecutor

could have improperly swayed the jury and denied defendant a

fair trial.” State v. Smith, 167 N.J. 158, 188 (2001) (“Because

defendant’s guilt or innocence depended on whether the jury

believed the [] witnesses, the prosecutor’s comments clearly

were capable of having an unfair impact on the jury’s

deliberations, thereby depriving defendant of a fair trial.”).

III

In conclusion, we find that, taken in the aggregate, the

errors discussed above deprived Davis of his fundamental right

25

A-3799-06T4

 

  

to a fair trial. Orecchio, supra, 16 N.J. at 134.

Consequently, we reverse Davis’s conviction and remand the

matter for a new trial on counts one through three.

Reversed and remanded.

 

 

APPELLATE DIVISION

DOCKET NO. A-3799-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RONNELL DAVIS,

Defendant-Appellant.

_________________________________

Submitted March 11, 2009 – Decided

Before Judges Rodríguez and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Middlesex County, Indictment

No. 05-12-01571.

PER CURIAM

Defendant Ronnell Davis appeals his conviction for

attempted murder, unlawful possession of a weapon, and

possession of a weapon for an unlawful purpose. Davis was

sentenced to imprisonment for an aggregate of twenty-five years,

subject to the eight-five percent parole ineligibility

May 26, 2009

2

A-3799-06T4

 
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Criminal Division cannot stop you from applying to PTI

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

ROBERT DWAYNE GREEN,

 

Defendant-Appellant.

___________________________

 

 

Before Judges Lisa, Reisner and Sapp-Peterson.

 

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-01-0015.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Daniel P. McNerney, Assistant Deputy Public Defender, of counsel and on the brief).

 

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

 

The opinion of the court was delivered by

REISNER, J.A.D.

Defendant Robert Dwayne Green pled guilty to third-degree distribution of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-5b(3), and was sentenced to two years probation. He appeals from the October 23, 2007 final judgment of conviction, contending that he was improperly excluded from the pre-trial intervention program (PTI). See R. 3:28(g).

Following his indictment for three related third-degree CDS offenses, based on his alleged sale of $150 worth of cocaine to an undercover detective, defendant attempted to apply to the Monmouth County Vicinage Criminal Division for admission to PTI. However, he received a Notice of PTI Ineligibility dated January 23, 2007 from the Criminal Division Manager. The notice advised that his case had “been pre-screened by the Monmouth County Criminal Division” and that defendant would not be permitted to apply for PTI without the prosecutor’s written consent “in accordance with the guidelines for PTI outlined in” Rule 3:28.

The pre-printed notice checked off as the reasons for rejection: that defendant was charged with selling Schedule II narcotic drugs, an offense carrying a presumption of imprisonment; that the prosecutor had not joined in his application; and that defendant had not shown “compelling reasons justifying [his] admission and establishing that a decision against enrollment would be arbitrary and unreasonable” (citing Rule 3:28, Guidelines 2, 3i and 3e). However, it appears from the record that the Criminal Division never actually permitted defendant to apply and therefore never considered the possible merits of such an application.

Thereafter, defendant corresponded with the prosecutor’s office, providing significant evidence of his rehabilitation during the period between the October 2005 incident on which the charges were based, and the January 2007 indictment. Stating that there was nothing “extraordinary” or “idiosyncratic” about defendant’s situation, the prosecutor declined to join in a PTI application. Thereafter, it appears undisputed that the Criminal Division never actually considered an application from defendant, but instead precluded him from applying at all without the prosecutor’s consent. On July 12, 2007, defendant filed a “Notice of Appeal from Pretrial Intervention (PTI) Rejection.”

From the transcript of the oral argument of defendant’s eventual PTI appeal, we discern that the Criminal Division’s practice had been to preclude a defendant charged with certain crimes from applying for PTI without a letter of agreement from the prosecutor’s office. While the judge indicated on the record that the system had been revised, because it allowed the prosecutor to, in essence, “short-circuit” a defendant’s right to even apply for PTI, it does not appear that Green had the benefit of any such change.

In response to defense counsel’s inquiry, the judge responded that defendant was “arguing for the ability to apply” to PTI. The judge confirmed that “if I grant the ability to apply, I’m not putting the defendant into the PTI Program. I’m then allowing the director [of the Criminal Division] to do a full evaluation” and make a recommendation. While acknowledging that defendant had not even been allowed to apply for PTI, the judge nonetheless rejected the appeal on the grounds that the prosecutor’s refusal to join in the application was not a gross and patent abuse of discretion. We conclude this was error.

We do not reach defendant’s appellate contentions concerning whether he should have been admitted to PTI. Instead, we reverse and remand this matter on procedural grounds, because we conclude that defendant was mistakenly deprived of the opportunity to apply for PTI.

It is clear from Rule 3:28 that the Criminal Division must at least allow a defendant to submit an application to PTI, and must evaluate the application:

Application for pretrial intervention shall be made at the earliest possible opportunity, including before indictment, but in any event no later than twenty-eight days after indictment. The criminal division manager shall complete the evaluation and make a recommendation within twenty-five days of the filing of the application. The prosecutor shall complete a review of the application and inform the court and defendant within fourteen days of the receipt of the criminal division manager’s recommendation.

 

[R. 3:28(h).]

 

See State v. Brooks, 175 N.J. 215, 223-24 (2002).

The PTI Guidelines explicitly provide that all defendants must be permitted to apply, and the Criminal Division Manager must consider the merits of the application:

Any defendant accused of crime shall be eligible for admission into a PTI program. When the application indicates factors which would ordinarily lead to exclusion under the guidelines . . . the applicant nevertheless shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the defendant’s amenability to the rehabilitative process, showing compelling reasons justifying the defendant’s admission, and establishing that a decision against enrollment would be arbitrary and unreasonable.

 

[R. 3:28, Guideline 2 (emphasis added).]

 

Guideline 3(i) does provide that defendants charged with the sale of Schedule I or II narcotic drugs “should ordinarily not be considered for enrollment” in PTI unless the prosecutor joins in the application. However, this does not mean that such defendants can be denied the opportunity to apply in the first place.

Guideline 3(i) further provides that even “in such cases, the applicant shall have the opportunity to present to the criminal division manager, and through the criminal division manager to the prosecutor, any facts or materials demonstrating the applicant’s amenability to the rehabilitation process . . .” Ibid. (emphasis added). See also Pressler, Current N.J. Court Rules, Official Comment on Guideline 3(i) to R. 3:28 (2009). While the prosecutor has enormous influence over a defendant’s admission to PTI, the Criminal Division Manager cannot short-circuit a defendant’s statutory right to apply for PTI, even if the application is unlikely to receive a favorable recommendation.1

We gather from the record that the Monmouth Criminal Division changed its procedures to recognize these principles, but this defendant did not have the benefit of the new procedures. Because defendant was not given the opportunity to make his application to the Criminal Division Manager, we reverse the order on appeal and remand to permit defendant to submit his PTI application to the Criminal Division Manager, who shall consider the application on its merits.

Reversed and remanded.

 

 

1 As illustrated in State v. Negran, 178 N.J. 73, 78-79 (2003), there will be times when the Criminal Division Manager supports a defendant’s admission to PTI, while the prosecutor opposes it; the prosecutor’s views do not always prevail. Id. at 83-85.

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.

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.

 

Prosecutor can mention warrant at trial

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

CURTIS O. HARRELL, Jr.,

 

Defendant-Appellant.

 

_______________________________

 

Submitted January 5, 2009 – Decided

 

Before Judges R. B. Coleman, Sabatino and Simonelli.

 

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 04-03-0197.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, of counsel and on the brief).

 

Anne Milgram, Attorney General, attorney for respondent (Robert E. Bonpietro, Deputy Attorney General, of counsel and on the brief; Natalie A. Schmid Drummond, Deputy Attorney General, on the brief).

 

 

PER CURIAM

A grand jury indicted defendant for first-degree possession of a controlled dangerous substance (CDS), heroin, with intent to distribute, N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(1) (count one); third-degree possession of CDS with intent to distribute within 1000 feet of school property, N.J.S.A. 2C:35-5a and N.J.S.A. 2C:35-7 (count two); third-degree aggravated assault, N.J.S.A. 2C:12-1b(5)(a) (count three); third-degree resisting arrest, N.J.S.A. 2C:29-2a (count four); and fourth-degree obstructing the administration of law, N.J.S.A. 2C:29-1.

Following the denial of defendant’s motion to suppress, he was tried by a jury and convicted on counts one through four and on the lesser offense on count five of disorderly persons obstructing the administration of law. At sentencing, the trial judge granted the State’s motion for a mandatory extended-term sentence and imposed a fifteen-year term of imprisonment with a five-year period of parole ineligibility on count one and a concurrent five-year term of imprisonment with a three-year period of parole ineligibility on count two. The judge merged counts four and five into count three and imposed a concurrent five-year term of imprisonment with a two-and-one-half-year period of parole ineligibility. The judge also imposed the appropriate penalties and assessment and suspended defendant’s driver’s license for two years.

On appeal, defendant raises the following contentions:

Point 1

 

The trial court erred in denying defendant’s motion to suppress.

 

A. Under at least our state constitution, defendant was “seized” once Officers Regan and Reiner began pursuing and approaching him on foot from two different directions and Reiner appeared in defendant’s path.

 

B. Since defendant was “seized” before he tossed the narcotics on the ground, the police actions in pursuing defendant before this time had to be justified by reasonable suspicion of criminal activity. They were not.

 

C. “Abandonment” cannot support admission of the discarded narcotics because defendant discarded them in response to the unlawful police pursuit.

 

D. Reversal and suppression furthers the protections afforded under our state constitution.

 

Point 2

 

References to defendant’s “parole” and to the granting of a “search warrant by the Superior Court” were prejudicial and infringed defendant’s right to a fair trial (plain error).

 

Point 3

 

Defendant’s sentence is excessive.

 

Except to remand for correction of defendant’s sentence to merge the sentencing on counts one and two, we affirm.

The following facts are summarized from the record. At approximately 11:46 p.m. on February 12, 2004, Officers Brian Regan and Mark Reiner, experienced narcotics investigators from the Franklin Township Police Department, were patrolling in uniform in a marked car in a high-crime area known for daily narcotic activity. Prior to their shift, the officers had been advised of a series of purse snatchings in the area.

As the officers entered a well-lit parking lot, they observed a male, later identified as defendant, emerge from a parked Acura. Defendant saw the officers and, according to Reiner, began looking “in all directions, much more than what the average person walking into an apartment complex would do.” While walking away, defendant constantly looked back at the officers. Reiner testified that defendant then stepped behind a building and

[peeked] around the corner several times to see if, what we were doing, whether we were standing there, whether we got out of the car. But he continuously had looked around the corner, [peeked] back around so we couldn’t see him, and then he [peeked back out again to see if we were still there, and went back to the corner.

 

Defendant’s behavior aroused the officer’s suspicion that he was engaged in criminal activity. They decided to investigate further. They drove from the parking lot, continuing to observe defendant peeking around the corner of the building. Regan then parked the patrol car out of defendant’s sight. The officers then exited the car and walked back toward the area where they last saw defendant. The officers saw defendant emerge from behind the building and continue walking. Reiner stepped from behind another building and faced defendant. When defendant saw Reiner, he made what Reiner described as an “abrupt” “90-degree” turn, accelerated his pace, and quickly walked away. Unaware that Regan was approaching from behind, defendant walked between a parked van and car, dropped a package to the ground, and briskly walked away. Regan, who had observed this activity, immediately knew that the package contained decks of heroin.

Reiner then told defendant to stop and asked to speak to him. Defendant did not comply and began fumbling inside his jacket pockets. Because of known gun activity in the area, Reiner thought that defendant may have a gun. He became concerned for his safety and ordered defendant several times to take his hands out of his pockets and to keep them where they could be seen. Defendant ignored these commands, threw a set of keys to the ground, and ran.

Defendant then saw Regan approaching him from behind. Regan ordered defendant to stop and to keep his hands where they could be seen. Defendant did not comply and continued running. The officers pursued defendant, ordering him numerous times to stop. Defendant was eventually apprehended after a foot chase. He violently resisted arrest.

Regan immediately returned to the area near the van and recovered the package that defendant had dropped, which contained 500 wax folds of heroin. He also recovered the keys, which belonged to the Acura from which the officers saw defendant emerge. The Acura, which defendant did not own, was transported to police headquarters after a trained police dog reacted to narcotics within the vehicle. A search of the car, conducted pursuant to a search warrant, revealed 1,352 wax folds of heroin, two parking receipts from Robert Wood Johnson Hospital where defendant worked, and two photographs of defendant’s son.

