Opinion
DOCKET NO. A-4830-13T4
01-30-2017
STATE OF NEW JERSEY, Plaintiff-Respondent, v. KENNETH CICOLELLA, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano and Espinosa. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-02-0277. Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief). Andrew C. Carey, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant Kenneth Cicolella was indicted by the Middlesex County grand jury and charged with second-degree eluding, N.J.S.A. 2C:29-2(b), third-degree resisting arrest, N.J.S.A. 2C:29- 2(a)(1)(3), and fourth-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(5)(h). Tried by a jury, defendant was found guilty of the lesser-included offense of third-degree eluding and third-degree resisting arrest; the jury acquitted him of aggravated assault. The judge sentenced defendant to a three-year period of probation.
Defendant raises the following points on appeal:
Point 1
The trial court erred in denying defendant's motion to dismiss for Brady violation.
Point 2
The trial court erred in denying production of cell phone and telephone records of the Sayreville Police Department.
Point 3
The trial court erred in denying defendant's motion to compel appearance via subpoena of the municipal court judge who issued the arrest warrants in question (Judge Weber).
Point 4
The trial court erred in denying defendant's request for an adverse inference charge.
Point 5
The trial court erred in ruling that defendant could not raise any defense of
justification or necessity in defense of the charges at trial.We have considered these arguments in light of the record and applicable legal standards. We affirm.
Point 6
The trial court erred in granting the State's motion to exclude various evidence from introduction at trial, including evidence regarding the issuance of arrest warrants, the amount of bail placed on defendant, prior complaints by defendant to the Sayreville Police, and other evidence of harassment of defendant.
Point 7
Reference to "The Public Defender's Office" was unfairly prejudicial to defendant and warrants a new trial.
Point 8
The cumulative errors warrant reversal.
Point 9
Defendant's sentence is improper and excessive.
Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963).
I.
We briefly summarize the evidence at trial to place the legal arguments in context. On the evening of December 11, 2010, defendant called Caileigh Giovenco, who knew defendant from prior contracting work he had done on her family's homes, and asked about her grandmother's home, two doors away, that was for sale. Giovenco was concerned because defendant said he was parked outside, she saw him from the window, and she had told him she was alone in the house. Giovenco called Sayreville Police Department Detective Louis Becker, who was a family friend and had been assigned to the local high school where Giovenco's mother worked.
Becker was aware of an incident at the high school that occurred in September. Defendant had appeared at the school and made "alarming" comments to Giovenco's mother and later to police. Although Becker knew defendant from around town and knew he was a contractor, defendant claimed to be an undercover FBI agent from Arizona. Defendant agreed to be transported by police from the school to a hospital for evaluation.
After Becker received Giovenco's call, he phoned police headquarters and asked that cars be dispatched to her home for a "welfare check." Two officers responded in separate police cars, armed with defendant's name, a description of his car and knowledge that his driver's license was suspended. They discovered defendant's Saturn parked two doors away from Giovenco's house. As the officers arrived, the Saturn pulled away from the curb.
Both officers activated their lights and sirens directing the Saturn to pull over, but, it failed to stop, running three red lights and ignoring commands broadcast over the officers' public address system. Defendant's car never exceeded the speed limit before police superiors eventually ordered an end to the "slow-speed" pursuit.
Although the officers were unable to identify the driver, defendant called the police department shortly thereafter. He told the dispatcher that police "were never going to catch him" and otherwise denigrated the department and its efforts.
Police obtained a warrant for defendant's arrest approved by municipal court Judge James F. Weber, and several officers went to defendant's home to serve the warrant. There was no response from anyone inside, so the officers announced their intent to enter and did so through an unlocked basement door. Unable to locate defendant, the officers then went back to the front of the house and forcibly entered through the front door. Eventually, defendant was located in a basement storage room behind a locked door. Defendant initially failed to remove his hands from his pockets when commanded to do so and resisted officers' attempts to handcuff him. He was ultimately subdued and placed under arrest. Police called Judge Weber and obtained a second arrest warrant charging defendant with resisting arrest.
We need not recite at length defendant's testimony before the jury. It suffices to say defendant frequently refused to answer questions posed during direct examination, citing reports he had previously made to the FBI in Newark and the Middlesex County Prosecutor's Office. To the extent he answered questions, defendant claimed Sayreville police, the town's former business administrator, Judge Weber, a local competing contractor, and others were engaged in a broad-based conspiracy against him and his family, motivated in part by internal affairs complaints defendant filed after the September high school incident, and other complaints defendant had made about the contractor and local officials.
Several character witnesses testified on defendant's behalf, as did Dr. Kumud Joshi, a psychologist who treated defendant during his admission to Raritan Bay Medical Center after the September incident at the high school. Dr. Joshi diagnosed defendant as suffering from bipolar affective disorder and described how the condition could affect defendant's perception of events.
II.
Prior to trial, defendant sought to dismiss the indictment for alleged Brady violations and compel discovery including copies of all radio transmissions between police, incoming and outgoing calls from the police station, and phone conversations between members of the police department and Judge Weber that led to the issuance of the arrest warrants. Defendant filed other motions that sought personal cell phone records of various police officers, Giovenco, and the realtor who listed her grandmother's home for sale.
Although the judge issued an order on July 12, 2012, that denied defendant's request for a testimonial hearing, and a November 29, 2012 order denying reconsideration, in fact, over the next year, the judge conducted a N.J.R.E. 104 hearing at which eighteen witnesses testified. During the course of the hearing, defendant also subpoenaed Judge Weber as a witness on multiple occasions.
It suffices to say that the police witnesses described in detail the system used by the department in 2010 that recorded fifteen different phone lines. Because of static in the lines, the system, which was voice-activated, frequently recorded even in the absence of a phone call. As a result, the system consumed the allotted recording space too quickly, thereby taping over prior recordings without preserving them. All recordings between December 5, 2010, and January 19, 2011, were lost.
Police witnesses also described the procedures generally used to secure an arrest warrant from the on-call municipal court judge. The lieutenant who spoke to Judge Weber in this case testified about procuring the warrant on the eluding charge; another officer testified about obtaining the warrant for resisting arrest. The judge issued an undated, written decision denying defendant's motion to dismiss the indictment, compel discovery, compel Judge Weber's appearance, and defendant's request for an adverse inference charge.
Shortly before trial began, the State moved in limine to bar any testimony regarding the issuance of the arrest warrants, prior incidents between defendant and private citizens that did not result in defendant's arrest, and any testimony about defendant's prior appearances in Sayreville municipal court over which Judge Weber had presided. Defendant contended the evidence was relevant to establish the affirmative defense of necessity and justification. See N.J.S.A. 2C:3-2(a). In a written decision, the judge granted the State's motion, concluding the evidence was irrelevant because necessity and justification were unavailable defenses to the eluding offense.
A.
Defendant argues the indictment should have been dismissed because the conversations between the officers requesting the arrest warrants and Judge Weber were "deleted" and not produced in discovery. He also argues the judge erred in denying production of the personal cell phone records of various police officers, Giovenco, and the realtor because the records would have "shown whether special arrangements were made to have defendant arrested and were thus relevant to the defense." Defendant argues the judge erred by denying his attempts to subpoena Judge Weber and produce him as a witness at trial and also erred by denying defendant's request for an adverse inference charge regarding the missing recordings and any notes or reports regarding how police obtained the arrest warrants. None of these arguments support reversal.
"[T]he decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused." State v. Hogan, 144 N.J. 216, 229 (1996) (citations omitted). Moreover, as we recently observed:
[O]ur courts have long held that a dismissal of an indictment is a draconian remedy and should not be exercised except on the clearest and plainest ground. Dismissal is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake. Even in a case in which we found an investigating officer's brazen misconduct to be wholly reprehensible, we reversed the dismissal of seventeen indictments, stating, "we question whether the public must pay the price by forfeiting its day in court on otherwise properly found indictments." Therefore, although a motion to dismiss an indictment is directed to the sound discretion of the court, an indictment should stand unless it is palpably defective.
[State v. Williams, 441 N.J. Super. 266, 271-72 (App. Div. 2015) (citations omitted.]
Brady requires the State to disclose all known evidence that would "tend to exculpate [defendant] or reduce [his] penalty." Brady, supra, 373 U.S. at 87-88, 83 S. Ct. at 1196-97, 10 L. Ed. 2d at 218-19. "There are three elements of a Brady violation. The evidence must be favorable to the accused; it must be suppressed by the prosecution; and it must be material." State v. Nelson, 155 N.J. 487, 497 (1998) (citing Moore v. Illinois, 408 U.S. 786, 794-95, 92 S. Ct. 2562, 2568, 33 L. Ed. 2d 706, 713 (1972)), cert. denied, 525 U.S. 1114, 119 S. Ct. 890, 142 L. Ed. 2d 788 (1999). Evidence is material "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Id. at 535 (citation omitted).
"Exculpatory evidence is treated differently from merely potentially useful evidence. Suppression of requested exculpatory evidence violates due process, regardless of the prosecution's good faith." State v. Robertson, 4 38 N.J. Super. 47, 67 (App. Div. 2014) (citations omitted), certif. granted, 221 N.J. 287 (2015). In a case in which the defendant alleged that the failure to preserve a motor vehicle recording (MVR) was a due process violation under Brady, we stated that
[w]hen the evidence withheld is no longer available, to establish a due process violation a defendant may show that the
evidence had an exculpatory value that was apparent before [it] was destroyed and that the defendant would be unable to obtain comparable evidence by other reasonably available means. Alternatively, if the defendant cannot establish that the now lost evidence had apparent exculpatory value and can show only that the evidence was potentially useful or exculpatory, then the defendant can show a due process violation by establishing that the evidence was destroyed in bad faith.
[State v. Mustaro, 411 N.J. Super. 91, 102-03 (App. Div. 2009) (second alteration in original) (citations and internal quotation marks omitted).]
In this case, both officers who spoke to Judge Weber to obtain the arrest warrants testified at the N.J.R.E. 104 hearing and were subject to extensive questioning. The testimony also revealed that recordings might have been retrievable from the system's hard drive had defendant made an earlier request for discovery. Further, the evidence implicitly rebutted defendant's claim of some broad-based conspiracy because all recordings, even a month after defendant's arrest, had been lost. As a result, the judge never concluded police acted in bad faith, nor did he determine that the recordings, not preserved because of problems with the taping system, contained material information. In short, the judge did not abuse his discretion by denying defendant's motion to dismiss the indictment.
"We accord substantial deference to a trial court's issuance of a discovery order and will not interfere with such an order absent an abuse of discretion." State v. Hernandez, 225 N.J. 451, 461 (2016) (citing State ex rel. A.B., 219 N.J. 542, 554 (2014)). "[D]iscovery in a criminal case 'is appropriate if it will lead to relevant' information. Id. at 462 (emphasis in original) (quoting State v. Ballard, 331 N.J. Super. 529, 538 (App. Div. 2000)). "While discovery in criminal cases is broad, it is not unlimited[,] . . . [and] 'defendants cannot transform the discovery process into an unfocused, haphazard search for evidence.'" Id. at 463 (quoting State v. D.R.H., 127 N.J. 249, 256 (1992)). We agree entirely with the trial judge that defendant's request for the private cell phone records of various police officers, Giovenco and the realtor was nothing but a fishing expedition unlikely to yield any evidence relevant to the charges before the jury.
Defendant served four subpoenas on Judge Weber. Although it is not part of the appellate record, the trial judge's written opinion indicates Judge Weber filed a brief stating he had no specific recollection of the events and no notes regarding the issuance of the warrants. The trial judge concluded that Judge Weber need not be produced because, pursuant to N.J.R.E. 602, a witness may only testify from personal knowledge.
We do not ascribe to this rationale, but nevertheless find defendant's argument unpersuasive for other reasons. See State v. Brown, 205 N.J. 133, 137 (2011). As we understand defendant's contentions, Judge Weber knew him from prior appearances in municipal court over which the judge had presided and was part of a broad conspiracy hatched by police to harass and ultimately arrest defendant without probable cause. There is nothing in the record to support such speculation, nor would Judge Weber's likely testimony advance the claim.
Testimony from police witnesses indicated the decision to seek a warrant was made in advance of any contact with Judge Weber. Police officers who did contact Judge Weber testified at length during the N.J.R.E. 104 hearing. The judge's decision to conduct the hearing in the first instance is discretionary. Estate of Grieco v. Schmidt, 440 N.J. Super. 557, 567 (App. Div. 2015) (citing Kemp v. State, 174 N.J. 412, 432 (2002)). We find no abuse of discretion in the judge's decision to limit the amount of testimony or the witnesses who appeared.
Finally, we reject defendant's argument that the failure to provide an adverse inference jury charge regarding the missing recordings was reversible error. The trial judge concluded the recordings would have been "saliently lacking in relevance." We once again do not necessarily agree with the judge's reasoning.
Defendant's brief includes the refusal to compel cell phone records and Judge Weber's testimony as additional reasons why an adverse inference charge was appropriate. Given our prior discussion, the claim lacks any merit. R. 2:11-3(e)(2). --------
Testimony at the N.J.R.E. 104 hearing revealed that defendant's discovery request was not made until months after the incident and well after the malfunctioning system had unintentionally overwritten prior recordings. We acknowledge that an adverse inference charge may be appropriate when the State loses or destroys evidence before trial. State v. Dabas, 215 N.J. 114, 140 (2013); State v. W.B., 205 N.J. 588, 609-10 (2011). However, unlike the facts in both Dabas and W.B., the evidence in this case was lost through inadvertence and technical malfunction, not the purposeful acts of law enforcement. In addition, any prejudice to defendant was minimal and could not have caused an unjust result. R. 2:10-2. Defendant extensively questioned police about the recording system before the jury, and, in summation, defense counsel hammered home the lack of this evidence as raising a reasonable doubt of defendant's guilt.
B.
Defendant next argues the judge committed reversible error by granting the State's motion in limine to exclude "justification or necessity" as an affirmative defense and to exclude evidence regarding issuance of the arrest warrants, the amount of bail set on the charges, and prior complaints defendant made to the Sayreville Police Department, including allegations of harassment. Again, we disagree.
N.J.S.A. 2C:3-2(a) provides:
Conduct which would otherwise be an offense is justifiable by reason of necessity to the extent permitted by law and as to which neither the code nor other statutory law defining the offense provides exceptions or defenses dealing with the specific situation involved and a legislative purpose to exclude the justification claimed does not otherwise plainly appear.There are, therefore, three limitations to the defense, the first of which is that the conduct is permitted under the law. State v. Tate, 102 N.J. 64, 70 (1986). Additionally, our courts have allowed a defense of necessity to be asserted when the otherwise criminal conduct at issue prevents an even greater evil. See State v. Romano, 355 N.J. Super. 21, 29 (App. Div. 2002). The common law defense of necessity has four elements:
(1) There must be a situation of emergency arising without fault on the part of the actor concerned;
(2) This emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;
(3) This emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and
(4) The injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.
[Ibid. (quoting State v. Tate, 194 N.J. Super. 622, 628 (App. Div.1984), rev'd on other grounds, Tate, supra, 102 N.J. at 75).]
Defendant argued that he fled on the night in question to avoid further harassment or physical assault by the Sayreville police, particularly in light of the September incident at the high school, which defendant contended resulted in his involuntary commitment for psychiatric evaluation. The trial judge concluded that because it was unlawful for defendant to flee the officers under the Court's holding in State v. Crawley, 187 N.J. 440, 459, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006), the defense was unavailable. We agree.
In Crawley, the Court held that the defendant could be convicted of violating the obstruction statute, N.J.S.A. 2C:29-1(a), even if he fled from an unconstitutional investigatory stop. Id. at 460-61. The Court held "when a police officer is acting in good faith and under color of his authority, a person must obey the officer's order to stop and may not take flight without violating N.J.S.A. 2C:29-1." Id. at 451-52. The same rationale applies to the charge of eluding, N.J.S.A. 2C:29-2(b), which expressed terms are violated when the actor "knowingly flees or attempts to elude any police . . . officer after having received any signal . . . to the bring the vehicle . . . to a full stop." Id. at 454 (citation omitted).
Before us, defendant concedes this point but argues instead that instructions on the common law defense should have been provided to the jury. The argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Even though the jury acquitted defendant of second-degree eluding, "creat[ing] a risk of death or injury to any person," N.J.S.A. 2C:29-2(b), defendant's conduct placed the motoring public at risk. The testimony was that although defendant maintained the speed limit, he proceeded against three red lights. Any threat defendant perceived from the Sayreville police officers did not "outmeasure the criminal wrong." Romano, supra, 355 N.J. Super. at 29 (quoting Tate, supra, 194 N.J. Super. at 628).
The defendant's remaining arguments lack sufficient merit to warrant extensive discussion. R. 2:11-3(e)(2). Because the affirmative defense was unavailable, the judge's decision to exclude testimony supposedly supporting the defense was correct because it lacked relevancy. The disclosure during direct examination that a defense witness worked for the Public Defender's Office did not result in reversible error, particularly since the judge issued an appropriate curative instruction. In light of our discussion, defendant's cumulative error argument fails.
Finally, defendant's sentence was not excessive. The judge's determination of aggravating and mitigating factors found support in the record, and the exercise of his wide discretion to impose a probationary term does not shock our judicial conscience in the least. State v. Fuentes, 217 N.J. 57, 70 (2014).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION