Opinion
DOCKET NO. A-3339-10T3
03-27-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. ROBERT J. LUBISCHER, JR., Defendant-Appellant.
Joseph A. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, and on the brief). Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief.)
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 09-10-01897.
Joseph A. Krakora, Public Defender, attorney for appellant (Daniel Brown, Designated Counsel, and on the brief).
Marlene Lynch Ford, Ocean County Prosecutor, attorney for respondent (Samuel J. Marzarella, Supervising Assistant Prosecutor, of counsel; William Kyle Meighan, Assistant Prosecutor, on the brief.) PER CURIAM
Defendant Robert Lubischer appeals from an October 1, 2010 judgment of conviction (JOC), entered after a jury found him guilty of third-degree theft of currency in excess of $500, N.J.S.A. 2C:20-3, and fourth-degree unlawful taking of a means of conveyance, N.J.S.A. 2C:20-10b. The trial judge sentenced defendant to an aggregate term of three years probation, conditioned upon defendant serving 120 days in the county jail. In addition to assessing statutory penalties and requiring DNA testing, the judge ordered defendant to pay restitution in the amount of $2500. We affirm.
The jury acquitted defendant of the more serious charge of third-degree auto theft, N.J.S.A. 2C:20-3.
I.
According to the State's proofs, in August 2008, defendant moved in with his cousin, Donna Papariello (Donna), and her husband Anthony Papariello (Anthony). Defendant needed a place to stay, as he had recently moved out of his father's residence. Defendant was a divorced out-of-work painter/landscaper who owed substantial child support to his former spouse.
The Papariellos allowed defendant to live rent-free and paid him $100 per day to do work around the house. They also helped him pay his child support. Defendant did not own a car or have a driver's license. Donna or Anthony would drive defendant wherever he needed to go.
On November 1, 2008, Donna and Anthony traveled to Aruba for a two-week vacation. Before they left, defendant agreed that he would watch over the Papariellos' house and care for their three dogs while they were gone. To compensate him for this service, Donna paid defendant $500 and agreed to pay him another $500 upon returning home. She also provided defendant with four $100 money orders for him to pay his child support. Donna testified that she also gave him an extra $100, because he was her cousin and was doing her a favor.
A few days before the vacation, Donna said she had received and cashed a check for unclaimed property in the approximate amount of $2500, and that she had placed the money in a drawer in her bedroom. Donna had recently purchased a new 2009 Volvo automobile and said that she had left the keys "on the butcher block" in the kitchen, where she normally left them. She testified that she and defendant never discussed his use of the car as she knew he did not have a license.
When the Papariellos returned from vacation, they immediately noticed that the Volvo was missing. The next morning, Donna also discovered that the cash was missing from the drawer. The car was later discovered in Cape May and returned, but with damage to the rear bumper.
The Papariellos did not initially report the matter to the police, but did finally make a report in March 2009. At trial, Donna explained why she did not contact the police earlier, "I was really hesitant because I am close with my family. I was close with Bobby, I took him in my home so I was very hesitant to create a problem, but I had to for insurance purposes."
Upon receiving the report, the police conducted an investigation, including two recorded statements of defendant taken on March 30, 2009 and April 2, 2009. In his first statement, defendant insisted the incident was a "family matter." He repeatedly condemned his cousin and her husband. Several times he claimed Donna filed the claims because "she's nuts." He also asserted that Donna was fighting with the whole family and "she takes all kinds of medication." He further stated,
I know I've heard from people in my family that she's done . . . insurance scams before. I'm the only one in the house. I guess she needs some kind of motive. I don't know how it works 'cause I don't do that.
. . . .
I don't know why she did, 'cause they're greedy for money. I don't know that's the God's honest truth. She's wrong and she's lying about everything.
Defendant continued his attacks on the Papariellos in his second interview, stating, "I went there and . . . they went nuts and started making all these lies up" and "they've done scams before."
In both statements defendant admitted taking the Papariello's car and the cash. However, his version of the circumstances surrounding the takings changed significantly.
With regard to the car, defendant first claimed that Donna left him the keys for him to use the car. However, he later stated that she left him the keys for emergencies only and admitted that he did use the car to travel to Cape May and just drive around town. He then admitted that he took the car when he "shouldn't have." In his second statement, defendant returned to his initial contention, that Donna told him he could use the car.
With regard to the cash, defendant first claimed that Donna left an envelope with $600 in it for him, stating that she left the envelope on the kitchen table, with his name printed on it. In his second statement, defendant stated the envelope was left on Donna's dresser, but then changed his story again stating that he found the envelope inside a drawer while putting away laundry. He later admitted to taking the money without Donna's knowledge.
In his opening statement, the prosecutor told the jury:
This case is about family betrayal and there is nothing worse than being betrayed by one's family and friends. What betrayal does it lingers like a curse, it haunts [its] way into your [conscience], and it undermines the fundamental trustworthiness that we have
in one another as well the self confidence that we have in ourselves. . . . [Defendant's] conduct was more than betrayal. His conduct was more than being immoral, it was criminal.
At trial, the State presented the testimony of the Papariellos and three police officers involved in the investigation. Defendant's two recorded statements were also played for the jury. Defendant did not testify, and the defense rested without presenting any evidence.
In his summation, defense counsel provided the jury with the following explanation as to why this "family dispute" ended up as a criminal case:
The reason really here is money. This has been about money as soon as Donna Papariello got home from vacation. . . . We know it was about money when she went to the police department . . . It was just about money.
. . . .
If we look at the circumstances here. . . . you could see once again that this is just a family dispute that Donna Papariello has tried to turn into some sort of payday.
The prosecutor, in his summation, repeated that "this was a case about betrayal." He also extolled the virtues of the Papariellos:
[B]oth the Papariellos testified and they are decent, hard working people. We have a purple heart Marine, okay, and we have a
woman who is a nurse for [thirty-eight] years. They like to help people. That's the kind of people they are. They are giving people, not like him.
On appeal, defendant raises the following issues:
POINT I
PROSECUTORIAL MISCONDUCT BY THE PROSECUTOR DEPRIVED [DEFENDANT] OF A FAIR TRIAL (NOT RAISED BELOW)
POINT II
CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL (NOT RAISED BELOW)
POINT III
THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON [DEFENDANT] (NOT RAISED BELOW)
POINT IV
THE TRIAL COURT ERRED IN IMPOSING $2,500 IN RESTITUTION (NOT RAISED BELOW)
II.
Prosecutors "are afforded considerable leeway" in their remarks to a jury. State v. Purnell, N.J. 518, 540 (1992). However, "prosecutorial misconduct can be a ground for reversal if the prosecutor's misconduct was so egregious that it deprived the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999).
In determining whether a prosecutor's misconduct was sufficiently egregious, an appellate court "must take into account the
tenor of the trial and the degree of responsiveness of both counsel and the court to improprieties when they occurred." State v. Marshall, 123 N.J. 1, 153 (1991) . . . Specifically, the appellate court must consider (1) Whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly, and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. . . . Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. . . . The failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action.
[Id. at 83-84.]
Defendant argues that he was denied a fair trial based on his claim that the prosecutor inflamed the jury in his opening statement and again in his summation. Because defense counsel did not object to any of the prosecutor's opening or closing remarks now challenged on appeal, the plain error standard of review applies. R. 2:10-2; State v. Papasavvas, 163 N.J. 565, 626, corrected by, 164 N.J. 553 (2000). The alleged error must have been of sufficient magnitude "[to raise] a reasonable doubt as to whether it led the jury to a result it would otherwise not have reached." State v. Feal, 194 N.J. 293, 312 (2008) (internal quotation marks and citations omitted) (alteration in original).
The State contends that the prosecutor's remarks were fair comment because of the attacks upon the Papariellos in defendant's statements and in defense counsel's closing argument. A prosecutor's otherwise prejudicial arguments may be deemed harmless if made in response to defense arguments. State v. Munoz, 340 N.J. Super. 204, 216 (App. Div.), certif. denied, 169 N.J. 610 (2001); State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993).
Defendant, in his statements to police, repeatedly attacked the victims' credibility. He called them liars, "nuts," and accused them of committing insurance fraud in the past. As part of his summation, defense counsel also suggested that the victims were committing insurance fraud:
[Y]ou can see this was an opportunity that fell into Donna Papariello's lap to make a couple extra bucks from her insurance. Maybe she thought Bobby was an easy target.
. . . .
We have absolute trust in you and we will live by the verdict that you announce, but you know what? Families have verdicts too and Donna has to live by the verdict that her family has pronounced upon her for what she did in this case. Thank you.
"A prosecutor may respond to an issue or argument raised by defense counsel." State v. Johnson, 287 N.J. Super. 247, 266 (App. Div. 1996). The prosecutor's "response to an issue injected by opposing counsel cannot be considered a foray beyond the evidence adduced at trial." Ibid.
The prosecutor is entitled to sum up the State's case graphically and forcefully. It is unreasonable to expect that criminal trials will be conducted without some show of feeling. Defense counsel traditionally makes dramatic appeals to the emotions of the jury. In these circumstances, a prosecutor cannot be expected to present the State's case in a manner appropriate to a lecture hall.
[State v. Johnson, 31 N.J. 489, 510-11 (1960).]
To the degree that the prosecutor's statements expressed "sympathy" for the victims, those statements were addressing the allegations against the victims made by the defendant in his statements and defense counsel in summation.
Defendant further argues that the prosecutor unduly prejudiced defendant by telling the jury the circumstances under which defendant lived with the Papariellos, thereby conjuring "the unmistakable image of [defendant] as . . . a parasite and a shiftless ne'er-do-well who took advantage of his magnanimous relatives." Because a defendant's poverty or lack of income cannot be used to establish a criminal motive, "[t]he introduction of evidence regarding whether or not a defendant has a regular source of income is, when a collateral issue, prohibited in any form." State v. Terrell, 35 9 N.J. Super. 241, 247 (App. Div. 2003).
In this case, however, the circumstances under which defendant lived with the Papariellos did not represent a collateral issue. The fact that defendant was unemployed was relevant to the fact that defendant "worked" for the Papariellos, and to the financial arrangement that was agreed upon when they were on vacation. The fact that defendant did not own a car or have a license, was clearly relevant to defendant's claimed defense of permissive use.
Even if we were to find any of the prosecutor's comments improper, the statements were not clearly capable of producing an unjust result. State v. Macon, 57 N.J. 325, 335-41 (1971). Defendant admitted in his statements that he took $600 from the victims, yet his statements were inconsistent as to where he got the money: first, it was on the kitchen counter with his name on it, then it was on the dresser, then the money was in the dresser where he found it. Defendant also admitted in his statement that he took the money without the victim's knowledge. Thus, although the record shows he was to receive $500 when the victims returned home, he clearly took currency that did not belong to him without the victim's knowledge. He also admitted to taking the car when he "shouldn't have." Because of this overwhelming evidence of guilt, any alleged errors in the prosecutor's statements were not clearly capable of producing an unjust result. R. 2:10-2.
The defendant also argues that the court erred in imposing $2500 in restitution and in failing to hold a hearing on his ability to pay. Our review of the record does not indicate any legitimate dispute regarding the amount of restitution or defendant's ability to pay. The pre-sentence report indicates the amount of restitution was $2500, and the amount was not disputed below. Further, Donna testified that $2500 was stolen. Finally, the defendant's ability to pay was also not in issue based on his prior employment as a painter and landscaper.
The order requiring defendant to pay the $2500 of restitution, if pro-rated over defendant's three-year probationary term, results in a weekly payment of approximately $16. In light of defendant's prior employment as a painter and landscaper, no hearing was required to address this issue. See State v. Orji, 277 N.J. Super. 582, 590 (App. Div. 1994) (no restitution hearing required where there is no dispute over the amount of restitution or defendant's ability to pay).
Defendant's remaining arguments are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION