STATE V. MAURO A-2085-09T3 May 31, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2085-09T3

STATE OF NEW JERSEY, Plaintiff-Respondent, v. CHRISTOPHER J. MAURO, Defendant-Appellant.

Submitted April 6, 2011 - Decided May 31, 2011

Before Judges Cuff and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 09-03-0266.

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

Paula T. Dow, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel; Ms. Blair and Emily Anderson, Special Deputy Attorney General, on the statement in lieu of brief).

PER CURIAM

In this appeal we consider whether there was a basis upon which to conduct a Terry¹ frisk of defendant for weapons and whether the subsequent warrantless search of defendant's vehicle was justified on the basis of exigent circumstances. We conclude that none of the factors the Pena-Flores² Court articulated that justify the warrantless search of a vehicle were present here. We therefore reverse the denial of defendant's suppression motion insofar as the search of defendant's vehicle but affirm the Terry frisk and evidence seized as a result thereof.

Based upon information received from Dispatch that there was a suspicious vehicle on Tyler Road in Dennis Township, Trooper Christopher Neuman proceeded to the area. Dispatch described the vehicle as a white pickup truck with a mattress in the rear of the truck bed. The driver of the vehicle, later identified as defendant Christopher Mauro, was reportedly bobbing his head up and down. At 8:23 a.m., Trooper Neuman located the vehicle stopped for a light at the intersection of Tyler Road and State Highway 47 (Highway 47). When the light changed to green, the vehicle turned left onto Highway 47 and proceeded in a southerly direction. Trooper Neuman followed the vehicle. There were two or three vehicles between his vehicle and the pickup truck, but he was able to observe that the vehicle was traveling slower than other vehicles on the road, at one point crossing the fog line and, at another point, crossing the double yellow line as it negotiated a curve. After approximately one-quarter mile, Trooper Neuman activated his overhead lights, drove around the cars in front of him, and directed defendant to pull over. Mauro abruptly stopped the vehicle, nearly causing the trooper to strike its rear. Mauro pulled the vehicle over to the shoulder and stopped.

Trooper Neuman indicated that traffic on Highway 47 on that day was heavy because it was the morning rush hour. The specific area of the stop was around milepost 18.3 just north of the Dennisville Wawa. The shoulder of the roadway was about the width of one car and its length extended throughout most of Dennis Township. He testified that Highway 47 "has a smaller shoulder" and because he had investigated numerous fatal accidents along Highway 47, he therefore took "more caution in stopping vehicles out there and checking on motorists' aids."

As he approached the vehicle, he observed defendant's head leaning down near the center console. This conduct aroused his suspicion and he concluded that something was going on because "[i]t's not usual that somebody reaches down center and dips their head that far down even to get their license and registration." When he commenced speaking with Mauro, the first thing he noticed was that Mauro appeared nervous, his hands shook, he avoided eye contact, and his nose was red. Because the caller had described the driver as bobbing his head up and down and, due to how Mauro was addressing him, he suspected that Mauro was impaired. He also noticed that Mauro's pupils were constricted and that his face was pale. Mauro was unable to produce a driver's license but provided a driver's license number. At that point, Trooper Neuman decided to remove Mauro from the vehicle to conduct a further investigation and also to remove him from the area where he had earlier observed Mauro reaching. He intended to administer field sobriety tests.

Trooper Neuman escorted Mauro to the front of the vehicle. Mauro kept reaching towards his pockets and, as he did, the trooper noticed that there was a bulge protruding from Mauro's pocket. He asked Mauro what was in his pocket and Mauro told him that he had a penknife in his right front pocket. Trooper Neuman then conducted a protective frisk because he was the only trooper out there and also because he intended to conduct field sobriety tests. During the frisk, he recovered the penknife and, for further safety reasons, conducted a full frisk. He felt another hard object in Mauro's left front pocket. Suspecting that the object could also be a weapon, he removed it and noticed that it was "like a pipe or a plastic tube, and stuck to the end of that plastic tube was a druggist fold consistent with the packaging of [a controlled dangerous substance], and there was also white powdery residue . . . within that object."

Trooper Neuman placed Mauro under arrest, handcuffed him, and conducted a search incident to arrest during which he discovered additional druggist folds in Mauro's wallet. He then escorted him to the troop vehicle and secured him in the rear of the vehicle from which defendant could not alight because of child safety locks on the doors.

Once defendant was secured in the troop car, Trooper Neuman returned to Mauro's vehicle and conducted a full search of its interior, uncovering suspected narcotics, paraphernalia and cash. When asked on direct why he searched the vehicle following the arrest, the trooper responded: "Well, he had just used drugs so I went in the vehicle to find out if there were anymore drugs and it's - the roadway there is -" Defense counsel interposed an objection, and once the court overruled the objection, he again attempted to respond to the question why he undertook the search of the vehicle:

Yes. There were multiple factors. It wasn't - the totality of the DWI arrest which I believed he consumed the narcotics. I don't know if I can answer it that way but I believe he consumed narcotics and that he was under the influence with the white powdery substance, the physical observations, and also the -

Defense counsel interrupted with another objection, which the court once again overruled. Trooper Neuman then testified: "I searched the vehicle after Mr. Mauro was arrested. There were multiple factors why I did that. Number one - " For yet a third time, defense counsel objected to the answer, and the following exchange occurred:

THE COURT: So . . . the question initially was why did he search the vehicle, and in five different ways he's started that sentence and we'll try to get through to the answer. Now if he can answer the question why did he search the vehicle -

[ASSISTANT PROSECUTOR]: And I started out trying to do it that way but then the objection is it's too general. So then when I ask it very specifically to help it along, maybe take some concerns counsel has with the narrative, then the objection is it's too leading. It has to be one or the other. I'll just try it this way, Judge. I'm just going to ask it in the general form but the -

BY [THE ASSISTANT PROSECUTOR]:

Q. Can you tell us what facts you considered in determining that you were going to search this motor vehicle on October 15th, 2008?

[DEFENSE COUNSEL]: I just would like to say for the record that is a great question.

THE COURT: Okay, then, [O]fficer, would you answer the question, please?

A. The facts of why I searched the vehicle[?]

Q. Yes, just the facts.

A. Okay. The facts were the use of narcotics, the DWI arrest, the CDS arrest, the fact that the vehicle was not his, and that it would have to be most likely it was going to - if it was going to be left on the roadway it would be a hazard so it had to be removed, and -

Trooper Neuman was then asked whether the vehicle could have been left on the roadway. The trooper responded:

Based upon the traffic that morning and that roadway[,] with my training and experience, I do - he was being arrested so it was going to be a larger amount of time for processing, at least, so I would have towed that vehicle or he would have to have somebody come get it at that - it couldn't stay there.

. . . .

It couldn't stay there. That was right near . . . the Wawa, cars coming in and out, tractor trailers, like just decide they're going to pull over and park on the shoulder[,] which they're not supposed to do[,] and it was also in front - I believe it was in front of a business.

. . . .

The front of a business.

Under cross-examination, Trooper Neuman expressed the opinion that there was "higher crime" in that area of Dennisville than in "some of the other areas in the Woodbine [S]tation area[,]" but did not testify that the area was one of "high crime." He testified that at the time of the stop: (1) there was not a lot of foot traffic in the area; (2) it was daylight; (4) he had no visibility problems; (3) there was heavy vehicular traffic; (5) no one approached the scene after he stopped Mauro's vehicle; (6) there may have been people working in the area but he did not recall whether anyone was watching; (7) no one approached him to advise that he or she was a friend of defendant or to make inquiries about what was going on; (8) there did not appear to him to be any other vehicle following defendant's vehicle; (9) the Woodbine Station Barracks was less than six miles away; and (10) additional troopers arrived either before or during the search of defendant's vehicle, as well as after he completed the search.

The motion judge found that the Terry frisk was justified based upon defendant's demeanor while standing outside of the vehicle and his admission that the bulge protruding from his pocket was a penknife, and given the recovery of the penknife, a further frisk to ensure there were no other weapons on defendant was justified. Turning to the search of the vehicle, the motion judge found that it was justified under the automobile exception to the warrant requirement. She found that the stop had been unexpected and unplanned and that there was probable cause to believe that drugs were in the car based upon the seizure of the suspected narcotics from defendant's pocket and the officer's observation of redness under his nose as defendant exited the vehicle. Finally, the judge concluded that exigent circumstances existed:

In this instance the motor vehicle stop occurred on Route 47 in the morning. It was described as being an area that had at that time of day early, heavy traffic. It was also located, according to the officer's testimony, hear a Wawa store that had truck traffic entering and going about, but also in his description he would indicate that there was not a lot of foot traffic, there were some marshes. There were no other person exiting or approaching the vehicle near the side of the road, however, there was heavy traffic which caused the officer to be concerned for his safety and the safety of Mr. Mauro.

It would also appear that again, that at the time officer - Trooper Neuman was patrolling - conducting the motor vehicle stop alone, and while the defendant had - was secured at the time of the search of the vehicle, this was a company vehicle which again was - remained readily removable and accessible to third parties. Under the automobile exception, the warrantless search is justified because it embodies an assurance that evidence is not otherwise removed or destroyed. In addition, it would appear that the precedent would have established a principle that allows the police to conduct an immediate search at the scene if there's probable cause and to not be delayed by seizing and impounding the vehicle pending review of the probable cause. That's State v. Alston.

The judge also concluded the search of the duffle bag was permissible because defendant failed to produce any documents when Trooper Neuman first approached the vehicle and "[i]nasmuch as this was a company vehicle and the duffle bag appeared to be a personal item, it is not in this instance inconceivable that the defendant's motor vehicle items could have been located within the duffle bag."

On appeal defendant raises the following point for our consideration:

POINT I

BECAUSE NEUMAN LACKED THE REQUISITE REASONABLE SUSPICION THAT MR. MAURO WAS ARMED AND DANGEROUS, THE PAT-DOWN WAS NOT JUSTIFIED UNDER TERRY v. OHIO. MOREOVER, THE WARRANTLESS SEARCH OF THE TRUCK WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION. CONSEQUENTLY, THE FRUITS OF THE SEARCHES SHOULD HAVE BEEN SUPPRESSED.

A. THE PAT-DOWN EXCEEDED THE SCOPE OF THE REQUIREMENTS OF TERRY v. OHIO.

B. THE WARRANTLESS AUTOMOBILE SEARCH WAS NOT JUSTIFIABLE UNDER THE AUTOMOBILE EXCEPTION, AND, THUS, THE FRUITS OF THAT UNCONSTITUTIONAL SEARCH SHOULD HAVE BEEN SUPPRESSED.

At the outset, we quickly dispense with defendant's contention that there was no justification for the Terry frisk and the frisk exceeded its permissible scope. We conclude this claim is without sufficient merit to warrant discussion in a written opinion and affirm substantially for the reasons expressed by the motion judge in her oral opinion. R. 2:11-3(e)(2).

Turning to the search of the vehicle, warrantless searches are presumed invalid, and to overcome this presumption, the State bears the burden of establishing that the search was justified under one of the recognized exceptions to the warrant requirement. State v. Patino, 83 N.J. 1, 7 (1980). One such exception is the automobile exception. "Under federal constitutional law, a warrantless search of a motor vehicle pursuant to the automobile exception is permissible so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Pena-Flores, supra, 198 N.J. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S. Ct. 2485, 2487, 135 L. Ed.2d 1031, 1036 (1996)). The rationale underlying this exception is twofold: "(1) the ready mobility of the vehicle and the inherent potential for loss or destruction of evidence before a warrant is obtained; and (2) the decreased expectation of privacy in motor vehicles, which are subject to extensive government regulation." Ibid.

The critical factor under federal jurisdiction is the mobility of the automobile. Our Supreme Court, however, has interpreted art. I, ¶ 7 of our State Constitution as affording greater protection against unreasonable searches and seizures than the federal Constitution affords. State v. Pierce, 136 N.J. 184, 208-09 (1994). Thus, in Pena-Flores, our Court reaffirmed its holding in State v. Cooke, 163 N.J. 657, 667-68 (2000), that the warrantless search of an automobile is "permissible where (1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant.” Pena-Flores, supra, 198 N.J. at 28.

Here, the first two requirements were satisfied. Although Trooper Neuman was dispatched to the area where the white pickup truck was reportedly observed under suspicious circumstances, there was no plan to necessarily stop the vehicle. However, upon Trooper Neuman's arrival in the area, the manner in which the vehicle was being operated, namely, crossing the fog line and the double yellow lines, and traveling slower than other vehicles on the road, justified the stop of the vehicle for further investigation. Defendant's actions during the stop, together with Trooper Neuman's observation of redness around his nose and constricted pupils, led the officer to believe that defendant had just used drugs. These facts established the requisite probable cause to believe that defendant's vehicle contained drugs. Thus, the critical inquiry here is whether exigent circumstances existed rendering it "impracticable to obtain a warrant." Pena-Flores, supra, 198 N.J. at 28.

The determination of exigent circumstances is fact- sensitive and resolved on a case-by-case basis with consideration of the totality of the circumstances. Ibid. Central to the analysis is the officer's safety and the preservation of evidence. Id. at 29. The motion judge found that exigent circumstances existed based upon the fact that Trooper Neuman was conducting the motor vehicle stop alone and defendant's vehicle was a company car that "remained readily removable and accessible to third parries." The State also argued that the exigency was created by the location of the vehicle along the side of a busy two-lane highway.

These factors fall short of establishing the type of exigency that justified the warrantless search of defendant's vehicle. First, the stop occurred in broad daylight during morning rush hour, a time when courts are open for business. Second, although Trooper Neuman was alone when the stop was initiated, the Woodbine Station was less than six miles away and backup was readily available. In response to the question whether backup arrived after defendant was arrested and secured in the back of the troop car but before he searched the truck, Trooper Neuman stated: "As much as I recall, yes, that's - it was right after, you know, it might have been either during the search that the other trooper came out there" and "I know that eventually two other troopers came but that was after he was - everything was already done." In total, in addition to Trooper Neuman, four other troopers arrived at the scene.

There were other factors that militated against a finding of exigency. Nothing in the record indicates that the traveled portion of the roadway was blocked because of events unfolding on the shoulder. Trooper Neuman acknowledged that defendant's vehicle could have been towed. Nor was the location of the stop in a high crime area. Trooper Neuman's description of the area as having "higher crime" than other locations in the Woodbine Station area is not the equivalent of describing the location as a "high crime" area. Further, there were no confederates who knew of the location of the vehicle and who were thus positioned to remove its contents before its removal. The fact that the vehicle was a company car did not make it more readily subject to removal by third persons. There was no indication that anyone from the company knew that the vehicle had been stopped at the time Trooper Neuman determined that he would search the vehicle. See, e.g., State v. Ireland, 375 N.J. Super. 100, 119 (App. Div. 2005) (noting that one of the exigent circumstances was the fact that the defendant's passenger, who was at liberty, was aware that the vehicle had been stopped and that the defendant had been arrested for driving while under the influence). Finally, defendant was handcuffed and secured in the troop vehicle, which was equipped with child safety locks. Consequently, defendant had no opportunity to gain access to any of the contents within the vehicle.

In short, the State failed to prove that Trooper Neuman did not have time to call for a warrant without compromising his safety and the preservation of evidence. He could have called for a warrant while awaiting the arrival of backup and defendant was locked in the back of his patrol car. Alternatively, he could have sought the warrant after the backup officers arrived. The Court, in Pena-Flores, addressed a similar situation in the companion appeal of the defendant Chares Fuller, who was pulled over for a traffic violation. The Court determined that the officer's search for evidence of the ownership of the vehicle extended into impermissible areas:

Here, Clemens pulled Fuller over for a traffic violation in broad daylight on a city street at 1:15 in the afternoon. Fuller was subsequently arrested and secured inside the cruiser, and thus had no opportunity to gain access to the vehicle or anything it contained. There is nothing in the record to suggest that Fuller had cohorts who might have come on the scene. Clemens was, at all times, assisted by one to three other troopers. The vehicle could have been impounded or one officer could have remained with it while a warrant was sought by telephone or in person. There was simply no urgent, immediate need for the officers to conduct a full search of the automobile.

[Pena-Flores, supra, 198 N.J. at 32 (citing State v. Dunlap, 185 N.J. 543, 550 (2006)).]

We note that the record here discloses that defendant was unable to present a driver's license. Ordinarily, under such circumstances, a police officer may search the interior of a vehicle in those locations where evidence of vehicle ownership and driving credentials may be found. Id. at 31. However, there is nothing in the record to indicate that defendant was unable to present documents related to the vehicle. Ibid. Thus, the search of the interior, even if to confirm defendant's representation that he did not have a driver's license, should have been confined to areas where a driver's license would be likely located. Ibid.Such locations would not ordinarily include the cigarette box from which drug paraphernalia was seized, the pill container from which six packages of suspected heroin were seized, or the taped box containing the $23,000 in cash. We therefore conclude that the absence of exigent circumstances "vitiat[ed] invocation of the automobile exception." Id. at 32. Consequently, the drug paraphernalia, suspected heroin and cash seized from the vehicle should have been suppressed.

We reverse that part of the motion judge's decision denying defendant's motion to suppress the items seized from the vehicle but otherwise affirm the denial of the motion in all other respects.

Affirmed in part, reversed in part.

1 Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed.2d 889 (1968).

2 State v. Pena-Flores, 198 N.J. 6 (2009).

STATE OF NEW JERSEY v. D.K. A-1818-09T2 June 1, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1818-09T2

STATE OF NEW JERSEY, Plaintiff-Respondent, v. D.K., Defendant-Appellant.

Submitted March 23, 2011 - Decided June 1, 2011

Before Judges Cuff and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-09-1272.

Thomas J. Buck, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

In this appeal of defendant's conviction for the sexual abuse of his stepson, B.D., we reverse and remand for a new trial due to the judge's admission of photographs of defendant's stepdaughter, C.D. The State was permitted to use these so-called "distasteful" photographs to challenge the credibility of defendant's testimony that he had a good parental relationship with his stepdaughter and never sexually abused her. Because the judge erred in admitting the photographs due to their slim nexus to the charges in question and their potential for prejudice -- an error exacerbated by the lack of cautionary instructions for the jury -- we remand for a new trial.

I

In 2005, defendant was indicted and charged in a multi-count indictment with the sexual abuse of A.D. and B.D. As to the former, defendant was charged with: second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(3) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three); and third-degree official misconduct, N.J.S.A.2C:30-2 (count four). And, as to B.D., defendant's stepson, he was charged with: first-degree aggravated sexual assault,N.J.S.A. 2C:14-2a (count five); second-degree sexual assault, N.J.S.A. 2C:14-2c (count six); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count seven); first-degree endangering the welfare of a child,N.J.S.A. 2C:24-4b(3) (count eight); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4b(4) (count nine).

Counts seven, eight, and nine were dismissed prior to trial. In July 2006, the remaining six counts, involving both alleged victims, were the subject of a single trial. The jury returned a guilty verdict on all the charges pertaining to A.D. (counts one through four), but was unable to reach a verdict on the remainder. In December 2006, defendant was retried and found guilty on the charges pertaining to B.D. (counts five and six). Defendant was sentenced to an aggregate five-year prison term on counts one through four, and a consecutive aggregate twelve-year prison term, with a six-year period of parole ineligibility, on counts five and six.

We reversed, holding that the charges should have been severed because the alleged offenses involving B.D. and those involving A.D. were different in many respects and also were alleged to have occurred eight years apart. For these and other reasons, we remanded for new, separate trials. State v. D.K., Nos. A-3688-06 and A-5182-06 (App. Div. Aug. 15, 2008), certif. denied, 196 N.J. 601 (2008).

Defendant was retried on the charges pertaining to B.D. in June 2009. The jury found him guilty of first-degree aggravated sexual assault (count five) and second-degree sexual assault (count six); on the former, defendant was sentenced to a twelve-year prison term with a six-year period of parole ineligibility, and on the latter, the judge imposed a concurrent seven-year prison term with a three-year period of parole ineligibility. Defendant later pled guilty to counts one and four, offenses relating to A.D., and was sentenced to a concurrent, aggregate six-year prison term.

II

Defendant appealed, presenting the following arguments with respect to his trial on the charges pertaining to B.D. and the sentence imposed as a result:

I. THE ADMISSION OF INAPPROPRIATE PHOTO-GRAPHS DEFENDANT TOOK OF HIS DAUGHTER, COUP-LED WITH THE COURT'S FAILURE TO PROVIDE A LIMITING INSTRUCTION ON THIS EVIDENCE, VIOLATED N.J.R.E.404(b) AND DEPRIVED DEFEN-DANT OF HIS RIGHT TO A FAIR TRIAL.

II. THE COURT'S JURY INSTRUCTION REGARDING B.D.'S ALLEGATION THAT DEFENDANT HAD SEX-UALLY ABUSED HIS DAUGHTER UNDERMINED THE DEFENSE BY FAILING TO EXPLAIN HOW B.D.'S ALLEGATION WAS RELEVANT TO THE DEFENSE THEORY OF THE CASE (Not Raised Below).

III. THE PROSECUTOR'S IMPROPER INTRODUCTION OF CHARACTER EVIDENCE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL.

IV. THE TRIAL COURT'S DECISION TO BAR THE DEFENSE FROM IMPEACHING THE VICTIM WITH HIS COURT MARTIAL WAS ERROR REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS.

V. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A TWELVE-YEAR TERM ON HIS FIRST-DEGREE AGGRAVATED SEXUAL AS-SAULT CONVICTION BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

We find insufficient merit in Points III and IV¹ to warrant discussion in a written opinion. R. 2:11-3(e)(2). Because we conclude that the admission of the photographs referred to in Point I requires reversal, we need not address the issues raised in Points II and V.

III

In Point I, defendant argues he was deprived of a fair trial on the charges that he sexually abused his stepson, B.D., because of the State's use of photographs he took of his stepdaughter, C.D. In explaining why we agree with defendant's argument that he is entitled to a new trial, we are required to explain at some length the relevant testimony and consider the judge's earlier rulings, by which he barred the use of the photographs, and the circumstances that led to his ultimate determination to permit their use.

A

The evidence reveals that defendant married B.D.'s mother and lived with B.D. from the time he was eleven until he turned eighteen years old. Also living in the home were B.D.'s older sister, C.D., and younger brother, S.D.

B.D. testified about an event that occurred in or about 1994 when he was fourteen years old. He explained how, in attempting to show B.D. how to put on a condom -- because his mother was too embarrassed to explain -- defendant masturbated B.D., performed oral sex on him, and then compelled B.D. to reciprocate. B.D. testified to additional similar circumstances on later occasions. He also testified that defendant took nude photographs of him.

According to B.D., the sexual abuse stopped in 1997, when he was seventeen. He continued to live in the home with defendant, his mother, and his siblings until, after a disagreement approximately one year later, defendant told him to move out. B.D. enlisted in the military but continued to have contact with defendant. B.D. also moved back into the home with defendant and his mother for several months following his discharge from the military.

In light of B.D.'s delay in reporting the allegations of abuse to law enforcement authorities until June 2005, the assistant prosecutor elicited testimony from B.D. as to when he first confided in others as to the alleged sexual abuse. B.D. testified that in 1999 he told his late sister, C.D.,² and in either 1999 or 2000, he told his girlfriend about the abuse.

When cross-examined about the veracity of the charges, B.D. acknowledged he never told the police investigator in 2005 that he had confided in C.D. about the alleged sexual abuse. Defense counsel also demonstrated through cross-examination that B.D. did not report his allegations to law enforcement authorities for many years despite the fact that his younger brother, S.D., remained in defendant's home and despite the fact that a young nephew -- the late C.D.'s son -- also resided there periodically starting in 2001. Instead, it was not until 2005 that B.D. advised police about the abuse.

In further challenging B.D.'s credibility, defense counsel asked B.D. whether it was true that "the first thing you told [the police investigator] was not that you were molested by [defendant], but that your sister was molested by [defendant]"; B.D. agreed that was true. When B.D. asserted that he complained to the investigator about "both of us" -- meaning he and C.D. -- the following cross-examination occurred:

Q. . . . The interview [with the police investigator] starts out [with your allegation that] it's your sister that's molested by [defendant], correct?

A. I believe so.

Q. And then the interview changes, it goes from your sister being molested to -- yeah, I was molested, too, correct?

A. Well, that's not how it was put, but yes.

Q. Well, if I showed you your statement and told you that the first 10 pages of your statement you don't say anything about you being molested, that it's your sister being molested, would that surprise you?

A. No, it wouldn't.

Q. So it's safe to say the first thing when you go to the Prosecutor's Office, when you speak with [the investigator], you tell them it's my sister that was molested, correct?

A. Correct.

Q. And then it evolves into I'm the one who was molested?

A. Correct.

Q. So at first at least when you came to the Prosecutor's Office the information that you were bringing them was about your sister, correct?

A. Yes.

Q. And that's what you told them, my sister was molested by [defendant]?

A. Correct.

Q. [By] [t]hat time your sister was dead, correct?

A. Yes, she was.

Q. And [the] Prosecutor's Office couldn't do anything about that, correct?

A. Correct.

Q. So that's when you went into by the way, I was molested, too?

A. But that's not the reason why. The reason is it's the truth.

In response, defendant testified at trial, explaining, among other things, that his relationship with B.D. was difficult but insisting there was no abuse, sexual or otherwise. Defendant's wife also testified that defendant had a conflicted relationship with B.D., generated by B.D.'s alcohol and marijuana use, but denied B.D.'s claims, including the occurrence of the conversation about condom usage that B.D. said preceded the first alleged act of sexual abuse. S.D. testified that he never witnessed any form of abuse by defendant against B.D. and that B.D. never mentioned he had been sexually abused. And C.D.'s husband testified that his son resided at times with defendant after C.D.'s death and neither he nor his son had any concerns.

B

The record reveals that from the outset the State had a keen interest in utilizing the photographs taken by defendant of both A.D. and C.D. Because the use of photographs of A.D. during the first trial of the offenses relating to B.D. led to our reversal of defendant's prior conviction, at earlier phases of the second trial the trial judge correctly rebuffed the State's efforts to use those photographs. Barred from using the photographs of A.D., the State attempted to utilize the photographs of C.D.

In one instance during B.D.'s testimony, the judge heard lengthy argument out of the presence of the jury, during which the prosecutor urged the right to use the photographs of C.D. to rebut the defense's attack on the credibility of B.D.'s testimony that defendant took nude photographs of him. And, at another stage of B.D.'s examination, the State urged the use of the photographs of C.D. as a response to defense counsel's suggestion, through cross-examination, that B.D.'s statements to the police investigator regarding defendant's abuse of C.D. was false. The judge examined the photographs of C.D. and made the following observations:

THE COURT: . . . I have looked at those five or six photographs and they fall far short of any clear and convincing proof that there was a sexual, you know, assault on [C.D.].

[THE ASSISTANT PROSECUTOR]: Well, they cer-tainly show that he was engaging in child pornography[³] with her, Judge, when some of them are topless.

THE COURT: I don't agree with you.

[THE ASSISTANT PROSECUTOR]: These are very similar to the pictures that he took of [A.D.].

THE COURT: That is not true.

[THE ASSISTANT PROSECUTOR]: He took photos like that of [A.D.].

THE COURT: I've made a ruling [as to] why [the photographs of A.D.] fell under the definition of pornographic and these pictures [of C.D.] do not fall into that category. There are two that are arguable -- okay? -- but they surely don't demon-strate a sexual assault, and others are actually inconsistent with what you offer them for and those are the ones where she is smiling and, you know, in the arms of her stepfather.

. . . .

. . . And you can, if you wish to, draw the inference that she may have been nude when . . . those two photographs were taken, but that's not proven by clear and convinc-ing evidence, and we don't know much about the photographs, frankly, unless someone who was present is willing to testify about them, so there's a great difference. And the most important thing is that we're talk-ing about another matter. We're not talking about this matter. So in order for those photographs to get admitted into this matter they must prove some relevant fact by clear and convincing evidence and their probative value must outweigh any prejudicial impact and you really haven't made that showing, so I'm not going to allow the photographs to be admitted into evidence. And a few of those photographs, frankly, are inconsistent with your position entirely because they show a smiling [C.D.] with her stepfather. So, you know, the photos at the very best will cause speculation, at the very worst they may be prejudicial, but I think we need to stick with this case.[⁴]

Following this, the assistant prosecutor sought to recall B.D.'s girlfriend, so she might be asked to further amplify the reasons for her fear of defendant.⁵ It was represented that, if recalled, B.D.'s girlfriend would testify that on one occasion she saw defendant inappropriately touch C.D.'s leg. The judge prohibited testimony about this alleged inappropriate touching and again reiterated the photographs of C.D. could not be used because "we're not here to address whether [C.D.] was abused, but surely there's no clear and convincing evidence of that even if it were true and, therefore, what you're really offering is not very probative at all in terms of the real question here before this [c]ourt . . . ."

C

It was not until defendant testified that the issue again arose. Toward the conclusion of his direct examination, defendant asserted he had a good parental relationship with C.D. and never touched her "in a sexual way." When direct examination was concluded a few moments later, the assistant prosecutor sought the right to use the photographs of C.D. "to impeach [defendant's] credibility that he had this great relationship with [C.D.], that it was father/daughter like and that . . . there was never a sexual relationship with [C.D.]."

Defense counsel argued the so-called topless photographs⁶ could not reasonably lead to an inference that defendant sexually abused C.D., but the judge concluded that by testifying he did not sexually abuse C.D., defendant opened the door to the use of the photographs to impeach his credibility:

THE COURT: . . . I believe that the State can argue that those photographs can lead to the inference that there was some type of a sexual relationship or dimension to that relationship based upon what apparently are nude photos. . . .

. . . .

The bottom line is [defense counsel] injected on two separate occasions after knowing [from earlier rulings] that I was . . . inclined not to go there and now I think that there is an issue of [defen-dant's] credibility, so I'm going to allow the photographs.

. . . .

I didn't think they were admissible [on the earlier occasion]. Now I think they're admissible for the limited purpose of addressing [defendant's] credibility.

The prosecutor then cross-examined defendant regarding the photographs. He acknowledged he took the photographs and testified his wife helped pose C.D. Defendant's wife was recalled to corroborate this; she added that C.D. was not nude at the time and was between eighteen and nineteen years old when the photographs were taken.

D

In this appeal, defendant argues that the use of the C.D. photographs violated N.J.R.E. 404(b) and the Cofield test.⁷The State concedes N.J.R.E. 404(b) has no application here, acknowledging the photographs "may reflect distasteful . . . [or] unseemly behavior" and may reflect "activity that most fathers (or even step-fathers) would not pursue, but the photographs do not reflect criminally or civilly wrong behavior." The State argues instead that the photographs were rendered admissible by N.J.R.E.405(b), which permits "evidence of specific instances of conduct" when "character or a trait of character of a person is an essential element of a charge, claim, or defense." The State asserts that defendant laid the groundwork for the use of the photographs pursuant to N.J.R.E. 405(b). In support of this new contention, the State argues that defendant attempted to demonstrate he was a good parent in responding to the claim that he sexually abused B.D. and that, in responding to evidence in support of this alleged "good parent trait," the State was entitled to show the contrary. Stated another way, although the State never urged N.J.R.E. 405(b) at trial as a basis for the admission of the photographs, the State now argues that photographs of C.D. posed in questionable taste -- concededly insufficient to support admission pursuant to N.J.R.E. 404(b) -- were admissible to defeat defendant's contention that he was a good parent.

Any way the argument may be restated demonstrates how attenuated these photographs were from the proofs relevant to the charged offenses. We agree with the State that N.J.R.E. 404(b) did not authorize admission of the photographs, and we reject the State's argument that N.J.R.E. 405(b) may support their admission because the so-called "good parent trait" is not an "essential element" of the charges the jury was required to decide. See State v. Baluch, 341 N.J. Super. 141, 194 (App. Div.),certif. denied, 170 N.J. 89 (2001); State v. Steensen, 35 N.J. Super. 103, 106-07 (App. Div. 1955).

The judge's view of the matter was closer to the mark. He repeatedly, and correctly, rejected admission of the photographs for any reason and only ultimately authorized their use to impeach defendant's credibility when defendant testified he had never sexually abused C.D. The judge was not mistaken when he determined that defendant opened the door to an attack on his credibility on that point but we conclude that the use of the photographs remained improper because their limited probative value on that point was greatly overridden by the photograph's potential for prejudice.

The judge later explained his application of N.J.R.E. 403 in determining the admissibility of the photographs in the following way:

I'm satisfied that having raised on two separate occasions the relationship between [C.D.] and her stepfather, the defendant, and trying to impeach [B.D.'s] credibility through that approach that the photographs have some probative value as to the rela-tionship and, frankly, I don't find them to be all that prejudicial in light of the cir-cumstances under which they're offered and the testimony that relates to them. . . .

We understand from this explanation that the judge permitted the use of this evidence for another reason. That is, in permitting the use of this evidence, the judge appears to have relied on the fact that defendant had challenged B.D.'s credibility by suggesting B.D. falsified his claim to police that defendant sexually abused C.D. and, therefore, could be understood as having also falsified his charge that defendant sexually abused him. By revealing the photographs to the jury, the State could then argue -- as we understand the judge's decision -- that B.D. was truthful because an inference could be drawn from the photographs that defendant sexually abused C.D. and, therefore, B.D. was truthful when he told that to the police investigator. And, if the jury drew that conclusion, then it might also conclude that B.D. was truthful when he later asserted that defendant sexually abused him.

This explanation suggests a convoluted and very slim nexus between the photographs and what the State was attempting to prove. Although trial judges have considerable discretion when engaging in this balancing process, State v. Nelson, 173 N.J. 417, 470 (2002), we are not convinced that the application of N.J.R.E. 403 properly leads to the conclusion that the limited relevance of this evidence substantially outweighed the risk of undue prejudice. This volatile evidence had the potential of not only prejudicing defendant but -- because it bore little relevance to the question of whether defendant sexually abused B.D. -- this evidence had the capacity to "mislead[] the jury." Ibid. See, e.g., State v. Marshall, 123 N.J. 1, 105 (1991),cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed.2d 694 (1993); State v. Coruzzi,189 N.J. Super. 273, 304-08 (App. Div.),certif. denied, 94 N.J. 531 (1983).

This potential for prejudice was exponentially increased when the judge failed to instruct the jury about the questionable evidence's use. Without guidance, the jury was free to speculate about the photographs and defendant's relationship to C.D. -- a relationship having no particular relevance to the charged offenses -- when the issues for the jury concerned certain alleged interactions between defendant and B.D.

The judge's ultimate determination to permit the use of the photographs also conflicted with his earlier sound rulings. When the State previously attempted to gain admission of the photographs, the judge recognized their slim probative value was substantially outweighed by what the Court in State v. G.S., 145 N.J. 460, 468 (1996), referred to as the evidence's "prepotency of prejudice." Even though defendant did indeed open the door to a challenge to his credibility regarding his relationship with C.D. and even though defendant's credibility was a material issue, the nexus between the photographs and defendant's credibility that the State sought to demonstrate through their admission -- that defendant falsely asserted he never sexually abused C.D. or falsely asserted he had a sound parental relationship with C.D. -- is so thinly suggested by this evidence that the photographs' prejudicial effect greatly outweighed their use. In short, by admitting the photographs, the judge allowed the jury to speculate and to draw a conclusion that a man who takes photographs of scantily-clad, young adult females likely sexually abuses the subjects of his photographs. We conclude that a proper application of N.J.R.E. 403 required the exclusion of the photographs.

E

Even if we might assume the judge did not abuse his discretion in admitting the photographs, the nature of that evidence compelled the need for clear and specific jury instructions. Although it is true that defendant did not seek instructions about the photographs,⁸ the potential for improper jury speculation as to their significance was far too great to leave it to the jurors to sort out on their own. The Supreme Court has held that in such circumstances, where the trial judge has concluded that application of the evidence rules permits admission of other-crimes evidence, the judge "must specifically instruct the jury about that evidence's limited relevance." G.S., supra, 145 N.J. at 469. Here, as the State has rightfully acknowledged, the photographs were not evidence of other crimes, but as we must also conclude, those photographs carried the same potential prejudice carried by other-crimes evidence without the same level of relevancy -- all the more reason the judge was required to instruct the jury about what it could and could not do with that evidence.

To summarize, we conclude that the photographs of C.D. had such an attenuated nexus to the charged offenses that an appropriate comparison of their relevance with their potential for prejudice and for misleading the jury warranted exclusion of the photographs. That error was further exacerbated by the judge's failure to instruct the jury as to the photographs' limited use, leaving the jury to speculate about their weight and application. Considering that the evidence regarding the charged offenses consisted mainly of the testimony of B.D. and defendant, the potentially incendiary nature of the photographs could have meant all the difference in this matter. We conclude that the State's use of the photographs deprived defendant of a fair trial.

Reversed and remanded for a new trial.

1Defendant failed to demonstrate that B.D.'s discharge from the military was based on conduct falling within the parameters of N.J.R.E. 609. We rejected the same argument in defendant's first appeal.

2C.D. was murdered in 2001.

3The State acknowledges in its appeal brief that C.D. was over the age of eighteen when the photographs were taken.

4Although not included in the appendices, we have obtained copies of the photographs from counsel and find no cause to disagree or contradict the trial judge's accurate assessment of what they depict.

5For fresh complaint purposes, B.D.'s girlfriend was permitted to testify about B.D.'s statements to her on an earlier occasion that he was sexually abused by defendant. To explain why she did not report what B.D. had told her, B.D.'s girlfriend explained she was afraid of defendant because "he was controlling, he was a cop and [she] didn't think anybody would believe [her]." The assistant prosecutor claimed later at trial that the scope of this answer was limited because of concerns that the witness might open the door to an impermissible area, i.e., what the witness claimed to know about defendant's alleged abuse of C.D.

6Other conflicting evidence was later adduced as to whether C.D. was topless when she was photographed at that time. Even if it was assumed C.D. was topless during the photo session, the photographs do not depict her topless.

7State v. Cofield, 127 N.J. 328 (1992).

8Although defendant did not make a specific request or object when no instruction was given, we conclude that the absence of clear and specific instructions as to the limited use that the jury could make of the photographs was capable of producing an unjust result. R. 2:10-2; see also State v. Burns, 192 N.J. 312, 341 (2007). It has been well established that errors in a jury charge in a criminal case on material issues are viewed as "poor candidates for rehabilitation under the harmless error philosophy," State v. Vick, 117 N.J. 288, 289 (1989), and are presumed to constitute reversible error,State v. Jordan, 147 N.J. 409, 422 (1997).

IN THE MATTER OF THE APPLICATION OF M.G. FOR THE EXPUNGEMENT OF RECORDS A-1657-10T3 June 1, 2011

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1657-10T3

IN THE MATTER OF THE APPLICATION

OF M.G. FOR THE EXPUNGEMENT OF

RECORDS.

________________________________

Argued: May 11, 2011 – Decided: June 1, 2011

Before Judges Axelrad and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. M-306-10.

Allan Marain argued the cause for appellant M.G.

Brian D. Gillet argued the cause for respondent State of New Jersey (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Mr. Gillet, Assistant Prosecutor, of counsel; Jason Seidman, on the brief).

PER CURIAM

Defendant appeals from an October 21, 2010 order of the Chancery Division denying his application for expungement of records pursuant to N.J.S.A. 2C:52-l to -32. We affirm.

Defendant was charged in fourteen counts of a sixteen count indictment, with other individuals, of third-degree conspiracy, six counts of third-degree burglary, five counts of third-degree theft by unlawful taking, fourth-degree theft by unlawful taking, and third-degree fencing/dealing in stolen property, for conduct occurring at the Rutgers University Livingston College campus between November 15, 1991 and February 11, 1992, when he was nineteen years old. On February 4, l993, defendant entered negotiated guilty pleas to four counts of third-degree burglary, N.J.S.A. 2C:18-2, occurring on November l5, December 5, 8, and 12, 1991; two counts of third-degree theft by unlawful taking, N.J.S.A. 2C:20-3, occurring on December 8 and l2, 199l; and one count of fourth-degree theft by unlawful taking, N.J.S.A. 2C:20-3, occurring on December 5, 1991. Defendant was sentenced on all charges on April 5, 1993. He received a five-year probationary sentence and 200 hours of community service, and was directed to make restitution in the amount of $1,664.23. The other counts of the indictment pertaining to defendant were dismissed. Other than these charges, defendant had an unblemished record.

Defendant apparently completed his probationary sentence successfully and was neither arrested nor convicted of any offense or crime since that time. On June 9, 2010, defendant filed a petition to expunge his arrest and conviction for burglary and theft. Judge Ciuffani denied the petition, relying on In re Ross, 400 N.J. Super. 117, 122 (App. Div. 2008), and concluding the applicable statute, N.J.S.A. 2C:52-2(a), "preclude[s] expungement of a crime committed on a subsequent occasion regardless of whether the conviction date was the same as the conviction date for a crime committed on an earlier occasion." This appeal ensued.

On appeal, defendant urges that the "one-night spree" doctrine of In re Patrick Fontana, 146 N.J. Super. 264, 266-67 (App. Div. l976), survives Ross. In Fontana, we held that numerous crimes committed by the defendant over a one-week period contained in six indictments but pled to on the same day constituted "a conviction" for purposes of the expungement statute then in effect.¹ Ibid. We permitted the expungement of the multiple offenses under the circumstances of the case because we viewed the criminal conduct at issue "as akin to a 'one night spree' which has generally received special consideration in sentencing[.]" Id. at 267 (citation omitted).

In support, defendant cites to dicta in State v. A.N.J., 98 N.J. 421, 427 n.3 (1984), in which the Court stated "[w]e need not cast doubt upon the view that a 'one-night spree' could still constitute a one-time offense[,]" citing Fontana, supra, 146 N.J. Super. at 267. Defendant thus argues he qualifies for expungement and urges us to assume original jurisdiction, R. 2:10-5. He emphasizes that his conduct was all part of the same indictment, occurred over a short span of twenty-seven days, involved a common theme of burglary and theft offenses, and was directed at the same victim - Rutgers University.

We are not persuaded by defendant's arguments. As noted in Ross, supra, 400 N.J. Super. at 120-22, the expungement statute was amended in 1979, subsequent to Fontana, to provide, in pertinent part:

Indictable Offenses. In all cases, except as herein provided, wherein a person has been convicted of a crime under the laws of this State and who has not been convicted of any prior or subsequent crime . . . [the person] may, after the expiration of a period of l0 years from the date of his conviction, payment of fine, satisfactory completion of probation or parole, or release from incarceration, whichever is later, . . . [apply for expungement of] such conviction and all records and information pertaining thereto . . . .

[N.J.S.A. 2C:52-2(a) (emphasis added).]

We reasoned that "when the Legislature enacted N.J.S.A. 2C:52-2, it deliberately chose to alter the more expansive view of expungement that had existed under N.J.S.A. 2A:164-28 and was exemplified by our decision in Fontana," and concluded that "when the Legislature chose the language 'subsequent crime' it intended to preclude expungement of a conviction where an individual commits a second crime even if the two crimes result in a single sentencing and conviction date." Ross, supra, 400N.J. Super. at 123-24. We discern no basis to hold otherwise. Accordingly, we are satisfied Judge Ciuffani correctly appliedN.J.S.A. 2C:52-2(a) and determined defendant was not entitled to expungement relief because he pled guilty to at least two indictable offenses even though the crimes resulted in a single sentencing and conviction date.

Even if we were to accept for present purposes the continued viability of Fontana based on the dicta in A.N.J., supra, 98 N.J.at 427 n.3, the record does not support the application of the "single spree" doctrine to defendant's conduct. Defendant pled guilty to seven indictable crimes occurring over a span of twenty-seven days. Although the crimes were similar as they involved theft-related offenses, they occurred on four separate dates - November l5, December 5, December 8, and December 12, 199l - and targeted three separate locations on the Livingston College campus - Tillet Hall, Kilmer Library, and the Student Center. Moreover, there is no evidence the items of movable property stolen by defendant were related, such as component parts of a computer.

Affirmed.

1 N.J.S.A. 2A:164-28 was the applicable expungement statute prior to the enactment of Title 2C of the penal code in l979 and enactment of the expungement statutes for indictable offenses, N.J.S.A. 2C:52-2, disorderly persons offenses and petty disorderly persons offenses, N.J.S.A. 2C:52-3, and ordinances, N.J.S.A. 2C:52-4.

N.J.S.A. 2A:164-28 provided, in pertinent part:

In all cases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1,000 and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of ten years from the date of such conviction for the person so convicted to present a duly verified petition to the Court, wherein such conviction was entered, setting forth all the facts in the matter and praying for the relief provided in this section.

[(Emphasis added).]

STATE OF NEW JERSEY VS. HANDY A-0401-09T4 08-04-11

08-04-11 STATE OF NEW JERSEY VS. ROBERT HANDY A-0401-09T4

After a bench trial, defendant was found not guilty of murder and other related offenses by reason of insanity. Defendant had preferred and unsuccessfully sought to have a jury trial to seek acquittal on a theory of self-defense. In rejecting defendant's motion to be tried first on his self- defense claim, and instead proceeding solely with the insanity issue, the trial court was guided by State v. Khan, 175 N.J. Super. 72 (App. Div. 1980), which prescribes a bifurcated procedure that gives primacy to the adjudication of an insanity defense.

We decline to adhere to the bifurcation sequence set forth in Khan because that opinion conflicts with several aspects of our State's Criminal Code; relied upon District of Columbia case law that is no longer valid; and is contrary to the approach of other states that have addressed the question.

We instead hold that a defendant who wishes to present a substantive defense based upon at least some evidence, or who otherwise wishes to put the State to its burden of proving the elements of the offense beyond a reasonable doubt, should not be required to first submit to a trial restricted to the issue of insanity.

Consequently, we remand for a bifurcated trial in which the insanity defense, if necessary, is tried in a second phase before the same jury, with appropriate cautionary instructions.

State v. Cabbell/State v. Calhoun (A-89/90-09; 065129) 7-26-11

7-26-11 State v. Timyan Cabbell/State v. John Calhoun (A-89/90-09; 065129)

Both defendants were denied their federal and state constitutional rights to confront Karine Martin, a key State’s witness, before the jury. For that reason, Martin’s out-of-court statement to the police incriminating defendants should not have been read to the jury and the admission of that statement was not harmless error.