Opinion
DOCKET NO. A-0315-12T2
02-26-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MARK LUCIA, Defendant-Appellant.
W. Curtis Dowell, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fuentes, Simonelli and Haas. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 08-07-0173. W. Curtis Dowell, attorney for appellant. John J. Hoffman, Acting Attorney General, attorney for respondent (Jennifer E. Kmieciak, Deputy Attorney General, of counsel and on the brief). The opinion of the court was delivered by FUENTES, P.J.A.D.
On July 21, 2008, an Ocean County Grand Jury returned Indictment No. 08-07-00173, charging defendant Mark Lucia with one count of second degree official misconduct, N.J.S.A. 2C:30-2, three counts of third degree aggravated assault, N.J.S.A. 2C:12-1b(3), and one count of fourth degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4). Following fifteen days of trial, the jury found defendant guilty of three counts of the disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a(2), as a lesser-included offenses of third degree aggravated assault under N.J.S.A. 2C:12-1b(3). The jury acquitted defendant of fourth degree aggravated assault, N.J.S.A. 2C:12-1b(4). Applying the standards established by the Supreme Court in State v. Reyes, 50 N.J. 454, 458-59 (1967), and codified in Rule 3:18-1, the trial court granted defendant's motion for judgment of acquittal and dismissed the charge of second degree official misconduct at the conclusion of the State's case.
The trial court sentenced defendant to three concurrent one-year terms of probation, imposed the mandatory fines and penalties, ordered defendant to pay restitution to the victims, directed defendant to perform fifty hours of community service, and ordered him to obtain gainful employment within forty-five days of the date of sentencing. The court also granted the State's motion seeking the forfeiture of defendant's public office as a parole officer, N.J.S.A. 2C:51-2a(2).
Based on the evidence supporting the jury's verdict, the trial judge found the offenses committed by defendant "involve[d] or touch[ed]" upon his position as a parole officer. The evidence established defendant relinquished possession of his service weapon without taking any reasonable measures to ensure the firearm was kept in a secured location. This ultimately resulted in three men being shot through the mishandling of the unsecured firearm. This criminally negligent act by defendant "related directly" to his authority to possess, carry, and properly safeguard firearms entrusted to him as a parole officer, N.J.S.A. 2C:51-2a. It is thus axiomatic that these convictions rendered defendant "forever disqualified from holding any office or position of honor, trust or profit under this State or any of its administrative or political subdivisions." N.J.S.A. 2C:51-2d.
On appeal, defendant argues he was denied his right to a fair trial by: (1) the trial court's incorrect and incomplete instructions to the jury concerning the legal principles applicable to the lesser included offenses of simple assault; (2) the prosecutor's improper conduct throughout the trial; and (3) the cumulative effects of these errors. Finally, if we were to uphold the jury's verdict, defendant argues the trial court erred in ordering the forfeiture of his public office as a parole officer. We reject these arguments and affirm.
I
On April 15, 2007, defendant was a lieutenant with the New Jersey Division of Parole. In this capacity, he was legally authorized and expected to carry a handgun on his person at all times, including when he was off-duty. On that date, defendant attended a private christening party at a restaurant in Asbury Park. Defendant arrived at the christening at approximately 3:30 p.m. Defendant's brother, William Lucia (Billy), who at the time was a police officer with the Eatontown Police Department, was also present. Party guests were served wine at their tables as well as other alcoholic beverages available at an open bar.
We refer to defendant's brother, William Lucia, as "Billy" because he has the same last name as defendant. Furthermore, Officer Lucia uses the name "Billy" in social conversations. No disrespect is intended.
After the party ended, defendant and his brother remained at the restaurant to continue to socialize. By 9:00 p.m., (approximately five and one-half hours after defendant first arrived) there were seven men left in the restaurant: defendant; his brother, Billy; the restaurant's manager, Cesar Espinosa; two waiters named Leodegario Alvarez and Alejandro Marin-Hernandez; the bartender, Marcos Gonzalez; and the dishwasher, Juan Carlos Gonzalez. Except for the dishwasher and the bartender, all of the men were drinking alcoholic beverages and socializing near the bar.
According to the bartender, defendant and his brother Billy ordered and consumed alcoholic beverages at a faster rate than the other guests did during the party. Defendant drank wine during dinner, and drank shots of Southern Comfort (a brand of bourbon whiskey) and lime and at least six cocktails of Jack Daniels (a brand of whiskey) and Diet Coke thereafter.
Defendant did not testify at trial. However, the State moved into evidence the statement defendant gave to the State Police Trooper charged with investigating the "Police Involved Shooting." The State Police Investigator interviewed defendant on April 26, 2007, eleven days after the incident that gave rise to these charges. Defendant gave the following account of the circumstances that led the shooting:
Q. Okay. Now can you tell me when the first time is that the firearm that you are carrying on your leg, tell me when the first time that came out was and explain the circumstances and where it went.