Defendant challenged the seizure of the drugs. The trial judge found the seizure lawful because defendant had abandoned the package and had not been seized at that time he dropped it.

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 State v. Locurto, 157 N.J. 463, 474 (1999)); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We “‘should give deference to those findings of the trial judge which are substantially influenced by his opportunity to hear and see the witnesses and to have the ‘feel’ of the case, which a reviewing court cannot enjoy.'” Elders, supra, 192 N.J. at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). We should not change the lower court’s findings simply because we “might have reached a different conclusion were [we] the trial tribunal” or because “the trial court decided all evidence or inference conflicts in favor of one side[.]” Johnson, supra, 42 N.J. at 162. Rather, we should only modify a trial court’s findings if they are so clearly mistaken and “so plainly unwarranted that the interests of justice demand intervention and correction[.]” Ibid. In that instance, “[we] should appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.” Ibid. Applying these standards, we review defendant’s contentions.

Defendant first contends that he was “seized” before he discarded the narcotics when the officers pursued him on foot and when he saw Reiner approaching him. He also contends that the officers’ actions were unlawful because they lacked reasonable and articulable suspicion of criminal activity to conduct an investigatory stop. Thus, evidence obtained as a result should have been suppressed. We disagree.

Absent any impermissible reason for questioning a defendant, police officers are permitted to make a field inquiry “‘without grounds for suspicion.'” State v. Maryland, 167 N.J. 471, 483 (2001) (quoting State v. Contreras, 326 N.J. Super. 528, 538 (App. Div. 1999)). See also Elders, supra, 192 N.J. at 246. “‘[M]ere field interrogation, without more, by a police officer does not involve ‘detention’ in the constitutional sense so long as the officer does not deny the individual the right to move.’ Without detention by the police, the Fourth Amendment is simply not implicated in such cases.” Maryland, supra, 167 N.J. at 483 (quoting State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973)).

Here, the officers’ conduct never reached the level of a field inquiry, let alone an investigatory stop, before defendant discarded the narcotics. Neither officer had spoken to defendant at that point. Nothing Reiner did could constitute a detention, and defendant was not even aware of Regan’s presence. The fact that Reiner, a police officer in uniform, approached defendant does not “convert the encounter into a seizure requiring some level of objective justification.” Id. at 483 (quoting Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).

Also, a “defendant is obligated to submit to an investigatory stop, regardless of its constitutionality.” State v. Williams, 192 N.J. 1, 10 (2007). “[A] person has no constitutional right to flee from an investigatory stop ‘even though a judge may later determine the stop was unsupported by reasonable and articulable suspicion.'” Id. at 11 (quoting State v. Crawley, 187 N.J. 440, 458, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006)). “Under New Jersey’s obstruction statute, when a police officer commands a person to stop, . . . that person has no right to take flight or otherwise obstruct the officer in the performance of his duty.” Ibid. (citing Crawley, supra, 187 N.J. at 451, 458-59). Thus, even if defendant’s mere sighting of Reiner constituted a seizure, or even if the officers lacked reasonable and articulable suspicion to conduct an investigatory stop, defendant’s failure to obey the officers’ order to stop negates any constitutional violation.

Further, a defendant has no expectation of privacy in property that he or she has abandoned. State v. Burgos, 185 N.J. Super. 424, 428 (App. Div. 1982). “For purposes of search-and-seizure analysis,” a defendant who abandons property “no longer retain[s] a reasonable expectation of privacy with regard to it at the time of the search.” State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (citations omitted). In the context of the Fourth Amendment a defendant ‘abandons’ property when he voluntarily discards, leaves behind or otherwise relinquishes his interest in the property in question[.]” State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981) (citing United States v. Colbert, 474 F. 2d 174, 176 (5th Cir. 1973)), certif. denied, 88 N.J. 497 (1981), aff’d o.b., 89 N.J. 378 (1982); see also Carroll, supra, 386 N.J. Super. at 160; State v. Gibson, 318 N.J. Super. 1, 11 (App. Div. 1999).

We are satisfied that there is sufficient evidence in the record indicating that defendant abandoned the narcotics before the search, and thus, relinquished any expectation of privacy in them. See Carroll, supra, 386 N.J. Super. at 160-61 (finding abandonment of defendant’s vehicle and the plastic bag left in it where defendant, after crashing the vehicle into a parked vehicle, left the vehicle’s doors open and fled); Gibson, supra, 318 N.J. Super. at 5, 11 (finding abandonment of contraband where defendant, after seeing an unmarked police car approaching him, dropped contraband onto a driveway); State v. Hughes, 296 N.J. Super. 291, 296 (App. Div.) (finding abandonment of a container filled with bags of cocaine where defendant, who was riding a bicycle, threw the container against a curb when he noticed police were approaching and continued to bicycle another fifty feet away), certif. denied, 149 N.J. 410 (1997); Farinich, supra, 179 N.J. Super. at 6-7 (finding abandonment of a suitcase where defendant, after being approached by the police in an airport, dropped it and started to flee).

Defendant next contends that he was denied a fair trial by a police officer’s reference to the search warrant for the Acura, and by a defense witness’ reference that defendant was on parole at the time of the incident. Defense counsel did not object to these references, suggesting that counsel did not perceive any prejudice. State v. Bethea, 243 N.J. Super. 280, 285 (App. Div.), certif. denied, 122 N.J. 401 (1990). Further, the failure to object deprived the trial judge of an opportunity to take appropriate remedial action if necessary, such as giving a curative instruction. State v. Douglas, 204 N.J. Super. 265, 274 (App. Div.), certif. denied, 102 N.J. 378 (1985).

Because defense counsel did not object to these references, we are guided by a plain error standard of review. See R. 1:7-2 and R. 2:10-2. See also State v. Macon, 57 N.J. 325, 337 (1971). Under that standard, we “must disregard any error unless it is ‘clearly capable of producing an unjust result.’ Reversal of defendant’s conviction is required only if there was error ‘sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.'” State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (quoting State v. Daniels, 182 N.J. 80, 95 (2004)); State v. Macon, 57 N.J. 325, 333 (1971); R. 2:10-2.

Applying these standards, we discern no error, let alone plain error, caused by either of the references. Contrary to defendant’s argument, there is nothing inherently wrongful about a prosecutor either referring to a properly issued search warrant or eliciting trial testimony about it. State v. Marshall, 148 N.J. 89, 239-40, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997); State v. McDonough, 337 N.J. Super. 27, 32-33 (App. Div.), certif. denied, 169 N.J. 605 (2001). “[T]he fact that a warrant was issued might necessarily be put before a jury in order to establish that the police acted properly.” Marshall, supra, 148 N.J. at 240. Thus, as long as the existence of the warrant does not have the capacity to mislead the jury in the particular context of the case, it is not improper to refer to it. Ibid.

Here, the reference to the search warrant did not imply that the State had presented any incriminating evidence to a Superior Court judge when the police obtained the warrant that it did not also present at trial. Also, the fleeting reference to defendant’s parole status did not imply his guilt in this matter. To be sure, the jury heard extensive evidence which would have established probable cause for the search warrant, and there was overwhelming evidence of defendant’s guilt in this case.

We now address defendant’s sentence. Defendant admits that he is eligible for a mandatory extended-term sentence. He contends that his fifteen-year sentence is not supported by adequate findings below, and that the judge failed to make a qualitative assessment of the aggravating and mitigating factors. We disagree.

We review a judge’s sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge’s sentencing decision, we “may not substitute [our] judgment for that of the trial court[.]” State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O’Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge’s determination was “clearly mistaken.” State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O’Donnell, supra, 117 N.J. at 215-16.

Here, the mandatory extended-term sentencing range for count one (first-degree possession of a CDS) is ten to twenty years. The judge sentenced defendant within that range. In imposing the sentence, the judge found aggravating factors N.J.S.A. 2C:44-1a(3) (the risk that defendant will commit another offense); N.J.S.A. 2C:44-1a(6) (the extent of defendant’s prior criminal record and the seriousness of the offenses of which he has been convicted); and N.J.S.A. 2C:44-1a(9) (the need for deterring defendant and others from violating the law). The judge did not find any mitigating factors.

The record indicates that defendant has two prior New Jersey convictions for distribution of CDS, and one in New York for possession of CDS; he possessed more that 1,800 wax folds of heroin for distribution in a school zone; and he fled the police and violently resisted arrest. We are satisfied that the judge’s findings are supported by sufficient evidence in the record and that the fifteen-year sentence is appropriate.

However, based on the applicable statutes and case law, we conclude, and the State agrees, that the judge should have merged count two (third-degree possession of CDS with intent to distribute within 1000 feet of school property) with count one for sentencing. Therefore, we reverse and remand solely so that defendant’s conviction on count two can be merged with his conviction on count one.

Affirmed in part, reversed in part and remanded for correction of defendant’s judgment of conviction consistent with this opinion.

Conviction reversed due to State’s numerous references to gangs during trial

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

SAMUEL SPARKS AKA “MOET,”

 

Defendant-Appellant.

 

 

April 20, 2009

 

 

Argued March 10, 2009 – Decided

Before Judges Winkelstein, Fuentes and Chambers.

 

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 04-02-0165-I.

 

Ronald C. Appleby, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Appleby, on the brief).

 

Christopher W. Hsieh, Senior Assistant Prosecutor, argued the cause for respondent (James F. Avigliano, Passaic County Prosecutor, attorney; Mr. Hsieh, of counsel and on the brief).

 

PER CURIAM

A jury convicted defendant, Samuel Sparks, of first-degree conspiracy to commit murder and second-degree aggravated assault. Following the verdict, the trial court set aside defendant’s conspiracy conviction. The court sentenced defendant to a twenty-year prison term, with an eighty-five percent period of parole ineligibility.

On appeal, defendant raises the following legal arguments:

POINT I: THE CONVICTIONS SHOULD BE REVERSED BECAUSE THE MOTION TO SEVER THE CRIMES REGARDING THE TWO INCIDENTS SHOULD HAVE BEEN GRANTED, AND FAILURE TO DO SO PREJUDICED DEFENDANT’S RIGHT TO A FAIR TRIAL.

 

POINT II: THE STATE SHOULD NOT HAVE BEEN PERMITTED TO MAKE GANG REFERENCES OVER DEFENSE OBJECTION, AND THESE REFERENCES PREJUDICED DEFENDANT.

 

POINT III: THE PHONE CONVERSATION BETWEEN DEFENDANT AND HECTOR ACEVEDO SHOULD NOT HAVE BEEN ADMITTED, AND PROSECUTOR SHOULD NEVER HAVE SUBSTANTIVELY USED [] ACEVEDO’S STATEMENT IN THAT CONVERSATION.

 

POINT IV: THE PROSECUTOR’S DELIBERATE REFERENCE TO DEFENDANT’S ALLEGED DRUG POSSESSION DENIED HIM A FAIR TRIAL.

 

POINT V: REFERENCES TO DEFENDANT BEING AN INFORMANT AND BEING FAMILIAR WITH POLICE OFFICERS DEPRIVED HIM OF HIS RIGHT TO A FAIR TRIAL.

 

POINT VI: THE STATE IMPROPERLY NEUTRALIZED ITS OWN WITNESS ON DIRECT EXAMINATION, BRINGING IN A PRIOR STATEMENT BEFORE ALLOWING THE WITNESS TO TESTIFY TO HER RECOLLECTION.

 

POINT VII: REFERRENCE TO THE CO-CONSPIRATOR’S PRIOR ARRESTS PREJUDICED DEFENDANT.

 

POINT VIII: INSTANCES OF PROSECUTORIAL MISCONDUCT CUMULATIVELY DENIED DEFENDANT’S RIGHT TO A FAIR TRIAL.

 

POINT IX: DEFENDANT’S SENTENCE TO THE MAXIMUM TERM UNDER THE PERMISSIVE EXTENDED TERM WAS EXCESSIVE.

 

Primarily because we find merit to his argument that the State’s numerous gang references precluded him from receiving a fair trial, we reverse defendant’s conviction.

I

In the early morning hours of August 4, 2003, Darby Alston was asleep in bed with his fiancée, Kinusha Davis, in his apartment at 324 Market Street in Paterson. Davis woke up to the sound of gunshots around 2:30 a.m. and saw someone standing over her with a gun. Alston had been shot. Davis described the shooter as wearing black jeans, a long black coat and black hat, with a red bandana hanging from his waist. She estimated him to be approximately five-foot-six to five-foot-seven. She was unable to identify him because his face was covered.

Gregory Myers, who lived nearby, was home during those early morning hours and saw a man wearing a hoodie walk into 324 Market Street. About ten to fifteen seconds later, Myers heard three or four gunshots and then saw the man in the hoodie leave the building. He described the man as approximately five-foot-ten to five-foot-eleven, wearing a red bandana across his face.

Richard Edmonds was on Market Street selling drugs at the time of the shooting. He saw a black man with a stocky build and wearing a black hoodie and a red bandana across his face walking toward Alston’s building “like [he was] angry.” About two minutes after the man entered the building, Edmonds heard a bang, followed by three successive shots. Moments later, he saw the man leave. Edmonds described the man as five-foot-ten to five-foot-eleven. He stated that the man’s build, walk and dark skin tone resembled Gerald Johnson, also known as “Black.” He explained that Johnson has a distinctive walk, and the man in the black hoodie had the same walk, but faster and more aggressive.

Johnson and defendant were friends. There had been more than one altercation between them and Alston in the days preceding Alston’s murder.

Pamela Drakeford testified that in the summer of 2003, she accompanied defendant and his girlfriend, Jackie, to 324 Market Street to get tattoos, where an altercation broke out between defendant and Alston. Alston had told defendant that his friend Johnson was a “dead man walking,” at which point defendant ran out and “[got] some of his boys,” including Johnson. When they returned, Alston had a baseball bat and another man, identified as Richard Edmonds, had a handgun. A fight ensued, during which Alston swung a baseball bat at Johnson. According to a witness, Alston “knocked [defendant and Johnson] out, and it was over.” Although Drakeford could not remember the date of the incident, defendant later told the police that the fight occurred on July 31, 2003.

Kinusha Davis witnessed a fight over drug territory between Alston, defendant and Johnson several days before Alston’s murder. She stated that after defendant and Johnson told Alston to leave the area, Alston punched defendant.

Defendant’s conviction for second-degree aggravated assault arose out of a drive-by shooting that occurred shortly after the altercation on July 31, 2003, and several days before Alston’s murder. According to Richard Edmonds, about a half-hour after Alston’s altercation with defendant and Johnson, he and Alston were on Market Street when a car drove by and someone in the car fired shots. No one was hit. Edmonds saw an arm extended out of the passenger window and “black guys” in the car. After the shooting, Alston said: “that mother fucker Black [Johnson] almost shot me in the face.” Derrick Edmonds, Richard’s brother, was present and also saw two people in the car; he identified defendant as the shooter.

Myers was about a block away when he heard gunshots. He saw a green car coming from Market Street; a man who appeared to have a gun got out of the passenger side. He identified defendant as the man with the gun. Myers saw shell casings in the middle of Market Street, and saw an unidentified man later kick them into the sewer. The police subsequently recovered three nine millimeter shell casings from the sewer drain.

Defendant’s sister, Jada Rose, testified that she had loaned her green Mitsubishi Eclipse to defendant in the afternoon on July 31, 2003. Defendant returned the car at approximately 3:30 a.m. on August 1, 2003. Rose testified that during the summer of 2003, defendant was a member of the Bloods street gang.

The police believed that Alston’s murder may have been connected to the July 31, 2003, drive-by shooting. On August 4, 2003, the police asked defendant for help regarding Alston’s murder. The next day, defendant voluntarily went to police headquarters. Detective Donald Giaquinto interviewed defendant, who confirmed that he had an altercation with Alston on July 31, 2003, but told the police that he had no knowledge of a drive-by shooting. He told the police that he left for South Carolina soon after the altercation he and Johnson had with Alston on July 31. Witnesses confirmed that defendant was in South Carolina on the date of Alston’s murder. He also told the police that Johnson might be involved in Alston’s murder because they were arguing over drug territory, and he had seen Johnson with a gun.

The police arrested Johnson on August 12, 2003. According to Police Sergeant Steven Sela, that same day defendant told the police that Johnson said, “I shot Daz, and I’ll take the ride. Blood forever.” Defendant further told the police that, on another occasion, he overheard Johnson admit to killing Alston.

II

On February 25, 2004, a grand jury charged defendant with first-degree murder, N.J.S.A. 2C:11-3a and N.J.S.A. 2C:2-6b(4) (count one); first-degree attempted murder, N.J.S.A. 2C:11-3 and N.J.S.A. 2C:5-1 (count two); first-degree conspiracy to commit murder, N.J.S.A. 2C:5-2a and N.J.S.A. 2C:11-3 (count three); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a (count four); second-degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b (count five); and second-degree possession of a firearm by a person not to have a weapon, N.J.S.A. 2C:39-7b (count six). Counts seven through ten of the indictment charged Johnson with murder and weapons offenses. The court severed defendant’s charges from Johnson’s.

Defendant moved to sever counts one and three, which were related to Alston’s murder, from the remaining counts against him, which were related to the drive-by shooting. The court denied the motion.

In another pretrial motion, defendant sought to preclude any reference to his being a member of a gang. The judge denied the motion, finding that the probative value of the evidence outweighed the prejudice to defendant. The judge also denied defendant’s challenge to the admissibility of an audio tape of a conversation between defendant and Hector Acevedo, a witness to the July 31, 2003, altercation between defendant and Alston.

Following a trial from May 25 to June 15, 2006, the jury convicted defendant of second-degree aggravated assault on count two and conspiracy under count three, and acquitted him on counts one, four and five. The court subsequently granted defendant’s motion for judgment notwithstanding the verdict on count three, the conspiracy conviction, and for acquittal on count six, possession of a firearm by a person not to have a weapon.

III

We begin our discussion of the substantive issues with defendant’s contention that the pretrial judge erred by denying his request to sever the counts of the indictment addressing the July 31, 2003, incident from the counts related to Alston’s murder. We reject those arguments.

“Joinder is permitted when two or more offenses ‘are of the same or similar character or are based on . . . 2 or more acts or transactions connected together or constituting parts of a common scheme or plan.'” State v. Morton, 155 N.J. 383, 451 (1998) (quoting R. 3:7-6), cert. denied, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306 (2001). The trial court has broad discretion to order separate trials of counts if it appears that a defendant will be prejudiced by the joinder of offenses. R. 3:15-2(b). A motion for severance should be “liberally granted” if joinder would likely prejudice the defendant. Pressler, Current New Jersey Court Rules, comment 1.1 on R. 3:7-6 (2009). Absent an abuse of discretion, this court will defer to the trial court’s decision on such a motion. State v. Chenique-Puey, 145 N.J. 334, 341 (1996).

When considering a motion for severance, the court may consider such factors as judicial economy and efficiency, State v. Moore, 113 N.J. 239, 276 (1988), but the “critical inquiry is whether, assuming the charges were tried separately, evidence of the offenses sought to be severed would be admissible under Evidence Rule 55 [now N.J.R.E. 404(b)] in the trial of the remaining charges.” State v. Pitts, 116 N.J. 580, 601-02 (1989). Other-crimes evidence is admissible “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.” N.J.R.E. 404(b). “If the evidence would be admissible at both trials, then the trial court may consolidate the charges because a defendant will not suffer any more prejudice in a joint trial than he would in separate trials.” Chenique-Puey, supra, 145 N.J. at 341 (internal quotation omitted). The “plan” example set forth in N.J.R.E. 404(b), employed by the prosecution here, “refers to instances in which the other-crime evidence proves the existence of an integrated plan, of which the other crimes and the indicted offense are components.” State v. Stevens, 115 N.J. 289, 305-06 (1989).

In State v. Cofield, 127 N.J. 328, 338 (1992), the Court established the following four-part test to determine when other-crime evidence is admissible:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

 

N.J.R.E. 404(b) considerations are inapplicable, however, where the other-crime evidence may be considered part of the res gestae, or state of mind, behind the crime charged. State v. Cherry, 289 N.J. Super. 503, 522 (App. Div. 1995). “Evidence of events that take place during the same time frame as the crime charged in the indictment will not be excluded if the evidence establishes the context of the criminal event, explains the nature of, or presents the full picture of the crime to the jury.” Ibid.

Applying these standards, we conclude that the pretrial judge’s decision to permit joinder was not an abuse of discretion. The prosecutor presented the court with evidence that linked the July 31 and August 4 incidents, and linked defendant to both. The prosecutor represented to the court that defendant expressed surprise at missing Alston during the drive-by and swore, on his children, that he would “get” Alston.

The events of July 31, 2003, meet the test for admissibility set forth in Cofield, supra, as the altercations between defendant and Alston and the subsequent drive-by shooting at Alston, are relevant to the murder and conspiracy charges. 127 N.J. at 338. The events of July 31 are a basis for the State’s assertion that defendant played a role in Alston’s murder four days later. Both incidents involved shootings; they are similar in kind. Ibid. There is a close temporal connection; the murder occurred just four days after the drive-by shooting. Ibid. And, there was clear and convincing evidence that the drive-by shooting occurred. Ibid.

Moreover, there is no indication that the evidence related to Alston’s murder was unduly prejudicial to defendant with regard to the attempted murder charges. See State v. Scherzer, 301 N.J. Super. 363, 469 (App. Div.), certif. denied, 151 N.J. 466 (1997) (noting that “[a]ll damaging evidence is prejudicial; it is only when the probative value is substantially outweighed by the potential prejudice that the evidence should be excluded”). The absence of undue prejudice is evidenced by the jury’s verdict convicting defendant only on count two, related to the July 31 incident, and then, of the lesser-included charge of second-degree assault rather than first-degree attempted murder. The jury acquitted defendant of the murder and weapons charges.

The interests of judicial economy and efficiency also support the court’s decision to permit joinder. Severance would have resulted in two trials with much of the same testimony.

Finally, there was ample evidence of animosity between defendant and Alston. Defendant and Alston had been involved in a fight just prior to the drive-by shooting, and defendant admitted that he had physical altercations with Alston. Derrick Edmonds identified defendant as the drive-by shooter, and Myers stated that he saw defendant get out of a green car coming from Market Street with a gun shortly after hearing shots fired. Moreover, the car defendant borrowed from his sister on the afternoon of July 31, 2003, met the description of the vehicle that Derrick Edmonds and Myers provided to the police. In sum, there is no indication that defendant was unduly prejudiced by joinder of the charges.

IV

We next turn to what we consider to be defendant’s dispositive argument on appeal. He asserts that the judge erred by permitting, without a limiting instruction, multiple references to defendant’s involvement with the Bloods street gang. The State responds that the trial judge properly determined that the references had sufficient probative value to outweigh any prejudice to defendant, and no limiting instruction was necessary because the jurors were initially screened for potential prejudice regarding gangs.

Prior to trial, defendant sought to exclude any reference to his involvement in the Bloods street gang. The prosecutor argued that gang affiliation was relevant because statements made by both defendant and Johnson indicated that the drive-by and murder were “gang retribution.” He asserted that “this case is about drugs, it’s about a dispute over drug turf and it’s about the fact that not only was Mr. Alston impeding on the drug turf of a Blood member but he also assaulted two Blood members and this is retaliation by Blood members that’s expressed in Blood [terms].” The prosecutor argued that the gang references were “directly tied to the case itself and particularly so in a case of a conspiracy because it establishes the basis of the relationship between the two defendants.”

Based on the State’s proffer, the trial judge determined that references to defendant’s and Johnson’s gang affiliations were relevant to a jury’s understanding of “their relationship and how that relationship relates to their dispute with [Alston] . . . . It certainly is probative of the . . . overall relationship between the two and the theory that the State is advancing that they were engaged in a conspiracy to . . . take [Alston’s] life.” The judge concluded that the probative value outweighed any prejudice to defendant.

Had the State followed through with its proffer and produced evidence to tie defendant’s gang affiliation to the charges, the evidence may have been admissible. But, the State failed to produce evidence of that linkage. Consequently, the gang references prejudiced defendant with no counterbalancing relevance to the State’s case.

Relevant evidence is “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. Here, the multiple references to defendant being a member of the Bloods street gang were neither relevant nor probative. The prosecutor failed to support his pretrial argument that defendant’s gang affiliation was “directly tied to the case itself.” The record contains no evidence that defendant’s gang affiliation played any part in either the drive-by shooting or Alston’s murder.

The State specifically argued during the pretrial motion that gang membership was pertinent to the conspiracy count. Yet, the State did not link defendant and Johnson together as Bloods or tie the alleged plan to kill Alston to their gang affiliation. Instead, the State theorized that defendant and Johnson conspired to murder Alston over drug territory. In support of that theory, the prosecutor elicited testimony regarding Johnson’s drug dealing and how Alston was moving into Johnson’s territory. The State did not, however, demonstrate any connection between defendant’s and Johnson’s affiliation with the Bloods and the drive-by shooting or murder.

Nevertheless, the record was replete with gang references without an instruction from the judge to the jury as to how that evidence could be used. In his opening statement, the prosecutor referenced Johnson’s affiliation with the Bloods, stating that when defendant was asked whether anyone involved in the July 31, 2003, altercation with Alston was a Blood member, he replied, “Yes, Supreme and Black [Johnson].” Also in his opening, the prosecutor noted that defendant told the police that Johnson told him, “I shot Daz [Alston], and I’ll take the ride. Blood forever.” During Jada Rose’s testimony, the prosecutor elicited that defendant was a member of the Bloods street gang during the summer of 2003.

Sergeant Sela read the following exchange between defendant and him into evidence: “Question: Are any of these people Blood members? Answer: Yes. Supreme and Black.” Sela testified that defendant told him that Johnson had admitted to the murder, stating: “I shot Daz, and I’ll take the ride. Blood forever.” Also, although not a direct reference to the Bloods, Sela said that the police had reached out to defendant following Alston’s murder “through . . . Detective Jose Furman, [who] was assigned to the [g]ang [u]nit of the Passaic County Prosecutor’s Office.” Finally, Detective Giaquinto testified that defendant also told the police that Johnson was a member of the Bloods. Although these statements show that defendant and Johnson were both members of the Bloods street gang, they do not, in any way, link defendant and Johnson together in a conspiracy to murder Alston.

The prosecutor also referenced defendant’s and Johnson’s alleged gang membership during summation when discussing the July 31 fight. The prosecutor said: “And that Hector, the tattoo guy, broke up this fight and that [defendant] then ran to the building . . . to get his boy, is how he put it to Lieutenant Gioquinto, to get his boy, Black, Supreme, who, like [defendant] at the time, were members of the Bloods.” Near the close of his summation, the prosecutor again addressed statements that Johnson allegedly made to defendant that he shot Daz and he would “take the ride. Bloods forever.” The evidence does not, however, support a reasonable inference that either shooting was gang-related.

Defendant moved for a mistrial, arguing that the references to the Bloods were unduly prejudicial to defendant in light of the evidence and arguments presented. The trial judge admitted that he “might not have let [the gang references] in” had he known that the evidence proffered at the motion hearing would not be presented at trial. However, he observed that each member of the jury had indicated that gang affiliation would not influence his or her judgment. The judge also found that the case has an “overlay of the gang issues,” and that the gang affiliation is part of the State’s conspiracy theory. He therefore denied the motion.

We disagree with the court’s rationale. Because the prosecution’s references to defendant’s gang affiliation, as presented, were not linked to any element of the crimes charged, those references served no other purpose than to unfairly prejudice defendant. Evidence that defendant and Johnson were members of the Bloods was not necessary to support the conspiracy charge. The conspiracy theory rested upon a dispute over drug territory and the evidence did not tie that dispute to a conflict between gangs about that subject. Defendant did not dispute his friendship with Johnson, which was also established by other, non-gang-related evidence in the record. Moreover, as previously noted, the prosecutor made no attempt to link defendant and Johnson together as Bloods, or to show that the crimes charged were gang-related.

On the record presented to the jury, even if the evidence had some minimal relevance, which it did not, the probative value of the references to defendant’s gang affiliation was substantially outweighed by the undue prejudice to defendant. See N.J.R.E. 403 (even if relevant, “evidence may be excluded if its probative value is substantially outweighed by the risk of (a) undue prejudice, confusion of issues, or misleading the jury”). The screening of the jurors for potential prejudice against gangs during voir dire cannot overcome the multiple inflammatory gang references during trial. To the contrary, the pretrial inquiry had the capacity to implant in the jurors’ minds the notion that this case was gang-related, without evidence to support that belief.

Gang references are tantamount to other-crimes testimony, subject to admission only if N.J.R.E. 404(b) is satisfied. “Other crimes evidence is considered highly prejudicial.” State v. Vallejo, ___ N.J. ___, ___ (2009) (slip op. at 15) (citing Stevens, supra, 115 N.J. at 309). “The risk involved with such evidence is ‘that it will distract a jury from an independent consideration of the evidence that bears directly on guilt itself.'” Ibid. (quoting State v. G.S., 145 N.J. 460, 468 (1996)). “[T]he government may not convict an individual merely for belonging to an organization that advocates illegal activity.” United States v. Abel, 469 U.S. 45, 48, 105 S. Ct. 465, 476, 83 L. Ed. 2d 450, 455 (1984) (internal quotation omitted).

Here, the references to defendant’s gang membership were inherently prejudicial. Though N.J.R.E. 404(b) recognizes limited purposes for which that evidence may be used, none of those purposes, which could have outweighed the prejudicial impact of the evidence, were present.

Moreover, that the court admitted testimony without an instruction explaining to the jury the purpose for which the evidence was being offered weighs heavily in our determination. An immediate and specific curative instruction is necessary to “alleviate potential prejudice to a defendant from inadmissible evidence that has seeped into a trial.” Vallejo, supra, ___ N.J. at ___ (slip op. at 18). In the absence of any instruction here, we conclude that the “recurring admission of evidence of other crimes and wrongdoings by defendant” — the references to his gang membership — poisoned the trial. Id. at ___ (slip op. at 2); cf. State v. Echols, ___ N.J. ___, ___ (2009) (slip op. at 19) (court’s instruction that attorneys’ comments were not evidence cured potential prejudice resulting from prosecutor’s single statement at start of trial that defendant’s gang membership could endanger the jury). Thus, given the absence of a curative instruction, “defendant was denied the fair trial to which all defendants, regardless of the strength of the case against them, are entitled.” Vallejo, supra, ___ N.J. at ___ (slip op. at 18).

The State claims that the gang-related evidence was admissible pursuant to State v. Torres, 183 N.J. 554, 562-63 (2005), in which the Court permitted expert testimony explaining the role of the defendant’s gang affiliation and what role it played in the crime charged. Torres is distinguishable from the present case. There, the defendant was the leader of a gang who was alleged to have ordered two gang members to murder another gang member. Id. at 559-62. The Court found that the State could offer an investigator with a history of working with gangs and organized crime as an expert witness regarding the hierarchy of street gangs. Id. at 562, 579. In Torres, the defendant’s gang affiliation, and his position in the gang hierarchy, was directly related to the charges against him. Id. at 561-62. By contrast, here, no link exists between defendant’s alleged gang membership and the crimes charged.

The State also relies on State v. Conway, 193 N.J. Super. 133, 169 (App. Div.), certif. denied, 97 N.J. 650 (1984), in which we found that references to the defendant’s organized crime affiliation were not prejudicial error. There, however, the subject of organized crime was not raised by the State, but by the defendant. Id. at 165. And too, the court permitted the references to organized crime as relevant to motive. Id. at 165-66, 168. Here, defendant’s gang membership was unrelated to the motive for the shooting.

As the Court found in Vallejo, supra, where the trial court improperly permitted references to a domestic violence restraining order against the defendant, the “trial was poisoned by the recurring admission of evidence of other crimes and wrongdoings by [the] defendant.” (slip op. at 2). Here, as in Vallejo, we cannot be certain that the jury based defendant’s conviction on admissible evidence, as the prejudicial evidence of defendant’s alleged gang affiliation may have informed its decision. Consequently, the multiple gang references require a new trial.

V

We next address defendant’s argument that the judge erred in denying his request for a mistrial following a prosecution witness’s testimony that defendant was a police informant. Defendant further asserts that his sister’s testimony that she found drugs in a jacket after he wore it; and, a police officer’s testimony about Johnson’s arrest record, cumulatively, denied him a fair trial. Because we have already determined that a new trial is warranted, the mistrial issue is moot. Nevertheless, we conclude that all of this testimony, when considered with the gang references, had the cumulative effect of casting sufficient doubt on the verdict to warrant a new trial.

On direct examination, Sergeant Sela stated: “I had known [defendant] prior to that several years. . . . [F]or a long time.” Following defense counsel’s objection, Sela clarified that he knew defendant as a “purely personal” acquaintance, and their relationship was not on a “business level.” Later, Sela testified that the police asked defendant to help them “[b]ecause, at that time, we were working together. We had a relationship with . . . [defendant] as an informant.” Defense counsel moved to strike Sela’s response and for a mistrial.

The court acknowledged that Sela’s statement linked defendant with criminal activity, but nevertheless the court denied defendant’s motion for a mistrial. Instead, the court struck Sela’s statement and provided a curative instruction to the jury. We agree with the trial judge that the evidence was inadmissible and unduly prejudicial. We conclude, however, that despite the curative instruction, when that testimony is taken together with the gang references, as well as with other improper testimony that required curative instructions — the testimony of defendant’s sister, Jada Rose, about locating drugs in a jacket after defendant wore it; and the police officer’s references to Johnson’s arrest record — the cumulative effect of the testimony denied defendant a fair trial.

“Even when an individual error or series of errors does not rise to reversible error, when considered in combination, their cumulative effect can cast sufficient doubt on a verdict to require reversal.” State v. Jenewicz, 193 N.J. 440, 473 (2008); see also State v. Wakefield, 190 N.J. 397, 538 (2007) (“[T]he predicate for relief for cumulative error must be that the probable effect of the cumulative error was to render the underlying trial unfair.”), cert. denied, ___ U.S. ___, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Put simply, even aside from the improper gang testimony, other improper, unduly prejudicial testimony necessitated multiple curative instructions during the trial. These errors cumulatively rendered the trial unfair.

VI

In light of our decision to reverse defendant’s conviction, we decline to address the remaining evidentiary issues defendant has raised. Should they arise in a retrial, they should be addressed by the trial judge in the context of the new record.

VII

Reversed and remanded for a new trial.

Court upholds wiretap order

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

CHRISTOPHER GRAHAM,

 

Defendant-Appellant.

________________________________

 

April 20, 2009

 

Submitted October 21, 2008 – Decided

 

Before Judges Collester and Graves.

 

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No.

06-06-1387D.

 

Jacobs & Barbone, attorneys for appellant

(Louis M. Barbone, of counsel and on the

brief).

 

Theodore F. L. Housel, Atlantic County

Prosecutor, attorney for respondent (James F.

Smith, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

 

Pursuant to a negotiated plea agreement, defendant Christopher Graham entered a guilty plea to three counts of a 105-count indictment against him, namely, conspiracy to distribute a controlled dangerous substance, contrary to N.J.S.A. 2C:5-2 and N.J.S.A. 2C:35-5b(2); operating a controlled dangerous substance production facility, contrary to N.J.S.A. 2C:35-4; and possession of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and 2C:35-5b(1). On April 20, 2007, he was sentenced to an aggregate term of twenty years.1

Defendant’s convictions stem from an extensive, ongoing investigation of narcotics trafficking in Atlantic County which began on January 4, 2006, when members of the Atlantic County Prosecutor’s Narcotic Strike Force arrested an individual in Pleasantville with three ounces of crack cocaine and a shotgun. This individual agreed to serve as a cooperating witness (CW) in the Strike Force’s ongoing investigation. He told members of the Strike Force that he had purchased the crack the previous day from Troy Sanchez and that Sanchez gave him the shotgun to hide for him. He said he had been dealing with Sanchez for about two years, purchasing two ounces of cocaine from Sanchez roughly every four days. An inquiry into Sanchez’s background revealed that he had been arrested five times for drug offenses over the past decade and that one arrest culminated in a conviction for distribution of CDS and a seven-year sentence.

On January 6, 2006, the CW made a controlled purchase of one and one-half ounces of crack cocaine from a Sanchez associate. Four days later the CW attempted to arrange a purchase of the same quantity of crack cocaine, but the transaction was not completed because Sanchez had only powdered cocaine. Two days later on January 12, 2006, the CW made a second controlled purchase of two ounces of crack cocaine from the same Sanchez associate and paid $1,650. The third controlled purchase of crack cocaine was made on January 16, 2006, and the CW paid $1,450 to Sanchez’s associate.

Four days after his third controlled purchase of crack cocaine, the CW was found dead in Atlantic City. He had been strangled and shot.

Investigator Tracy P. Wich of the Strike Force then prepared an application for an order authorizing the interception of wire and electronic communications from the telephone Sanchez used to arrange the sales of crack cocaine to the CW. Wich’s application stated he had been employed by the Division of Criminal Justice for approximately seven years, the last three with the Major Narcotics Bureau. He received training in narcotics investigations through national courses and in-service training, participated in more than 1,000 narcotics-related investigations, and had experience preparing applications for communications data warrants and monitoring wiretaps.

The application was granted on January 30, 2006, by Judge Albert J. Garafolo, a Superior Court judge designated to review and grant wiretap warrants. Two days later, investigators intercepted a conversation between Sanchez and the defendant during which defendant told Sanchez, “I got that situation for you.” In response, Sanchez said: “Alright, just put that on ice though cause . . . that’s to the side . . . that’s already in . . . . I’m gonna start . . . the day after tomorrow with that. . . .” After defendant answered “Alright,” Sanchez concluded, “I’m ready to come back around though, I’m coming around in a little bit.”

Based on his training, experience and knowledge of facts disclosed by the investigation into Sanchez’s activities, Investigator Wich stated that the conversation related to a cocaine transaction. Wich interpreted the statements by defendant to mean he had cocaine for Sanchez, and that Sanchez wanted defendant to put the cocaine aside so he could sell it to his customers the next day.

Two days later investigators overheard Sanchez arrange for the sale of two ounces of cocaine to an unidentified female. Over the following week investigators intercepted various communications in which Sanchez arranged various illegal transactions involving firearms and the sale of cocaine, Percocet, and marijuana. On February 12, 2006, investigators intercepted another conversation between Sanchez and defendant. Defendant asked Sanchez on that date why Sanchez had not previously called him. Sanchez responded:

Nah, I thought you got, I thought you probably seen the time in the . . . kitchen. . . . I’m like, you know nobody don’t like to get rushed on that shit, you know what I mean? Its all in the in the wrist baby, I ain’t want to, you know what I mean? You needed your concentration. . . .

 

Defendant replied, “Nah man, on the straight up you don’t even got [to] twirl nothing you just got to pour the water out,” Sanchez said, “Oh right (laughing), oh that’s how you do it? You ain’t twirling nothing, you, you got me straight on that one. . . .”

Wich interpreted this conversation as Sanchez telling defendant he did not call him because he did not want to interrupt defendant’s cooking of powder cocaine into crack cocaine. Defendant’s response meant that he was so experienced with the process he did not have to concentrate on any twirling but, instead, just boiled the ingredients down and poured out the remaining water.

Three days later, on February 15, 2006, defendant and Sanchez spoke again. During this conversation, Sanchez asked defendant, “[W]hat’s the best you can do on a half?” Defendant answered: “I guess . . . you know that number. . . .” Sanchez then asked whether defendant would allow him to “meet the nigga” if Sanchez got “the whole jawn.” Once defendant answered in the affirmative, Sanchez asked, “[S]o if you grab the man for me what’s the tag me like a stack?” Defendant said, “Yeah,” and Sanchez went on, “Aight, instead of twenty three, it’ll be twenty four, right?” Defendant again said, “Yeah.”

Wich said that the defendant and Sanchez were discussing a future purchase of a large quantity of cocaine. The “half” to which Sanchez referred in the conversation was one-half a kilogram of cocaine. When defendant responded, “I guess . . . you know that number,” Wich said it indicated defendant had sold the same quantity to Sanchez in the past. When Sanchez spoke of getting the “whole jawn,” Wich’s interpretation was that he wanted to purchase a kilogram of cocaine, for which he normally would pay $23,000. However, he would have to pay $24,000 if defendant introduced him to the individual from whom defendant was receiving his own cocaine supply.

A check of defendant’s criminal history disclosed he had been arrested ten times and convicted five times. He was twice convicted for illegal possession of a handgun and possession of a controlled dangerous substance as well as receiving stolen property. He also was indicted for distribution of cocaine, possession of a defaced handgun and possession of a firearm by a convicted person, charges which were pending disposition at the time of the Sanchez investigation.

On March 21, 2006, members of the Strike Force followed defendant to Philadelphia where he purchased a kilogram of cocaine. The officers observed him place the package of cocaine in the trunk of his car. He was stopped after crossing back into New Jersey. Following a canine sniff, a search warrant was obtained for the vehicle, and the cocaine was seized. Defendant was arrested and subsequently named in a 212-count indictment charging him with, inter alia, second-degree conspiracy to distribute cocaine, first-degree operation of a CDS production facility and first-degree possession of CDS with intent to distribute. Following the denial of his motion to suppress the intercepted communications and to dismiss the indictment by Judge Michael A. Donio, defendant entered his plea of guilty. This appeal followed.

Defendant presents the following arguments:

POINT I – ANY AND ALL INTERCEPTIONS AND SEIZURE OF ELECTRONIC, ORAL OR DATA COMMUNICATIONS REGARDING DEFENDANT SHOULD HAVE BEEN SUPPRESSED PURSUANT TO N.J.S.A. 2A:156A-2.1.

 

POINT II – ANY AND ALL EVIDENCE DERIVED FROM THE INTERCEPTIONS SHOULD HAVE BEEN SUPPRESSED.

 

POINT III – THE ENTIRE PRESENTATION OF EVIDENCE AT GRAND JURY IS LEGALLY INFIRM, AS ALL OF IT IS DIRECTLY DERIVED FROM THE UNLAWFUL WIRE INTERCEPTIONS.

 

New Jersey’s Wiretap and Electronic Surveillance Control Act (Wiretap Act), N.J.S.A. 2A:156A-10, provides in pertinent part that upon consideration of an application a judge may enter an ex parte order authorizing the interception of a wire, electronic or oral communication if based on the facts submitted by the applicant that there is or was probable cause for belief that:

a. The person whose communication is to be intercepted is engaging or was engaged over a period of time as a part of a continuing criminal activity or is committing, has or had committed or is about to commit an offense. . . .

 

b. Particular communications concerning such offense may be obtained through such interception; [and]

 

c. Normal investigative procedures with respect to such offense have been tried and have failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous to employ. . . .

 

The Wiretap Act also provides a framework for individuals seeking to suppress evidence gathered from illegal communication and data intercepts. It provides, in pertinent part, that:

Any aggrieved person in any trial, hearing, or proceeding in or before any court or other authority of this State may move to suppress the contents of any intercepted wire, electronic or oral communication, or evidence derived therefrom, on the grounds that:

 

a. The communication was unlawfully intercepted;

b. The order of authorization is insufficient on its face; or,

c. The interception was not made in conformity with the order of authorization or in accordance with the requirements of section 12 of P.L.1968, c.409 (C.2A:156A-12).

 

A showing of bad faith on the part of law-enforcement officials is not necessary in order to warrant suppression of evidence obtained in violation of the Wiretap Act. State v. Worthy, 141 N.J. 368, 384 (1995). Nor is the Act’s exclusionary rule conditioned on a predicate finding of an intentional or deliberate violation or evasion of the Act’s requirements. Ibid. What is required to warrant suppression of such evidence is a showing that the substantive elements of the statute were not met. That is, that (1) there was no probable cause for interception, or (2) there was no need for electronic surveillance because of other investigation methods. State v. Murphy, 148 N.J. Super. 542, 548 (1977).

Defendant argues that the probable cause requirement of the Wiretap Act was not met and that there was no “independent investigation” other than the three intercepted phone calls which contained ambiguous phrases used by defendant and Sanchez. Defendant asserts that these phrases were automatically construed by Investigator Wich as detailing large narcotics transactions by simply changing and expanding his glossary of narcotics trafficking code to translate these phrases to support the investigation. We disagree. Considering the extensive investigation as a whole, there clearly existed probable cause to believe that defendant was involved in narcotics trafficking in Atlantic County.

Probable cause exists when an officer has a well-founded suspicion or belief of guilt which may constitute something less than proof needed to convict and something more than a raw, unsupported suspicion. State v. McKenna, 228 N.J. Super. 468, 474 (App. Div. 1998) (citing State v. Davis, 50 N.J. 16, 23 (1967)), cert. denied, 389 U.S. 1054 (1968). It is not a rigid concept; rather, it is “flexible [and] nontechnical.” State v. Novembrino, 105 N.J. 95, 120 (1987). A court determines the existence of probable cause by applying a “common-sense, practical standard.” Ibid. Moreover, in assessing the showing of probable cause upon a motion to suppress, a trial court should not lightly second-guess the determination made by the issuing judge. State v. Kasabucki, 52 N.J. 110, 117 (1968). Rather, the reviewing judge is to re-examine the record for the purpose of assuring that there were sufficient facts upon which the issuing judge could posit his finding of probable cause. State v. Christy, 112 N.J. Super. 48 (1970).

The evidence of the investigation was presented to Judge Garafolo through Wich’s affidavit. He found that there existed probable cause that defendant was involved in an ongoing criminal enterprise. Judge Garafolo’s finding of probable cause is supported by the affidavit, and Judge Donio gave that determination proper weight in his subsequent review. We find no error.

Defendant next argues that the wiretap order should have been denied because of the absence of a showing that other means of investigation were attempted and failed. N.J.S.A. 2A:156A-10(c) requires that on the basis of facts submitted by the applicant there is probable cause for belief that normal investigative procedures have been tried and have failed, reasonably appear to be unlikely to succeed if tried, or appear to be too dangerous to employ. The ongoing investigation conducted in this case featured surveillance, controlled purchases, and the use of a confidential informant who was later murdered. Further, it is clear that the wiretap was a necessary part of the investigation because the nature of the conspiracy itself was extensive and involved large amounts of cocaine.

In State v. Christy, supra, 112 N.J. Super. at 64-65, we held when an attempt to infiltrate an illegal organization failed, a wiretap order was justified. Similarly, in State v. Pemberthy, 224 N.J. Super. 280, 297 (1988), where efforts to introduce a confidential informant to a illegal enterprise would have compromised the investigation, it was reasonable to conclude that such efforts would not have been productive, thus justifying an affiant investigator’s request for a wiretap order. Additionally, where normal investigative techniques failed in a prior, related investigation, that failure may be taken into account in assessing whether such techniques would likely be productive in a successive investigation. Ibid. citing State v. Braeunig, 122 N.J. Super. 319, 326-27 (App. Div. 1973). In arguing that no normal investigative procedures were specifically used, defendant attempts to isolate the investigation against him. But defendant’s convictions were the result of an extremely large-scale, ongoing investigation of an extensive narcotics trafficking operation in Atlantic County, leading to a 217-count indictment of seventeen defendants.

Defendant argues that investigators might have used a cooperating witness against him in the same fashion that they had used such an individual to infiltrate Sanchez’s network at the beginning of the investigation. That CW was murdered, and while the murder was later found to be unrelated to the instant investigation, that was not known until after the wiretap order had been issued. Furthermore, that CW had been dealing with Sanchez for two years before the investigation even began, and the investigators had no potential informant who could approach Sanchez or defendant without arousing their suspicions or thwarting the investigation.

Moreover, physical surveillance had been attempted in this case, and it aroused suspicion. On January 10, 2006, a video surveillance van was parked with investigators inside near the site of the CW’s three controlled purchases. It was abandoned after Sanchez’s sister approached the van, shook it, and attempted to look inside. Investigators also sought to rent an apartment near the site of the CW’s buys. However, they later learned that a maintenance man told people throughout the building that police had rented an apartment to conduct surveillance.

The record satisfies us that the police exhausted standard investigative techniques up to the point where there was a risk that the investigation would be compromised. The State thereby satisfied its burden of establishing that only through a wiretap order could they have garnered sufficient evidence to continue their investigation. Therefore, we find no error in Judge Donio denying defendant’s motion to suppress statements obtained through use of wiretap surveillance.

Defendant’s remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

1 On the same date he was also sentenced on one count of three other indictments, namely, distribution of a controlled dangerous substance and conspiracy to distribute a controlled dangerous substance. These three sentences were concurrent to each other for an aggregate sentence of nine years, which was ordered to run concurrently with defendant’s twenty-year sentence.

Protective Sweep exception used to uphold denial of motion to suppress

 

 

STATE OF NEW JERSEY,

 

Plaintiff-Respondent,

 

v.

 

JOHNNIE DAVILA aka JOHNNY CHRISTOPHER

aka JOHNNIE CROSBY,

 

Defendant-Appellant.

_________________________________________________

 

 

Submitted November 6, 2008 – Decided

 

Before Judges Payne and Waugh.

 

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Indictment No. 04-03-1040.

 

Yvonne Smith Segars, Public Defender, attorney for appellant (Susan Brody, Assistant Deputy Public Defender, of counsel and on the brief).

 

Paula T. Dow, Essex County Prosecutor,

attorney for respondent (Luanh L. Lloyd,

Assistant Prosecutor, of counsel and on the

brief).

 

PER CURIAM

 

Following the denial by Judge Ravin of his motions to suppress evidence and bar the use of his confession, defendant Johnnie Davila entered a conditional plea of guilty to two counts of felony murder and one count of conspiracy to commit robbery in return for an offer of thirty years in custody with a thirty-year parole disqualifier.1 On appeal, defendant challenges the judge’s evidentiary rulings. He argues:

POINT I

 

THE RULING THAT POLICE ENTRY INTO THE APARTMENT AT 730 M.L.K. BOULEVARD WAS LAWFUL MUST BE REVERSED, AND THE PHYSICAL EVIDENCE SEIZED MUST BE SUPPRESSED.

 

POINT II

 

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAIVED HIS RIGHT TO SPEAK WITH AN ATTORNEY PRIOR TO GIVING HIS STATEMENT, THE COURT’S RULING FINDING THE STATEMENT ADMISSIBLE WAS ERRONEOUS AND MUST BE REVERSED.

 

Judge Ravin found, for purposes of the motion, the following background facts:

[O]n November 13th, 2003, witnesses reported that white Jeep Cherokee with the letter “G” on the driver’s side, occupied by several young African-American males, approached 30 Lenox Avenue in the city of East Orange. The masked front passenger of the Jeep Cherokee approached victim [Shanfidine] Sutton and shot him. The . . . occupants of the Jeep Cherokee then fled the scene in that car. Sutton was taken to the hospital and pronounced dead.

 

A short time later, victim Alonzo Brown, age 15, was also shot and killed in an attempted robbery. Witnesses at the scene described the same car[] [being] used in the Sutton murder also occupied by several young African males. Witnesses claimed that the front seat passenger exited, demanded Alonzo Brown’s black leather jacket, and shot him. Alonzo Brown was pronounced dead at the scene.

 

Law enforcement located and recovered .40 caliber shell casings at both scenes. And a ballistics examiner later determined that both casings were fired from the same firearm, which was not recovered. Also, witnesses at the scene of the second shooting memorized a portion of the license plate number of the car.

 

Further investigation revealed that David Cataneo, the owner of the Jeep Cherokee, had reported it stolen a few hours prior to the first shooting. He also reported that he had left his Nextel cellular phone inside the Jeep. At 8:00 P.M. on November 13th, 2003, law enforcement recovered the car in front of 93 Alexander Street in Newark. The cellular phone, however, was not recovered.

 

On November 14, law enforcement obtained a communications data warrant for records of calls made to and from the Nextel phone. On November 15, investigators determined that, among other calls, eight calls had been made from the phone to 730 Dr. Martin Luther King Boulevard, apartment 1-G, in Newark during the period from November 13 to 15, the last having been made at 1:01 a.m.

Lieutenant John Melody, an employee of the Essex County Prosecutor’s Office assigned to the Homicide Division, testified at the suppression hearing regarding what then occurred. At approximately 11:20 a.m. on November 15, he and six representatives of the Newark and East Orange Police Departments traveled to the apartment to which the telephone calls had been directed. Melody knocked on the door, which was opened by a person named Jayaad Brown. Melody testified that he then told Brown that he was from the Prosecutor’s Office and asked, “can we come in?”

At that point [Brown] opened up the door for us. We stepped in. I believe at that point Investigator Sarabando along with Mike Chirico, the next two officers advised him that we were her[e] to investigate a homicide.

 

Melody stated that the officers were all dressed in plain clothes with their badges exposed. Melody had his hand on his weapon, but it was not drawn. He was unsure of the status of the other officers’ weapons.

Once Melody had entered, he “swung the doorway open” and surveyed the apartment, determining that no one else was visible, but noting that open doorways led to additional rooms on the right side of the apartment. Melody immediately proceeded to determine whether the other rooms were occupied, so that he could “secure” any persons found there and determine if any were armed. In the meantime, two other officers had secured Brown. Melody confirmed that, at the time, as the result of the recent murders, he was concerned for his own safety and that of the other officers.

As the result of his inspection, Melody discovered a black male named Shawn Upshaw in the rear bedroom and a substantial quantity of crack cocaine in a bag on a dresser in that room. Upshaw was taken into custody. Upon proceeding to the apartment’s second bedroom, Melody discovered defendant and a female in bed, and a cell phone on the mattress. Both were placed under arrest as the result of the discovery of narcotics in the other bedroom. By calling the number of the Nextel phone taken from the Jeep, Melody identified the phone on the bed as the one the officers had been tracing.

Once the narcotics had been seized, the apartment’s occupants had been arrested, and the telephone identified, Melody proceeded to obtain a warrant to permit a further search of the apartment. Various gang-related materials and other evidence were then seized. Thereafter, defendant gave a statement to the police in which he implicated himself and his co-defendants.

On cross-examination, Melody agreed that he had not obtained a warrant to search the apartment prior to going there because he didn’t think probable cause could be established. He denied that the officers had conducted a raid, maintaining his position that the entry into the apartment had been consensual.

In contrast to Melody’s testimony, Jayaad Brown testified that he had been in the apartment’s back bedroom when the police started banging on the door, announcing their presence, and demanding entry. Upon unlocking and opening the door, according to Brown, the officers “rushed the door” with guns drawn, causing Brown to jump back. Brown denied that the officers asked whether they could come in. Brown testified additionally that, upon entering the apartment, one or more of the officers made him “get down on the ground,” face down. Although Brown had been in the back bedroom with Upshaw, Brown maintained, after considerable equivocation, that he had no knowledge that drugs were in the apartment.

Following the hearing, written briefs were submitted by the parties. After considering them, the judge placed on the record his oral opinion denying the motions for suppression of evidence. In that connection, the judge found that Jihad Brown lacked credibility.

While testifying, he displayed a laissez-faire and jovial attitude that appeared designed to and, in fact, did elicit laughs from people in the courtroom with whom he appeared to be friends.

 

Also, Brown’s admitted friendship with defendants and familial relationship with defendant Johnnie Davila demonstrated to the court his interest and bias. Finally, Brown’s hesitation to answer questions concerning the narcotics found and seized by the officers and Shawn Upshaw’s connection to those narcotics further demonstrated his bias.

 

In contrast, the judge found Lieutenant Melody to be “absolutely and completely honest in terms of his tone, his demeanor and the content of what he said.” Accordingly, the judge accepted Melody’s testimony while rejecting that of Brown.

Addressing the substantive issues raised, the judge found that, although the officers did not have a warrant or probable cause to enter the apartment, their entry for investigatory purposes was consensual and properly conducted pursuant to State v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999), aff’d, 163 N.J. 3 (2000). Further, the judge found the officers’ brief warrantless survey of the premises was justified as a protective sweep under decisions such as Maryland v. Buie, 494 U.S. 325, 335-36, 110 S. Ct. 1093, 1099, 108 L. Ed. 2d 276, 287 (1990) and State v. Smith, 140 N.J. Super. 368, 372 (App. Div. 1976), aff’d, o.b., 75 N.J. 81 (1977). The judge held:

In this case, upon entering the apartment at 730 Martin Luther King Boulevard, officers conducted a brief survey of the premises to ensure that the occupants of the dwelling were not armed. The police did not extend the survey beyond the scope necessary to secure their own safety. The totality of the circumstances presents an articulable reason for believing that there might be persons unseen in the apartment that posed a threat to the safety of the police.

 

Thos circumstances were:

 

1.) The police were investigating a ruthless double murder which occurred, in part, in Newark.

 

2.) The murders were committed with a gun.

 

3.) The murders occurred within the preceding 48 hours.

 

4.) The murders were committed by several African-American males.

 

5.) The gun used in the commission of the murders was missing.

 

6.) The apartment in question was in Newark.

 

7.) A cellular telephone connected to the murders was being used to call the apartment in Newark where the police were present investigating the double murder.

 

. . . In light of these facts, Lieutenant Melody’s concern for the safety of the officers and the action taken to ameliorate that threat were clearly reasonabl[e].

 

The judge acknowledged the defense argument that what had actually occurred constituted a raid. However, he rejected that argument, noting that it was well established that the subjective intent of the police officers has no significance in evaluating alleged violations of the Fourth Amendment, so long as the officers’ conduct is reasonable. In support of this conclusion, the judge cited to State v. Bruzzese, 94 N.J. 210, 219 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). “The proper inquiry for determining the constitutionality of a search and seizure is whether the conduct of the law enforcement officer who undertook the search was objectively reasonable without regard to his or her underlying motives or intent.” Ibid. The judge found the officers’ conduct to have been objectively reasonable.

The judge also rejected the defense argument that exigent circumstances alleged as a justification for the warrantless entry were impermissibly self-created, noting that the entry was not justified by exigency, but occurred as the result of Brown’s permission and that the police’s action was not tantamount to a search for evidence, but was instead a superficial check to dismiss a reasonable suspicion of danger and secure safety.

As a final matter, the judge upheld the seizure of the phone and drugs, which he found to have been in plain view and thus excepted from the warrant requirement by Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971).

On appeal from this decision, we affirm substantially on the basis of the well-reasoned opinion of Judge Ravin. We add only that the protective sweep exception to the Fourth Amendment’s warrant requirement was extensively analyzed by a panel of this court in a decision issued after Judge Ravin’s opinion was placed on the record. See State v. Lane, 393 N.J. Super. 132 (App. Div.) certif. denied, 192 N.J. 600 (2007).

In that case, following an armed robbery of a Strauss Auto store by multiple black individuals and the identification of two cars in the vicinity of the robbery at the time that the robbery occurred, the police located one of the vehicles, parked in a residential driveway. Defendant, who was working under the hood of the car when the police arrived, was taken to headquarters for questioning. However, one officer remained at the premises. After looking through a gate into the yard of the house and discovering a headband similar to that described as having been worn by one of the robbers, the officer entered the yard and conducted a protective sweep of the area, which disclosed an automatic rifle under a couch in a shed.

In considering whether the protective sweep in Lane was valid, we noted that in Buie the Supreme Court had defined a protective sweep as “a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers and others.” Lane, supra, 393 N.J. Super. at 151 (quoting Buie, supra, 494 U.S. at 327, 110 S. Ct. at 1094, 108 L. Ed. 2d at 281). Although Lane was not arrested, we determined that:

an arrest should not be the sine qua non of a legitimate protective sweep and that to hold otherwise would place undue importance on the particular facts in Maryland v. Buie and show too little regard for the important public policy of insuring police safety. As the Supreme Court has observed, it is “dubious logic” to conclude that “an opinion upholding the constitutionality of a particular search implicitly holds unconstitutional any search that is not like it.” United States v. Knights, 534 U.S. 112, 117, 122 S. Ct. 587, 590, 151 L. Ed. 2d 497, 504 (2001). Adhering to this approach, we agree with the logic of those federal decisions that have determined that the validity of the warrantless sweep does not turn on the officer’s possession of an arrest warrant or the right to arrest, but turns instead on the officer’s right to be in a location that generates a reasonable articulable suspicion that the area to be swept “harbors an individual posing a danger” to those on the scene. Maryland v. Buie, supra, 494 U.S. at 337, 110 S. Ct. at 1100, 108 L. Ed. 2d at 288.

 

[Lane, supra, 393 N.J. Super. at 153.]

 

We further found that a determination of the legality of a protective sweep required consideration of whether the sweep occurred in a home, the lawfulness of the police’s presence, and whether the police had a reasonable articulable suspicion that the area to be swept harbored individuals posing a danger to them. Id. at 154. In this regard, we noted the Court’s observation in Buie that:

[U]nlike an encounter on the street or along a highway, an inhome arrest puts the officer at the disadvantage of being on his adversary’s “turf.” An ambush in a confined setting of unknown configuration is more to be feared than it is in open, more familiar surroundings.

 

[Lane, supra, 393 N.J. Super. at 154 (quoting Buie, supra, 494 U.S. at 333, 110 S. Ct. at 1098, 108 L. Ed. 2d at 285).]

 

In Lane, we determined that additional factfinding by the motion judge was required in order to resolve whether the seizure of the gun by the police officer had violated the Fourth Amendment. Id. at 156-58. We reach a different conclusion here. In the present case, we are satisfied that the police’s determination to go to the apartment to investigate the connection between its occupants and the murderers was both legal and reasonable, id. at 147, and that the judge’s conclusion that the police lawfully entered the apartment with Brown’s consent was based upon substantial evidence in the record, State v. Locurto, 157 N.J. 463, 470-71 (1999). We are further satisfied that the police acted in an objectively reasonable manner in determining to conduct a protective sweep of the premises. As Judge Ravin noted, a number of black males had recently performed two callously-inflicted felony murders, utilizing a gun. The murderers remained at large, and their weapon or weapons had not been recovered. And, as the result of the cell phone traces, there was a substantial reason to believe that the occupants of the apartment were somehow connected with the murderers. Further, upon entry into the apartment, it was clear that it was comprised of multiple rooms, the occupants of which could not be seen from the door. And finally, the sweep was limited in its scope and duration to a determination of whether additional persons were present on the premises. As Judge Ravin found, the drugs and phone seized during the course of the sweep were both in plain view.

Defendant additionally challenges the judge’s determination, following an additional hearing, to deny his motion to suppress the confession given to the police by defendant, in the presence of his mother,2 following the administration of Miranda3 warnings. In support of his position, defendant notes that there was no specific written indication on the Miranda warning form utilized by the police that he had knowingly waived his right to speak with an attorney before submitting to police questioning. Our review of the form, however, indicates that defendant initialed each of the individual rights accorded to him, and that both he and his mother signed the Miranda form. Moreover, defendant confirmed that he had been properly advised of his rights at the commencement of his confession, wrote on the form that the Miranda warnings had been “read out loud” to him, and placed his initials next to statements confirming that his mother was present when the warnings had been given and that he understood his rights. Under these circumstances, we decline to further address defendant’s argument, finding it to lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.

 

 

1 Defendant was charged along with co-defendants Wali Williams, Michael Whitfield and Laquan Dwight. All moved for suppression of evidence and participated in the hearing on that issue, as did Shawn Upshaw, who was charged with first-degree drug offenses in a separate indictment.

2 Defendant was sixteen years old at the time of the crimes.

 

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

April 16, 2009

 

Eluding conviction upheld

 

STATE OF NEW JERSEY,

 

Plaintiff -Respondent,

 

V.

 

JESUS ATURO COLON,

 

Defendant-Appellant.

 

____________________________

 

 

Submitted January 27, 2009 – Decided

 

Before Judges Parker and LeWinn.

 

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-01099-I.

 

Robert J. De Groot, attorney for appellant.

 

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Peter DeRose, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

Tried to a jury on April 10, 2007, defendant was convicted of second-degree eluding a law enforcement officer, N.J.S.A. 2C:29-2(b); and second-degree aggravated assault, causing serious bodily injury while fleeing, N.J.S.A. 2C:12-1(b)(6). On July 13, 2007, defendant was sentenced to two concurrent ten-year terms with an eighty-five percent parole ineligibility period on the second count.

On appeal, defendant raises the following issues for our consideration:

1. Defendant’s Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution and Art. 1 Par. 1 of the New Jersey Constitution was violated by the Prosecutor’s Misconduct. [Not Raised Below]

 

a. The Prosecutor’s summation expressing his belief that [Officer] Fidalgo testified credibly substantially prejudiced Defendant’s fundamental right to have the jury fairly evaluate the merits of his defense.

 

b. The Prosecutor’s summation implicitly expressing his belief that Defendant’s Witness was not credible substantially prejudiced [D]efendant’s fundamental right to have the jury fairly evaluate the merits of his defense.

 

2. Because The Jury Was Permitted To Infer That Defendant’s Conduct Created A “Risk Of Death Or Injury” If It Determined That His Conduct Violated Any of The Motor Vehicle Offenses Set Forth In Chapter 4 of Title 39, And Such Risk Is An Element Of The Second Degree Crime of Eluding, The Trial Court Committed Reversible Error When It Failed To Define And Delimit The Underlying Motor Vehicle Offenses. [Not Raised Below]

 

Having considered defendant’s contentions in light of the record and the applicable law, we affirm.

The trial evidence may be summarized as follows. Officer Paulo Fidalgo, of the Elizabeth Police Department, testified that on September 1, 2006, just after midnight, he and his partner, Officer Jean-Marie, were patrolling downtown Elizabeth in a marked police vehicle. While stopped at an intersection, Fidalgo “observed a vehicle cross [their] intersection at a high rate of speed.” Fidalgo was able to see the driver whom he described as a “[p]ossible Hispanic male with facial hair.”

Fidalgo and his partner pursued the vehicle and activated their lights after the vehicle “gained speed.” The vehicle “proceeded to pick up speed,” and “ran a red light on Elizabeth Avenue . . . .” Fidalgo estimated the vehicle’s speed to be “[r]oughly[] 50 miles [per] hour,” in a thirty-five mile speed zone.

After running the red light at Elizabeth Avenue, the vehicle “veered left . . . and appeared to have lost control and . . . then went into a ditch next to a utility pole right after the drawbridge on South First Street.”

Fidalgo and his partner exited their police car and “noticed that there was [a] smoke or fire condition coming from underneath the [disabled] vehicle.” There were three occupants in the vehicle, including the driver, and the officers “drew all the passengers to safety away from the vehicle.”

The individual in the driver’s seat was identified as defendant Jesus Colon. Fidalgo testified that defendant was the only occupant of the vehicle who had facial hair. When the officers first saw him, defendant was “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.”

Defendant’s vehicle sustained “[h]eavy front end damage and had fire damage done to it.” The fire department had to be called “to gain[] entry into the front door.”

Luis Benitez, who had been a passenger in defendant’s vehicle on the night in question, testified on behalf of defendant. Benitez has known defendant “since [they] were kids[,]” and described their relationship as being “like family . . . .”

On that night, Benitez was “walking down the block . . . a little intoxicated, because it was [his] birthday,” when he saw defendant “on the street and flagged him down.” Benitez asked defendant for a ride to a club. Benitez testified that defendant was not driving the vehicle; rather, a juvenile whose name he did not know was driving. Benitez stated that defendant “came out [of] the passenger’s side . . . .” Benitez entered the rear seat behind the driver and defendant re-entered the car on the passenger’s side.

As they drove on, Benitez stated that “the juvenile ate the light and the cops jumped on us.” The police chased the vehicle for “less than 15 minutes,” and then the car “crashed into a bridge and a light pole . . . .” Benitez testified that he injured his leg as a result of the crash.

During its deliberations, the jury asked for a readback of Officer Fidalgo’s testimony “with regard to the positioning of the three people.” The jury further requested a re-instruction on the definition of aggravated assault. Shortly after receiving that re-instruction, the jury rendered its verdict.

In his first argument on appeal, defendant contends that the prosecutor improperly vouched for the credibility of the State’s witness and implied to the jury that defendant’s witness, Benitez, had lied. Defendant refers us to the following statement in the prosecutor’s summation:

Think about this. Officer Fidalgo just doing his job. That is what he gets paid to do. No vested interest in this, not a family member, none of his family members were injured, none of his family members were charged with this.

 

Then you look at the witness, Mr. Benitez. He’s not really a disinterested third party. Oh, yeah, he’s close, extremely close to the defendant. I wonder.

 

At any rate, as I said earlier, I believe that Officer Fidalgo testified credibly and that each and every element of the two crimes charged, that you will hear from Judge Wertheimer, w[as] satisfied, and I ask that you, after hearing the charge, that you go back into the jury room and you find Jesus Colon guilty of the two charges.

 

At the outset, we note that this issue is raised as plain error as defense counsel raised no objection to the prosecutor’s summation. Therefore, we must determine whether these comments were “of such a nature as to have been clearly capable of producing an unjust result . . . .” R. 2:10-2. Based upon our review of the prosecutor’s entire summation, we discern neither of the improprieties claimed by defendant.

In the first two paragraphs quoted above, the prosecutor drew a distinction between Officer Fidalgo as a disinterested witness, as contrasted with Luis Benitez, who described his relationship with defendant as “like family.” In the third paragraph, the prosecutor briefly alluded to his belief “that Officer Fidalgo testified credibly[,]” and immediately proceeded to advise the jury that, in his view, “each and every element of the two crimes charged . . . w[as] satisfied . . . .”

Under these circumstance, we find defendant’s argument to be without merit. R. 2:11-3(e)(2).

Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made. Failure to object also deprives the court of the opportunity to take curative action.

 

[State v. Timmendequas, 161 N.J. 515, 576 (1999) (citations omitted).]

 

We acknowledge the “long-standing rule” that it is improper for the prosecutor to inform the jury of his personal opinion of a witness’s credibility. State v. Wakefield, 190 N.J. 397, 440 (2007). In evaluating “‘the severity of the misconduct and its prejudicial effect on the defendant’s right to a fair trial[,]'” we will not deem such prosecutorial misconduct to be grounds for reversal of a criminal conviction “‘unless the conduct was so egregious as to deprive the defendant of a fair trial.'” Id. at 437 (citations omitted).

The trial judge charged the jury immediately following the prosecutor’s summation. Very early in that charge, the judge instructed the jury:

You, and you alone, are the exclusive judges of the evidence, of the weight of the evidence and . . . what the facts are in this case. Regardless of what [c]ounsel said . . . recalling the facts, it’s your recollection of the facts that must guide you in the final analysis as . . . the judges of the facts.

 

Under the circumstance, we conclude that the prosecutor’s brief statements that he “believed[d] Officer Fidalgo testified credibly[,]” and that he “wonder[ed]” about Benitez being “extremely close to the defendant[,]” did not rise to the level of “egregious” conduct sufficient to warrant reversal.

We next consider defendant’s contention that the trial court erred in its charge to the jury on second-degree eluding. Because defendant did not object to this jury instruction at trial, we once again consider his claim under the plain error standard. R. 2:10-2. Under that standard, “[a] reviewing court may reverse on the basis of unchallenged error only if it finds plain error clearly capable of producing an unjust result.” State v. Afanador, 151 N.J. 41, 54 (1997).

Pursuant to N.J.S.A. 2C:29-2(b):

Any person, while operating a motor vehicle on any street or highway in this State . . ., who knowingly flees or attempts to elude any police or law enforcement officer after having received any signal from such officer to bring the vehicle . . . to a full stop commits a crime of the third degree; except that, a person is guilty of a crime of the second degree if the flight or attempt to elude creates a risk of death or injury of any person. For purposes of this subsection, there shall be a permissive inference that the flight or attempt to elude creates a risk of death or injury to any person if the person’s conduct involves a violation of chapter 4 of Title 39 . . . .

 

The trial judge essentially followed the model jury charge for second-degree eluding. Model Jury Charge (Criminal), “Eluding an Officer” (2004). In his initial jury instruction, the judge charged the jury in accordance with the statutory language elevating the offense to second degree if “the flight or attempt to elude created a risk of death or injury to a person.” The judge made no mention of motor vehicle violations at this point.

Following a side bar discussion at the conclusion of the jury charge, the judge delivered the following additional instruction:

I, apparently, omitted a part of the charge on eluding. I want to read it to you now.

 

You may infer a risk of death or injury to any person if a defendant’s conduct in fleeing or attempting to elude the officer involved a violation of motor vehicle laws of the State, and it’s alleged this defendant’s conduct involved speeding, running a red light, etc., etc.

 

Defense counsel accepted this supplemental instruction as “[f]ine.”

We concur with defendant that the trial judge’s failure to charge the elements of the applicable motor vehicle statutes was in error. Under the circumstances of this case, however, we deem such error to be harmless. The evidence clearly established that defendant “created a risk of death or injury” by crashing his vehicle into a utility pole with such force that it sustained “[h]eavy front end damage and . . . fire damage . . . .” The fire department had to be called to open the front door. Officer Fidalgo observed defendant “[l]unged over the middle area between the driver’s seat and passenger’s seat[,]” with his legs “in the driver’s seat.” In addition, Benitez testified that he suffered a leg injury as a result of the crash.

On this record, we consider defendant’s reliance upon State v. Dorko, 298 N.J. Super. 54 (App. Div.), certif. denied, 150 N.J. 28 (1997), to be misplaced. In that case, the defendant’s act of eluding consisted solely of motor vehicle violations such as speeding and running through stop signs and a red light; in addition to eluding, the defendant was charged with reckless driving. Id. at 56.

By contrast here, defendant engaged not only in speeding and running a red light, but in much more serious conduct that caused his vehicle to crash, with resultant injuries to at least one passenger. It is significant that these same facts gave rise to a related charge of second-degree aggravated assault in count two of the indictment, as contrasted with the related reckless driving charge in Dorko.

Applying, as we must, the plain error standard to this argument, we conclude that defendant has failed to demonstrate that the claimed error was “sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached.” State v. Macon, 57 N.J. 325, 336 (1971).

Affirmed.

 

 

April 14, 2009

Defendant stuck with his plea; Slater factors not in his favor

 

STATE OF NEW JERSEY,

 

Plaintiff-Appellant/

Cross-Respondent,

 

v.

 

T.J.,

 

Defendant-Respondent/

Cross-Appellant.

 

____________________________________________________

 

 

Submitted March 17, 2009 – Decided

 

Before Judges Skillman and Graves.

 

On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 97-04-0613.

 

Luis A. Valentin, Monmouth County Prosecutor, attorney for appellant/cross-respondent (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

 

Yvonne Smith Segars, Public Defender, attorney for respondent/cross-appellant (Michael C. Wroblewski, Designated Counsel, on the brief).

 

PER CURIAM

 

On April 4, 1997, defendant was indicted for second-degree sexual assault, contrary to N.J.S.A. 2C:14-2(c)(5)1; third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a); and fourth-degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b). On September 2, 1997, defendant pled guilty to third-degree endangering the welfare of a child pursuant to a plea bargain under which the State agreed to dismiss the other charges and recommend a non-custodial probationary sentence “with lifetime ‘Megan’s Law’ Registration.”

The second question on the special plea form for sex offenders signed by defendant at the time of his plea asked:

Do you understand that if you are pleading guilty to a crime of Aggravated Sexual Assault, Sexual Assault, Aggravated Criminal Sexual Contact, Kidnapping pursuant to 2C:13-1, Endangering the Welfare of a Child by engaging in sexual conduct which would impair or debauch the morals or a child pursuant to 2C:24-4, Luring or an attempt to commit any such offense. The Court in addition to any sentence authorized by the code will impose a special sentence of community supervision for life?

 

“Yes” is circled in response. The question continued:

And, that any person who violates a condition of special sentence of community supervision is guilty of a crime of the fourth degree?

 

“Yes” is circled in response. Defendant signed this form on September 2, 1997.

In taking defendant’s plea on September 2, 1997, the court had the following colloquy with him:

THE COURT: You’ve signed the form regarding the Megan’s Law requirements including the fact that you must register and continue to register should you move.

 

Do you understand that?

 

THE DEFENDANT: Yes, Your Honor.

 

The court did not provide defendant with any additional explanation of the requirements of Megan’s Law.

On October 31, 1997, the trial court sentenced defendant in conformity with the plea bargain to a one-year probationary term. The judgment of conviction also required defendant “to register for Megan’s Law within ten days.” However, the judgment omitted the statutory requirement that defendant was subject to community supervision for life.

On May 27, 1999, defendant was charged with failure to register as a convicted sex offender, contrary to N.J.S.A. 2C:7-2(a). Defendant pled guilty to this charge on October 4, 1999, and was sentenced to two years probation on November 19, 1999.

In a letter dated February 19, 2003, the State Parole Board advised the trial court that defendant’s sentence did not provide for community supervision for life, as mandated by N.J.S.A. 2C:43-6.4. The Monmouth County Prosecutor submitted a similar letter on February 26, 2003, which asked the court to amend defendant’s judgment of conviction “to include a special sentence of community supervision for life.”

On September 19, 2003, the trial court amended the judgment of conviction to include the requirement of “a special sentence of community supervision for life, pursuant to N.J.S.A. 2C:43-6.4.” On October 24, 2003, a parole officer presented defendant with a form entitled “Community Supervision For Life” that explained the requirements of such supervision, and defendant signed the form. Defendant did not appeal from the amended judgment of conviction that added the requirement of community supervision for life.

On October 4, 2006, defendant filed a pro se petition for post-conviction relief, which was based on the amendment of the judgment of conviction to include the requirement of community supervision for life. Defendant alleged that he was unaware of the requirements of community supervision for life until the amended judgment was entered. He further alleged that he was “facing numerous ‘community supervision for life’ violations” and that his parole officer had advised him he could not be around his children.

On October 22, 2007, defendant filed a motion to withdraw his 1997 and 1999 guilty pleas on the ground that he had not been advised by either defense counsel or the trial court of the requirement of community supervision for life “and what this meant” when he pled guilty. In his certification in support of the motion, defendant stated:

Had I known about the community supervision for life requirement, I would not have pled guilty to the third degree endangering the welfare of a child charge in Indictment No. 97-04-0613 or the subsequent failure to register charge.

 

The trial court conducted a hearing on defendant’s petition for post-conviction relief and motion to withdraw his guilty plea at which both defendant and his counsel testified that they had not discussed the requirements of community supervision for life at the time of the plea. Defendant argued that the amendment of his judgment of conviction to include the requirement of community supervision for life violated his right to Due Process and therefore should be stricken from the judgment. Alternatively, defendant argued that he should be allowed to withdraw his guilty plea on the ground that he had not been informed of the consequences of community supervision for life.

The trial court concluded in an oral opinion that the amendment of defendant’s judgment of conviction to include the statutorily mandated supervision for life did not violate Due Process. However, the court granted defendant’s motion to withdraw his guilty plea on the ground that he was not informed by his attorney or the court of the consequences of community supervision for life. The court entered an order on April 7, 2008, memorializing these rulings. The court subsequently denied the State’s motion for reconsideration.

Both the State and defendant filed motions for leave to appeal from the April 7, 2008 order, which we granted.

 

I.

 

 

We reject the arguments presented on defendant’s appeal and affirm the part of the April 7, 2008 order that upheld the amendment of the judgment of conviction to include the provision for community supervision for life substantially for the reasons set forth in the trial court’s April 4, 2008 oral opinion. The trial court’s decision regarding this issue is directly supported by State v. Horton, 331 N.J. Super. 92, 97-102 (App. Div. 2000), which held that the requirement of community supervision for life is a mandatory component of a sentence for any of the offenses enumerated in N.J.S.A. 2C:43-6.4 and therefore the omission of this requirement constitutes an illegal sentence, which may be corrected at any time. The only distinction between Horton and this case is that the judgment of conviction in Horton was corrected to add the requirement of community supervision for life eighteen months after sentencing while defendant’s judgment of conviction was not amended until six years after sentencing. However, a court’s obligation to correct an illegal sentence continues even though a substantial period of time has elapsed. See, e.g., State v. Baker, 270 N.J. Super. 55, 61-63, 71-77 (App. Div.), aff’d o.b., 138 N.J. 89 (1994) (more than four years); see also State v. Williams, 342 N.J. Super. 83, 92-93 (App. Div.), certif. denied, 70 N.J. 207 (2001). We also agree with the trial court’s conclusion that even though defendant should have been given notice and an opportunity to be heard before the judgment of conviction was amended to add the requirement of community supervision for life, this procedural defect does not affect the validity of the amended judgment because community supervision for life was a statutorily mandated component of defendant’s sentence, which the judgment could be amended to reflect at any time.

II.

During the pendency of this appeal, our Supreme Court decided State v. Slater, ___ N.J. ___ (2009), which set forth standards for a trial court to apply in considering a motion to withdraw a guilty plea: “(1) whether the defendant has asserted a colorable claim of innocence; (2) the nature and strength of defendant’s reasons for withdrawal; (3) the existence of a plea bargain; and (4) whether withdrawal would result in unfair prejudice to the State or unfair advantage to the accused.” Id. at ___ (slip op. at 13). All four of these factors must be considered in ruling upon a motion to withdraw a plea. Ibid. “No factor is mandatory; if one is missing, that does not automatically disqualify or dictate relief.” Id. at ___ (slip op. at 20).

Based on the four factors set forth in Slater, we conclude that the trial court erred in granting defendant’s motion to withdraw his guilty plea.

Defendant does not claim that he is innocent of the charge to which he pled guilty. In fact, defendant gave a written statement to the police before his plea in which he admitted having sexual intercourse with the victim ten times over a period of a year-and-a-half knowing that she was underage. Thus, the first Slater factor weighs against allowing defendant to withdraw his guilty plea.

Defendant pled guilty pursuant to a highly favorable plea bargain under which the State agreed to dismiss the charge of second-degree sexual assault and recommend a probationary sentence that would not require defendant to serve any period of incarceration. Thus, the third Slater factor also weighs against allowing defendant to withdraw his guilty plea.

Defendant did not file a motion to withdraw his guilty plea until approximately ten years after entry of the judgment of conviction. Moreover, defense counsel indicated at argument on the motion that he had spoken with the victim and that she indicated she would not be a cooperative witness if the case were now tried. Therefore, it appears the State would be unfairly prejudiced if it were required to prosecute the charges against defendant more than ten years after occurrence of the acts upon which they were based and that the fourth Slater factor also weighs against allowing defendant to withdraw his guilty plea.

The only one of the Slater factors that provides any support for defendant’s motion is the second factor — “the nature and strength of defendant’s reasons for plea withdrawal” — specifically, the failure of defense counsel and the trial court to explain the consequences of community supervision for life. As to this factor, defendant was required to show that his “lack of knowledge of” the community supervision for life component of his sentence mandated by N.J.S.A. 2C:43-6.4 “was material to [his] decision to plead guilty and prejudiced defendant.” State v. Johnson, 182 N.J. 232, 241 (2005). A guilty plea “will not be vacated if knowledge of the consequences [that were not explained to the defendant] would not have made any difference in the defendant’s decision to plead.” Id. at 242 (quoting State v. Howard, 110 N.J. 113, 123 (1988)).

Defendant’s testimony as to whether he would have pled guilty if he had been aware of the requirement of community supervision for life was equivocal:

Q. [T.J.], you indicated that if you had gone to jail it all would have been over for you. Are you aware that even if you went to jail you’d still be on community supervision for life? You can’t get rid of the community supervision for life with a sex offense?

 

A. Technically if you say it like that, yeah. When I say that I mean that all this time later for me to still be doing this, I wouldn’t even have opened a can of worms at all if they wouldn’t have changed my life. That parole thing was totally changed me to a knock on the door and all of a sudden now you have to report to us. You can’t live with your children. I had to pay $250 for an evaluation. That was supposed to be for Avenel. I don’t know how they even found the —

 

Q. So, are you saying you would have chosen going to trial, potentially going to jail at that time?

 

A. Of course, I’d never want to go to jail. But there may have been another option. Okay, if you’re doing this, Mr. Jenkins, you’re going to be Megan’s Law. You’re going to have parole and you may not be with your children. Okay, well what other options do we have?

 

Is there a lesser charge maybe I can maybe try to go for? It was never offered. But is it possible?

 

Q. [T.J.], if there was no other options. You either went to trial or you took a plea. Are you saying you would not have taken this plea? You would have gone to trial and risk going to jail for five to ten years? If that’s what you’re saying.

 

. . . .

 

A. It’s a yes.

 

THE COURT: All right. Okay and he has difficulty answering that question. The record should reflect that.

 

The trial court’s findings regarding this issue were also equivocal:

Defendant must then show that knowledge of these consequences would have impacted his decision to plead guilty. Now, this particular case is complicated by the fact that this defendant got a great plea agreement in this particular case.

 

. . . .

 

And I realize that the State presents a situation where you know, this defendant was not prejudiced. Anybody in their right mind would have accepted this plea, because of the circumstances of this particular case. And so therefore, if he was aware of this back in 1997, he would have accepted the plea at any rate.

 

While the defendant was really hesitant about whether he would be or would not in his answers to this particular Court because it is a tough issue. But I think the knowledge of that certainly would have impacted on his decision one way or another. And it’s hard, some six to ten years later to judge what the impact would be.

 

Moreover, at the points in defendant’s testimony when he seemed to indicate that he would not have pled guilty if he had been aware of the requirement of community supervision for life, the only adverse consequence of such supervision to which he referred was that it was preventing him from residing with his children. However, any condition of parole, including the parole to which a person sentenced to community supervision for life is subjected, must be reasonable, and administrative remedies are available to challenge any unreasonable condition of parole. See Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 241-42 (2008); Sanchez v. N.J. State Parole Bd., 368 N.J. Super. 181, 187-89 (App. Div. 2004). A parole officer could not reasonably bar defendant from residing with his children simply because he had consensual sex more than ten years ago with a thirteen or fourteen year old female (the indictment alleges that the victim was “age 13 thru 14” when the offense was committed). Therefore, unless there are other circumstances in defendant’s record that are not revealed by the record before us, it would appear that the primary alleged consequence of parole supervision for life to which defendant objects could be remedied administratively.2

Consequently, we conclude that application of the Slater factors, including the absence of a colorable claim of innocence, the existence of a plea bargain that was highly favorable to defendant, the prejudice to the State if it were now required to try the charges against defendant, and defendant’s questionable stated reason for seeking to withdraw his plea, requires a reversal of the order allowing defendant to withdraw his guilty plea.

Accordingly, we affirm the part of the April 7, 2008 order that upheld the amendment of the judgment to add the requirement of community supervision for life. We reverse the part that granted defendant’s motion to withdraw his guilty plea.

 

1 Currently N.J.S.A. 2C:14-2(c)(4) (as amended by L. 1997,

c. 194, § 1).

2 We note that N.J.A.C. 10A:71-6.11(c)(3) provides that a person convicted of a sexual offense that includes as part of the sentence community supervision for life is prohibited from residing with any minor without the prior approval of the assigned parole officer. However, N.J.A.C. 10A:71-6.11(d)(2) provides an exception from this prohibition “[w]hen the minor is in the physical presence of his or her parent.” We do not know whether this exception was intended to apply to a parent’s residence with his or her own children, but even if N.J.A.C. 10A:71-6.11(d)(2) is inapplicable, a prohibition against a parent residing with his own children would not be reasonable in the kind of circumstances presented by this case.

 

April 14, 2009