Opinion
DOCKET NO. A-3675-12T3
08-04-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOHN FERNANDEZ, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Monica Moyse, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Simonelli and Leone. On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 09-12-0302. Joseph E. Krakora, Public Defender, attorney for appellant (Monica Moyse, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant John Fernandez was a volunteer campaign worker for the 2007 re-election campaign of State Senator M. Teresa Ruiz, soliciting voters to both register to vote and vote by absentee ballot. According to the State, defendant, in tandem with other campaign workers, falsified and submitted several absentee ballots and forged bearer and messenger documents relating to those ballots.
Following a jury trial, defendant was convicted of second-degree election fraud, N.J.S.A. 19:34-1.1(a)(2), N.J.S.A. 2C:2-6, and N.J.S.A. 2C:5-2 (count one); third-degree absentee ballot fraud, N.J.S.A. 19:57-37 (count two); third-degree tampering with public records, N.J.S.A. 2C:28-7(a)(2) and N.J.S.A. 2C:2-6 (count three); fourth-degree forgery, N.J.S.A. 2C:21-1(a)(3) and N.J.S.A. 2C:2-6 (count four); and second-degree conspiracy to commit each of the above crimes, N.J.S.A. 2C:5-2 and N.J.S.A. 2C:2-6 (count five). At sentencing, the trial judge merged counts two and five into count one and imposed a five-year term of imprisonment on count one. The judge merged count four into count three and imposed a concurrent three-year term on count three. The judge also ordered a forfeiture of public employment and imposed the appropriate assessments and penalties.
On appeal, defendant raises the following contentions:
POINT ONEWe affirm defendant's convictions on all counts except count three. Because we conclude that the jury charge for tampering with public records constitutes reversible error, we reverse defendant's conviction on count three and remand for a new trial and resentencing.
THE TRIAL COURT'S ERRONEOUS JURY CHARGES DEPRIVED [DEFENDANT] OF [HIS] RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI, AND XIV; N.J. CONST. [], ART. I, [¶¶] 1, 9, AND 10.) (Partially Raised Below).
POINT TWO
THE INVITED INFERENCE THAT DEFENDANT WAS GUILTY BECAUSE HIS CO-CONSPIRATOR AND OTHERS WHO WERE SIMILARLY SITUATED WERE INDICTED, AND EITHER PLED GUILTY OR HAD THEIR CASES RESOLVED WITHIN THE CRIMINAL JUSTICE SYSTEM, WITHOUT A LIMITING INSTRUCTION, VIOLATED [DEFENDANT'S] RIGHT TO A FAIR TRIAL. (Partially Raised Below).
POINT THREE
THE STATE PREJUDICIALLY GARNERED SYMPATHY FOR THE VICTIMS TO SECURE A CONVICTION. (Not Raised Below).
POINT FOUR
THE TRIAL COURT VIOLATED [DEFENDANT'S] RIGHT TO CONFRONTATION WHEN IT PREVENTED HIM FROM CROSS-EXAMINING TWO STATE WITNESSES.
I.
We derive the following facts from the record. Defendant was a district captain for Senator Ruiz's State Senate campaign for the 28th District, a subdivision of the 29th Senatorial District in Newark's North Ward. Another district captain, co-defendant Jonathan Kowalski, testified that every district captain was "responsible for the numbers in [his or her] district" and for going "door to door making sure they secure[d] enough" votes, based on past election results. District captains were also required to secure a minimum number of absentee ballots and new voter registrations and had to meet weekly benchmarks or "quotas." Each week, the district captains would attend weekly meetings to "go over different election strategies, talk about what's going on, go over the numbers . . . and just do everything they need[ed] to [do] for every election." The district captains would "get yelled at" if they missed the meetings or failed to meet their weekly quotas. However, no one directed the district captains to falsify absentee ballots.
Kowalski also testified that by mid-October, only weeks before the general election, defendant had only reached approximately twenty-three percent of his quota for newly registered voters and new absentee ballot applicants. On October 16, 2007, defendant approached him in a parking lot, handed him thirteen sealed envelopes marked "absentee ballot," and asked him to "bring [the sealed envelopes] down to the Board of Elections," "drop them off," and "sign them in for [defendant]." Kowalski then went to the Board of Elections office, where he provided the "bearer" information on the outside of the sealed envelopes and signed the bearer ledger book, filling in thirteen boxes with relevant voter information, such as the name and address of the voter as well as his name, address, and signature. By signing, he certified that the voters had given him the absentee ballots and that he was delivering them to the Board of Elections on their behalf.
Gianine Narvaez, a district captain who was separately indicted for similar offenses for which defendant was on trial, testified that she had to get a certain amount of votes and felt pressured to meet the quotas imposed and act as both a messenger and a bearer. Recounting her own fraudulent actions in response to that pressure, Narvaez testified that she "would take voters that were registered in [her] district . . . and [] would take an absentee ballot request and fill it out, authorizing [herself] as a messenger, to go to the county clerk's office and [she] would receive their ballot and [she] would vote for them."
Narvaez admitted that she also "fictitiously created falsified voters, registered them on mail forms, also did it on absentee ballot requests, messengered them and also voted for them fictitiously." She testified that at one of the weekly meetings shortly before the general election, she witnessed defendant doing the same thing she had done: she saw defendant "fill out a registration form" and then "fill out an absentee ballot request form." When she saw what he was doing, she "actually smirked to the defendant and said . . . you're doing what I'm doing" — that is, "fictitiously making up voters and absentee ballot request messages." In response, defendant "looked up and smirked at" her.
Evidence produced during the trial established that defendant also served as a messenger for at least five voters: Isidra Carrasquillo, Marly Cruz, Ricky Falcon, Myriam Mercado, and Sheila Morales. Defendant also served as a bearer for Cruz and Mercado, and Kowalski served as a bearer for Carrasquillo and Falcon. All five voters had previously voted in elections, but had never before voted via absentee ballot. None of them had authorized defendant or Kowalski to apply for an absentee ballot on their behalf or vote for them in the 2007 general election, and their absentee ballots were accepted and counted unbeknownst to them.
The five voters each testified that they were neither sick nor confined during the election and that defendant approached them with papers that were purportedly voter registration forms, not absentee ballot applications or ballots. None of them understood the absentee voting procedure, and two of them did not speak or read English; they simply thought they were registering to vote in the upcoming election. Each voter also testified that they filled out a portion of the form requiring their name, address, and signature, and that they also signed to authorize defendant to serve as their messenger, but had not filled out the remainder of the form. They never received, filled out, or sealed an absentee ballot, nor did they knowingly authorize anyone to act as a messenger or bearer. After reviewing the handwriting on the forms, each voter verified that the absentee ballots submitted on their behalf were completed and signed by someone else.
Finally, the State produced forensic evidence and expert testimony establishing that defendant's DNA was found on the envelopes containing the absentee ballots of Cruz, Falcon, Mercado, Morales, and two other voters in the form of saliva used to seal the envelopes. The jury found defendant guilty of all charges.
II.
1. Deletion of Certain Words From N.J.S.A. 19:57-3
Each count of the indictment alleged offenses relating to absentee voting. The judge provided a copy of the relevant provisions of the Absentee Voting Act of 1953, N.J.S.A. 19:57-1 to -40, repealed by L. 2009, c. 79, eff. July 1, 2009, to the jury for deliberations, including N.J.S.A. 19:57-3. Those statutes described and defined the absentee voting process, explained the roles of messengers and bearers, and described who can help a person vote by absentee ballot and how that person can help. The judge read N.J.S.A. 19:57-37 to the jury, the statute defendant was alleged to have violated.
N.J.S.A. 19:57-3, which the judge did not read to the jury but provided to them for deliberations, contained the phrase "this act shall be liberally construed to effectuate these purposes." During summation, defense counsel twice told the jury it must liberally construe N.J.S.A. 19:57-37. After the summation, the judge determined that the liberal construction phrase in N.J.S.A. 19:57-3 was meant for judges construing the statute, not for juries. Accordingly, the judge deleted that phrase from the copy of the statute given to the jury and issued a curative instruction to disregard defense counsel's statement. Defendant contends this constituted reversible error that deprived him of his right to due process and a fair trial. We disagree.
We begin our analysis with the well-settled principle that "[a]ppropriate and proper charges are essential for a fair trial." State v. Green, 86 N.J. 281, 287 (1981). The court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, we examine the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005). "As an indication of the paramount importance of accurate jury instructions, [our Supreme Court has] held that erroneous instructions on material issues are presumed to be reversible error." State v. Marshall, 173 N.J. 343, 359 (2002). Applying these standards, we discern no error in the judge's ruling.
It is the court's role, not a jury's role, to construe and interpret the law. State ex rel. M.G., 307 N.J. Super. 348, 354 (App. Div.), certif. denied, 154 N.J. 607 (1998). A jury's role is "to decide disputed facts and determine whether the State has proven the charges against a defendant." State v. Sowell, 213 N.J. 89, 108 (2013). Because it is the court's function to construe and interpret the law applicable to the case, and because the deleted language was completely inapplicable to the jury's role in determining defendant's guilt or innocence, the judge properly deleted the liberal construction phrase and properly instructed the jury accordingly.
In any event, the deletion did not prejudice defendant, as he was not entitled to rely on the liberal construction phrase. In New Jersey, election laws "are to be liberally construed so as to effectuate their purpose. They should not be construed so as to deprive voters of their franchise or so as to render an election void for technical reasons." Kilmurray v. Gilfert, 10 N.J. 435, 440 (1952) (citations omitted). In a similar vein, the Legislature has provided that the Absentee Voting Act shall be liberally construed to effectuate the rights of the voters. In re Livingston, 83 N.J. Super. 98, 107 (App. Div. 1964). Thus, the clear import and purpose of the liberal construction phrase in N.J.S.A. 19:57-3 was to ensure that all votes in an election were properly counted even if they were cast in a manner not in full compliance with the statutory procedural requirements, not to shield those, such as defendant, accused of defrauding the electorate of this State. Rather, the phrase represents the Legislature's intent to preserve the sanctity of elections and effectively guard against one avenue of possible electoral fraud in the process of pickup and delivery, i.e., the casting, of absentee ballots — exactly what occurred here. In re Petition of Battle, 190 N.J. Super. 232, 242 (App. Div. 1983), aff'd as modified, 96 N.J. 63 (1984).
2. The Jury Charges
For the first time on appeal, defendant challenges the jury charges on election fraud, absentee ballot fraud, tampering with public record and conspiracy. We review contentions raised for the first time on appeal for plain error. R. 2:10-2; State v. Torres, 183 N.J. 554, 564 (2005). As to first-time challenges to jury charges, we must determine whether "'legal impropriety in the charge prejudicially affect[ed] the substantial rights of the defendant 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.'" Torres, supra, 183 N.J. at 564 (quoting State v. Jordan, 147 N.J. 409, 422 (1997)). While an erroneous jury charge may be a "'poor candidate[] for rehabilitation' under the plain error theory," Jordan, supra, 147 N.J. at 422 (quoting State v. Simon, 79 N.J. 191, 206 (1979)), the effect of any error should be considered in light "of the overall strength of the State's case." State v. Chapland, 187 N.J. 275, 289 (2006).
(A) The Election Fraud Charge
A person commits the crime of election fraud if he or she, in pertinent part,
knowingly and willfully deprives, defrauds or attempts to deprive or defraud the residents of this State of a fair and impartially conducted election by the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious or fraudulent under the provisions of [N.J.S.A. 19:1-1 to 63-28] or the procurement, casting or tabulation of
ballots that are known by the person to be materially false, fictitious or fraudulent under the provisions of [N.J.S.A. 19:1-1 to 63-28], is guilty of a crime of the second degree.
[N.J.S.A. 19:34-1.1(a)(2).]
Pointing to Model Jury Charge (Criminal), Forgery (2010), defendant contends the judge incorrectly defined "defraud" and failed to ensure that the State proved actual deprivation beyond a reasonable doubt. Defendant then contends the judge failed to instruct the jury on the mens rea element, which requires the State to prove that he acted knowingly or willfully.
Reading N.J.S.A. 19:34-1.1(a)(2) to the jury verbatim, the judge instructed as follows:
Any person other than an election official who knowingly and willfully deprives, defrauds or attempts to deprive or defraud the residents of this state of a fair and impartially conducted election by the procurement or submission of voter registration applications that are known by the person to be materially false, fictitious or fraudulent under the provisions of Title 19 of the revised statute, or the procurement, casting or tabulation of ballots that are known by the person to be materially false, fictitious or fraudulent under the provisions of Title 19 of the revised statutes is guilty of election fraud.The judge then instructed the jury that
[Emphasis added).]
In order to find defendant guilty of this count, the State must prove beyond a reasonable doubt that defendant, number one, defrauded, deprived, attempted to defraud or attempted to deprive the residents of this state of a fair and impartially conducted election by either, A, knowingly and willfully procuring or submitting voter registration applications that were known by the defendant to be materially false, fictitious or fraudulent under the provisions of Title 19, or, B, knowingly and willingly [sic] procured, casted or tabulated ballots that were known to be materially false, fictitious or fraudulent under the provisions of Title 19.The judge then explained that, in order to find defendant guilty of election fraud, the State must prove the mens rea element of the offense beyond a reasonable doubt. The judge then fully expounded upon the definitions of knowingly and willfully, instructing the jury as follows:
[(Emphasis added).]
A person acts knowingly with respect to a result of his conduct if he is aware that it is practically certain that his conduct will cause such a result. A person acts knowingly with respect to the nature of his conduct if he is aware that his conduct is of that nature. "Knowing," "with knowledge" or equivalent terms have the same meaning. Knowledge is a condition of the mind which cannot be seen and can only be determined by inferences from conduct, words or acts. It is not necessary for the State to produce a witness or witnesses who could testify that the defendant acted knowingly. It is within your power to find that proof of knowledge has been furnished beyond a reasonable doubt by inferences that may arise from the nature
of the facts and circumstances surrounding the conduct in question.
The term "willfully" is synonymous with "knowingly" in this context. Now, under this Count 1, the State alleges that defendant knowingly and willfully deprived, defrauded, attempted to defraud or attempted to deprive the residents of this state of a fair and impartially conducted election either through his own conduct or as an accomplice to another who did so by his own conduct. . . . The State alleges that defendant did so by knowingly and willfully procuring and/or casting, attempting to procure or cast, or assisting in procuring or casting absentee ballots purporting to be the ballots of certain residents of this state for the 29th legislative district when, in fact, the defendant knew that the residents were unaware of the casting or tabulation of those ballots, did not otherwise authorize the casting or tabulation of those ballots, or did not themselves complete those ballots. The State also alleges that by doing so, the defendant knew that these ballots were materially false, fictitious or fraudulent when they were submitted or cast them.
If you find the State has proven beyond a reasonable doubt each of these elements just described, including acting as an accomplice, then you must find the defendant guilty under Count 1. If, on the other hand, you find that the State has failed to prove beyond a reasonable doubt any of these elements of this offense, then you must find the defendant not guilty under Count 1.
[(Emphasis added).]
Given these instructions, we conclude that defendant's contentions lack merit. The charges contain no language that minimized the "reasonable doubt" standard. Although the judge did not position the words directly next to the words "deprive or defraud," it is clear from reading the entire charge that the judge properly instructed the jury to apply the mens rea term to the element of defrauding and deprivation.
Defendant's claim that the judge incorrectly defined defraud is similarly without merit. The judge instructed the jury that "[a] person deprives, defrauds or attempts to defraud or attempts to deprive when he acts dishonestly or in bad faith." The judge had already clearly outlined what constituted the act of defrauding in the context of election law by reading the terms of the applicable statute and giving the relevant instruction. The judge instructed that the jury could only find defendant guilty of election fraud if it found that the State had proven beyond a reasonable doubt that he had committed a fraud on the electorate by knowingly and willfully procuring or submitting voter registration applications that he knew to be materially false, fictitious or fraudulent or by knowingly and willfully procuring, casting or tabulating ballots that he knew to be materially false, fictitious or fraudulent. Thus, the definition of "defraud" in this context was self-evident, and there was no error in that respect. Applying the plain error standard, we conclude there was no error, let alone plain error, in the election fraud charge.
(B) The Absentee Ballot Fraud Charge
Defendant contends that the judge failed to properly instruct the jury on the mens rea of absentee ballot fraud. This contention lacks merit.
A person commits the crime of absentee ballot fraud if he or she
knowingly violates any of the provisions of [the Absentee Voting Act], or who, not being entitled to vote thereunder, fraudulently votes or attempts to vote thereunder or enables or attempts to enable another person, not entitled to vote thereunder, to vote fraudulently thereunder or who prevents or attempts to prevent by fraud the voting of any person legally entitled to vote under this act, or who shall knowingly certify falsely in any paper required under this act, or who, at any time, tampers with any ballot or document used in an election or interferes with the secrecy of the voting of any person[.]The judge instructed the jury as follows:
[N.J.S.A. 19:57-37, repealed by L. 2009, L. 79, § 37, eff. July 1, 2009.]
any person who knowingly enables or attempts to enable another person not entitled to vote thereunder to vote fraudulently thereunder or who shall knowingly certify falsely on any paper required under the absentee voter law . . . shall be guilty of a crime.The judge then specifically explained that "if a defendant knowingly and with the intent to commit fraud certified falsely as to any paper required under the absentee voter law, he or she is guilty of violating the absentee voter law." Because the judge clearly gave the jury correct instructions and properly included the applicable mens rea element, there was no error in the absentee ballot fraud charge.
[(Emphasis added).]
(C) The Tampering With Public Records Charge
Defendant contends that the judge erroneously charged the jury on N.J.S.A. 2C:28-7(a)(1) instead of N.J.S.A. 2C:28-7(a)(2). We agree.
A person commits the crime of tampering with public records or information if he or she
(1) Knowingly makes a false entry in, or false alteration of, any record, document or thing belonging to, or received or kept by, the government for information or record, or required by law to be kept by others for information of the government;
(2) Makes, presents, offers for filing, or uses any record, document or thing knowing it to be false, and with purpose that it be taken as a genuine part of information or records referred to in paragraph (1); or
(3) Purposely and unlawfully destroys, conceals, removes, mutilates, or otherwise impairs the verity or availability of any such record, document or thing.
[N.J.S.A. 2C:28-7(a)(1)-(3).]
To convict a defendant of violating N.J.S.A. 2C:28-7(a)(1), the State must prove that he or she: (1) made a false entry in, or false alteration of, a record, document or thing; (2) knew that the entry or alteration was false; and (3) knew that the record, document or thing belonged to, or was received or kept by, the government for information or record, or was required by law to be kept by others for information of the government. See Model Jury Charge (Criminal), "Tampering With Public Records or Information (False Entry or Alteration) (N.J.S.A. 2C:28-7a(1))" (2000).
To convict a defendant of violating N.J.S.A. 2C:28-7(a)(2), the State must prove that he or she: (1) falsely made, presented, offered for filing, or used a record, document or thing; (2) knew the record, document or thing to be false; and (3) acted with the purpose that the item be taken as a genuine part of a record, document or thing that belonged to, or was received or kept by, the government for information or record, or was required by law to be kept by others for information of the government. See Model Jury Charge (Criminal), "Tampering With Public Records or Information (Making, Presenting or Filing a False Document, Record or Thing) (N.J.S.A. 2C:28-7(a)(2))" (2000).
Defendant was charged with violating N.J.S.A. 2C:28-7(a)(2). Although the judge read the indictment to the jury containing the elements for N.J.S.A. 2C:28-7(a)(2) and included those elements in the verdict sheet, the judge actually instructed the jury on N.J.S.A. 2C:28-7(a)(1). While the material elements of the two subsections are similar in many aspects, they are different enough to render this plain error more than merely harmless. N.J.S.A. 2C:28-7(a)(1) requires that a person "knowingly makes a false entry in, or false alteration", whereas N.J.S.A. 2C:28-7(a)(2) requires that a person "makes, presents, offers for filing, or uses any record, document or thing knowing it to be false, and with purpose that it be taken as a genuine part" of "any record, document or thing belonging to, or received or kept by, the government for information or record, or required by law to be kept by others for information of the government." Compare Model Jury Charge (Criminal), "Tampering With Public Records or Information (False Entry or Alteration) (N.J.S.A. 2C:28-7a(1))" (2000) with Model Jury Charge (Criminal), "Tampering With Public Records or Information (Making, Presenting or Filing a False Document, Record or Thing) (N.J.S.A. 2C:28-7(a)(2))" (2000). The critical difference between the two subsections is that to convict defendant under N.J.S.A. 2C:28-7(a)(2), the State must prove that the defendant acted with purpose. Because the judge did not charge this key ingredient of purposeful conduct, the charge constitutes reversible error, and the tampering conviction in count three accordingly must be vacated. Therefore, we reverse defendant's conviction on count three and remand for a new trial. As the judge merged count four into count three for sentencing purposes, we also remand for resentencing.
(D) The Conspiracy Charge
Finally, defendant contends that the jury charge on conspiracy "was necessarily faulty" due to the errors on the charges for election fraud, absentee ballot fraud and tampering with public records. Defendant fails to specify the error in the conspiracy charge, and we have found no error in the charges on election fraud and absentee ballot fraud. Accordingly, we find no merit in defendant's contention as it relates to the election fraud and absentee ballot fraud counts. R. 2:11-3(e)(2).
However, because count five charged conspiracy to commit four separate crimes and the jury issued four separate guilty verdicts under count five, we find no error tainting the verdicts of conspiracy to commit election fraud, absentee ballot fraud and forgery. Therefore, defendant's conviction on count five stands as corrected herein. In any event, all of the count five convictions merged into count one for the purposes of sentencing.
III.
For the first time on appeal, in Point Two defendant challenges Kowalski's testimony that he was indicted for the same crimes for which defendant was on trial and that he was admitted into the pre-trial intervention program (PTI). Defendant claims the judge neither explained to the jury the meaning of PTI, nor gave a limiting instruction regarding the use of that information. Defendant also challenges Narvaez's testimony that she was indicted for and pled guilty to two of the same crimes for which defendant was on trial and arising out of similar circumstances.
We reject both of these contentions under the invited error doctrine. See State v. Kemp, 195 N.J. 136, 155 (2008) (applying the invited error doctrine where the defense challenged on appeal testimony it consented to at trial). Defendant did not object to the complained-of testimony. In fact, defense counsel repeatedly referred to Kowlaski's and Narvaez's criminal records in his opening statement, and extensively cross-examined Kowalski about his involvement, the charges brought against him, his PTI deal, and how he had not admitted guilt by entering PTI. Defense counsel also extensively cross-examined Narvaez about the charges brought against her, her guilty plea and conviction, the terms of her plea agreement, and the State's recommendation of probation instead of imprisonment.
Nevertheless, there was no plain error in the admission of the complained-of testimony. State v. Felton, 131 N.J. Super. 344 (App. Div. 1974), certif. denied, 68 N.J. 140 (1975), which defendant misapplies, precludes evidence that a non-testifying co-defendant pled guilty or was convicted of the same or related charges. Id. at 351. Evidence of a co-defendant's guilty plea may be properly admitted when that co-defendant testifies at defendant's trial. State v. Stefanelli, 78 N.J. 418, 430-35 (1979). However, even when a co-defendant testifies at trial, his guilty plea is inadmissible as substantive evidence of the defendant's guilt. Id. at 433-34. The testimony is only "admissible to affect [the co-defendant's] credibility as a witness." Ibid. Therefore, the trial court must "give the jury a proper cautionary instruction as to the limited use of this testimony for credibility purposes." Id. at 434.
Here, defendant used Kowalski's and Narvaez's criminal records and reiterated the complained-of testimony on cross-examination to attack their credibility. The testimony had no substantive consequence to defendant beyond the "evidential description" of the underlying crimes furnished by the witnesses in their testimony. State v. Hodgson, 44 N.J. 151, 164 ( 1965), cert. denied, 384 U.S. 1021, 86 S. Ct. 1929, 16 L. Ed. 2d 1022 (1966). Further, in accordance with Stefanelli, the judge appropriately and clearly instructed the jury to refrain from utilizing any evidence of Kowalski's or Narvaez's guilt as substantive evidence of defendant's guilt. The cautionary instruction, in combination with defense counsel's cross-examination of these witnesses and the plethora of other witness testimony independently establishing defendant's guilt, confirms that no error was caused by the complained-of testimony.
Finally, the record confirms that the judge addressed Kowalski's PTI before the jury. The judge clarified to the jury what PTI stands for and advised that jury that Kowalski was admitted to PTI, had not pled guilty to any charge, and was placed on probation for three years.
IV.
Defendant contends for the first time on appeal in Point Three that the prosecutor improperly garnered sympathy for the victims by eliciting testimony about how they felt after learning their vote had been stolen. This contention lacks merit.
Prosecutors may not use "the victim . . . to inflame the jury and divert it from an objective consideration of the material facts." State v. W.L., 292 N.J. Super. 100, 108-09 (App. Div. 1996). As a general rule, the test for determining whether prosecutorial misconduct constitutes reversible error is whether the misconduct "was so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 321 (1987). The complained-of testimony here simply does not to reach that egregious level. Cruz testified that she was "disappointed" and "very mad" that defendant stole her vote. When asked if he would be surprised to learn that an absentee ballot had been completed and submitted on his behalf and without his consent, Falcon testified that "[a] lot of things happen with politics nowadays. There's not many things that could surprise me." When asked how having someone else submit an absentee ballot on her behalf made her feel, Mercado stated "bad" and queried "Can you just imagine someone voting for someone else?" Carrasquillo testified that she felt "defrauded because it's something that should not be done." Morales testified as to her shock about learning that someone had submitted an absentee ballot on her behalf, and said she felt "horrible" and that the entire situation was "disappointing" and "disgusting" because "[y]ou trust your people."
These statements, especially where there was no objection, cannot be viewed as rising to the level of the seriously prejudicial and inflammatory victim elicitations that were the subject of State v. Pennington, 119 N.J. 547 (1990), overruled o.g., State v. Brunson, 132 N.J. 377 (1993), and W.L., supra, 292 N.J. Super. 100, on which defendant relies. In Pennington, supra, a capital murder case, the Court reversed the defendant's conviction based on the prosecutor's focus on the victim throughout the guilt and penalty phases of the trial, repeatedly emphasizing her character, background and the effect of her murder on her family. 119 N.J. at 566-71. In W.L., supra, a child sexual assault case, we reversed based, in part, on the prosecutor's "flagrant appeal for sympathy and equally flagrant attack on the defendant's character and credibility" in the prosecutor's opening statement, and on the prosecutor's "continued appeals for sympathy and hate" during his summation. 292 N.J. Super. at 105-11.
Here, unlike in Pennington and W.L., the prosecutor made no pointed and repeated inflammatory references in relation to the good nature of the victims and the evil nature of defendant, nor did the prosecutor repeatedly emphasize the character or background of the victims. The prosecutor merely elicited from these witnesses substantive evidence as to how defendant, through fraud and deceit, deprived them of their right to participate in a fair and impartial election.
V.
Defendant contends in Point Four that the judge violated his right to confrontation by preventing him from cross-examining Falcon and Morales. Defendant argues the judge prevented him from impeaching Falcon by exposing Falcon's bias based on a statement Falcon made to detectives that he would "deck" defendant if he saw him. Defendant suggests that this showed bias because Falcon had also acknowledged being upset with defendant for not giving him a job. The judge barred defense counsel from cross-examining Falcon regarding the statement to the detectives pursuant to N.J.R.E. 403, finding the statement was made in jest, showed no bias, and allowing it in would "be a waste of time," would "confuse the jury," and would be "more prejudicial than probative."
The judge also barred defense counsel from asking Morales about her mistaken identification of defense counsel as the person who came to her house with papers for her to sign instead of defendant. The judge barred the inquiry because the identification of defendant was not an issue in the case and defendant had not filed a Wade motion.
The admission or exclusion of testimonial evidence is within the trial court's sound discretion. Torres, supra, 183 N.J. at 567. In addition, trial courts "retain wide latitude . . . to impose reasonable limits on . . . cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." State v. Garron, 177 N.J. 147, 187 (2003) (internal quotation marks omitted), cert. denied, 540 U.S. 1160, 124 S. Ct. 1169, 157 L. Ed. 2d 1204 (2004). Therefore, a judge's decision with respect to appropriate matters for cross-examination should only be overturned for abuse of discretion. Kemp, supra, 195 N.J. at 149.
A criminal defendant has a Sixth Amendment right to cross-examine witnesses against him. See Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1369, 158 L. Ed. 2d 177, 197 (2004). During cross-examination, an attorney may cross-examine a witness with respect to bias, as "[i]t is fundamental that a defendant has a right to explore evidence tending to show that the State may have a hold of some kind over a witness, the mere existence of which might prompt the individual to color his testimony in favor of the prosecution." State v. Parsons, 341 N.J. Super. 448, 458 (App. Div. 2001) (internal quotation marks omitted); see also N.J.R.E. 607.
This right, however, is subject to certain limitations, State v. Vaccaro, 142 N.J. Super. 167, 176 (App. Div.), certif. denied, 71 N.J. 518 (1976), and is subject to the broad discretion of the trial court to control the extent of the questioning for the purpose of efficient trial disposition. The courts of this State have repeatedly held that a trial court may, in the exercise of such sound discretion, limit such inquiry into a witness' bias based upon the concerns contained in N.J.R.E. 403. See, e.g., State v. Hare, 139 N.J. Super. 150 (App. Div.), certif. denied, 70 N.J. 525 (1976).
Here, the judge properly invoked N.J.R.E. 403 to limit defense counsel's inquiries as to both Falcon and Morales, and there was no abuse of discretion. Even if a judge abused his discretion and committed error, this should not result in reversal of a conviction unless the error is harmful. Kemp, supra, 195 N.J. at 149-50. Thus, we should "'disregard any error or omission by the trial court unless it is of such a nature as to have been clearly capable of producing an unjust result. The same ultimate standard applies whether the error was objected to below or whether the error was first claimed upon appeal.'" Id. at 150 (quoting State v. Castagna, 187 N.J. 293, 312 (2006)).
In addition, whether a defendant's ability to demonstrate witness bias has been influenced by an evidentiary ruling must be assessed in the context of the particular trial. Id. at 149-50. The limitations the judge imposed here were well within his discretion, and allowing the defense to proceed as it sought might well have confused and misled the jury. Defendant presented no credible evidence of bias. More importantly, however, is that even absent the limited testimony of Falcon and Morales, the evidence against defendant was overwhelming. Multiple witnesses identified him as the one who approached them about registering to vote, and they all testified that he was never authorized to submit absentee ballots on their behalf. Officials verified that defendant in fact picked up absentee ballots for the victim voters, and forensic DNA evidence demonstrated that he sealed the ballot envelopes. Defendant has not specified how delving further into the issues now complained of on appeal could have possibly affected the eventual outcome of the trial.
Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).