A. Um, it had been cumbersome and an inconvenience the entire day um, I didn't secure it in my vehicle cause of the high crime area. Being that it was uh you know it was a closed party there was only a few of us there, I was horsing around, [the handgun] was riding up on me, uh or pulling up on my pant leg and sliding down like a nylon sock, it got to the point where it was just more cumbersome and annoying and since
there was no . . . everybody had left um, and I was horsing around, I decided to remove it from my ankle and secure it somewhere.
Q. Okay, tell me what you did then. If you removed it how did you remove it, where did it go?
A. I removed it by uh you know taking it out of the holster and the holster remained on my leg but I took the firearm out of the holster and my brother Billy, William, whose [sic] a police officer was standing closer to the bar to me and I asked him to put that up there.
Q. Okay. Did Billy receive this firearm from you at that time?
A. He did.
Q. And did you observe him place [it] anywhere and if so where?
A. He placed it on the bar um, all the way up I guess I could say to the side.
Q. Okay. Um, and you observed that, correct?
A. Correct.
Q. Okay. Between the time that the firearm came off of your ankle to the time that it ended up on the bar, of course being facilitated through your brother William, uh, was that gun wielded in any fashion, pointed at anybody, pointed at anything during that time?
A. No.
Q. Okay, approximately how long did it take from the time you handed your brother the
gun til [sic] the time that it ended up on the bar? Approximately.
A. Seconds.
Both defendant and his brother Billy corroborated each other's account of the circumstances that led to the gun's discharge. What began as horseplay or roughhousing escalated into a physical confrontation between defendant and the waiter Marin-Hernandez. Billy was also upset with the bartender, who by that time had taken possession of defendant's service weapon. Defendant gave the following description of how the gun discharged:
A. My brother walks up, he's still very upset uh, you know I think by more than anything that he's fighting with a good . . . well you know, somebody he considers a friend, he wants to get out of there, [the restaurant manager] is you know still saying "Billy, don't, you know, don't go" and I'm over here with [the restaurant manager] and my brother walks up and [the bartender] is standing directly on the other side of the bar and my brother says um "Where's the gun?" and there's no response. And again this is happening you know quick, it's not like uh uh uh calm conversation. "Where's the gun?" and there's no response. [Billy] says "Give me that fucking gun." So I still don't hear or see anything being handed off or doing and then last thing, within a couple of seconds later, was uh, "I'm not gonna tell you again, give me that fucking gun" and hit his hand, his fist or hand, I don't know if it was a slap or a punch, on the edge of the bar.
Q. Okay. Okay.
A. And almost simultaneously to that, I just heard a pop, which I knew you know from experience that it was a gun shot.Defendant's service weapon was a Smith & Wesson model 27 .40 caliber semi-automatic Glock.
The testimony of all of the factual witnesses at trial was undisputed on one key point. At some point, the horseplay escalated into a physical altercation, including punching and shoving among the men, with heated words being exchanged. There were minor variations in the versions of the events immediately preceding the discharge of defendant's service weapon. The dishwasher retrieved the gun from the floor and placed it on the bar. The single projectile or round that was discharged from defendant's handgun struck three men: waiters Alejandro Marin-Hernandez and Leodegario Alvarez, and dishwasher Juan Carlos Gonzalez.
The trial judge instructed the jury on aggravated assault with a deadly weapon. The charge included the definition of "recklessness," as well as the following explanation of causation:
Finally, you must also find beyond a reasonable doubt that it was the defendant's conduct that caused the injuries to the three restaurant employees. Here the defendant contends that he did not cause the injuries because he was not in possession of a handgun at the time of the discharge.
Conversely, the state contends the defendant was in possession of the handgun, or, alternatively, had constructive possession of the handgun, and that -- and that regardless of the circumstances under which the gun discharged, the defendant caused the resulting injuries by virtue of his conduct leading up to the gun's discharge, including, but not limited to, his intoxication, and his knowing relinquishment of the handgun, as evidence of his disregard of the risk inherent in the possession of a firearm.
The judge next gave the legal definition of both actual and constructive possession. The judge continued:
Conduct is the cause of a result when it is an antecedent from which the result in question would not have occurred. In other words, the state must prove beyond a reasonable doubt that but for the defendant's conduct, the three restaurant employees would not have sustained bodily injury.
Additionally, when the offense requires that the defendant recklessly caused a particular result -- in this case, bodily injury -- the state must prove beyond a reasonable doubt that the actual result must have been within the risk of which the defendant was aware, or, if not, the actual result must involve the same kind of injury or harm as the probable result and not be too remote, accidental in its occurrence, or dependent on another's volitional act.
The judge's instructions on the lesser-included offense of simple assault with a deadly weapon included a definition of "negligence." However, the judge did not repeat his earlier instruction on causation.
II.
Defendant raises the following specific arguments on appeal:
POINT I
DEFENDANT'S RIGHT TO A FAIR TRIAL WAS VIOLATED BY THE TRIAL COURT'S INCOMPLETE AND ERRONEOUS JURY INSTRUCTIONS AS TO CAUSATION ON THE LESSER-INCLUDED NEGLIGENT ASSAULT CHARGES FOR WHICH DEFENDANT WAS CONVICTED. THUS, THE CONVICTIONS MUST BE OVERTURNED AND THE CASE REMANDED FOR A NEW TRIAL.
POINT II
THE PROSECUTOR'S MISCONDUCT THROUGHOUT THE TRIAL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS.
POINT III
THE CUMULATIVE ERRORS OF THE TRIAL COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR TRIAL AND CONSTITUTE REVERSIBLE ERROR.
POINT IV
EVEN IF DEFENDANT'S CONVICTIONS ARE NOT VACATED, THIS COURT SHOULD VACATE THE FORFEITURE OF PUBLIC OFFICE ORDER GIVEN THE COURT'S ERRONEOUS FINDING THAT THE DEFENDANT'S CONDUCT TOUCHED HIS OFFICE AND THE ABUSE OF DISCRETION BY THE STATE IN FAILING TO SEEK WAIVER OF SUCH FORFEITURE.
We are satisfied that none of defendant's arguments have sufficient merit to warrant extensive discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
We review a trial judge's charge to the jury as a whole. See State v. Torres, 183 N.J. 554, 564 (2005) ("The charge must be read as a whole in determining whether there was any error."); State v. Savage, 172 N.J. 374, 387 (2002) ("A portion of a charge alleged to be erroneous, however, 'cannot be dealt with in isolation . . . [and] should be examined as whole to determine its overall effect.'"). The propriety of a jury instruction is based on "'how and in what sense, under the evidence before them, and the circumstances of the trial, would ordinary . . . jurors understand the instructions as a whole.'" Savage, supra, 172 N.J. at 387.
Here, the trial court specifically explained the element of causation in the aggravated assault charge, which included both the State's and defendant's theories. The judge was not legally required to repeat the causation charge when instructing the jury on the elements of simple assault. When the court's legal instructions are considered as a whole, there is no rational basis to question their effectiveness to fully apprise the ordinary juror of the salient principles of law he or she must apply to the facts derived from the evidence presented at trial. Finally, we note that the trial judge's instructions for the lesser-included offense of simple assault tracked the model jury charge. See Mogull v. Cb Commercial Real Estate Grp., 162 N.J. 449, 466 (2000).
We also do not find any basis to question the manner in which the trial judge responded to the following question posed by the jury during deliberation: "For simple assault, does the defendant have to be the direct cause of the bodily injury with possession of the gun?" After conferring with counsel, the court succinctly answered: "No." Defendant argues the judge should have provided a more expansive answer or viewed this as an opportunity to recharge the jury on the elements of simple assault. We disagree.
Defendant became criminally culpable when he relinquished his service weapon to his brother, who in turn placed it on top of a bar counter in a restaurant. The evidence is overwhelming that at the point defendant relinquished this loaded handgun it became readily accessible to all of the "roughhousing" and probably inebriated men present in this raucous environment. By so doing, defendant set into motion a chain of events that resulted in injury to three of the men present. Whether defendant actually possessed the weapon at the time it discharged is legally inconsequential.
Defendant's claim of prosecutorial excess by the Deputy Attorney General is utterly without merit and does not warrant further comment or discussion. R. 2:11-3(e)(2). Defendant's argument attacking the trial court's order of forfeiture under N.J.S.A. 2C:51-2a(2) and N.J.S.A. 2C:51-2d is equally meritless.
Defendant's convictions for simple assault "related, directly and specifically" to his employment as a parole officer. See State v. Hupka, 203 N.J. 222, 233 (2010). It is undisputed that defendant's convictions stem from the discharge of his off-duty firearm, a weapon he only had by virtue of his employment as a parole officer. See N.J.A.C. 10A:72-5.1. While defendant was lawfully carrying his off-duty weapon, his misguided, utterly irresponsible decision to relinquish possession of it under these circumstances axiomatically warrants the forfeiture of his position as parole officer under N.J.S.A. 2C:51-2. See State v. Williams, 355 N.J. Super. 579, 585-86 (App. Div. 2002).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION